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Affirmative Action

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in Discrimination and Harassment,Employment Law,Human Resources

Few phrases elicit such a strong reaction as “affirmative action,” the effort by employers, schools and governments to remedy the effects of past discrimination.

Affirmative action programs are usually designed to give a short-term preference to members of a historically disadvantaged group. In theory, these efforts are intended to level the playing field and help overcome the results of past discrimination.

The first serious challenge to affirmative action programs came in 1977, when a white male applicant to a medical school sued after being rejected for admission while a black applicant with lower grades and test scores was admitted. This was the first of many “reverse discrimination” lawsuits in which employees, students and others have sued because they contend they’ve been passed over in favor of a member of a protected class. The white plaintiff won his case in the U.S. Supreme Court, which concluded that an affirmative action program that sets aside a quota of positions for members of a protected class is illegal.

Since then, employers and educational institutions have modified affirmative action programs to avoid “quotas” in favor of less obvious measures to integrate their workplaces and classrooms.

In 2003, the United States decided two more “reverse discrimination” in education lawsuits, filed by rejected white applicants against the University of Michigan undergraduate school and its law school. The undergraduate school had a rating system that gave points to minority applicants for their ethnicity; applicants with a given number of points obtained admission. The law school’s system balanced a student’s qualifications against the need to have a “critical mass” of minority students that would help minorities feel comfortable in the school.

The Supreme Court ruled that awarding points was a quota in disguise and threw out that approach. However, the court approved the law school’s system: using grades, test scores, quality of the undergraduate institution as well as race and an essay explaining how the applicant’s presence would benefit the law school.

The decisions indicate that employers that use affirmative action programs to attempt to create a diverse work force must narrowly tailor those efforts and avoid the use of quotas and the like.

Tip: Always consult with an experienced employment lawyer before putting any affirmative action program in place, regardless of what group the program is meant to benefit.

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