Opponents of affirmative action general are critical of both goals and quotas that are associated with affirmative action. In addition, they mistakenly equate these two policies. Regardless of what one may think of affirmative action, it is critical to understand the difference between goals and quotas. Since goals are a specific part of affirmative action procedures of the Office of Federal Comtract Compliance Programs, let me try to explain.
Office of Federal Contract Compliance Programs Affirmative Action Guidelines
The largest federal affirmative action program is based on Executive Order 11246 issued by President Lyndon B. Johnson in 1965. Guidelines to implement this program were first issued in 1968 and revised in 1971. Federal contractors and subcontractors, excluding those in construction, who have 50 or more employees and a $50,000+ federal contract are required to develop an affirmative action plan within 120 days of receiving a contract. Failure to develop and implement an affirmative action plan could result in a contractor losing the current contract and being declared ineligible to receive additional contracts. This is called being “debarred.”
Contractors must first conduct a utilization study of their employees. Basically, they must count the number of women and minority employees in each department and in each occupational category and be able to say that “X% of skilled blue-collar workers in the maintenance department are black” or “Y% of the managers in the sales department are Hispanic.” The employer must also determine the percentage of minority and female employers who are in the “availability pool;” i.e., those who qualified and potentially available for the job.
It is then necessary for employers to compare the actual distribution of minority or female employees in a specific job category in a specific department to the minority and female distribution in the availability pool. If the actual employment is equal to or greater than the availability (e.g., the availability of women sales managers is 15% and 15% of the sales managers actually employed are female), the employer is “in compliance.” If, on the other hand, the actual employment distribution is below the availability figure (e.g., only 5% of the sales managers are female), the employer is “underutilized.” The employer must follow this same procedure for each job category in each department.
If a contractor is underutilized, a set of goals and timetables must be included in the affirmative action plan. An appropriate goal would be to hire enough qualified female or minority employees to reach the percentage distribution stated in the availability pool. In the above example, the contractor tries to hire enough female sales managers so that 15% of all sales managers are female.
The timetable must be based on the conditions facing that specific contractor. Employers with big turnovers might be able to reach the goal in a few months, while one with little turnover might take a few years. Contractors in expanding industries would have shorter timetables than those in stagnant or contracting industries.
Next, the contractor must specify procedures to achieve the goal. This means trying to “cast a broad net” to encourage diversity among those who apply for the position. Employers should publically advertise jobs rather than relying on informal networking. Advertisements should contain a statement like “Equal Opportunity Employer; Women and Minorities Encouraged to Apply.” Some advertisements should be placed in publications targeted at qualified women and minorities. Employers should send letters to well known women and minorities in the field asking for referrals, send letters to schools who train large numbers qualified women and minorities, and make recruiting trips to conferences that might be attended by qualified women and minorities. In other words, employers must go out of their way to increase the hiring pool of potential women and minority candidates.
After the contractor designates an employee as the affirmative action representative who oversees this process, the affirmative action plan is then complete. It is important to realize that the contractor is not required to submit the plan to the Office of Federal Contract Compliance Programs (OFCCP) for approval; the plan must simply be kept on file in the contractor’s office. However, the contractor is expected to make a “good faith effort” to implement the plan; i.e., they have to try.
What happens if the contractor fails to meet the goal specified in the plan? Does the contractor face the loss of the federal contract because a white male was hired rather than a black female? Probably not?
First of all, no one but the employer is likely to know that the goal was not met. The OFCCP does not review the hiring process of each employer for each year. More importantly, the contractor was only required to make a good faith effort to achieve the goal; not to actually succeed. In the unlikely event that the employer was ever investigated by the OFCCP, all the contractor would have to do is show that they followed the procedures to encourage women and minorities to apply for the position. If the contractor can demonstrate that the white male who applied for the administrative position was more qualified than the black and female applicants, there is no problem. Affirmative action guidelines require meritocratic hiring. Preferential treatment or quotas are illegal under these guidelines.
Although these affirmative action regulations involve a certain amount of effort and cost on the part of federal contractors, they do not force contractors to hire unqualified people, nor do they permit reverse discrimination. All contractors have to do is offer reasonable explanations of why their employment levels are below the percentages in the availability pool. Some contractors, however, may pressure personnel officers to illegally hire unqualified underutilized minorities to avoid problems with OFCCP officials. It is difficult to determine how extensive this practice is.
I have gone into so much detail about the OFCCP guidelines for several reasons. First, they are the least known of all affirmative action policies. Second, affirmative action critics usually don’t discuss them. Third, they are the least controversial since the final hiring decisions are supposed to be meritocratic and companies are only required to try to meet their goals. Employers are only required to show that they have cast a broad net to find qualified candidates for their positions. Finally, they affect more employees than other affirmative action policies.
Hiring and Promotion Quotas
The most controversial of all affirmative action policies are “quotas;” i.e., programs that reserve certain positions for qualified” minority or female candidates. This specifies a hiring or promotion floor; i.e., at least that number of women or minorities must be hired or promoted. This is different from the historic use of antisemitic quotas as a ceiling; i.e., no more than a certain number of Jews may be hired.
Although the concept of quotas is quite controversial, one thing is clear: quotas and goals are not the same. First, especially in court-imposed quotas, the employer or school must hire or a minority or female for that position, under penalty of law. If no qualified minority or woman is found, either the position must remain empty or the employer must seek special permission to hire or promote a white male. In the case of goals, on the other hand, the employer must merely make a good-faith effort to hire or promote a qualified minority or woman; if none is found, there are no legal consequences and a white or male may be hired or promoted.
Second, in a consent decree with quotas, a white male with superior work experience or credentials, could be passed over in favor of a qualified, but less experienced minority or female applicant. When goals are being used, a more qualified white male must be hired or promoted over a less-qualified minority or female applicant since the final hiring must be meritocratic. Affirmative action critics who say that goals and quotas are the same are either ignorant or intellectually dishonest.
The 1972 Equal Employment Opportunities Act made it legal for courts to impose hiring and promotion quotas on employers that were found guilty of discrimination. Quotas could also be used as a remedy as part of consent decrees, or out-of-court settlements in discrimination lawsuits.
Before a quota can be imposed by a court, a group of minority or female employees generally sues an employer for race or sex discrimination. One possible outcome of these law suits is that the government and plaintiffs enter into a consent decree with the employer that contains a quota system of hiring and/or promotion. The quotas might require the hiring of 1 black for every five whites until the percentage of black employees reaches the level of blacks in the availability pool.
Even under quotas, employers are not forced to hire unqualified people. Generally, the employer has some criteria which makes the prospective employee “qualified;” e.g., an educational credential, a minimum score on a test, a minimum level of experience, etc. Employees who don’t meet these criteria cannot be considered for the position. Hence, all those who do meet the criteria are seen as being able to carry out the duties of the position.
Next, the qualified whites (or males) are ranked from “most qualified” to “least qualified” in terms of the criteria. The same is done for the qualified minorities (or women). If only 10 people can be hired or promoted and there is a 50-50 quota, the top 5 whites and the top 5 minorities are chosen. Even though all of the selected minorities (or women) are qualified, it is possible that some of them may be less qualified (i.e., their scores are lower) than some of the whites (or men) that were not chosen. For example, a woman who scored 85 out of 100 might be promoted while a man who scored 86 would not. While such a decision has a great impact on that particular man, such small differences in scores would not warrant the conclusion that the man would have done a better job than the woman.
There is a widespread belief, especially among whites, that quotas are very common across the country. However, it is getting more and more difficult for hiring and promotion quotas to meet the test of constitutionality. A variety of court decisions has resulted in a set of “strict scrutiny” criteria that must be met. First, there must be a “compelling state interest” to justify a quota. This is usually interpreted as combating intentional race or gender discrimination when no other policy is likely to work.
Second, the quota system must be “narrowly tailored” which is generally interpreted as not “unduly trammeling” on the rights of white males. The consent decree cannot require that 100% of new hires be minorities or women since this would make it impossible for white males. In fact, the quota proportions must have some connection to the availability pool. In addition, the quota system cannot be in effect indefinitely; e.g., it may be in effect until the percentage of minority/female employees reaches a percentage equivalent to the availability pool.
In fact, court-imposed quotas are few and far between. It is generally illegal for an employer to voluntarily adopt a quota hiring system without getting court approval. Courts impose quotas only when there is a long history of explicit discrimination and when the employer fails to take corrective action; i.e., quotas are generally seen as policies of last resort. The conservative U.S. Supreme Court has issued numerous anti-affirmative action rulings in recent years which restrict the scope of quota systems. For example, it is unconstitutional to use race or sex as part of the criteria in the decision to lay off workers. Affirmative action supporters fear that the Supreme Court will continue on this anti-affirmative action trend.