Affirmative Action and Diversity - Myths and Facts
Add bookmark
Affirmative action. It’s neither a riveting nor interesting topic. It’s technical and its fine points and requirements are incorporated into regulations. Recently, however, everyone has had a great deal to say about it, whether they understand it or not or whether they grasp the technicalities and regulations behind it. What occurred to create all the buzz?
Supreme Court Decision
On June 29, 2023, a Supreme Court decision [Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. __ (2023)] held that both Harvard and the University of North Carolina's admission programs are unconstitutional because the programs consider an applicant’s race as a factor.
READ: See Cornelia Gamlem's Comments in How Does the End of Affirmative Action Impact Workplaces?
The case focused on college admissions programs and solely race. Workplace practices differ from college admissions. Race is merely one dimension of diversity. Yet, almost immediately, there was a flurry of articles questioning and debating the impact this decision would have on organizations’ diversity, equity, and inclusion practices (“a chilling effect”) and affirmative action issues.
Then, political pundits and the politians themselves began grandstanding. “The campaign against affirmative action shifts to corporate America” read a Washington Post headline. The article cites a letter written by 13 Republican state attorneys general who accuse large companies of setting “racially discriminatory quotas and preferences.” Democratic attorneys general countered in their own letter, and rightfully so, that the corporate diversity efforts cited by Republicans set recruiting goals—permissible under current law—rather than quotas.
Affirmative Action: The Plain and Boring Facts
Organizations that do business with the federal government—contractors and subcontractors—and that meet certain thresholds, may not, under Executive Order 11246, discriminate on the basis of race, color, sex, sexual orientation, gender identity, or national origin and are required to implement affirmative action programs in accordance with the governing regulations to increase the representation and participation in the workforce of women and minorities.
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability status and requires affirmative action to employ and advance in employment qualified individuals with disabilities. The Vietnam Era Veterans’ Readjustment Assistance Act, as amended, requires affirmative action for certain categories of protected veterans.
Note that lost in the current debate over affirmative action are women, individuals with disabilities, and protected veterans.
Regulations, Goals, and Quotas
Each of these laws has implementing regulations written by the Office of Federal Contract Compliance Programs (OFCCP), which is responsible for their enforcement.
Since much of the talk is focused on “racially discriminatory quotas,” let’s limit the discussion to the regulations for Executive Order 11246 and affirmative action for women and minorities and what those regulations say about hiring. Section 60-2.16 of the regulations define and provide guidance for setting Placement Goals. Simply, if the workforce representation of women or minorities in certain categories of jobs is less than reasonably expected given the availability percentage of individuals with those skills [as found in the U.S. census], a placement goal equaling the availability percentage must be set.
Placement goals are objectives or targets attainable by applying good faith efforts (affirmative action), such as broadening recruiting efforts to reach a diverse pool of applicants. For example, reaching out to the Society of Black Engineers or the Society of Women Engineers to recruit candidates with those skills.
The OFCCP is clear that placement goals “may not be rigid and inflexible quotas” and that “quotas are strictly forbidden.” It’s important to note that the goals are expressed as a percentage placement rate rather than numerical. Quotas tend to be numerical.
How do Placement Goals Work?
They serve as benchmarks through which organizations strive to hire (place) at the rate that qualified individuals (women and minorities) are available. Theoretically if they succeed, then over time workforce representation of women and minorities should equal availability.
For example, an organization has the opportunity during a year to hire 10 engineers. Its placement goal for women is 10%; for minorities it’s 20%. If they meet those goals, they would hire (place) one woman and two minorities that year.
Practically, placement goals are not intended to end underrepresentation in the short term.
Several factors must be considered: 1) neither workforce representation nor availability are static—they change; 2) there must be job openings to fill (placement opportunities); and 3) there must be an available pool of qualified minorities and women with the needed skills.
Consider the lack of diversity that has persisted for years in the Justice Department’s solicitor general’s office, as reported in the Washington Post on July 24, 2023. It says that “…the years-long absence of Black and Hispanic lawyers from the office demonstrates the glacial pace of change even in an office whose leader says she is committed to diversity…”
Why the glacial pace of change? Despite steps the Solicitor General has taken since being confirmed in 2021 to diversify her staff, there have only been five openings that have needed to be filled. Low turnover among lawyers in the office resulted in a limited number of opportunities to diversify the staff. Change doesn’t happen overnight, despite the best intentions.
As the regulations explain, “Placement goals also are used to measure progress toward achieving equal employment opportunity.”
WATCH: Creating Inclusive Cultures for Employees and Companies to Thrive
Goals and Preferential Treatment
Affirmative action is often mistaken—whether willfully or misguidedly—for preferential hiring or treatment. Once again, the regulations are clear: “Placement goals do not provide … a justification to extend a preference to any individual, select an individual, or adversely affect an individual's employment status, on the basis of that person's [protected characteristic].”
What about diversity? We’ve been talking hiring and workforce representation in affirmative action. Government contractors also have to make equal opportunities available throughout the employment relationship and cannot discriminate in making any employment decisions.
Enter diversity. Individual diversity is much broader than race, which is where the recent debates center. It is multi-dimensional, encompassing all the characteristics that distinguish us as individuals.
Diversity initiatives are rooted in organizations’ realization and response to changes in demographics and the marketplace, and the need to recruit and retain top talent to remain competitive amid these changes. That meant all employees must make quality contributions, which require recognizing and managing their many individual dimensions of diversity.
Moving beyond representation and dimensions of diversity, organizations want to establish equity by eliminating barriers and guaranteeing fair treatment, access, opportunity, and advancement for all their employees. Finally, they want inclusive cultures that make everyone count and treat people with dignity and respect.
WATCH: Candid Conversations - Exploring Histories, Sharing Experiences, and Building Empathy
Savvy organizations understand that diversity initiatives are long-term and on-going change efforts linked to business objectives, which can strengthen culture and invite empowerment, participation, and contribution. They are multifaceted and include many elements—outreach and community involvement, supplier diversity, educational strategies, and measurements—that go far beyond merely increasing racial participation of the workforce. That’s why organizations make the business case for them before implementation and execution.
Diversity initiatives are not new. They have existed for decades. What is new about diversity initiatives is the spotlight shown on them since 2020 in the aftermath of George Floyd’s murder when organizations, especially major corporations, publicly renewed their commitment to diversity, equity, and inclusion (DEI).
The author of this article, Cornelia Gamlem, along with her coauthor, Barbara Mitchell, are regular contributors to the HR Exchange Network. Much of Gamlem’s HR career has been centered on affirmative action, equal employment opportunity, and workplace diversity, both working for a Fortune 500 company and later as a management consultant. Learn more on their website bigbookofhr.com.
Empowering the HR community
Join HR Exchange Network today and interact with a vibrant network of professionals, keeping up to date with the industry by accessing our wealth of articles, videos, live conferences and more.
Join NowPhoto by Sora Shimazaki for Pexels
