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10.5 The Prevention and Rectification of Discrimination: Affirmative Action

Learning Objectives

  1. Define affirmative action.
  2. Elaborate arguments for and against affirmative action.
  3. Discuss the ethics of affirmative action.
  4. Indicate why some organizations implement affirmative action policies.

Race-Based Scholarships

“The scholarship,” according to Carlos Gonzalez, an overseer appointed by a federal court, “was designed essentially as a jump-start effort to get the process of desegregation under way.” He was talking about a new race-based scholarshipScholarships open only to specific racial (or ethnic) groups at Alabama State University (ASU). It was triggered by a federal court’s finding that “vestiges” of segregation remained within the Alabama university system: the state was ordered to spend about $100 million to racially diversify the student body.

Two years later, 40 percent of ASU’s budget for academic grants went to minority students even though they represented only about 10 percent of the student population. That meant minority students got about $6 of aid for every $1 going to everyone else.

One beneficiary of diversification was a grad student who accumulated $30,000 in scholarship money. She said that she would’ve attended the school anyway, but getting the money because of her skin color was an added bonus. “I think it’s wonderful,” she exclaimed, according to a CNN report.Brian Cabell, “Whites-only Alabama Scholarship Program Raising Eyebrows,” CNN, October 30, 1999, accessed May 31, 2011, http://www.cnn.com/US/9910/30/white.scholarships/index.html.

Not everyone came off so well. One big loser was another grad student, Jessie Tompkins. The effort to balance the student body racially meant funding he’d been promised got reassigned to others. He remembered the moment vividly. He’d received an assistantship for three years, but when he went to apply the next year, he learned that the scholarships had been reserved for those with a different skin color. “I said, ‘Ma’am?’ She said, ‘You can apply, but you won’t get it.’”June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

As word of the new scholarship policy circulated, temperatures rose. They heightened even more when news got out that the race balancers were more lucrative than the old funding mechanisms that had been available to everyone. The minority set-asides paid for tuition, books, and for room and board, and then added on almost $1,000 for personal use. While the new students got all that just for showing up inside their color-appropriate skin, Tompkins remembered that he hadn’t even received enough to fully cover tuition; in exchange for his aid, he’d worked for the school by helping coach the track team and by scheduling tennis court use.

The situation reached a boil with one more detail: the revelation that the minority scholarship recipients weren’t as academically qualified as those including Tompkins who were now suddenly being turned down at the funding office. To qualify for financial aid, the new recipients only needed a C average, significantly below what had been required of all applicants in the earlier, color-blind system. That led the editor of the university newspaper, Brandon Tanksley II, to express his frustration and anger this way, “It’s not that they’re minority students, it’s that they’re not competitive.”June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

As for Jessie Tompkins, with his scholarship no longer available, he was forced to drop out and take a job handling packages at United Parcel Service. The next year he returned on a part-time-student basis and once again applied for his old scholarship. Again he was rejected. In a newspaper interview he said, “We don’t need race-based quotas. I don’t want anyone telling my children they’re the wrong color. If you want something, you work for it; you just work for it.”June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

Eventually, Tomkins connected with the Center for Individual Rights, a nonprofit public interest law firm with conservative and libertarian leanings. The firm was experienced with this kind of complaint: it had previously led a charge against the University of Texas’s affirmative action program. In an article in the Wall Street Journal, Tompkins compares himself to a plaintiff in that important case, Cheryl Hopwood: “We were bumped aside, regardless of our qualifications, because of our race.”June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

Tompkins says he’s just like Hopwood, even though she’s a woman and he’s a man, and even though she’s white and he’s black.

As for the administration at the traditionally black Alabama State, they chose not to respond to Tompkins directly, but they did stand behind their affirmative action program. William Hamilton Harris, president at ASU, defended the set-asides this way, “Bringing whites and blacks together on campus will broaden the quality of education and the quality of life at Alabama State.”June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

What Is Affirmative Action?

The Civil Rights Act aimed to blind organizations to gender and race and similar distinctions removed from merit. The idea behind the law is an ideal, a theoretically perfect society where discrimination in the invidious sense doesn’t exist. Unfortunately, the real world rarely lives up to ideals. Affirmative actionMeasures implemented to advance toward fairness for minorities in the workplace, usually including some form of preferences for certain minority groups. enters here, at the realization that things won’t be perfect just because we make laws saying they should be. What affirmative action does—as its name indicates—is act. It’s not a requirement that organizations stop discriminating; it’s a set of preferences and policies that aggressively counter discrimination, usually in ways that themselves hint at discrimination. There is, even ardent defenders admit, a troubling element of fighting fire with fire where affirmative action operates.

In practice, affirmative action comes in various strengths:

  • In the strongest form, quotas are employed to guarantee that individuals from disadvantaged groups gain admittance to an organization. A number of slots—whether they are seats in a classroom or posts in an office—are simply reserved for individuals fitting the criterion. Since quotas inescapably mean that certain individuals will be excluded from consideration for certain posts because of their race, gender, or similar trait, they’re relied on only infrequently.
  • In strong form, significant incentives are deployed to encourage the participation of minority groups. In universities, including the historically black Alabama State University, special scholarships may be assigned to attract whites to campus. In private companies, bonuses may be offered or special accommodations made for targeted individuals. A mentor may be assigned to guide their progress. Statistics may be accumulated and care taken to ensure that salary hikes and promotions are being distributed to members of the aggrieved demographic.
  • Moderate affirmative action measures typically mean something akin to the tie goes to the minority. Whether a university is admitting students to next year’s class or a business is hiring new sales representatives, the philosophy here is that if two candidates are essentially equally qualified, the one representing a disadvantaged group will be selected.
  • Weak affirmative action measures refuse to directly benefit one or another identity group. Steps are undertaken, however, to ensure that opportunity is spread to include minority candidates. Frequently, this means ensuring that the application pool of candidates for a post or promotion includes individuals from across the spectrum of genders, races, and similar. A commitment to implement his policy was part of the Abercrombie & Fitch discrimination lawsuit settlement. The company in essence said they’d been doing too much recruiting at overwhelmingly white fraternities and sororities, and they promised to branch out.

The history of affirmative action has been brief and turbulent. Since the early 1970s, the courts—including the US Supreme Court—have visited and revisited the issue, and repeatedly reformed the legally required and allowed strength of affirmative action. The specific physical and cultural traits affirmative action policies address have also stretched and contracted. In the midst of all that, individual states have formed their own rules and guidelines. And for their part, companies have scrambled to bring policies into line with accepted practice and, in some cases, to take the lead in establishing standards. Because there’s no sign that the legal and historical developments will settle in the near future, this section will concentrate only on the ethics and the broad arguments surrounding affirmative action.

Arguments for and against Affirmative Action Policies

Arguments in favor of affirmative action include the following:

  1. Affirmative action is necessary to create fairness and equal opportunity in organizations because discrimination is so ingrained. When Carly Fiorina went to Hewlett-Packard, she found a culture so thoroughly masculine that it was difficult for her to communicate well with her colleagues. In that kind of environment, one where it’s difficult for a woman to really make herself understood, forcing women into the workforce is necessary to open channels of communication so that more may flow without needing the help. Similarly at the historically black Alabama State University, the concern was that few white students would want to be the first to confront the specific traditions and customs of the longtime black school. Consequently, it’s necessary to force the doors open with attractive scholarships so that later, with the comfort level raised, more whites will follow.
  2. Affirmative action will stimulate interest in advancing at lower levels of the organization. Even if Hewlett-Packard really is gender neutral with respect to picking a CEO, it may be necessary to put a woman in the post so that younger women at the company feel that the way is open to the very highest levels. In other words, it’s not until people actually see that they can become a CEO or enroll at Alabama State that they really make the attempt. In the absence of that seeing, the aspiring may not be there and the result is a company without women leaders, or a historically black university without whites, even though the doorways are wide open to them.
  3. Affirmative action benefits third parties. Sometimes we think of affirmative action as being about a tight set of winners and losers. When Carly Fiorina went to HP, it’s very possible that a white guy didn’t get the job. When a white student got a scholarship at Alabama State, Tompkins lost his. But the stakeholders don’t end there. Society as a whole will be more harmonious as discrimination recedes. To the extent that’s true, the tangible benefits of affirmative action climb significantly even while it remains true that there are individual losers.
  4. Affirmative action can reduce tensions in a university, an office, or any organization by offering assurances that discrimination of minorities will not be tolerated, and also by opening the workplace to a diversity of viewpoints.
  5. Affirmative action benefits organizations by helping them reach their goals. The more open an organization is to all candidates for all positions, the better the chance that they’ll find someone truly excellent to fill the role. Affirmative action, by expanding the range of people considered for posts, helps the organization excel in the long term.
  6. Affirmative action is necessary as compensation for past wrongs. Even if tomorrow all discrimination magically disappears, there’d still be a long legacy of suffering by minorities who didn’t get the opportunities available to their children. By giving those children a little advantage, some of the historical unfairness balances out.

Common arguments against affirmative action include the following:

  1. Affirmative action is discrimination (just in reversed form), and therefore it’s wrong. When you privilege a minority at the expense of, say, a white male, you’re treating the white male unfairly because of skin color and gender, and that must be unacceptable because the reason we have affirmative action in the first place is that we’ve all agreed that racial and gender discrimination are unacceptable.
  2. Affirmative action is discrimination (just in reversed form), and therefore it reinforces what it combats. When you privilege a minority at the expense of, say, a white male, you’re treating the white male unfairly, and so you’re sanctioning the way of thinking that caused the problem in the first place. When you start selecting people for scholarships or jobs because of their skin color or gender, the larger point is you’re reinforcing the habits of discrimination, not eliminating them.
  3. The best way to eliminate discrimination is to let the law, markets, and time do their work. The law, which prohibits discrimination, should be enforced scrupulously, no matter who the infractor might be. More, companies that are discriminatory will put themselves out of business in the long term because competitors that hire the best talent regardless of minority status will eventually win out. With time, the conclusion is, discrimination will be stamped out, but trying to hurry the process may just create social rancor.
  4. Affirmative action can be unfair and damaging to third parties. Surgeons, firefighters—those kinds of jobs are vital to all individuals. Lives are at stake. If a surgeon who otherwise would have failed medical school eventually got her degree because the school needed to graduate a few minority female doctors to fulfill their affirmative action requirements, the people who pay may be patients.
  5. Affirmative action is unfair to minorities who are treated as tokens. Minority candidates for positions who would win the post on merit alone see their hard work and accomplishments tarnished by suspicion that they didn’t really earn what they’ve achieved. Minorities, consequently, can never be successful because even when they merit respect in the classroom or in the workplace, they won’t get it.
  6. Affirmative action creates a tense organization. The web of resentments lacing through classrooms and offices touched by affirmative action are multiple and complex. Nonminority workers may resent special privileges given to those favored by affirmative action. Also, because such privileges are handled discretely by HR departments, the tensions might exist even where affirmative action isn’t active: suspicion that others are receiving special treatment can be as aggravating as the certainty that they are. The list of potential angers continues, but the larger problem with affirmative action is the social stress it may create.
  7. Affirmative action damages organizations. By forcing them to evaluate talent in ways outside of merit, it diminishes their competitiveness, especially against companies from other states or nations where affirmative action implementation is less rigid.
  8. Affirmative action doesn’t compensate past wrongs. Those who suffer today because their scholarship or their promotion is taken by an otherwise undeserving minority are paying the price for past discrimination even though they may have never discriminated against anyone. Further, those who benefit today aren’t the ones who suffered in the past.

Finally, an important point to note about the debate swirling around affirmative action is that there’s broad agreement on the goal: diminishing and eliminating discrimination in organizations. The conflicts are about how best to do that.

The Greater Good versus Individual Rights: The Ethical Prism of Affirmative Action

In business ethics, few subjects raise emotions like affirmative action. There are a number of reasons, and one is that the ethics are so clear. In all but its weakest form, affirmative action stands almost straight up on the divide between individualism and collectivism.

  • Do you belief ethics are about individual rights and responsibilities, or should ethics revolve around society and what benefits the larger community?
  • Where does right and wrong begin? Is it with you and me and what we do? Or is it the society as a whole that must be set at the start and before any other concern?

If you believe that individuals center ethics, it’s going to be hard (not impossible) to defend favoritism, no matter how noble the goal. An ethics based on fundamental personal duties—especially the requirement for fairness—demands that all men and women get an even shot in the workplace. Any swerve away from that principle, whether it’s to favor whites at a historically black university in Alabama, or women in Silicon Valley, or any other minority group anywhere else, is going to be extremely difficult to justify. Further, if you believe that ethics begins with individuals and their rights to freedom and to pursue happiness, then blocking the opportunities allowed for some just because they don’t fit into a specific race or gender category becomes automatically objectionable.

On the other side, if you believe in the community first, if you think that society’s overall welfare must be the highest goal of ethical action, then it’s going to be hard (not impossible) to deny that some form of affirmative action balancing, at some places and times, does serve the general welfare and therefore is ethically required. Thinking based on utilitarianism accepts that divvying out opportunities in terms of minority status will harm some individuals, but the perspective demands that we only bear in mind the total good (or harm) an action ultimately does. With respect to affirmative action, it may be true that its proponents sometimes push too far, but it’s very difficult to look at workplaces and schools through the second half of the twentieth century and not concede that society as a whole does in fact benefit in at least some of the instances where special efforts are made to support the opportunities of some historically disadvantaged groups. Specific individuals may suffer when these social engineering strategies are implemented, but the general benefit outweighs the concern.

Why Do Public Institutions and Private Companies Implement Affirmative Action Policies?

There are a number of reasons organizations implement affirmative action policies, and not all are motivated by social idealism. First, some companies are simply required to do so because they want to work for the US government. According to current law, all businesses holding contracts with Washington, DC, in excess of $10,000 are required to have at least a weak affirmative action program in place. With respect to public institutions including universities, since their funding derives to a significant extent from the government, they typically are subject to governmental policy directives.

Another very practical reason affirmative action policies are implemented is to prevent future lawsuits. The suing of organizations, businesses, and individuals for damages alleging discrimination can be quite lucrative, as the $40 million lawsuit against Abercrombie & Fitch indicates. More, a business may even choose to quickly hand over millions of dollars to settle a lawsuit of dubious merit just to avoid the bad publicity of a nasty, public, and prolonged court fight. Lawyers, of course, have picked up on this and are constantly probing for weak organizations, ones where just the appearance of some kind of discrimination may be enough for a shakedown. Given that reality, prudent companies will take preventative action to insulate themselves from claims that they’re discriminatory, and an affirmative action policy may serve that purpose.

A set of more positive reasons for an organization to implement affirmative action policies surrounds the belief that companies benefit from a diverse workforce:

  • Diversity may help win business with a new consumer group.
  • Diversity may help break minds out of ruts or just shake things up creatively.
  • An affirmative action policy may be part of an organizational strategy to benefit from underused human resources in an area. This strategy generally begins with a utilization analysisA study of whether an organization is taking full advantage of the human resources available in its geographic area., which is a spreadsheet representation of all the work positions in an organization, along with the characteristics of those filling the slots and then a comparison between those numbers and the demographic of qualified people in the immediate geographic region. If, to take a simple example, the company’s legal team is 90 percent white, and local data shows that 50 percent of the area’s lawyers are Asian, that tends to indicate the area’s legal resources are being underutilized: there are a lot of good Asian legal minds out there that for some reason aren’t getting into the company workforce.

Finally, regardless of whether an affirmative action policy may help the bottom line by protecting against lawsuits or by improving employee performance, some organizations will implement a program because they believe it’s part of their responsibility as good corporate citizens in a community to take steps to serve the general welfare.

Key Takeaways

  • Affirmative action seeks to end discrimination by giving some amount of preference to minorities.
  • There are multiple strong arguments in favor of and against affirmative action.
  • The ethics of affirmative action center on the question of whether the individual or the community should receive priority.
  • Organizations implement affirmative action policies for reasons of self-interest or for altruistic reasons.

Review Questions

  1. What are the differences between strong and weak affirmative action?
  2. Explain two arguments in favor of affirmative action.
  3. Explain two arguments against affirmative action.
  4. Why does conflict between individualism and collectivism exist at the core of the ethics of affirmative action?
  5. Why may a company pursue a strong affirmative action policy?