WHY DID AFFIRMATIVE ACTION COME ABOUT?

People of color and women have traditionally not been included in the broader economic opportunities available to white males. America's economic and social institutions, which are largely controlled by white males, require some external guidelines in order to ensure equality for women and minorities. The mechanisms for keeping minorities and women out are often subtle; employers tend to hire people who look like themselves and who come from similar backgrounds. Many jobs and contracts are secured by "who you know, not what you know". Because the United States remains a country of segregated neighborhoods and social groupings, minorities are often left out of these hiring networks. Affirmative action forces employers to widen their employment searches. Highly selective colleges always receive more applications from qualified high school students than they accept. Traditionally, colleges add extra weight to applications from alumni relatives, for geographical distribution, athletic ability, proposed major, etc., to set up their freshman class. Certainly, adding race and/or gender as a positive factor to ensure a diverse student body is no different.

The only way to counteract the pervasive exclusionary impact of such practices on women and minorities is to intentionally bring them into places of employment and education that have excluded them for so long.

The Constitution and the four Constitutional amendments, Thirteenth Amendment - end of slavery, Fourteenth Amendment - equal protection, and Fifteenth and Nineteenth Amendments - voting rights, were adopted to ensure equality and eradicate the continuing effects of past discrimination. The challenge, however, was to make the Constitution and the amendments work.

The Thirteenth Amendment did not bring the fulfillment of the promise of equality. Many of the states responded to abolition by adopting their own laws known as "black codes". These black codes were restrictions on the rights of freedmen to own, purchase, inherit, or convey property, to have access in the courts, and to contract and pursue employment.

The Fourteenth Amendment was ratified in July 1868 and guarantees to all persons without regard to race the equal protection of the laws. A major limitation on its coverage is that it prohibits only intentional discrimination. For example, a government employment test that unintentionally screens out a disproportionate number of minority applicants is not prohibited.

Before the Fifteenth Amendment was adopted, voting was limited to white male property owners over 21 years old. Its adoption in 1870 guaranteed in theory the equal right to vote without regard to race or color. At first African Americans registered and voted in substantial numbers and many were elected to office. Reconstruction laws and the presence of federal troops made this possible, but after the troops left in 1877, voting rights often could not be exercised. Literacy tests and poll taxes were used to prevent many blacks from voting. The Nineteenth Amendment in 1920 gave women the right to vote.

Merit-based policies that are often referred to in defending the practices used in employment and education never really existed. "Merit" mirrors the cultural values of those who define it and is an ever-changing concept. Therefore, America's social and economic institutions, so largely under the control of white males, require external guidelines to recognize and reward the achievements of minorities and women.

Because women were denied the vote until 1920, they were also denied other rights. Many laws and customs prohibited women from jobs ranging from law to bartending. There were separate employment listings for women and men, and women with small children were not considered by some employers. Many of the nation's premier colleges and universities were closed to women until the Education Act Amendments of 1972. Many of the laws and customs have changed, but women still lag behind men economically. In 1993 women were earning only 71.5 cents for every dollar earned by men; 65% of the 62 million working women in the U.S. earn less than $20,000, and 38% earn less than $10,000 annually. In banking, 37.6% of managerial and administrative jobs are held by white women; only 2.6% of these jobs are held by black women and 5% by Hispanic women.

When we think of equal rights of all human beings we cannot justify the dominance of the "white race" over all others in prestige, achievements, education, wealth and power. This has led to the need for an outside force to integrate and liberate women and minorities.

AFFIRMATIVE ACTION CHRONOLOGY

. 1961. President Kennedy ordered federal contractors to take "affirmative action" (first use of the term) to ensure that workers are hired without regard to race or ethnicity.

. Congress passed the Civil Rights Act of 1964. It banned discrimination in public accommodations, public education, federal programs and employment based on a person's race, color, religion, sex or national origin. Because of concerns before the Act's passage, a section was added outlawing quotas of any kind.

. In 1965 President Johnson issued Executive Order (E.O.) #11246 creating the Office of Federal Contract Compliance Programs (OFCCP). The office issued guidelines to companies receiving federal funds and required them to establish their own minority hiring goals.

. In 1967 President Johnson's E.O. #11375 prohibited discrimination by sex in government contracts.

. 1969. President Nixon targeted Philadelphia construction contractors which had long records of discrimination, and required them to make "good faith" efforts to hire more minorities or face penalties. The following year the Labor Department extended the "Philadelphia Plan" to government contractors nationwide.

. In 1970 President Nixon issued a new set of affirmative action plans, Order No. 4, that included all government contractors with 50 or more employees and at least $50,000 in government business. Order No. 4 redefined the concept of "under-utilization"; it meant "having fewer minorities in a particular job class than would reasonably be expected by their availability."

. 1977. The Public Works Employment Act of 1977 requires that a state or local government must set aside 10% of the federal money it receives to obtain services or supplies from businesses owned by minorities or women. The act was challenged in the Supreme Court, Fullilove v. Klutznick, and ruled constitutional in 1980. Justice Burger stated that, "A sharing of the burden by otherwise innocent parties is permissible," i.e., the white business community might lose money because of this act, but that was fair since it was making up for so many years of past discrimination.

. 1978 Supreme Court decision: University of California v. Bakke. The university had set aside 16 out of 100 openings in the medical school freshman class for minority or disadvantaged students in order to diversify the student body. Their hope was to produce more black doctors who would be more likely to serve disadvantaged communities. Alan Bakke was white with higher scores than the average of those 16 minority students admitted. Bakke sued, and the Supreme Court held that the fixed quota violates Title VII of the Civil Rights Act, so Bakke was admitted. The court held, however, that race could be a legitimate factor in college and professional school admission policies.

. In 1978 President Carter introduced the Uniform Guidelines on Employee Selection Procedures. These guidelines held that any employer practice that had an adverse impact on any race, sex or ethnic group was illegal unless justified by business necessity. It also stated that employers could be "justifiably race, sex, or ethnic conscious" in undoing past practices that caused adverse impact.

. 1979. United Steelworkers v. Weber. The union had negotiated an agreement with Kaiser Aluminum of Louisiana to increase the number of minorities in higher-paying positions. Kaiser had two separate seniority lists, one black and one white. The same number of candidates for on-the-job training were to be selected from each list until the percentage of minority workers in skilled jobs equaled the proportion of minorities living in the area. A white man, Brian Weber, applied for a higher salary position and sued, when turned down, claiming black employees with less seniority than he had been chosen. The Supreme Court said the man's rights had not been violated since the union representing all workers had voluntarily negotiated this solution in order to make up for past discrimination. No white worker had been fired and replaced by a black, and white workers could still be promoted when openings occurred. LWVUS filed an amicus brief.

. During President Reagan's first two years in office, 1981-82, budgets in the EEOC and the OFCCP were cut almost 50%, effectively crippling affirmative action.

. 1984. In Firefighters v. Stotts, seniority rights of (white) firefighters were upheld when workers had to be laid off due to budget cuts, rather than the rights of those (black) firefighters who were hired later under an affirmative action plan. The court said, "It is inappropriate to deny any innocent employee the benefits of his seniority in order to prescribe a remedy in a pattern or practice of discrimination."

. People confuse affirmative action goals with " consent decrees," which are court-mandated quotas imposed by judges on specific institutions after years of proven failure to end discrimination. For example, in Local Sheet Metal Workers v. Equal Employment Opportunities Commission (EEOC), in 1986, quotas were ordered because the union had a persistent record of refusing to admit blacks to membership. The union was held in contempt twice, and finally the Supreme Court ordered it to institute a numerical quota of minority workers according to a timetable.

. In 1988 President Reagan vetoed the Civil Rights Restoration Act. This act was to restore four antidiscrimination laws which had been narrowed by a Supreme Court decision in 1984. Later Congress overrode the veto and passed the Civil Rights Restoration Act.

. In 1990 President Bush vetoed a civil rights bill that was passed by Congress which sought to undo the Supreme Court's 1989 rulings. Those rulings seriously weakened federal employment discrimination laws. The bill would allow minorities and women who were victims of employment discrimination to collect damages as well as back pay. A compromise bill was introduced in 1991 and the President reluctantly signed it.

. 1995 Adarand v. Pena was the case which dealt a serious setback to affirmative action, because the Supreme Court ruled that federal programs using racial classifications which result in unequal treatment must meet the "strict scrutiny" standard of judicial review rather than the previously used "intermediate scrutiny." The two standards of strict scrutiny are that governmental interest underlying an affirmative action measure must be compelling and the measure must be narrowly tailored to serve that interest. The case involved a challenge to minority set-asides in a federal contract. Justice O'Connor's majority opinion upholding this particular set-aside declared that the federal government may have a compelling interest to act on the basis of race to overcome the "persistence of both the practice and lingering effects of racial discrimination against minority groups in this country." Experts say that affirmative action programs correcting specific past discrimination would meet that standard.

THE LOCAL SCENE

A 1953 report on discrimination by the Mayor's Friendly Relations Committee (MFRC) found that African Americans were employed at about 25% less than their proportion in the population and where they were employed, African Americans had the least desirable jobs. Racial discrimination was not subtle in 1952; 76% of the job orders from the Cincinnati office of the Ohio State Employment Service specified "white only". In lower level jobs, discrimination was found to be much less frequent, and sometimes took the reverse direction of excluding whites. Concentrations of African Americans in low skill, low pay, undesirable jobs resulted partly from discrimination and partly from lack of qualifications. Certain channels of training were definitely closed to African Americans and certain other areas were simply avoided by them due to the strong belief that jobs would be denied to them even after requisite training.

The MFRC report further concluded that continued job discrimination would create social problems including social unrest and racial tensions as well as reduce public revenues and placing financial burdens upon the public.

The MFRC recommended that City Council establish a Fair Opportunity Commission and declare that discrimination in employment based on race, color, creed or national origin was detrimental to the public good. But discrimination continued to flourish in Cincinnati.

In 1965 the Cincinnati Chapter of the Congress of Racial Equality (CORE) in conjunction with the NAACP confronted the City of Cincinnati about the low number of black police officers, (41 of 600 [6.8%]). By 1990, the police department employed 169 African Americans in professional, technician and protective service capacities, but still needed 120 black employees to meet affirmative action goals (36.5%). The police department still needed to hire 358 women to meet 1990 affirmative action goals.

In early 1995 City Manager John Shirey appointed a 5-member panel to investigate racism within the police department. The panel, headed by former Governor John Gilligan, recommended that the Police Department meet its consent decree goals as well as work against racism within the police department and increase its recruiting and training opportunities. In early 1997 The Cincinnati Enquirer reported that the Sentinel Police Association attorney contacted City Council to complain that action on the recommendations was too slow; only two of 24 recommendations had been carried out.

In 1966 the city started construction of Riverfront Stadium. The Cincinnati Herald questioned why the city "found it so difficult to tell city contractors that they may not discriminate."

Thirty years later voters approved a 1/2% sales tax increase to build two new stadiums. Part of the package put before the voters included more jobs and contracts for minorities. As of now, the county is promising that 15% of all contracts will go to women- and minority-owned businesses and that 60% of all contracts will go to local firms.

According to articles in the Cincinnati newspapers of Jan. 13, 1997, Governor George Voinovich wants to change Ohio's program of set-aside contracts for minority businesses. The program sets aside 15 % of state goods and service purchases, 5% of construction contracts and 7% of subcontracts for minority-owned businesses. Fearing that the program may be declared unconstitutional, he wants the eligibility to be based on economic and social disadvantage rather than race. State Senator Jeff Johnson, leader of the Ohio Legislative Black Caucus stated, "He cannot change the laws based on his belief of what's going to happen in the future."

In 1985 the NAACP filed civil rights violations against 200 Cincinnati businesses. The charges included failure to post mandatory employment notices, illegal application questions and use of word-of-mouth hiring policies that effectively restrict minority recruitment.

It has recently been reported that during the late 1980s Provident Bank was engaged in discriminatory hiring practices. Provident was found to have discriminated against about 1200 applicants based on race and ethnicity. The bank must now hire 200 of the people from this pool as well as pay them a total of $1,000,000 in back pay. For those who no longer need or want a job there, a fund is set up for educational grants for themselves and their families. Many found it ironic that a company that had been applauded for its lending policy to minorities was also accused of discrimination in hiring, but many companies are willing to sell their products or services to African Americans, other minorities and women without feeling any responsibility to hire from the same populations.

DOES AFFIRMATIVE ACTION WORK? IS IT FAIR?

In 1995 President Clinton appointed a task force to review federal affirmative action programs. The following is a summary of that report.

In brief, the task force's conclusions were that the programs have worked to advance equal opportunity by helping redress the problems of discrimination and to foster the inclusion needed to strengthen critical institutions, professions and the economy. Evidence shows that on the whole the programs are fair and do not unduly burden non-beneficiaries. Some reforms would make the programs work better and guarantee their fairness. Affirmative action is used to remedy past discrimination, to prevent it in the future, and to promote inclusion. Reverse discrimination is wrong; two wrongs don't make a right. Affirmative action, when done right, is not reverse discrimination.

In support of inclusion, virtually all educators acknowledge that a college is a better academic enterprise if the student body and faculty are diverse. And a police department will be more effective in protecting and serving the community if the officers are reflective of that community.

It is difficult to separate the contribution of affirmative action from that of antidiscrimination enforcement, decreasing prejudice, rising incomes and other forces. But it is one tool among many that creates opportunity.

. Before the Civil Rights Act of 1964, the median black male worker earned only about 60% as much as his white counterpart; by 1993 this had risen to 74%. Median male-female wage gap has also narrowed since the 1960s. The median female earnings relative to median male earnings rose from about 60% in the 1960s to 72% in 1993.

. Women now earn about half of all bachelor and master degrees, but only one third of doctorate and first professional degrees, and they lag in math and science.

. Because of student aid programs and aggressive recruitment and retention programs the college-going rate for black and white high school graduates was about equal by 1977. But since then blacks have not kept pace. High school graduation rates for blacks are up, but college attendance is down.

. There is no improvement in the employment-population rate of black workers relative to whites since the 1960s. If anything, it has declined.

. Contractor firms that had an OFCCP review in the 1970s had faster rates of employment growth for white women and blacks than firms which had no review.

. OFCCP enforcement was greatly scaled back in the 1980s as budget and staff for affirmative action programs were cut.

THE NEED TO CONTINUE AFFIRMATIVE ACTION

. Black unemployment is still more than twice that of white unemployment. In economic downturns blacks lose jobs first.

. White males continue to hold 97% of senior management positions in Fortune 1000 and Fortune 500 industries; 0.6% are African American. Women hold 3-5% of senior level management positions.

. The goal of 6.9% of construction jobs being held by women was set in 1978 and has not been reviewed. Perhaps it should be adjusted.

. The OFCCP survey of its Regional Directors found there were very few complaints of reverse discrimination or the use of quotas by contractors although there were a few contractors who felt that goals were compelling them to "hire by the numbers."

RECOMMENDATIONS OF THE PRESIDENT'S TASK FORCE

. The Secretary of Labor should underscore current law and policy on non-discrimination. The enforcement focus should be on "good faith efforts" and the illegality of quotas except where imposed by the courts.

. The Department of Labor should reward successful companies by targeting enforcement on problem firms, not successful ones.

. Paperwork required by companies should be reduced by 30% The OFCCP is revising and simplifying the guidelines for labor market analysis, making the compliance review process easier, and reducing the number of forms needed.

. The Secretary of Labor should explore means of collaborating with private sector leaders in more vigorous private sector-led efforts to provide equal employment opportunities.

AFFIRMATIVE ACTION: MYTHS AND REALITIES

Affirmative action is defined as any measure, beyond simple termination of discriminatory practice, adopted to correct or compensate for past or present discrimination, or to prevent discrimination from recurring in the future. Many people harbor misconceptions about what affirmative action is and isn't.

Affirmative action uses goals and timetables. These are flexible targets set by employers for hiring qualified minorities and women, along with time frames for achieving the targets. Affirmative action gives minorities and women equal opportunities to participate in jobs and education that have been, or are, closed to them. To be permissible, affirmative action must involve only qualified individuals.

Affirmative action does not make it legal to discriminate against anyone. The victimization of white males has been greatly exaggerated. In 1994, more than 90,000 discrimination cases were filed with the EEOC, but fewer than 3% of these were filed by white men; a similar study in 1990 showed 3000 cases filed, 100 by white males, and 75 of those were thrown out.

Affirmative Action study group: Eleanor Bonner, Dorothy Burke, Suzanne Joiner, Gretchen Langdon, Sylvia Mersfelder, Chris Moran, and Alice Tribble

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