In employment, affirmative action requires that institutions increase hiring and promotion of candidates of mandated groups. Critics often object to the use of racial quotas and gender quotas in affirmative action. Quotas are illegal in the United States, except when a judge issues an order for a specific institution to make up for extreme past discrimination. There is dispute over whether this de jure illegality prevents de facto quotas.
== Start proposed neutral descriptive section
Affirmative Action programs always assume that the population percentage of ethnic, racial, and sexual groups in a society should also be the same economic percentage (or "share") of high status jobs, wealth, and power for preferred (sometimes called "protected") groups. Any discrepency is presumed to be the result of "bad" discrimination favoring non-preferred groups. This type of program is intended to move those distributions to the point where preferred ethnicities, races, and/or sexes hold the same proportion of desirable assets as their percentage of the population. Failure to demonstrate clear movement toward this goal is punished, usually by economic penalty. Government agencies require annual reports of such change from all of their direct contractors and the sub-contractors of those contractors. Organizations which receive, directly or indirectly, Federal funds are also required to report and to change those proportions in their workforce or student body.
There is strong competition for being included in the Government's preferred list since doing so means a significantly better economic future for a group's members. This also generates inter-group conflict and hostility. Preferred groups tend to support these programs while other groups tend to not support them.
In the USA, Affirmative Action only applies at transition points -- times when individuals are changing their employment or enrollment. Thus it predominately falls on working age adults who hope to improve their lot through employment or educational change. Established (and powerful) people are not required to redistribute their wealth, power or social position, but are included in calculations of outcomes. This focuses the greatest impact on young disapproved people while maintaining the status and position of established members of the same ethnic and racial group. In the USA, this process was established by Presidential Decree in March of 1961 by President Kennedy and has been changed significantly over the decades since.
The term "Affirmative" Action is a claim that discriminating in favor of one group does not necessarily mean discriminating against other groups. The Constitution of the USA as well as numerous laws outlaw discrimination AGAINST a group based on their race or ethnicity. Presumably, research showing negative outcomes for non-preferred people would mean these programs would have to be ended. This program has overwhelming support among members of the Government. Much time has been spent attempting to show that these "goals" are not quotas. The government of the USA has accepted this distinction and continues Affirmative Action up to the present time.
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Affirmative Action exists to change the distribution of jobs, education, wealth, or other things, based on characteristics that usually include race, sex, and/or ethinicity.
A particular minority group or gender may be underrepresented in an arena, often employment or academia, perhaps due to past or ongoing discrimination against members of the group. In such circumstances, one school of thought maintains that unless this group is concretely helped to achieve a more substantial representation, it will have difficulty gaining the critical mass and acceptance in that role, even if discrimination against the group is eradicated. For this reason, it is suggested that more effort must be made to recruit persons from that background, train them, and if necessary, lower the entrance requirements for them.
Proponents of affirmative action argue that affirmative action is the best way to correct a history of discrimination against a minority group. With a wide- and long-term perspective, affirmative action may be seen as redressing an otherwise unfair balance of historical wrongs and institutionalised disadvantages.
Opponents view affirmative action as reverse discrimination against otherwise qualified people in the majority. Some believe that as we progress toward a more open society, affirmative action is unnecessary and that racial or gender discrimination is becoming less of an issue. Many say that affirmative action sends a message to minorities that they are not capable enough to be considered on their own merits.
Though affirmative action in the US is primarily associated with racial issues, the American civil rights movement originally gave as its purpose the correction of a history of oppression against all working-class and low-income people.
Another more abstract form of affirmative action is in consultations, whereby institutions such as schools or health-care facilities are declared to be ethnocentric around the majority culture, and therefore consultation with other ethnic groups, especially indigenous groups, are specified as a remedy. This can cause accusations of double-standards, as often in practice representatives of all ethnic groups except the majority group receive consultation on institutional workings. Proponents discount this as being irrelevant, as they claim consultation with the majority group is pointless, as the institution's management is centered around them anyway.
Basis in law
In the US Constitution, the equal protection clause of the Fourteenth Amendment mandates that no governmental entity burden a person or deny them benefits because they are members of a racial minority (see Constitutional Law, Nowak and Rotunda). The Oxford Desk dictionary defines a racial minority as a smaller number of persons within a political party or structure.
The Johnson administration embraced affirmative action in 1965, by issuing United States Executive Order 11246, later amended by Executive Order 11375. The order, as amended, aims "to correct the effects of past and present discrimination". It prohibits federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin. The Order requires that contractors take affirmative action to ensure that "protected class, underutilized applicants" are employed, and that employees are treated without discriminatory regard to their protected class status.
The Order specifically requires certain organizations accepting federal funds to take affirmative action to increase employment opportunities for members of racial minorities and women. Any organization with fifty or more employees and an aggregate revenue exceeding $50,000 from federal contracts during a twelve month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities.
The order is enforced by the Office of Federal Contract Compliance Programs of the Employment Standards Administration of the U.S. Department of Labor.
Section 717 of Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 require all United States Federal Agencies to implement affirmative employment opportunity programs for all federal employees. EEOC Equal Employment Opportunity Management Directive 715 (MD 715) (http://www.eeoc.gov/federal/eeomd715.html) provides guidance as to how such programs are to be implemented.
In the beginning, racial classifications that only discriminated against racial minorities were inherently suspect and subject to strict scrutiny. These classifications would only be upheld if necessary to promote a compelling governmental interest. Later the US Supreme Court decided that racial classifications that benefited underrepresented minorities were to only be upheld if necessary and promoted a compelling governmental purpose. (See Richmond v. JA Croson Co.)
Individual US States e.g. Missouri (http://www.moga.state.mo.us/statutes/chapters/chap213.htm) also have orders that prohibit discrimination and outline affirmative action requirements with regard to race, creed, color, religion, national origin, gender, age, and disability status.
Implementation in universities
When underrepresented minorities are actively sought or preferred, the reason given is usually that this is necessary to compensate for advantages to groups such as males or those of European descent from racism, sexism, results of historical circumstances, and institutional racism.
Some dissenters claim that racial preferences have in-effect caused a reverse discrimination against a historically-dominant group (white males in Europe and North America), and liken such preferences to apartheid.
In the US, the most prominent form of affirmative action centers around access to education, particularly entrance to university and other forms of tertiary instruction. Race, ethnicity, native language, class, geographic origin, parental attendance of the university in question (legacy admissions), and/or gender are often taken into account when assessing the meaning of an applicant's grades and test scores. For example, a female university student will tend to do as well in college as a male student with SAT scores 50 points higher than hers; because the university's goal is to attract students who will do well in classes (rather than merely students with high test scores), scores from female applicants are sometimes weighted to count as higher, in relation to males'.
Individuals can also be awarded scholarships and have fees paid on the basis of the hitherto-listed criteria.
In the United States, affirmative action programs at universities usually benefit mostly black African Americans, Hispanic Americans, and Native Americans. Asian Americans, although a racial minority, usually do not benefit at most colleges because their makeup in the student body exceeds their makeup in the general US population. White-skinned people usually do not benefit in universities where their makeup in the student body is less than their makeup in the general US population, unless they're from an underrepresented geographic area, or have parents or other relatives who attended the university (legacy admissions).
Important Supreme Court cases
An attorney who filed an amicus brief on behalf of Pennsylvania legislators and former legislators in Grutter v. Bollinger, Rep. Mark B. Cohen of Philadelphia, said that "The cumulative effect of the Bakke, Grutter, and Bollinger cases is that no one has a legal right to have any demographic characteristic they possess be considered a favorable point on their behalf, but an employer has a right to take into account the goals of the organization and the interests of American society in making decisions. This is a moderate, inclusive position that ably balances the various legal interests involved."
In those countries outside the US which have laws on racial equality, such as the United Kingdom, affirmative action would usually be illegal because of a requirement to treat all races equally. This approach of equal treatment is sometimes described as being race-blind. It tends to act against both discrimination and reverse discrimination.
In those countries, the focus tends to be on ensuring equal opportunity and, for example, targetted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as "positive action", as opposed to "positive discrimination".
In 1982, the Canadian Charter of Rights and Freedoms enshrined the following "Equality Rights":
Recognizing that "systemic discrimination" was responsible for most of the inequality found in employment, the 1984 Royal Commission on Equality in Employment outlined a systemic response and chose the term "Employment Equity" to describe the process. "Employment Equity" was chosen to create a distinction between the primarily American "Affirmative Action" model as well as to move beyond the "Equal Opportunity" measures available in Canada at that time.
As set out in the Canadian Employment Equity Act, Employment Equity is an on-going planning process used by an employer to:
The goal of Employment Equity is to:
The Employment Equity Act affects the following sectors:
All federally regulated employers with 100 or more employees, including organizations in industries such as banking, communications, and international and interprovincial transportation.
All federal departments. Other parts of the public service, including the Canadian Forces and the Royal Canadian Mounted Police may be specified by order of the Governor in Council, on the recommendation of the Treasury Board, as being required to comply with the Employment Equity Act.
Under the Federal Contractors Program, employers with 100 or more employees who have secured a federal goods or services contract of $200,000 or more are required to sign a certificate of commitment to fulfill their mandated goal of implementing employment equity in their workplace.
In Malaysia, the bumiputra laws are a form of affirmative action meant to provide more opportunity for the majority ethnic Malay population versus the historical financial dominance of the Malaysian Chinese and Indian populations.
Critics point out that affirmative action has a negative effect on members of the non-preferred groups, and rewards those who are less capable and have accomplished less. The experience of U.C. Berkeley, UCLA, Stanford, Harvard, Princeton and Brown in the 1970s are cited as examples, when the Asian student population rose to around 10%-15% on these campuses.
These universities soon began to put restrictions on the number of Asian students admitted. They began turning down qualified Asian students for less qualified Black and Latino students. The proportion of Asian Americans at institutions of higher learning is greater than their percentage of the population, which is often used to contrast with other minorities, suggesting it as evidence that no affirmative action is needed, but rather that minorities have the capacity to excel on their own. See model minority. Counterarguments include the point that Asians did not suffer through the trauma of slavery, and that the enormous size of the Asian ethnic groups in comparison to immigration quotas ensures that only elite members of those groups can enter the U.S. anyway.
A different criticism of "Affirmative Action" is that it discriminates against people based on race and sex, and thus is simply a different form of "racism" and "sexism", that legal discrimination based on birth characteristics is State racism regardless of which State indulges in such stuff.
A rarely stated argument against affirmative action states that the minorities who are under-represented are not as capable as the dominant groups. This argument has rarely been made openly in the past half-century. Proponents of this argument point out that even though affirmative action polices have been in place for 40 years the number of Black and Latino college students remains below their proportion of the total population. This argument is sometimes presented by actual supporters of affirmative action desiring an easy target.
== More pro-affirmative action in the criticism section. This is not a criticism.
The rebuttal to such arguments generally cites economic and educational demographics as the reasons behind this discrepancy, and thus affirmative action should be kept in place. Some view the disproportionate percentages of different races in schools and jobs as a reflection of some minorities' cultures less than race. Some cultures emphasize education and academic achievement less than others; for example, one might argue that education is highly prized in some Asian countries, whereas the streets of East Los Angeles are less likely to generate business magnates. The counterargument is that such discrepancies are a result of residential segregation and disparate funding of school systems; in response, critics of affirmative action concede that those problems are valid issues which urgently require a solution, but argue that qualified members of the majority group should not be deprived of access to opportunities just because the larger society is unable to fix problems affecting its minority groups.
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Another criticism of affirmative action asserts that these programs encourage economic discrimination in favor of wealthier members of minority groups, since such programs, at least the American versions, do not consider either social or economic class. Critics claim "Affirmative Action" proponents promote selecting a middle-class minority group member over a better qualified working-class member from the majority group. This seems to be contrary to claims of "social justice" often made by supporters. It also causes resentment towards the preferred group among those excluded because they are members of a group not selected for "Affirmative Action" benefits. This is seen as both counter-productive and unfair. This problem is present in many college admission programs in the USA, especially ones adopting so-called need blind admissions policies. Thus, "affirmative action" can be seen as promoting middle class minorities at the price of further handicaping the poor who are not minorities.
A consequence of affirmative action as it is practiced in U.S. universities is that it widens the gap in academic qualifications between different ethnic groups attending the same university by granting admission to preferred students based on different, lower requirements. The smallest gap is usually found at the most prestigious universities, who actively recruit the most qualified students from preferred minorities. The smallest gap is found at Harvard, where the gap between African American and Asian American students is about 90 SAT points. UC Berkeley has one of the highest gaps at about 300 SAT points.
== More advocacy in the criticisms section
On The Gripping Hand, differing entrance qualifications often do not translate into differing performance once at university. Students from poor inner-city high schools are unlikely to arrive at college as educated as preperatory school attendees, but are also more appreciative of the access to resources and knowledge a university affords. The minority students at Berkely, despite their lower SAT scores, do as well in class, statistically, as their higher-scoring white counterparts.
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As a group, libertarians do not object to affirmative action on a voluntary basis any more than they object to any form of discrimination that individual people may freely choose to support, but they do object to state imposed requirements for affirmative action. They also point out that the individuals whose protections are reduced are identified by race and by sex, and that government force is used to enforce such reductions, because the program is involuntary.
== This is not libertarian
They suggest that any form of unjustified discrimination is likely to lead to inefficiencies, and that a rational person would therefore be unlikely to seek to discriminate one way or another and should therefore be free to decide who to select.