Affirmative Action Plans in the 1990s: A Double-Edged Sword?
Robinson, Robert K., Allen, Billie Morgan, Abraham, Yohannan T., Public Personnel Management
Since the mid-1980s, affirmative action plans (AAPs) have come under ever increasing criticism. Many detractors argue that AAPs serve no purpose other than to veil thinly reverse discrimination against whites. In the twenty-five years since the passage of the C/vii Rights Act of 1964, critics contend that substantial progress has been made in the area of equal opportunities for women and minorities and that affirmative action plans now have outlived their usefulness. Additionally, it is argued that affirmative action has created an employment spoils system in which people who actually never have experienced discrimination are reaping benefits at the expense of white males. This shift in public opinion was sufficiently strong in 1985 to encourage then Attorney General Ed win Meese to call for an mended Executive Order which would eliminate the "quota system," referring to AAPs. President Reagan, however, did not amend the Executive Order and affirmative action remained throughout his administration and into the next.
Despite claims that enforcement of affirmative action obligations by the federal government has diminished, the federal courts have continued to hear a large number of affirmative action cases. In fact, monetary awards in equal opportunity and affirmative action suits were at record levels in 1988. In that year, the EEOC helped recover over $103.2 million in back pay and monetary relief awards for victims of discrimination, of which $55.5 million or 54 percent was through litigation in the federal courts. If the federal government is shying away from the enforcement of affirmative action, this attitude is not being typified by the courts ! In several recent Supreme Court decisions, the High Court has attempted to provide direction to the lower courts in an issue which traditionally has had its fair share of ambiguity. Specifically in the case of Johnson v. Transportation Agency the Supreme Court again demonstrated that properly constructed voluntary affirmative action plans are viable employer defenses against suits alleging reverse discrimination. Conversely, in The City of Richmond v.J.A. Croson and Martin v. Wilks cases, poorly developed plans have been struck down by the court, leaving the respective employers vulnerable to reverse discrimination charges. Additionally, the recently enacted Civil Rights Act of 19917 specifically provides provisions ' covering the application of court-approved affirmative actions and the rights and obligations of all involved parties. To some, these rulings and statutory requirements at first appear contradictory, but they are in fact predicated on the same general guidelines.
The primary purpose of this article is to enhance the reader's understanding of the impact that these cases have on the formulation and administration of formal affirmative action programs. Of particular concern will be the effect that these recent rulings will have on initiating litigation and subsequent burdens of proof in pursuing or defending such suits. This article will also examine some of the common myths or misconceptions held about affirmative action plans and their development. Finally, general guidelines will be provided for the formulation of an acceptable affirmative action plan, given the current legal enviroment.
In order to facilitate the understanding of the issues presented in this article, a brief discussion of affirmative action is presented. Further, the essential distinction is made between involuntary and voluntary AAPs, as well as consent decrees related to affirmative action.
The Nature of Affirmative Action
James Ledvinka views affirmative action as taking one, or a combination, of four distinct forms. First, affirmative action can be the intentional recruitment of applicants who are members of under-utilized protected groups. Second, it can be the implementation of measures to eliminate any prejudices which managers and supervisors harbor toward under-utilized protected groups in the employer's work force. …