Affirmative action

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Affirmative action (also sometimes called reservations, alternative access, positive discrimination or positive action in various countries' laws and policies) [1] [2] [3] [4] [5] [6] [7] refers to a set of policies and practices within a government or organization seeking to benefit marginalized groups. Historically and internationally, support for affirmative action has been justified by the idea that it may help with bridging inequalities in employment and pay, increasing access to education, and promoting diversity, social equity, and social inclusion and redressing alleged wrongs, harms, or hindrances, also called substantive equality. [8]

Contents

The nature of affirmative-action policies varies from region to region and exists on a spectrum from a hard quota to merely targeting encouragement for increased participation. Some countries use a quota system, reserving a certain percentage of government jobs, political positions, and school vacancies for members of a certain group; an example of this is the reservation system in India. In some other jurisdictions where quotas are not used, minority-group members are given preference or special consideration in selection processes. In the United States, affirmative action by executive order originally meant selection without regard to race but preferential treatment was widely used in college admissions, as upheld in the 2003 Supreme Court case Grutter v. Bollinger , until 2023, when this was overturned in Students for Fair Admissions v. Harvard. [9]

A variant of affirmative action more common in Europe is known as positive action, wherein equal opportunity is promoted by encouraging underrepresented groups into a field. This is often described as being "color blind", but some American sociologists have argued that this is insufficient to achieve substantive equality of outcomes based on race. [10] [11]

In the United States, affirmative action is controversial [12] and public opinion on the subject is divided. Supporters of affirmative action argue that it promotes substantive equality for group outcomes and representation for groups, which are socio-economically disadvantaged or have faced historical discrimination or oppression. [13] [14] Opponents of affirmative action have argued that it is a form of reverse discrimination, [15] that it tends to benefit the most privileged within minority groups at the expense of the least fortunate within majority groups, [16] or that—when applied to universities—it can hinder minority students by placing them in courses for which they have not been adequately prepared. [17]

Origins

The term "affirmative action" was first used in the United States in "Executive Order No. 10925", [18] signed by President John F. Kennedy on 6 March 1961, which included a provision that government contractors "take affirmative action to ensure that applicants are employed, and employees are treated [fairly] during employment, without regard to their race, creed, color, or national origin". [19] In 1965, President Lyndon B. Johnson issued Executive Order 11246 which required government employers to "hire without regard to race, religion and national origin" and "take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." [20] The Civil Rights Act of 1964 prohibited discrimination on the basis of race, color, religion, sex or national origin. Neither executive order nor The Civil Rights Act authorized group preferences. The Senate floor manager of the bill, Senator Hubert Humphrey, declared that the bill “would prohibit preferential treatment for any particular group” adding “I will eat my hat if this leads to racial quotas.” [21] However affirmative action in practice would eventually become synonymous with preferences, goals and quotas as upheld or struck down by Supreme Court decisions even though no law had been passed explicitly permitting discrimination in favor of disadvantaged groups. Some state laws explicitly banned racial preferences, and in response some laws have failed attempting to explicitly legalize race preferences.

Affirmative action is intended to alleviate under-representation and to promote the opportunities of defined minority groups within a society to give them equal access to that of the majority population. [22] The philosophical basis of the policy has various rationales, including but not limited to compensation for past discrimination, correction of current discrimination, and the diversification of society. [23] It is often implemented in governmental and educational settings to ensure that designated groups within a society can participate in all promotional, educational, and training opportunities. [24]

The stated justification for affirmative action by its proponents is to help compensate for past discrimination, persecution or exploitation by the ruling class of a culture, [16] and to address existing discrimination. [25] More recently concepts have moved beyond discrimination to include diversity, equity and inclusion as motives for preferring historically underrepresented groups.

Methods of implementation

Women

Several different studies investigated the effect of affirmative action on women. Kurtulus (2012) in her review of affirmative action and the occupational advancement of minorities and women during 1973–2003 showed that the effect of affirmative action on advancing black, Hispanic, and white women into management, professional, and technical occupations occurred primarily during the 1970s and early 1980s. During this period, contractors grew their shares of these groups more rapidly than non-contractors because of the implementation of affirmative action. But the positive effect of affirmative action vanished entirely in the late 1980s, which Kurtulus says may be due to the slowdown into advanced occupation for women and minorities because of the political shift of affirmative action that started with President Reagan. Becoming a federal contractor increased white women's share of professional occupations by 0.183 percentage points, or 9.3 percent, on average during these three decades, and increased black women's share by 0.052 percentage points (or by 3.9 percent). Becoming a federal contractor also increased Hispanic women's and black men's share of technical occupations on average by 0.058 percent and 0.109 percentage points respectively (or by 7.7 and 4.2 percent). These represent a substantial contribution of affirmative action to overall trends in the occupational advancement of women and minorities over the three decades under the study. [30] A reanalysis of multiple scholarly studies, especially in Asia, considered the impact of four primary factors on support for affirmative action programs for women: gender; political factors; psychological factors; and social structure. Kim and Kim (2014) found that, "Affirmative action both corrects existing unfair treatment and gives women equal opportunity in the future." [31]

Quotas

Law regarding quotas and affirmative action varies widely from nation to nation.

Caste-based and other group-based quotas are used in the reservation system.

In 2012, the European Union Commission approved a plan for women to constitute 40% of non-executive board directorships in large listed companies in Europe by 2020. [32] Directive (EU) 2022/2381 requires that EU member states adopt by 28 December 2024 laws to ensure that by 30 June 2026 members of the underrepresented sex hold at least 40% of non-executive director positions and at least 33% of all director positions, including both executive and non-executive directors, for listed companies. Directive (EU) 2022/2381 expires on 31 December 2038. [33]

In Sweden, the Supreme Court has ruled that "affirmative action" ethnic quotas in universities are discrimination and hence unlawful. It said that the requirements for the intake should be the same for all. The justice minister said that the decision left no room for uncertainty. [34]

National approaches

In some countries that have laws on racial equality, affirmative action is rendered illegal because it does not treat all races equally. This approach of equal treatment is sometimes described as being "color blind", in hopes that it is effective against discrimination without engaging in reverse discrimination.

In such countries, the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes called positive action.

Africa

South Africa

Apartheid

The apartheid government, as a matter of state policy, favoured white-owned, especially Afrikaner-owned companies. The aforementioned policies achieved the desired results, but in the process, they marginalised and excluded black people. Skilled jobs were also reserved for white people, and black people were largely used as unskilled labour, enforced by legislation including the Mines and Works Act, the Job Reservations Act, the Native Building Workers Act, the Apprenticeship Act and the Bantu Education Act, [35] creating and extending the "colour bar" in South African labour. [36] Then the whites successfully persuaded the government to enact laws that highly restricted the blacks employment opportunities.

Since the 1960s the apartheid laws had been weakened. Consequently, from 1975 to 1990 the real wages of black manufacturing workers rose by 50%, while those of the whites rose by 1%. [37]

The variation in skills and productivity between groups of people ultimately caused disparities in employment, occupation and income within labour markets, which provided advantages to certain groups and characteristics of people. This in due course was the motivation to introduce affirmative action in South Africa, following the end of apartheid. [38]

Post-apartheid – the Employment Equity Act

Following the transition to democracy in 1994, the African National Congress-led government chose to implement affirmative action legislation to correct previous imbalances (a policy known as employment equity). As such, all employers were compelled by law to employ previously disenfranchised groups (blacks, Indians, and Coloureds). A related, but distinct concept is Black Economic Empowerment. [39]

The Employment Equity Act and the Broad Based Black Economic Empowerment Act aim to promote and achieve equality in the workplace (in South Africa termed "equity"), by advancing people from designated groups. The designated groups who are to be advanced include all people of colour, women (including white women) and people with disabilities (including white people). Employment Equity legislation requires companies employing more than 50 people to design and implement plans to improve the representativity of workforce demographics, and report them to the Department of Labour. [40]

Employment Equity also forms part of a company's Black Economic Empowerment scorecard: in a relatively complex scoring system, which allows for some flexibility in the manner in which each company meets its legal commitments, each company is required to meet minimum requirements in terms of representation by previously disadvantaged groups. The matters covered include equity ownership, representation at employee and management level (up to the board of director level), procurement from black-owned businesses and social investment programs, amongst others.

The policies of Employment Equity and, particularly, Black Economic empowerment have been criticised both by those who view them as discriminatory against white people, and by those who view them as ineffectual. [41] [42] [43] [44] [45]

These laws cause disproportionally high costs for small companies and reduce economic growth and employment. [37] The laws may give the black middle-class some advantage but can make the worse-off blacks even poorer. [37] Moreover, the Supreme Court has ruled that in principle blacks may be favored, but in practice this should not lead to unfair discrimination against the others. [37]

Affirmative action purpose

Affirmative action was introduced through the Employment Equality Act, 55 in 1998, 4 years after the end of apartheid. This act was passed to promote the constitutional right of equality and exercise true democracy. This idea was to eliminate unfair discrimination in employment, to ensure the implementation of employment equity to redress the effects of discrimination, to achieve a diverse workforce broadly representative of our people, to promote economic development and efficiency in the workforce and to give effects to the obligations of the Republic as a member of the International Labour Organisation. [38] [46]

Many embraced the act; however some concluded that the act contradicted itself. The act eliminates unfair discrimination in certain sectors of the national labour market by imposing similar constraints on another. [38]

With the introduction of Affirmative Action, black economic empowerment (BEE) rose further in South Africa. The BEE was not a moral initiative to redress the wrongs of the past but to promote growth and strategies that aim to realize a country's full potential. The idea was targeting the weakest link in economics, which was inequality and which would help develop the economy. This is evident in the statement by the Department of Trade and Industry, "As such, this strategy stresses a BEE process that is associated with growth, development and enterprise development, and not merely the redistribution of existing wealth". [47] [48] Similarities between the BEE and affirmative action are apparent; however there is a difference. BEE focuses more on employment equality rather than taking wealth away from the skilled white labourers. [47]

The main goal of affirmative action is for the country to reach its full potential. This would result in a completely diverse workforce in economic and social sectors, thus broadening the economic base and stimulating economic growth. [49]

Outcome

Once applied within the country, many different outcomes arose, some positive and some negative. This depended on the approach to and the view of The Employment Equality Act and affirmative action.

Positive: Pre-Democracy, the apartheid governments discriminated against non-white races, so with affirmative action, the country started to redress past discriminations. Affirmative action also focused on combating structural racism and racial inequality, hoping to maximize diversity in all levels of society and sectors. [50] Achieving this would elevate the status of the perpetual underclass and to restore equal access to the benefits of society. [38]

Negative: As with all policies, there have also been negative outcomes. A quota system was implemented, which aimed to achieve targets of diversity in a workforce. This target affected the hiring and level of skills in the workforce, ultimately impacting the free market. [49] [50] Affirmative action created marginalization for coloured and Indian races in South Africa, as well as developing and aiding the middle and elite classes, leaving the lower class behind. This created a bigger gap between the lower and middle class, which led to class struggles and a greater segregation. [46] [50] Entitlement began to arise with the growth of the middle and elite classes, as well as race entitlement. Some[ who? ] assert that affirmative action is discrimination in reverse. Negative consequences of affirmative action, specifically the quota system, drove skilled labour away, resulting in bad economic growth. This is due to very few international companies wanting to invest in South Africa. [50] As a result of the outcomes of affirmative action, the concept is continually evolving. [50]

South African jurist Martin van Staden argues that the way affirmative action and transformation policies have been implemented in South Africa has eroded state institutions, grown corruption, and undermined the rule of law in the country. [51] [52]


Ghana

The Parliament of Ghana passed the Affirmative Action Bill on July 30, 2024. [53]

Asia

China

There is affirmative action in education for minority nationalities in China, this may equate to lowering minimum requirements for the National University Entrance Examination, which is a mandatory exam for all students to enter university. [54] [55] Liangshaoyikuan refers a policy in China on affirmative action in criminal justice.

Israel

A class-based affirmative action policy was incorporated into the admission practices of the four most selective universities in Israel during the early to mid-2000s. In evaluating the eligibility of applicants, neither their financial status nor their national or ethnic origins are considered. The emphasis, rather, is on structural disadvantages, especially neighborhood socioeconomic status and high school rigor, although several individual hardships are also weighed. This policy made the four institutions, especially the echelons at the most selective departments, more diverse than they otherwise would have been. The rise in geographic, economic and demographic diversity of a student population suggests that the plan's focus on structural determinants of disadvantage yields broad diversity dividends. [56]

Israeli citizens who are women, Arabs, Blacks or people with disabilities are supported by affirmative action in the civil service employment. [57] Also Israeli citizens who are Arabs, Blacks or people with disabilities are entitled to full university scholarships by the state. [58]

In her study of gender politics in Israel, Dafna Izraeli showed that the paradox of affirmative action for women directors is that the legitimation for legislating their inclusion on boards also resulted in the exclusion of women's interested as a legitimate issue on the boards' agendas. "The new culture of the men's club is seductive token women are under the pressure to become "social males" and prove that their competence as directors, meaning that they are not significantly different from men. In the negotiation for status as worthy peers, emphasizing gender signals that a woman is an "imposter", someone who does not rightfully belong in the position she is claiming to fill." And once affirmative action for women is fulfilled, and then affirmative action shares the element, as Izraeli put it, the "group equality discourse", making it easier for other groups to claim for a fairer distribution of resources. This suggests that affirmative action can have applications for different groups in Israel. [59]

India

Reservation in India is a form of affirmative action designed to improve the well-being of Scheduled Castes and Scheduled Tribes (SC/ST), and Other Backward Classes (OBC), defined primarily by their caste. Members of these categories comprise about two-thirds of the population of India. [60] [61] According to the Constitution of India, up to 50% of all government-run higher education admissions and government job vacancies may be reserved for members of the SC/ST/OBC-NCL categories, and 10% for those in Economically Weaker Sections (EWS), with the remaining unreserved. [62] [63] In 2014, the Indian National Sample Survey found that 12% of surveyed Indian households had received academic scholarships, with 94% being on account of SC/ST/OBC membership, 2% based on financial weakness and 0.7% based on merit. [64]

Indonesia

Indonesia has offered affirmative action for native Papuans in education, government civil worker selection, and police & army selection. [65] [66] [67] [68] [69] After the 2019 Papua protests, many Papuan students chose to abandon their scholarship and return to their respective provinces. [70] The program has been subject to criticism, with complaints made towards a lack of sufficient quotas and alleged corruption. Prabowo Subianto, Indonesian defense minister, has expressed that he will direct more effort towards recruiting Papuans to the Indonesian National Armed Forces. [71] Education scholarship by Ministry of Education and Culture, called ADik to the native Papuans and students from perhipery regions close to Indonesian border. [72] [73]

Malaysia

The Malaysian New Economic Policy or NEP is a form of ethnicity-based affirmative action. Malaysia provides affirmative action to those that are deemed "Bumiputera", which includes the Malay population, Orang Asli, and the indigenous people of Sabah and Sarawak, who together form a majority of the population. However, the indigenous people of Malaysia (Orang Asli) do not have the same special rights of the rest of the Bumiputera as granted under Article 153, as the Orang Asli are not referenced within the article 153 itself. [74]

The historical/common argument is that the Malays have lower incomes than the Chinese and Indians, who have traditionally been involved in businesses and industries, who were also general migrant workers. [75] [76] Malaysia is a multi-ethnic country, with Malays making up the majority of close to 58% of the population. About 22% of the population is of Chinese descent, while those of Indian descent comprise about 6% of the population.

The Malaysian New Economic Policy (NEP) has been dubbed a failure as of recent years, as evidence has pointed to the ever-growing wealth disparity among Malays, that have widened the gap between the rich and poor Malays, while the Malaysian New Economic Policy has been shown to benefit the existing rich Malays instead of achieving its intention of helping poor Malays. [77]

(See also Bumiputra ) The mean income for Malays, Chinese and Indians in 1957/58 were 134, 288 and 228 respectively. In 1967/68 it was 154, 329 and 245, and in 1970 it was 170, 390 and 300. Mean income disparity ratio for Chinese/Malays rose from 2.1 in 1957/58 to 2.3 in 1970, whereas for Indians/Malays the disparity ratio also rose from 1.7 to 1.8 in the same period. [78]

Sri Lanka

In 1981 the Standardization policy of Sri Lankan universities was introduced as an affirmative action program for students from areas which had lower rates of education than other areas due to missionary activity in the north and east, which essentially were the Tamil areas. Successive governments cultivated a historical myth after the colonial powers had left that the British had practised communal favouritism towards Christians and the minority Tamil community for the entire 200 years they had controlled Sri Lanka. However, the Sinhalese in fact benefitted from trade and plantation cultivations over the rest of the other groups and their language and culture as well as the religion of Buddhism was fostered and made into mediums for schools over the Tamil language, which did not have the same treatment and Tamils learned English instead as there was no medium for Tamil until near independence. Tamils' knowledge of English and education came from the very American missionary activity by overseas Christians that the British were concerned will anger the Sinhalese and destroy their trading relationships, so they sent them to the Tamil areas instead to teach, thinking it would have no consequences and due to their small numbers. The British sending the missionaries to the north and east was for the protection of the Sinhalese and in fact, showed favouritism to the majority group instead of the minorities to maintain trading relationships and benefits from them. The Tamils, out of this random benefit from learning English and basic education excelled and flourished and were able to take many civil service jobs to the chagrin of the Sinhalese. The myth of Divide and Rule is untrue. The 'policy of standardisation' was typical of affirmative action policies, in that it required drastically lower standards for Sinhalese students than for the more academic Tamils who had to get about ten more marks to enter into universities. The policy in fact is an example of discrimination against the Tamil ethnic group. [79]

Taiwan

A 2004 legislation requires that, for a firm with 100 employees or more wishing to compete for government contracts, at least 1 percent of its employees must be Taiwanese aborigines. [80] Ministry of Education and Council of Aboriginal Affairs announced in 2002 that Taiwanese Aboriginal students would have their high-school or undergraduate entrance exams boosted by 33% for demonstrating some knowledge of their tribal language and culture. [81] The percentage of boost have been revised several times, and the latest percentage is 35% in 2013. [82]

Europe

Denmark

Greenlanders have special advantages when applying for university, college or vocation university degrees in Denmark. With these specific rules, Greenlanders can get into degrees without the required grade averages by fulfilling certain criteria. They need to have a grade average of over 6,0 and have lived a certain number of years in Greenland. These rules have been in force since 1 January 2014. [83]

Finland

In certain university education programs, including legal and medical education, there are quotas for persons who reach a certain standard of skills in the Swedish language; for students admitted in these quotas, the education is partially arranged in Swedish. [84] [85] The purpose of the quotas is to guarantee that a sufficient number of professionals with skills in Swedish are educated for nationwide needs. [84] The quota system has met with criticism from the Finnish speaking majority, some of whom consider the system unfair. In addition to these linguistic quotas, women may get preferential treatment in recruitment for certain public sector jobs if there is a gender imbalance in the field.

France

No distinctions based on race, religion or sex are allowed under the 1958 French Constitution. [86] Since the 1980s, a French version of affirmative action based on neighborhood is in place for primary and secondary education. Some schools, in neighborhoods labeled "Priority Education Zones", are granted more funds than the others. Students from these schools also benefit from special policies in certain institutions (such as Sciences Po). [87]

The French Ministry of Defence tried in 1990 to make it easier for young French soldiers of North-African descent to be promoted in rank and obtain driving licenses. After a strong protest by a young French lieutenant [88] in the Ministry of Defence newspaper (Armées d'aujourd'hui), the driving license and rank plan was cancelled. After the Sarkozy election, a new attempt in favour of Arab-French students was made, but Sarkozy did not gain enough political support to change the French constitution. However, some French schools do implement affirmative action in that they are obligated to take a certain number of students from impoverished families. [89]

Additionally, following the Norwegian example, after 27 January 2014, women must represent at least 20% of board members in all stock exchange listed or state-owned companies. After 27 January 2017, the proportion will increase to 40%. All appointments of men as directors will be invalid as long as the quota is not met, and monetary penalties may apply for other directors. [90]

Germany

Article 3 of the German Basic Law provides for equal rights of all people regardless of sex, race or social background. There are programs stating that if men and women have equal qualifications, women have to be preferred for a job; moreover, the disabled should be preferred to non-disabled people. This is typical for all positions in state and university service as of 2007, typically using the phrase "We try to increase diversity in this line of work". In recent years, there has been a long public debate about whether to issue programs that would grant women a privileged access to jobs in order to fight discrimination. Germany's Left Party brought up the discussion about affirmative action in Germany's school system. According to Stefan Zillich, quotas should be "a possibility" to help working class children who did not do well in school gain access to a Gymnasium (University-preparatory school). [91] Headmasters of Gymnasien have objected, saying that this type of policy would "be a disservice" to poor children. [92]

Norway

In all public stock companies (ASA) boards, either gender should be represented by at least 40%. [93] This affects roughly 400 companies of over 300,000 in total. [94]

Seierstad & Opsahl in their study of the effects of affirmative action on presence, prominence, and social capital of women directors in Norway found that there are few boards chaired by a woman, from the beginning of the implementation of the affirmative action policy period to August 2009, the proportion of boards led by a woman has increased from 3.4% to 4.3%. This suggests that the law has had a marginal effect on the sex of the chair and the boards remain internally segregated. Although at the beginning of our observation period, only 7 of 91 prominent directors were women. The gender balance among prominent directors has changed considerably throughout the period, and at the end of the period, 107 women and 117 men were prominent directors. By applying more restrictive definitions of prominence, the proportion of directors who are women generally increases. If only considering directors with at least three directorships, 61.4% of them are women. When considering directors with seven or more directorships, all of them are women. Thus, affirmative action increases the female population in the director position. [95]

A 2016 study found no effect of the ASA representation requirement on either valuation or profits of the affected companies, and also no correlation between the requirement and the restructuring of companies away from ASA. [96] [97]

Romania

Romani people are allocated quotas for access to public schools and state universities. [98]

Soviet Union and Russia

Soon after the 1918 revolution, Inessa Armand, Lenin's secretary and lover, was instrumental in creating Zhenotdel, which functioned until the 1930s as part of the international egalitarian and affirmative action movements. [99] [100] [101] Quota systems existed in the USSR for various social groups including ethnic minorities, women and factory workers. Before 1934 ethnic minorities were described as culturally backward, but in 1934 this term was found inappropriate. [102] In 1920s and early 1930s Korenizatsiia applied affirmative action to ethnic minorities. [103] [104] Quotas for access to university education, offices in the Soviet system and the Communist Party existed: for example, the position of First Secretary of a Soviet Republic's (or Autonomous Republic's) Party Committee was always filled by a representative of this republic's "titular ethnicity".

Russia retains this system partially. Quotas are abolished, but preferences for some ethnic minorities and inhabitants of certain territories remain. [105]

Serbia

The Constitution of the Republic of Serbia from 2006 established the principles of equality and the prohibition of discrimination on any grounds. It also allows affirmative action as "special measures" for certain marginalized groups, such as national minorities, by specifically excluding it from the legal definition of discrimination. [106] In Serbia the Roma national minority is enabled to enroll in public schools under more favorable conditions. [107]

Slovakia

The Constitutional Court declared in October 2005 that affirmative action i.e. "providing advantages for people of an ethnic or racial minority group" as being against its Constitution. [108]

United Kingdom

In the United Kingdom, hiring someone simply because of their protected-group status, without regard to their performance, is illegal. [109] [110] [111] However, the law in the United Kingdom does allow for membership in a protected and disadvantaged group to be considered in hiring and promotion when the group is under-represented in a given area and if the candidates are of equal merit (in which case membership in a disadvantaged group can become a "tie-breaker"). [112]

The Equality Act 2010 established the principles of equality and their implementation in the UK. [113] In the UK, any discrimination, quotas or favouritism due to sex, race and ethnicity among other "protected characteristics" is illegal by default in education, employment, during commercial transactions, in a private club or association, and while using public services, [109] [110] [111] although exceptions exist, to wit: "Section 159 of the Equality Act 2010 allows an employer to treat an applicant or employee with a protected characteristic (eg race, sex or age) more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role. The employer must reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity. Taking the positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity.") [112]

Specific exemptions include:

In 2019, an employment tribunal ruled that, while attempting to create a diverse force, the Cheshire Police had discriminated against a "well prepared" white heterosexual male. The ruling stated that "while positive action can be used to boost diversity, it should only be applied to distinguish between candidates who were all equally well qualified for a role". [116]

North America

Canada

The equality section of the Canadian Charter of Rights and Freedoms explicitly permits affirmative action type legislation, although the Charter does not require legislation that gives preferential treatment. Subsection 2 of Section 15 states that the equality provisions do "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability". [117]

The Canadian Employment Equity Act requires employers in federally-regulated industries to give preferential treatment to four designated groups: Women, persons with disabilities, aboriginal peoples, and visible minorities. Less than one-third of Canadian Universities offer alternative admission requirements for students of aboriginal descent. Some provinces and territories also have affirmative action-type policies. For example, in the Northwest Territories in the Canadian north, aboriginal people are given preference for jobs and education and are considered to have P1 status. Non-aboriginal people who were born in the NWT or have resided half of their life there are considered a P2, as well as women and people with disabilities. [118]

United States

The policy of affirmative action dates to the Reconstruction Era in the United States, 1863–1877. [119] Current policy was introduced in the early 1960s in the United States, as a way to combat racial discrimination in the hiring process, with the concept later expanded to address gender discrimination. [120] Affirmative action was first created from Executive Order 10925, which was signed by President John F. Kennedy on 6 March 1961 and required that government employers "not discriminate against any employee or applicant for employment because of race, creed, color, or national origin" and "take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, or national origin" but did not require or permit group preferences. [121] [122]

On 24 September 1965, President Lyndon B. Johnson signed Executive Order 11246, thereby replacing Executive Order 10925, but continued to use the same terminology that did not require or permit group preferences. [123] Affirmative action was extended to sex by Executive Order 11375 which amended Executive Order 11246 on 13 October 1967, by adding "sex" to the list of protected categories. In the U.S. affirmative action's original purpose was to pressure institutions into compliance with the nondiscrimination mandate of the Civil Rights Act of 1964. [25] [124] The Civil Rights Acts do not cover discrimination based on veteran status, disabilities, or age that is 40 years and older. These groups may be protected from discrimination under different laws. [125]

Affirmative action has been the subject of numerous court cases, [126] and has been questioned upon its constitutional legitimacy. In 2003, a Supreme Court decision regarding affirmative action in higher education ( Grutter v. Bollinger , 539 US 244 – Supreme Court 2003) permitted educational institutions to consider race as a factor when admitting students. [127] Alternatively, some colleges use financial criteria to attract racial groups that have typically been under-represented and typically have lower living conditions. Some states such as California (California Civil Rights Initiative), Michigan (Michigan Civil Rights Initiative), and Washington (Initiative 200) have passed constitutional amendments banning public institutions, including public schools, from practicing affirmative action within their respective states. In 2014, the U.S. Supreme Court held that "States may choose to prohibit the consideration of racial preferences in governmental decisions". By that time eight states, Oklahoma, New Hampshire, Arizona, Colorado, Nebraska, Michigan, Florida, Washington and California, had already banned affirmative action. [128] Numerous critics report that colleges quietly use illegal quotas to discriminate against people of Asian, [129] Jewish, and Caucasian backgrounds and have launched numerous lawsuits to stop them. [130]

On June 29, 2023, the Supreme Court ruled 6–2 that the use of race in college admissions is unconstitutional under the Equal Protection Clause of the 14th Amendment in Students for Fair Admissions v. Harvard .

Oceania

New Zealand

Individuals of Māori or other Polynesian descent are often afforded improved access to university courses, or have scholarships earmarked specifically for them. Such access to University courses have in the past faced criticism, particularly at the University of Auckland due to a phenomenon known as Mismatch theory, accusations of setting the kids up to fail have been made due to a lack of transparency as to the preferred groups graduation rates and the university informing the students of such historical statistics dating back to the 1970s. [131] [109] Affirmative action is provided for under section 73 of the Human Rights Act 1993 [132] and section 19(2) of the New Zealand Bill of Rights Act 1990. [133] Affirmative action in New Zealand is most often done indirecttly by encouraging those in groups favored by affirmative action to get jobs in sectors they are underrepresented in. [134] Diversity Awards NZ is an organization in New Zealand whose goal is to " celebrate excellence in workplace diversity, equity and inclusion." [135]

Under section 73 of the Human Rights Act 1993, affirmative action would be permissible if: [134]

  1. Done in good faith;
  2. For the purpose of assisting individuals or groups with a characteristic pertaining to a prohibited ground of discrimination; and
  3. The individuals or groups in question need (or may reasonably be supposed to need) assistance in order to achieve an equal place with other members of the community.

South America

Brazil

Some Brazilian universities (state and federal) have created systems of preferred admissions (quotas) for racial minorities (blacks and Amerindians), the poor and people with disabilities. There are also quotas of up to 20% of vacancies reserved for people with disabilities in the civil public services. [136] The Democrats party, accusing the board of directors of the University of Brasília for "resurrecting Nazist ideals", appealed to the Supreme Federal Court against the constitutionality of the quotas the university reserves for minorities. [137] The Supreme Court unanimously approved their constitutionality on 26 April 2012. [138]

International organizations

United Nations

The International Convention on the Elimination of All Forms of Racial Discrimination stipulates (in Article 2.2) that affirmative action programs may be required of countries that ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved". [139]

The United Nations Human Rights Committee states that "the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant." [139]

Responses

The principle of affirmative action is to promote societal equality through the preferential treatment of socioeconomically disadvantaged people. Often, these people are disadvantaged for historical reasons, such as oppression or slavery. [140] Historically and internationally, support for affirmative action has sought to achieve a range of goals: bridging inequalities in employment and pay; increasing access to education; enriching state, institutional, and professional leadership with the full spectrum of society; redressing apparent past wrongs, harms, or hindrances, in particular addressing the apparent social imbalance left in the wake of slavery and slave laws.

A 2017 study of temporary federal affirmative action regulation in the United States estimated that the regulation "increases the black share of employees over time: in 5 years after an establishment is first regulated, the black share of employees increases by an average of 0.8 percentage points. Strikingly, the black share continues to grow at a similar pace even after an establishment is deregulated. [The author] argue[s] that this persistence is driven in part by affirmative action inducing employers to improve their methods for screening potential hires." [141]

Critics of affirmative action offer a variety of arguments as to why it is counterproductive or should be discontinued. For example, critics[ who? ] may argue that affirmative action hinders reconciliation, replaces old wrongs with new wrongs, undermines the achievements of minorities, and encourages individuals to identify themselves as disadvantaged, even if they are not. It may increase racial tension and benefit the more privileged people within minority groups at the expense of the least fortunate within majority groups. [142]

Legal scholar Stanley Fish suggests that opponents of affirmative action often argue it is a form of reverse discrimination, and that any effort to cure discrimination through affirmative action is wrong because it, in turn, is another form of discrimination. He says this is a false equivalence, since those opposed to affirmative action are motivated "not from any wrong done to [them]" but by a desire to continue marginalizing others. [15] Journalist Vann R. Newkirk II says that critics of affirmative action often claim court cases such as Fisher v. University of Texas , which held that colleges have some discretion to consider race when making admissions decisions, demonstrate that discrimination occurs in the name of affirmative action. He says this is one of several "misconceptions" often used to engender "white resentment" in opposition to affirmative action. [143]

According to scholar George Sher, some critics of affirmative action say that it devalues the accomplishments of individuals chosen only based on the social groups to which they belong rather than their qualifications. [144] [145] Legal scholar Tseming Yang and others have also discussed the challenges of fraudulent self-identification when implementing affirmative action policies. Yang suggests that because some individuals from non-preferred groups may designate themselves as members of preferred groups to access the benefits of such programs, this requires the "necessary evil" of verifying individuals' race to prevent this. [145] [146]

Critics of affirmative action suggest that programs may benefit the members of the targeted group that least need the benefit—that is, those who have the greatest social, economic and educational advantages within the targeted group. [145] They[ who? ] may argue that at the same time the people who lose the most to affirmative action are the least fortunate members of non-preferred groups. [145] Political scientist Charles Murray has said that beneficiaries are often wholly unqualified for the opportunity made available, citing his belief in the innate differences between races. He reaffirmed these views in his essay "The Advantages of Social Apartheid", in which he advocates separation of people based on race and intelligence. [147]

Another criticism of affirmative action[ according to whom? ] is that it may reduce the incentives of both the preferred and non-preferred to perform at their best. Beneficiaries of affirmative action may conclude that it is unnecessary to work as hard, and those who do not benefit may perceive hard work as futile. [145]

Mismatching

Mismatching is the supposed negative effect affirmative action has when it places a student into a college that is too difficult for them based on meeting quotas. In the absence of affirmative action, a student may be admitted to a college that matches their academic ability and therefore has a better chance of graduating. The latter may increase the chance the student drops out or fails the course, thus hurting the intended beneficiaries of affirmative action. [148] [149] [17] [147] [150] In 2017, researcher Andrew J. Hill found that affirmative action bans resulted in a reduction in minority students completing four-year STEM degrees, and suggests this indicates that the mismatch hypothesis is unfounded. He says this is evidence that affirmative action may be effective in "some circumstances", such as in encouraging greater minority engagement in STEM degrees. [151] In 2020, researcher Zachary Bleemer found that an affirmative action ban in California (Prop 209) had resulted in average wage drops of 5% annually among underrepresented minorities aged 24–34 in STEM industries, especially effecting Hispanic people. [152] [17]

In 2007, Gail Heriot, a professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights, discussed the evidence in support of mismatching in law courses. She pointed to a study by Richard Sander which suggests there were 7.9% fewer Black attorneys than if there had been no affirmative action. [153] Sander suggests that mismatching meant Black students were more likely to drop out of law school and fail bar exams. [154] Sander's paper on mismatching has been criticized by several law professors, including Ian Ayres and Richard Brooks from Yale, who argue that eliminating affirmative action would actually reduce the number of Black lawyers by 12.7%. Furthermore, they suggest that students attending higher ranking colleges do better than those who don't. [155] A 2008 study by Jesse Rothstein and Albert H. Yoon said Sander's results were "plausible", but said that eliminating affirmative action would "lead to a 63 percent decline in black matriculants at all law schools and a 90 percent decline at elite law schools". They dismissed the mismatch theory, concluding that "one cannot credibly invoke mismatch effects to argue that there are no benefits" to affirmative action. [156] In a 2016 review of previous studies by Peter Arcidiacono and Michael Lovenheim, they suggested that more African-American students attending less-selective schools would significantly improve first-attempt pass rates at the state bar, but cautioned that such improvements could be outweighed by decreases in law school attendance. [157]

A 2011 study of data held by Duke University said there was no evidence of mismatch, and proposed that mismatch could only occur if a selective school possessed private information about students' prospects at the college which it failed to share. Providing such information to prospective students would avoid mismatch because the students could choose another school that was a better match. [158] A 2016 study on affirmative action in India said there was no evidence for the mismatching hypothesis. [159]

Polls

According to a poll taken by USA Today in 2005, the majority of Americans support affirmative action for women, while views on minority groups were more split. [160] Men are only slightly more likely to support affirmative action for women, though a majority of both do. [160] However, a slight majority of Americans do believe that affirmative action goes beyond ensuring access and goes into the realm of preferential treatment. [160] More recently, a Quinnipiac poll from June 2009 finds that 55% of Americans feel that affirmative action, in general, should be discontinued, though 55% support it for people with disabilities. [161] A Gallup poll from 2005 showed that 72% of black Americans and 44% of white Americans supported racial affirmative action (with 21% and 49% opposing), with support and opposition among Hispanic people falling between those of black people and white people. Support among black people, unlike among white people, had almost no correlation with political affiliation. [162]

A 2009 Quinnipiac University Polling Institute survey found 65% of American voters opposed the application of affirmative action to homosexuals, with 27% indicating they supported it. [161]

A Leger poll taken in 2010 found 59% of Canadians opposed considering race, gender, or ethnicity when hiring for government jobs. [163]

A 2014 Pew Research Center poll found that 63% of Americans thought affirmative action programs aimed at increasing minority representation on college campuses were "a good thing", compared to 30% who thought they were "a bad thing". [164] The following year, Gallup released a poll showing that 67% of Americans supported affirmative action programs aimed at increasing female representation, compared to 58% who supported such programs aimed at increasing the representation of racial minorities. [165]

A 2019 Pew Research Center poll found 73% of Americans believe race or ethnicity should not factor into college admissions decisions. [166] A few years later in 2022, a Pew Research Center poll found that 74% of Americans believe race or ethnicity should not factor into college admissions decisions. [167]

See also

Related Research Articles

Racial quotas in employment and education are numerical requirements or quotas for hiring, promoting, admitting and/or graduating members of a particular racial group. Racial quotas are often established as means of diminishing racial discrimination, addressing under-representation and evident racism against those racial groups or, the opposite, against the disadvantaged majority group. Conversely, quotas have also been used historically to promote discrimination against minority groups by limiting access to influential institutions in employment and education.

Reverse discrimination is a term used to describe discrimination against members of a dominant or majority group, in favor of members of a minority or historically disadvantaged group.

Regents of the University of California v. Bakke, 438 U.S. 265 (1978), was a landmark decision by the Supreme Court of the United States that involved a dispute over whether preferential treatment for minorities could reduce educational opportunities for whites without violating the Constitution. It upheld affirmative action, allowing race to be one of several factors in college admission policy. However, the court ruled that specific racial quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis, School of Medicine, were impermissible.

Racial discrimination is any discrimination against any individual on the basis of their race, ancestry, ethnic or national origin, and/or skin color and hair texture. Individuals can discriminate by refusing to do business with, socialize with, or share resources with people of a certain group. Governments can discriminate explicitly in law, for example through policies of racial segregation, disparate enforcement of laws, or disproportionate allocation of resources. Some jurisdictions have anti-discrimination laws which prohibit the government or individuals from being discriminated based on race in various circumstances. Some institutions and laws use affirmative action to attempt to overcome or compensate for the effects of racial discrimination. In some cases, this is simply enhanced recruitment of members of underrepresented groups; in other cases, there are firm racial quotas. Opponents of strong remedies like quotas characterize them as reverse discrimination, where members of a dominant or majority group are discriminated against.

Grutter v. Bollinger, 539 U.S. 306 (2003), was a landmark case of the Supreme Court of the United States concerning affirmative action in student admissions. The Court held that a student admissions process that favors "underrepresented minority groups" did not violate the Fourteenth Amendment's Equal Protection Clause so long as it took into account other factors evaluated on an individual basis for every applicant. The decision largely upheld the Court's decision in Regents of the University of California v. Bakke (1978), which allowed race to be a consideration in admissions policy but held racial quotas to be unconstitutional. In Gratz v. Bollinger (2003), a separate case decided on the same day as Grutter, the Court struck down a points-based admissions system that awarded an automatic bonus to the admissions scores of minority applicants.

<span class="mw-page-title-main">1996 California Proposition 209</span> Referendum banning affirmative action

Proposition 209 is a California ballot proposition which, upon approval in November 1996, amended the state constitution to prohibit state governmental institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Modeled on the Civil Rights Act of 1964, the California Civil Rights Initiative was authored by two California academics, Glynn Custred and Tom Wood. It was the first electoral test of affirmative action policies in North America. It passed with 55% in favor to 45% opposed, thereby banning affirmative action in the state's public sector.

<span class="mw-page-title-main">Affirmative action in the United States</span>

In the United States, affirmative action consists of government-mandated, government-approved, and voluntary private programs granting special consideration to groups considered or classified as historically excluded, specifically racial minorities and women. These programs tend to focus on access to education and employment in order to redress the disadvantages associated with past and present discrimination. Another goal of affirmative action policies is to ensure that public institutions, such as universities, hospitals, and police forces, are more representative of the populations they serve.

Initiative 200 was a Washington state initiative filed by Scott Smith and Tim Eyman. It sought to prohibit racial and gender preferences by state and local government. It was on the Washington ballot in November 1998 and passed with 58.22% of the vote. It added to Washington's law the following language:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Constitutional colorblindness is a legal and philosophical principle suggesting that the Constitution, particularly the Equal Protection Clause of the 14th Amendment, should be interpreted as prohibiting the government from considering race in its laws, policies, or decisions. According to this doctrine, any use of racial classifications, whether intended to benefit or disadvantage certain groups, is viewed as inherently discriminatory and thus unconstitutional.

Employment equity, as defined in federal Canadian law by the Employment Equity Act, requires federal jurisdiction employers to engage in proactive employment practices to increase the representation of four designated groups: women, people with disabilities, visible minorities, and Indigenous peoples.. The act states that "employment equity means more than treating persons the same way but also requires special measures and the accommodation of differences".

Racial diversity in United States schools is the representation of different racial or ethnic groups in American schools. The institutional practice of slavery, and later segregation, in the United States prevented certain racial groups from entering the school system until midway through the 20th century, when Brown v. Board of Education forbade racially segregated education. Globalization and migrations of peoples to the United States have increasingly led to a multicultural American population, which has in turn increased classroom diversity. Nevertheless, racial separation in schools still exists today, presenting challenges for racial diversification of public education in the United States.

<span class="mw-page-title-main">Senate Constitutional Amendment 5</span> Proposed California ballot measure

Senate Constitutional Amendment 5 was introduced by California State Senator Edward Hernandez to the California State Senate on December 3, 2012. This initiative would ask voters to consider eliminating California Proposition 209's ban on the use of race, sex, color, ethnicity, or national origin in recruitment, admissions, and retention programs at California's public universities and colleges. SCA 5 was passed in the California Senate on January 30, 2014 but was subsequently withdrawn by Hernandez due to strong opposition, mainly from Asian Americans.

Schuette v. BAMN, 572 U.S. 291 (2014), was a landmark decision of the Supreme Court of the United States concerning affirmative action and race- and sex-based discrimination in public university admissions. In a 6-2 decision, the Court held that the Fourteenth Amendment's Equal Protection Clause does not prevent states from enacting bans on affirmative action in education.

Quotaism is the concept of organizing society by a quota system, whether by racial, gender, language or another demographic attribute. Examples of quotas include gender quotas, racial quota, and reservations. The basic premise is to have demographics represented at all levels and aspects of the civilization according to national statistics.

Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), is a landmark decision of the Supreme Court of the United States in which the court held that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the Fourteenth Amendment. With its companion case, Students for Fair Admissions v. University of North Carolina, the Supreme Court effectively overruled Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), which validated some affirmative action in college admissions provided that race had a limited role in decisions.

Affirmative action refers to activities or policies that seek to help groups that are often affected by discrimination obtain equal access to opportunities, particularly in areas such as employment and education. In the United States, in the early 2000s, the use of race, gender, and other factors in college and university admissions decisions came under attack.

<span class="mw-page-title-main">Substantive equality</span> Concept of equality of outcome for groups

Substantive equality is a substantive law on human rights that is concerned with equality of outcome for disadvantaged and marginalized people and groups and generally all subgroups in society. Scholars define substantive equality as an output or outcome of the policies, procedures, and practices used by nation states and private actors in addressing and preventing systemic discrimination.

<span class="mw-page-title-main">2020 California Proposition 16</span> Measure to undo the states ban on affirmative action

Proposition 16 was a failed California ballot proposition that appeared on the November 3, 2020, general election ballot, asking California voters to amend the Constitution of California to repeal Proposition 209 (1996). Proposition 209 amended the state constitution to prohibit government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Therefore, Proposition 209 banned the use of race- and gender-based affirmative action in California's public sector and public university admissions.

<span class="mw-page-title-main">Diversity, equity, and inclusion</span> Organizational framework

Diversity, equity, and inclusion (DEI) are organizational frameworks which seek to promote the fair treatment and full participation of all people, particularly groups who have historically been underrepresented or subject to discrimination on the basis of identity or disability. These three notions together represent "three closely linked values" which organizations seek to institutionalize through DEI frameworks. The concepts predate this terminology and other variations sometimes include terms such as belonging, justice, and accessibility. As such, frameworks such as inclusion and diversity (I&D), diversity, equity, inclusion and belonging (DEIB), justice, equity, diversity and inclusion, or diversity, equity, inclusion and accessibility exist.

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