Affirmative Action

What does affirmative action mean?

Affirmative action refers to policies that aim to provide underrepresented groups with equitable professional and educational opportunities. The term is often considered a means of eliminating discrimination against underrepresented groups when considering individuals for employment.

What are affirmative action policies?

Affirmative action policies are programs that aim to create opportunities and increase possibilities for historically underrepresented or disadvantaged groups. Employers, schools, and government agencies use them to promote diversity and address past discrimination based on race, gender, religion, or national origin. The goal is to create fairer access to opportunities, not to enforce quotas.

What prompted Supreme Court affirmative action decisions?

President John F. Kennedy issued Executive Order 10925 in 1961, specifying that government contractors would "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."

This order affected military contractors, public schools, and public universities, and its efforts to provide equity in employment and education were an important step toward the later protections in the Civil Rights Act and subsequent legislation.

There are two well-known examples of Supreme Court affirmative action cases.

Students for Fair Admissions v. Harvard

Students for Fair Admissions (SFFA) sued Harvard over the college’s admission policies. The students alleged that “the process violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of White applicants.” Though the school admitted to considering race one of the many factors of the admission process, they argued their process follows the requirements for race-based admissions as determined by the Supreme Court in Grutter v. Bollinger.

After more than a two-week trial, the district court sided with Harvard. SFFA appealed the decision, and the case was heard by the US Court of Appeals for the First Circuit, which affirmed the original ruling.

In 2023, the Supreme Court ruled 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.

Regents v. Bakke (1978)

Allan Bakke, a White man, was rejected from medical school at the University of California twice. Bakke sued the university, claiming the university’s policy of setting aside 16 seats out of 100 for underrepresented students discriminated against him. The Supreme Court ultimately agreed with Bakke, and he was granted admission.

Affirmative action examples

After the US Supreme Court ruled against using racial quotas for hiring or education, most affirmative action measures have shifted to outreach programs in recruiting and retention. These programs aim to recognize and correct barriers that continue to hinder underrepresented groups, such as women, Asian Americans, African Americans, and Native Americans, from educational and professional opportunities.

To ensure all employees have equal development opportunities, the government has encouraged organizations to have an affirmative action plan (AAP). These plans outline a “federal contractor or subcontractor’s efforts to provide equal employment opportunities and generally support the advancement of employees regardless of gender, race, disability or veteran status.” Federal guidelines recommend updating AAPs at least once a year.

Who benefits most from affirmative action?

Affirmative action’s main aim is to provide a fair experience for underrepresented groups. These programs aim to correct historical discrimination in employment and education by promoting equal opportunity.

Affirmative action in the workplace helps reduce hiring gaps and create equal opportunities for all races and genders. While supporters argue these measures foster diversity and equality, critics question whether they disadvantage other qualified candidates—for example, whether requiring the inclusion of Black candidates disadvantages equally qualified Asian American candidates.

Despite the debate, affirmative action plans continue to work as vital tools for inclusion. Understanding what affirmative action means involves recognizing who it serves—and why efforts toward equality continue to matter.

HR compliance: Where does affirmative action apply today?

In the decades following its enactment, affirmative action has gone through its share of refinement and controversy. Currently, nine states have an active ban on affirmative action: California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and Idaho. Texas enacted a ban in 1996 that was overturned in 2003.

Many countries, including South Africa, India, China, France, Bulgaria, and Brazil, have also adopted similar affirmative action measures to promote diversity. These policies include quota systems in their educational systems to directly address discrimination.