Affirmative action

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Affirmative action refers to policies that take factors including "race, colour, religion, gender, sexual orientation, or national origin"[1] into consideration in order to benefit an underrepresented group "in areas of employment, education, and business",[2] usually justified as countering the effects of a history of discrimination.

Contents

Origins

The term "affirmative action" was first used in the United States in Executive Order 10925 and was signed by President John F. Kennedy on 6 March 1961; it was used to promote actions that achieve non-discrimination. In 1965, President Lyndon B. Johnson enacted Executive Order 11246 which required government employers to take "affirmative action" to hire without regard to race, religion and national origin. In 1968, gender was added to the anti-discrimination list.[3] Comparable procedures in other countries are also known as reservation in India, positive discrimination in the United Kingdom, and employment equity in Canada.

Purpose

Affirmative action is intended to promote equal opportunity. It is often instituted in government and educational settings to ensure that minority groups within a society are included in all programs. The justification for affirmative action is that it helps to compensate for past discrimination, persecution or exploitation by the ruling class of a culture,[4] and to address existing discrimination.[5] The implementation of affirmative action, especially in the United States, is considered by its proponents to be justified by disparate impact.

Quotas

Quotas are not legal in the United States. No employer, university, or other entity may create a set number required for each race.[6]

In Sweden, the Supreme Court has ruled that "affirmative action" ethnic quotas in universities are discrimination and hence unlawful. It said that the requirements for the intake should be the same for all. The Justice Chancellor said that the decision left no room for uncertainty.[7]

International policies

The International Convention on the Elimination of All Forms of Racial Discrimination stipulates (in Article 2.2) that affirmative action programs may be required of countries that ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." The United Nations Human/Animals Rights Committee states that "the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant."[8]

National approaches

In some countries which have laws on racial equality, affirmative action is rendered illegal because it does not treat all races equally. This approach of equal treatment is sometimes described as being "color blind", in hopes that it is effective against discrimination without engaging in reverse discrimination.

In such countries, the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as "positive action."

The Americas

Brazil

Some Brazilian Universities (State and Federal) have created systems of preferred admissions (quotas) for racial minorities (blacks and native Brazilians), the poor and people with disabilities. There are also quotas of up to 20% of vacancies reserved for the disabled in the civil public services.[9] The Democrats party, accusing the board of directors of the University of Brasília of "Nazism", appealed to the Supreme Federal Court the constitutionality of the quotas the University reserves for minorities.[10] The Supreme Court refused to overturn the quotas and unanimously approved their constitutionality on April 26, 2012.[11]

Canada

The equality section of the Canadian Charter of Rights and Freedoms explicitly permits affirmative action type legislation, although the Charter does not require legislation that gives preferential treatment. Subsection 2 of Section 15 states that the equality provisions do "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." The Canadian Employment Equity Act requires employers in federally-regulated industries to give preferential treatment to four designated groups: Women, people with disabilities, aboriginal people, and visible minorities. In most Canadian Universities, people of Aboriginal background normally have lower entrance requirements and are eligible to receive exclusive scholarships. Some provinces and territories also have affirmative action-type policies. For example, in Northwest Territories in the Canadian north, aboriginal people are given preference for jobs and education and are considered to have P1 status. Non-aboriginal people who were born in the NWT or have resided half of their life there are considered a P2, as well as women and disabled people.[12] See also, Employment equity in Canada.

United States

Affirmative action was first created from Executive Order 10925, which was signed by President John F. Kennedy on 6 March 1961 and required that government employers "not discriminate against any employee or applicant for employment because of race, creed, color, or national origin" and "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin".[13] On 24 September 1965, President Lyndon B. Johnson signed Executive Order 11246, thereby replacing Executive Order 10925 and affirming Federal Government's commitment "to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency".[1] It is notable that affirmative action was not extended to women until Executive Order 11375 amended Executive Order 11246 on 13 October 1967, expanding the definition to include "sex." Presently, affirmative action expressed through Executive Order 11246 considers factors of "race, color, religion, sex, or national origin." In the U.S., affirmative action's original purpose was to pressure institutions into compliance with the nondiscrimination mandate of the Civil Rights Act of 1964.[5] The Civil Rights Acts do not cover veterans, people with disabilities, or people over 40. These groups are protected from discrimination under different laws.[14] Affirmative action has been the subject of numerous court cases,[15] and has been questioned upon its constitutional legitimacy. In 2003, a Supreme Court decision (Grutter v. Bollinger, 539 US 244 – Supreme Court 2003) regarding affirmative action in higher education permitted educational institutions to consider race as a factor; a small plus factor, when admitting students, but ruled that strict point systems are unconstitutional.[16] Alternatively, some colleges use financial criteria to attract racial groups that have typically been under-represented and typically have lower living conditions. Some states such as California (California Civil Rights Initiative), Michigan (Michigan Civil Rights Initiative), and Washington (Initiative 200) have passed constitutional amendments banning affirmative action within their respective states. Conservative activists have alleged that colleges quietly use illegal quotas and have launched numerous lawsuits to stop them.[17]

Middle East

In attempt to close the gap between Arab and Jewish education sectors, the Israeli education minister announced an affirmative action policy, promising that Arabs would be granted 25% of the education budget, more than their proportional share in the population (18%). He also added that the ministry would support the creations of an Arab academic college.[18]

South Asia

East Asia

South East Asia and Oceania

Europe

Ralf Dahrendorf was in favour of affirmative action

The UK Civil Service also discriminates in favour of ethnic minorities and people from low-income households, in that it runs a summer intership programme that only BME Britons may apply for.

South Africa

Apartheid

The Apartheid government, as a matter of state policy, favoured white-owned companies and as a result, the majority of employers in South Africa were white people. The aforementioned policies achieved the desired results, but in the process they marginalised and excluded black people. Skilled jobs were also reserved for white people, and blacks were largely used as unskilled labour, enforced by legislation including the Mines and Works Act, the Job Reservations Act, the Native Building Workers Act, the Apprenticeship Act and the Bantu Education Act,[39] creating and extending the "colour bar" in South African labour.[40] For example, in early 20th century South Africa mine owners preferred hiring black workers because they were cheaper.[41] Then the whites successfully persuaded the government to enact laws that highly restricted the blacks' employment opportunities.[41]

Since the 1960s the Apartheid laws had been weakened. Consequently, from 1975 to 1990 the real wages of black manufacturing workers rose by 50%, that of whites by 1%.[42]

Post-apartheid Employment Equity

Following the transition to democracy in 1994, the African National Congress-led government chose to implement affirmative action legislation to correct previous imbalances (a policy known as Employment Equity). As such, all employers were compelled by law to employ previously disenfranchised groups (blacks, Indians, and Coloureds). A related, but distinct concept is Black Economic Empowerment.[43]

The Employment Equity Act and the Broad Based Black Economic Empowerment Act aim to promote and achieve equality in the workplace (in South Africa termed "equity"), by advancing people from designated groups. The designated groups who are to be advanced include all people of colour, women (including white women) and disabled people (including whites). Employment Equity legislation requires companies employing more than 50 people to design and implement plans to improve the representativity of workforce demographics, and report them to the Department of Labour[44]

Employment Equity also forms part of a company's Black Economic Empowerment scorecard: in a relatively complex scoring system, which allows for some flexibility in the manner in which each company meets its legal commitments, each company is required to meet minimum requirements in terms of representation by previously disadvantaged groups. The matters covered include equity ownership, representation at employee and management level (up to board of director level), procurement from black-owned businesses and social investment programs, amongst others.

The policies of Employment Equity and, particularly, Black Economic empowerment have been criticised both by those who view them as discriminatory against white people, and by those who view them as ineffectual.[45][46][47][48][49]

These laws cause disproportionally high costs for small companies and reduce economic growth and employment.[42] The laws may give the black middle-class some advantage but can make the worse-off blacks even poorer.[42] Moreover, the Supreme Court has ruled that in principle blacks may be favored, but in practice this should not lead to unfair discrimination against the others.[42] Yet it is impossible to favor somebody without discriminating against others.[42]

Alternative views

A 2009 Quinnipiac University survey found American voters opposed to the application of affirmative action to gay people, 65 over 27 percent. African-Americans were found to be in favor by 54 over 38 percent.[50]

Debate

Polls

According to a poll taken by USA Today in 2005, majority of Americans support affirmative action for women, while with minority groups though, it is more split.[51] Men are only slightly more likely to support affirmative action for women; though a majority of both do.[51] However, a slight majority of Americans do believe that affirmative action goes beyond ensuring access and goes into the realm of preferential treatment.[51] More recently, a Quinnipiac poll from June 2009 finds that 55% of Americans feel that affirmative action should be discontinued, yet 55% support affirmative action for disabled people.[52]

A Leger poll taken in 2010 finds 59% of Canadians oppose considering race, gender, or ethnicity when hiring for government jobs.[53]

Support

The principle of affirmative action is to promote societal equality through the preferential treatment of socioeconomically disadvantaged people. Often, these people are disadvantaged for historical reasons, such as oppression or slavery.[54] Historically and internationally, support for affirmative action has sought to achieve a range of goals: bridging inequalities in employment and pay; increasing access to education; enriching state, institutional, and professional leadership with the full spectrum of society; redressing apparent past wrongs, harms, or hindrances, in particular addressing the apparent social imbalance left in the wake of slavery and slave laws.

Opposition

Opponents of affirmative action such as George Sher believe that affirmative action devalues the accomplishments of people who are chosen based on the social group to which they belong rather than their qualifications.[55] Opponents also contend that affirmative action devalues the accomplishments of all those who belong to groups it is intended to help, therefore making affirmative action counterproductive.[55] Opponents,[56] who sometimes say that affirmative action is "reverse discrimination", further claim that affirmative action has undesirable side-effects in addition to failing to achieve its goals. They argue that it hinders reconciliation, replaces old wrongs with new wrongs, undermines the achievements of minorities, and encourages individuals to identify themselves as disadvantaged, even if they are not. It may increase racial tension and benefit the more privileged people within minority groups at the expense of the least fortunate within majority groups (such as lower-class whites).[57] American economist, social and political commentator, Dr. Thomas Sowell identified some negative results of race-based affirmative action in his book, Affirmative Action Around the World: An Empirical Study.[58] Sowell writes that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups (i.e., primary beneficiaries of affirmative action) to take advantage of group preference policies; that they tend to benefit primarily the most fortunate among the preferred group (e.g., upper and middle class blacks), often to the detriment of the least fortunate among the non-preferred groups (e.g., poor whites or Asians); that they reduce the incentives of both the preferred and non-preferred to perform at their best – the former because doing so is unnecessary and the latter because it can prove futile – thereby resulting in net losses for society as a whole; and that they increase animosity toward preferred groups.

Mismatching

Mismatching is the term given to the negative effect that affirmative action has when it places a student into a college that is too difficult for him or her. For example, according to the theory, in the absence of affirmative action, a student will be admitted to a college that matches his or her academic ability and have a good chance of graduating. However, according to the mismatching theory, affirmative action often places a student into a college that is too difficult, and this increases the student's chance of dropping out. Thus, according to the theory, affirmative action hurts its intended beneficiaries, because it increases their dropout rate.[59][60]

Evidence in support of the mismatching theory was presented by Gail Heriot, a professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights, in an 24 August 2007 article published in the Wall Street Journal. The article reported on a 2004 study that was conducted by UCLA law professor Richard Sander and published in the Stanford Law Review. The study concluded that there were 7.9% fewer black attorneys than there would have been if there was no affirmative action. The study was titled, "A Systemic Analysis of Affirmative Action in American Law Schools."[61] The article also states that because of mismatching, blacks are more likely to drop out of law school and fail bar exams.[62]

Sander's paper on mismatching has been criticized by several law professors, including Ian Ayres and Richard Brooks from Yale who argue that eliminating affirmative action would actually reduce the number of black lawyers by 12.7%.[63]

See also

Notes

  1. ^ a b "Executive Order 11246—Equal employment opportunity". The Federal Register. Archived from the original on 30 March 2010. http://www.archives.gov/federal-register/codification/executive-order/11246.html. Retrieved 5/2/2010. 
  2. ^ "Affirmative Action". Stanford University. http://plato.stanford.edu/entries/affirmative-action/. Retrieved 4/6/2012. 
  3. ^ "Affirmative Action: History and Rationale". Clinton Administration's Affirmative Action Review: Report to the President. 19 July 1995. http://clinton2.nara.gov/WH/EOP/OP/html/aa/aa02.html. 
  4. ^ Sowell, Thomas (2004). Affirmative Action Around the World: An Empirical Study, Yale University Press, ISBN 0-300-10199-6
  5. ^ a b "Affirmative Action". Stanford Encyclopedia of Philosophy. 1 April 2009. http://plato.stanford.edu/entries/affirmative-action/. 
  6. ^ "Affirmative Action". Labor-employment-law.lawyers.com. http://labor-employment-law.lawyers.com/employment-discrimination/Affirmative-Action.html. Retrieved 11 April 2012. 
  7. ^ Uppsala discriminated against Swedes, The Local, 21 Dec 06
  8. ^ United Nations Committee on Human Rights, General Comment 18 on Non-discrimination, Paragraph 10
  9. ^ Plummer, Robert. "Black Brazil Seeks a Better Future." BBC News São Paulo, 25 September 2006. 16 November 2006
  10. ^ Por Rodrigo Haidar e Filipe Coutinho. "DEM entra com ADPF contra cotas raciais" (in (Portuguese)). Conjur.com.br. http://www.conjur.com.br/2009-jul-20/dem-unb-ressuscitou-ideais-nazistas-suspensao-matriculas. Retrieved 11 April 2012. 
  11. ^ Débora Santos. "Supremo decide pro unanimidade pela constiucionalidade das cotas" (in (Portuguese)). g1.globo.com. http://g1.globo.com/vestibular-e-educacao/noticia/2012/04/stf-decide-por-unanimidade-pela-constitucionalidade-das-cotas-raciais.html. Retrieved 3June2012. 
  12. ^ "GNWT – Human Resources – Affirmative Action". Hr.gov.nt.ca. 3 April 2012. http://www.hr.gov.nt.ca/employment/affirmativeaction/. Retrieved 11 April 2012. 
  13. ^ "Executive Order 10925 – Establishing The President's Committee On Equal Employment Opportunity". U.S. Equal Employment Opportunity Commission. Archived from the original on 27 May 2010. http://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html. Retrieved 5/2/2010. 
  14. ^ "Federal Employment Discrimination Laws". EmployeeIssues.com. http://employeeissues.com/discrimination_laws.htm. Retrieved 18 May 2010. 
  15. ^ Indy fire-fighters sue city, charge bias; also see Norma M. Riccucci. Managing Diversity in Public Sector Workforces. Boulder, CO: Westview Press, 2002
  16. ^ Highlights of the 2002–2003 Supreme Court Term
  17. ^ Steven M. Teles (2010). The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton University Press. pp. 235–7. http://books.google.com/books?id=MTps-NK20jAC&pg=PA235. 
  18. ^ ^ Middle East Contemporary Survey, Volume 23; By Bruce Maddy-Weitzman. p. 329
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  41. ^ a b Discrimination, The Concise Encyclopedia of Economics, Library of Economics
  42. ^ a b c d e Race, law and poverty in the new South Africa, The Economist, 30 Sep 1999
  43. ^ [1][dead link]
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  54. ^ Christophe Jaffrelot , India's Silent Revolution : The rise of lower castes in northern India, pg. 321 2003
  55. ^ a b Sher, George, "Preferential Hiring", in Tom Regan (ed.), Just Business: New Introductory Essays In Business Ethics, Philadelphia, Temple University Press, 1983, p.40.
  56. ^ "American Civil Rights Institute". Acri.org. http://www.acri.org/. Retrieved 11 April 2012. 
  57. ^ Cultural Whiplash: Unforeseen Consequences of America's Crusade Against Racial Discrimination / Patrick Garry (2006) ISBN 1-58182-569-2
  58. ^ ISBN 0-300-10199-6, 2004
  59. ^ Does affirmative action hurt minorities?, Los Angeles Times, 26 September 2007
  60. ^ Quotas on trial, by Thomas Sowell, 8 January 2003
  61. ^ Affirmative Action Backfires, by Gail Heriot, Wall Street Journal, 24 August 2007
  62. ^ Sander, Richard (2004). "A SYSTEMIC ANALYSIS OF AFFIRMATIVE ACTION IN AMERICAN LAW SCHOOLS". Stanford Law Review: 367–483. http://www2.law.ucla.edu/sander/Systemic/final/SanderFINAL.pdf. Retrieved 13 July 2011. 
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References

Further reading

External links