Affirmative Action: Background

In reaction to the history of discrimination in the United States, and consistent with the principle of equality upon which the country is founded, the Civil Rights Act of 1964 was designed to afford equality of opportunity and treatment to all individuals regardless of their "race, color, religion, sex, or national origin." Title VII of the Act covered employment, and included creation of an implementation and enforcement arm in the form of the Equal Employment Opportunity Commission (EEOC). This agency was empowered to issue orders to those affected by the legislation, and in 1978 it did so in the form of the Guidelines on Employee Selection Procedures (41 CFR 60-3).

An important related development was the issue of Executive Order 11246 (EO11246) in 1965. Although Executive Orders are issued by the President without Congressional approval, and can be altered or rescinded unilaterally, they nonetheless carry the weight of law. As with Title VII of the Civil Rights Act of 1964, EO11246 prohibits discrimination on the basis of race, color, religion, sex, and national origin. It differs from Title VII, however, in that it applies only to federal government contractors and it includes the provision that employers take "affirmative action" to ensure nondiscriminatory treatment in hiring and on the job. Employers are further required to prepare an affirmative action plan (AAP).

The coverage of EO11246 is far-reaching. With a few exceptions, it applies to all federal contractors and subcontractors with 50 or more employees and a federal contract amounting to $50,000 or more (41 CFR 60-7). These requirements refer to the organization as a whole, so if just one location in a company contracts with the government all of its locations are potentially subject to this Executive Order. The enforcement agency for EO11246 is the Office of Federal Contract Compliance Programs (OFCCP), a division of the Department of Labor. The primary mission of the OFCCP is to determine if employers adequately take affirmative action. Its mechanism to accomplish this objective is the affirmative action compliance review, which consists of a review of documentation (including the AAP) and on-site visits. Covered organizations that refuse to take affirmative action can be denied the opportunity to serve as a federal contractor.

Arguably implicit in Title VII of the Civil Rights Act of 1964 and EO11246, and certainly in the EEOC Guidelines of 1966, is the assumption that many forms of disparity will be eliminated over time if discrimination is proscribed and equal opportunity provided. Thus, equal treatment of individuals was expected to yield an equitable, fair, and equal outcome.

As the veracity of this assumption came into question, the language of OFCCP regulations changed. In 1968, the agency began requiring a written affirmative action compliance program, a utilization analysis, and specific goals and timetables, but, nonetheless, maintained its ultimate focus on opportunity rather than results. The 1971 OFCCP regulations, however, included a stronger focus on results -- the mandate to increase the utilization of minorities and women at all levels and in all segments of the workforce where deficiencies existed (Sharf, 1988).

Judicial rulings have also affected the practical implications of civil rights legislation and executive orders. The Supreme Court opinion in the 1971 landmark case of Griggs v. Duke Power Company reflected acceptance of this fundamental change in the definition of discrimination. If an employment practice resulted in unequal outcomes across demographic groups, an employer's claim that the discrimination was unintentional was not an adequate defense. Instead, the employer had to demonstrate that the procedure leading to the inequality was a valid predictor of performance.

This re-definition of discrimination was codified under the rubric "adverse impact" in the 1978 Uniform Guidelines on Employee Selection Procedures, an update and expansion of the original EEOC Guidelines that was jointly adopted by the EEOC, the federal Civil Service Commission, the Department of Labor, and the Department of Justice. According to the Guidelines, in its "80% rule of thumb," adverse impact exists when the selection rate of any group is less than 80% of that for the group with the highest selection rate. (Note that the comparison group is the one with the highest selection rate, not necessarily Whites or males.) To refute a charge of illegal discrimination, the employer had to demonstrate that the practice resulting in this difference is job related and a business necessity. More recently, Congress passed the Civil Rights Act of 1991, which was intended to reverse several Supreme Court rulings of the late 1980's. This Act codified the statistically-defined adverse impact definition of discrimination.

Other civil rights legislation has extended protection beyond the initial dimensions of race, color, religion, sex, and national origin. The Age Discrimination in Employment Act of 1967 forbids discrimination based on age. The Vietnam Veterans Readjustment Assistance Act of 1974 requires employers to take affirmative action to employ and advance qualified Vietnam-era veterans. The Americans with Disabilities Act of 1990 forbids discrimination on the basis of disability, and the Vocational Rehabilitation Act of 1973 requires government contractors to take affirmative action for qualified workers with disabilities. Due to this legislation, federal contractors are required to have AAPs for Vietnam-era veterans, special disabled veterans, and people with disabilities. These AAPs, however, focus on employment processes and good faith efforts, not on documentation and utilization analyses. They are less controversial, and have received less empirical attention, than AAPs directed at women and ethnic minorities.

B. Equal Employment Opportunity Versus Affirmative Action

As its name implies, the concept of equal employment opportunity is that each individual should be given the same treatment as all other individuals. Both disparate treatment of individuals and disparate impact of procedures on demographic groups are considered discriminatory and illegal. Equal employment opportunity is guaranteed by the Civil Rights Acts of 1964 and 1991. Affirmative action, created by EO11246, requires federal contractors to take active steps to ensure equal opportunity. Thus, equal opportunity is relatively passive whereas affirmative action is more active. Both, however, have the ultimate goal of eliminating discrimination on the basis of specified demographic factors.

The federal regulations controlling affirmative action are presented in Title 41 of the Code of Federal Regulations, Chapter 60 (41 CFR 60). The key requirements are that an organization must: (a) have and abide by an equal-opportunity policy (41 CFR 60-2.13); (b) perform utilization analyses to determine whether women and ethnic minorities are underutilized, given the availability of qualified women and minorities (41 CFR 60-2.11); (c) establish flexible goals and timetables to eliminate deficiencies revealed by the utilization analyses (41 CFR 60-2.12); (d) develop and execute "action-oriented programs designed to eliminate problems and further designed to attain established goals and objectives" (41 CFR 60-2.13). When discussing the development and execution of such action-oriented programs, the regulations mention many possible methods, and emphasize the elimination of bias and recruitment (41 CFR 60-2.24). Except under the most extreme conditions, Supreme Court decisions have forbidden strong preferential treatment (hiring unqualified women and minorities rather than clearly qualified men and non-minorities) and strict quotas (Bennett-Alexander, 1990). It is permissible, however, for organizations to assign some unspecified weight to gender or race when making employment decisions (Guttman, 1993). The legal, practical, and ethical limits of such preferential treatment have been sources of considerably uncertainty and controversy (Glasser, 1988).

C. Affirmative Action Required by EO11246 Versus Other Affirmative Action

Affirmative action, as discussed here, refers primarily to actions taken in response to EO11246. The term "affirmative action" is also often used in reference to set-aside programs, primarily in education and construction, in which a certain number of positions or a certain percentage of the budget is earmarked for the use of women or racial/ethnic minorities. These set-aside programs are clearly distinct from affirmative action as specified by EO11246, and the research reviewed herein applies primarily to affirmative action as required by EO11246 and similar programs established voluntarily or imposed by Courts.

D. Need to Address the Controversy

Recent political developments have brought affirmative action programs, and especially attitudes and opinions about them, to the forefront of public debate (Ingwerson, 1995). The Society for Industrial and Organizational Psychology (SIOP) has a responsibility to review and report research results and theoretical explanations that may inform this public debate. The primary purpose of the present review is to focus on what is known about psychological reactions to affirmative action, although we provide some context by briefly discussing the legislative history and economic effects. Given the recency and impact of equal employment opportunity and affirmative action legislation, research focused on examination of basic attitudinal data is important. What do people think affirmative action is? Do they favor it? In what form(s)? What form(s) do people find objectionable? Answers to these questions will assist legislators and organizations in their efforts to minimize the conflict associated with affirmative action.