AFFIRMATIVE ACTION

• Affirmative action refers to a set of policies and practices within a government or organization

seeking to increase the representation of particular groups based on their gender, race, creed or
nationality in areas in which they were excluded in the past (discriminated) such as education and
employment.
• Because of past discrimination, minorities and women do not have the kind of work skills and
workplace qualifications that their more advantaged white and male counterparts have been able
to acquire. Women and minorities are still underrepresented in the more prestigious and
well-paying economic positions which creates stereotypical impressions that they are not
well-suited for these positions or that these positions are appropriate for whites or males.
• To rectify the effects of past discrimination, many employers have instituted affirmative action
programs designed to achieve a more representative distribution of minorities and women within
the firm by giving some degree of preference to women and minorities.
• Affirmative action targets cannot be inflexible “quotas”; affirmative action programs must be
temporary and must be “narrowly tailored” to achieve their objectives. And finally, as we have
seen, affirmative action can be used to achieve “diversity,” at least by educational institutions and,
apparently, even by the government when it distributes broadcast licenses.
Legal Status of Affirmative Action:
• Affirmative action is legal when used to correct a racial or sexual imbalance that is the result of previous
discrimination, or to correct an “egregious,” “persistent,” and “manifest racial imbalance” not caused by
previous discrimination; can be used in hiring but not in layoffs; cannot use “inflexible” quotas; must be
“narrowly tailored” to their objectives; can be used to achieve “educational diversity” and “broadcast diversity.”

• Affirmative action cannot overrule seniority, cannot be used in government set-aside programs except as a “last
resort” in an “extreme case” involving previous racial discrimination.

Compensation Argument for Affirmative Action:

• Claims affirmative action compensates groups for past discrimination. Although some criticize it to be unfair
because those who benefit were not harmed and those who pay did not injure, which are requirements of
compensatory justice.
• It can also be effective in the case of employment.
• “No right without a remedy,” which is to say that a person cannot be said to have a right unless there is also
some means of correcting a violation of that right. If we have a right not to be discriminated against, then the
courts should be able to provide some remedy when that right is violated. The remedy is often to require the
employer to pay the victims the difference between what they actually earned and what they would have
earned had no discrimination taken place and to advance them to the positions that they would have attained.

• Criticism regarding the gainer of compensation: Critics of affirmative action charge that not all affirmative
action plans are justified by the compensation argument because the individuals who are given preferential
treatment are often not the same as those who are victims of discrimination. Affirmative action plans almost
always single out persons as members of a group that has suffered discrimination without requiring any
evidence that the persons themselves have been victimized in any way. A person may be a member of a
disadvantaged group and yet lead a rather privileged life, relatively free of the effects of discrimination.

• Response: Defenders of affirmative action respond that racial, ethnic, and sexual discrimination have subtle
psychological effects despite the profound changes that have taken place in our society, and racial and sexual
discrimination affect all members of that group to some degree.
 • Criticism regarding ‘punishing’ the innocent: A second criticism to the compensation argument is that in
affirmative action the burden of providing compensation often falls on individuals who are not themselves
guilty of acts of discrimination.

• Critics ask, Why should a few white males bear such a disproportionate burden?
The response can be:

1. To Compensate for Past Privilege. One answer to this question is that white males, even when they are not
themselves guilty of discrimination, are still the beneficiaries of discrimination that has occurred and thus are
merely being asked to give back some ill-gotten gain.

2. To Forgo Future Privilege. A second answer to the critics question is that white males are typically asked not
to give up gains they have already made but to forgo a future benefit to which no one has an undisputed right.