Expert: Michael Troy - 7/30/2003

Question
Are they legal?  I am writing a paper for school about affirmative action.  The premis is " Is affimative action necessary in todays' business market?"  My conclusion is that yes, they are necessary but people confuse the true meaning of affirmative action with the much maligned quota system.

Answer
Hi John,

Affirmative action is an inherently vague term that is really almost meaningless.  It really is just the same thing as saying “positive steps.”  The term was first used in the 1960's to say that organizations should not simply stop discriminating.  Rather, they should take positive steps or “affirmative action” to ensure that they don't have any policies or practices that unintentionally disadvantage certain groups.

Say, for example, a business only recruited from four traditionally white colleges, but did not recruit from a historically black college.  Even though they did not discriminate during the interviews, the practice of not going to the black college, maybe because they have no alumni from there or just never thought about it, prevents them from reaching qualified black candidates.

In that example, it would be a form of "affirmative action" to start recruiting at the black college as well.  In other words, even though they were not trying to discriminate, they took a positive step toward trying to be more inclusive.  I don't think anyone objects to companies or anyone else engaging in that form of affirmative action.

The term “affirmative action” is also used to apply to many other things including its most extreme form, quotas.  The use of quotas means that a certain percentage of all new hires must be a member of some group, no matter how unqualified.  Quotas were sometimes ordered by courts in the 1970's and 80's to force uncooperative institutions in integrate.  However, outside of such court orders, quotas are usually considered illegal discrimination.

The real debate these days is over a form of affirmative action called “racial preferences.”  This is when a school or business gives a preference to a certain minority group by giving them extra points in a scoring system, requiring a lower score for minorities, or some other mechanism

Critics of racial preferences often argue that there is no practical difference between quotas and preferences, since all a business has to do is adjust the amount of preference given to ensure the exact percentage of minority acceptances that it wants.  However, the Supreme Court held just this term that such racial preferences are permissible in some cases, even though quotas are not.  

There is, of course a lively debate in this country over whether any or all of these forms of affirmative action are good or bad and whether they should be allowed.

However, I'm not quite sure how you would address it being "necessary."  Even if one found a particular form of affirmative action to be a good thing, I'm not sure it is necessary.  Certainly, most businesses could be all-white and would prosper and do just fine.  

Some argue that one needs to ensure that there is black representation in the workforce in order to ensure there are black customers (I use black as an example, but the same argument could be made for Asian, Indian, Hispanic, etc.).  But many businesses could do quite well even without a black customer base.  If you run an ski resort in Utah, or trade in 18th Century antique furniture, you may occasionally have a black client, but they are not critical to your success as a business.

Even if you have a business that wants a large black customer base, that does not require that you need to make sure you have a large black workforce.  Most people have no idea of the race of the person who makes a product they are buying.  Occasionally there may be a job where background is an important qualification.  Say you want to market a product to black inner-city youth.  You might want some people on your team who know the market well.  However, there the issue really is background, not skin color.  You would probably be better off hiring a white person who grew up in a primarily black inner-city neighborhood than you would a recent black immigrant from the Caribbean or Africa.

Even if race was an important consideration for the job, then race is itself a qualification.  Affirmative action in terms of racial preferences by definition means you are hiring someone from a particularly group despite lower qualifications for the job.  If, you need more blacks for some reasons, maybe the business should change its hiring criteria to assure a good match, not just use the old criteria and then offset the outcome with racial preferences.

I hope this helps!
- Mike