Affirmative action in the United States refers to policies that take gender, race, or ethnicity into account in an attempt to promote equal opportunity. The focus of such policies ranges from employment and public contracting goals to educational outreach and health programs. The impetus towards affirmative action is twofold: to maximize the benefits of diversity in all levels of society, and to redress disadvantages due to overt, institutional, or involuntary discrimination.
In many cases, affirmative action in the United States is meant to encourage public institutions, such as universities, hospitals and police forces, to be more representative of the populations they serve. Affirmative action generates its share of controversy though when it is communicated as giving preferential treatment to a specified group of people instead of giving reasonable access and consideration to these same groups of people.
Legislation is meant to protect, guide and serve. The laws enacted were spawned from inequities that needed remediation. The shear number of laws can seem daunting and complex. It is always advisable to educate and train the workforce so that legal recourse is always a last resort. The following figure depicts cost escalations when training is not addressed early.
In 2010, 35.9% of the US Equal Employment Opportunity Commission (EEOC) charges involved race discrimination and the percentage is climbing. Check-out the News icon and see how discrimination lawsuits of various kinds continue to affect businesses large and small.
Equality and Diversity in a Historical Context
The quotation "All men are created equal" is arguably the best-known phrase in any of America's political documents, as the idea it expresses is generally considered the foundation of American government. Thomas Jefferson first used the phrase in the Declaration of Independence as a rebuttal to the going political theory of the day: the Divine Right of Kings. Jefferson borrowed the expression from an Italian friend and neighbor, Philip Mazzei.
The opening of the Declaration of Independence written by Thomas Jefferson in 1776, states:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."
The US Equal Employment Opportunity Commission (EEOC) enforces Federal laws prohibiting employment discrimination due to:
with regard to:
- Unfair treatment
- Harassment by managers, co-workers, or others in the workplace
- Denial of a reasonable workplace accommodation
- Retaliation because the employee complained
- National Origin,
- Disability and even
- Genetic information
All of the laws enforced by the EEOC, except for the Equal Pay Act, require that employees and applicants file a Charge of Discrimination with the EEOC before they can file a job discrimination lawsuit against their employer. Employers must retain involuntarily terminated employee records for one year from the date of termination and, if a charge has been filed, additional record keeping obligations apply.
Equal Employment Opportunity Laws
Age Discrimination in Employment Act (ADEA)
The ADEA of 1967 protects individuals who are 40 years of age or older from employment discrimination based on age which includes hiring, firing, promotion, layoff, compensation, benefits, job assignments and training. The ADEA applies to employers with 20 or more employees as well as government, employment agencies and labor organizations. Employees have 180 days to file a claim. ADEA protections include:
- Apprenticeship Programs
- Job Notices and Advertisements, exceptions may apply in the Bona Fide Occupational Qualification (BFOQ)
- Pre-Employment Inquiries
- Benefits as amended by the Older Workers Benefit Protection Act (OWBPA) of 1990
- Waivers of ADEA Rights
The Americans with Disabilities Act (ADA)
The ADA of 1990 prohibits employment discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and and privileges of employment. The ADA applies to employers with 15 or more employees as well as government, employment agencies and labor organizations. ADA protections include:
Other resources include the 2005 Department of Justice Guide to Disability Rights Laws:
- Definition of a disability
- Medical Examinations and Inquiries
- Confidentiality of Records
- Reasonable accommodation and undue hardship guidance
- Telecommunications Act
- Fair Housing Act
- Air Carrier Access Act
- Voting Accessibility for the Elderly and Handicapped Act
- National Voter Registration Act
- Civil Rights of Institutionalized Persons Act
- Individuals with Disabilities Education Act
- Architectural Barriers Act
The Equal Pay Act and Discrimination Act (EPA)
The EPA of 1963 requires that men and women are given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Factors that apply in the determination are:
- Working Conditions
- Affirmative Defenses (seniority, merit, quantity or quality of production)
Title VII of the Civil Rights Act of 1964, the ADEA and ADA prohibit compensation discrimination on the basis of race, color, sex, national origin, age or disability. Retaliation against an individual for opposing employment practices that discriminate based on compensation is also unlawful.
The Genetic Information NonDiscrimination Act (GINA)
GINA became law on May 21, 2008 as a result of developments in the field of genetics that may hint at individuals who are at risk for specific diseases or disorders which may preclude them from health insurance, or employment. The law applies to employers with 15 or more employees as well as government, employment agencies, joint labor-management training programs and labor unions. Title I of GINA addresses the use of genetic information in health insurance and Title II prohibits the use of genetic information in employment plus restrictions on employers and other entities from requesting, requiring or purchasing genetic information. GINA specifically addresses:
Genetic information definition
Use of genetic information in employment decisions
Confidentiality of Information, and narrow exceptions
Means of obtaining information, and narrow exceptions
National Origin Discrimination
No one can be denied equal employment opportunity because of birthplace, ancestry, linguistic characteristics common to a specific ethnic group, , marriage or association, memberships or association, attendance or participation in schools, temples or mosques generally associated with a national origin group or a surname associated with a national origin group. The law also applies to employment decisions including recruitment, hiring, firing or layoffs based on national origin. Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees and addresses:
- Offensive conduct and hostile work environment
- Accent discrimination
- English fluency
- English-only Rules
- Applicability to foreign nationals (i.e.- non-US Citizens)
The Immigration Reform and Control Act (IRCA) of 1986 also prohibits discrimination based on national origin or citizenship.
Pregnancy Discrimination Act
Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII of the Civil Right act of 1964. This law applies to employers with 15 employees or more, government, employment agencies and labor organizations. Protections include:
- Pregnancy and Maternity Leave
- Health Insurance
- Fringe Benefits
- Employer retaliation
Race and Color Discrimination
It is unlawful to discriminate against any employee or applicant for employment because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII of the Civil Rights Act of 1964 also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups The Law addresses:.
- Neutral job policies
- Immutable characteristics
- Race Related Characteristics and Conditions (Immutable characteristics)
- Color Discrimination (including Caucasians)
- Recruiting, Hiring and Advancement (equal application and geographic reach)
- Data collection, and information separation
- Segregation and classification of Employees
Title VII of the Civil Rights Act requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship on the employer.
Other Workplace Laws not Enforced by the EEOC
Civil Service Reform Act of 1978 (CSRA)
Standard discrimination elements but applicable to federal employees or job applicants; also prohibits discrimination on such items as marital status, political association and sexual orientation.
Immigration Reform and Control Act of 1986 (IRCA)
Executive Order 11246
Applicable to federal contractors and subcontractors
Title VI of the Civil Rights Act of 1964
Applicable to programs and activities receiving federal financial assistance.
Title II of the Americans with Disabilities Act (ADA)
Applicable to state and government agencies.
Title III of the ADA
Applicable to "public accommodation" entities such as restaurants, hotels, movie theaters, doctors offices, parks and schools.
The Family and Medical Leave Act (FMLA)
12 weeks of leave during a 12 month period to eligible employees who need time off due to a serious health condition.
Section 503 of the Rehabilitation Act
Requires contractors to take affirmative steps to hire and promote qualified people with disabilities.
Section 504 of the Rehabilitation Act
Section 508 of the Rehabilitation Act
Federal agencies must ensure that information technology used by the government can be accessed and used by people with disabilities.
Fair Labor Standards Act
Minimum wage, overtime pay and child labor
National Labor Relations Act
Protection for workers who want to form a union.
Section 1981 of the Civil Rights Act of 1866
Ability to make and enforce contracts without regard to race.
Harassment is intentional behavior which is found to be threatening or disturbing. Harassment is still quite prevalent in today's workplace and therefore it is important for organizations to learn techniques for preventing harassment, reducing organizational liability.
Abusive behaviors that fall under this purview include:
- Psychological Harassment
- Community Based
- Police Harassment
- Electronic Harassment
Situations are more likely to be defined as harassment when people know that the intention of a negative behavior is to cause harm [intent], the recipient of the behavior believes that the purpose of the behavior is to cause harm [perceived intent] and the behavior has negative consequences.
Evidence in discrimination claims may fall under the following categories:
Know the law and your rights!
- Disparate treatment
- Disparate Impact
- Prima Facie Case which may be either:
- Facial Policy
- Direct evidence
- Circumstantial Evidence
LGBTA Related Policies/Legislation
LGBTA discrimination violates core American values of fairness and equality for qualified individuals based on characteristics unrelated to the job yet the United States was one of the few developed nations in the world that did not have legislation prohibiting LGBT employment discrimination.
In June 2015, the US Supreme Court ruled by a 5-to-4 vote that the Constitution guarantees a right to same-sex marriage. "No longer may this liberty be denied," Justice Anthony M. Kennedy wrote for the majority. "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were." Marriage is a "keystone of our social order," Justice Kennedy said, adding that the plaintiffs in the case were seeking "equal dignity in the eyes of the law."
Employment Non-Discrimination Act (ENDA)
The Employment Non-Discrimination Act (ENDA) is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.
America's Military "Don't Ask, Don't Tell (DADT)" policy which had allowed gays and lesbians to serve so long as they kept their sexual orientation quiet ended at 12:01 AM on September 20, 2011.
Legislation to repeal DADT was enacted in December 2010, specifying that the policy would remain in place until the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certified that repeal would not harm military readiness, followed by a 60-day waiting period. President Barack Obama, Secretary of Defense Leon Panetta, and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen sent that certification to Congress on July 22, 2011, which set the end of DADT to September 20, 2011.
The Defense of Marriage Act (DOMA)
Signed into law by President Bill Clinton in September 21, 1996 defining marriage as the union of a man and a woman it has seen it day in court. Section 3 was ruled unconstitutional, appealed and then rendered in "limbo" by President Barrack Obama. On May 9, 2012 President Obama affirmed his support for same sex marriage.
On June 26, 2013 the Supreme Court issues 5-4 ruling rejecting DOMA on Proposition 8 clearing the way for same-sex couples to be legally married and says same-sex spouses may get federal benefits in California.
In June 2015, the US Supreme Court ruled by a 5-to-4 vote that the Constitution guarantees a right to same-sex marriage.
The Declaration of Montreal on LGBT Human Rights
The declaration adopted in Montreal, Quebec, Canada on July 29, 2006 by the International Conference on LGBT Human Rights outlines a number of rights and freedoms being requested of the United Nations to consider.
Best Employment Practices for LGBT Workers
- Build a culture of respect
- Support the establishment of LGBT ERGs
- Publicize, implement and monitor equality policies that your organization adopts
- Provide training and awareness-raisding to all employees
- Review employment policies
Prohibited Employment Policies and Practices
Practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex, national origin or disability can be considered unlawful if these practices are not job related and necessary to the operation of the business. These guidelines apply to:
- Neutral employment policies
- Job Advertisements
- Application and Hiring
- Job Referrals
- Pre-Employment Inquiries
- Height and Weight
- Assets and abilities
- Religious Affiliations (unless the religion is a BFOQ, Bona Fide Occupational Qualification)
- Marital Status
- Medical Questions
- Arrest and Conviction Records
Other guidelines apply to:
Job assignments and Promotions
Pay and Benefits
Reasonable Accommodation and Religion
Training and Apprenticeship Programs
Terms and Conditions of Employment
Discipline and Discharge
Layoff and Rehire
Constructive Discharge/Forced to Resign
Know the law and your rights!
Reference these websites for further information:
- US Office of Personnel Management
- US Office of Special Counsel
- US Merit Systems Protection Board
- US Department of Justice, Civil Rights Division
- US Department of Labor
- Civil Rights Act of 1964
- Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities who work in the federal government.
- Civil Rights Act of 1991 provides monetary damages in cases of intentional employment discrimination.
- Civil Service Reform Act of 1978 (CSRA) prohibits any employee who has authority to take certain personnel actions from discriminating for, or against employees, or applicants for employment on the basis of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions cannot be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistle blowing, or for exercising an appeal, complaint, or grievance right.
Sample discriminatory practices prohibited by these laws are:
- Hiring and firing.
- Compensation, assignment, or classification of employees.
- Transfer, promotion, layoff, or recall.
- Job advertisements.
- Use of company facilities.
- Training and apprenticeship programs.
- Fringe benefits.
- Pay, retirement plans, and disability leave.
- Harassment on the basis of race, color, religion, sex, national origin, disability, or age.
- Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.
- Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities.
- Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.
- Discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
- Discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
- Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. The "hostile environment" standard also applies to harassment on the basis of race, color, national origin, religion, age, and disability.
- Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
Many states and municipalities have also enacted further protections against discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation.
Affirmative Action vs. Diversity Engagement
The following is a broad summary of the differences between legislation (Equal Opportunity Compliance) and the active pursuit of Diversity engagement:
Equal Opportunity is the Letter of the Law whereas Diversity is the Spirit of the Law
- Equal Opportunity Compliance is Enforced by Laws
- Diversity Engagement is Self-Propelled, Driven by Mission and Visionary Practices
Our laws are "rules of the game" that grease the wheels of society countering unproductive historical human tendencies but they are not absolute. More is needed. The laws provide a foundation for maintaining minimum standards but they do not begin to capture the depth and breadth of possibilities when diversity is embraced as shown below: