Essay, Research Paper: Affirmative Action And Justice

Legal Issues

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Affirmative Action is a hot issue in the United States, with wide differences of
opinion over the correct way to expand opportunity for people who have
historically been discriminated against. With the philosophical difference
behind the legal and political tensions is deep. One side wants a total rollback
of affirmative action programs, making individual merit the only criterion for
hiring and promotional considerations. While the other extreme wants affirmative
action to be pushed until the racial makeup of all professions mirrors the
racial makeup of US society exactly. While both these sides are to the greatest
ends of the argument there needs to be an approach to come up with a medium.
This could include laws to force companies to vigorously recruit and develop
minorities for professional and managerial jobs. However, there should not be
any outright quotas, which reserve a certain number of slots for particular
minority groups. This will cause resentments and constitutional obstacles down
the road. The objective here is not to do away with affirmative action in one
sweep, rather to seek out strategies to help promising minorities and match them
with opportunities they have rightfully earned and deserve. Now, what does the
law say? Although Title VII has an affirmative action component part of it, most
regulations stem from a requirement imposed by Executive Order 11246. There are
a lot of misconceptions about affirmative action and what laws companies actual
have to follow. One is that all companies are required to adhere to the laws
under affirmative action, this is not the case. Executive Order 11246 states
that once a company enters into a contract with a federal governmental agency
that exceeds $10,000 it must abide by the affirmative action rules and
regulations. These regulations include, but are not limited to, the following:
to post in a conspicuous place, available to all applicants, provisions of the
nondiscrimination clause; include in contractor's advertisements that all
qualified applicants will receive consideration without regard to race, color,
religion, gender, or national origin; include statements of these obligations to
all subcontractors; and furnish all information and reports to the Secretary of
Labor for purposes of investigation to ascertain compliance with the executive
order and its regulations. In addition to the above regulations if a corporation
enters into a contract of $50,000 or more additional requirements are put in
place. A Corporation must develop a written action plan within 120 days of the
beginning of a governmental contract. They must also perform a workforce
analysis, which must indicate how many women and minorities are in job
categories ranging from unskilled workers to managerial employees. These are the
basic rules and regulations companies and corporations must follow in order to
be within the compliance of the law. There have been several major court
decisions that have helped define the application of the statutes and
regulations. One of the biggest and earliest cases was that of Regents of the
University of California v. Bakke. This case was not against an individual's
employer rather against a university. Bakke applied to Davis for two consecutive
years but was rejected on both occasions. In both years, applicants with lower
scores than Bakke were admitted due to a special admit program. Davis had a
program that says applicants who are not of minority status are totally excluded
from a specific percentage of the seats in the entering class. When the State's
distribution of benefits hinges on the color of a person skin, that individual
is entitled to a demonstration that the challenged classification is essential
to promote a tangible state interest. For this reason the court's judgment was
that Davis' special admission program was invalid under the Fourteenth
Amendment. Another case, that did deal with the employer-employee relationship,
was United Steelworkers of America, AFL-CIO v. Weber. In this case a white
employee sued because his employer adopted a voluntary affirmative action plan
reserving for black employees fifty percent of the openings in a training
program. Because the company had put in place a voluntary program to eliminate
an apparent racial imbalance the Supreme Court held that the program was
permissible and did not unnecessarily trample the rights of white employees.
These are just a couple of the more prominent cases that have help set the
standards for future cases involving affirmative action. There are several
regulations in place that penalize corporations for not following affirmative
action rules and regulations. These penalties for noncompliance can range from a
slap on the hand to major penalties and fines. The publishing of the names of
nonconforming contractors is a minor penalty. Some other more serious penalties
are as follows: recommending proceedings be instituted under Title VII; the
Attorney General bringing suit to enforce the executive order; recommending the
Department of Justice that criminal proceedings be initiated; canceling,
terminating or suspending the contract; and debarring the contractor from
entering into future government contracts. These penalties were enforced during
the case of Local, 28, Sheet Metal Workers v. E.E.O.C. The court imposed that a
29% nonwhite membership goal be meet by a certain date and a $150,000 fine be
placed in a fund intended to expand nonwhite membership in the apprenticeship
program. In order for these penalties to be avoided there are several steps
management should take to be in compliance with the law. First, ensure that
hiring, promotions and training are open and fair to all that apply. Work with
both unions and employee groups if an affirmative action plan is to be but in
place to get early approval from all constituencies affected. Make sure
voluntary plans meet judicial requirements. So all employees understand the
plan, provide periodic training explaining the purpose and the intent of the
plan. Training is the easiest way to deter a lot of misconceptions that
employees have about affirmative action. If affirmative action is handled in the
proper way everyone, minorities, females and whites, wins in the long run.
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