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The term “affirmative action” has gotten stuck in its earliest conception in the minds of many, and has not been allowed to grow up to reflect its current meaning. The early debates over affirmative action, focused upon non-male, non-Caucasian minorities, gradually gave way – through a combination of factors – to a more equitable definition. In fact, it can be said that the implementation of affirmative action through agencies, programs, court cases, and federal contractors is much closer to its ideal. “Affirmative action” is now synonymous with “diversity” and “equality.”

President John F. Kennedy launched the term “affirmative action” and its definition through an Executive Order, issued March 6, 1961. Known as “Executive Order 10925,” this single sentence is where it began, specifically for government contractors: “The contractor will 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.”

If you take a moment to reflect upon the brilliance of this sentence from President Kennedy’s Executive Order 10925, you will see the critical resemblance it has to the language used by the drafters of the U.S. Constitution: it is timeless. There is nothing about this sentence that paralyzed the concept of equal opportunities for all workers and work applicants to a fixed moment in our nation’s history, whether culturally or demographically.

Pushing along the evolution of affirmative action was the ever-fluid concept of America as a “melting pot.” Census Bureau statistics project that the non-Hispanic white population in America will drop below 50% by 2050. Nearly 92% of our population growth in the past ten years came from minorities of all types, whether Hispanic or Latino of any race, African Americans, Asians, and American Indians and Alaskan Natives. Our increasing racial diversity among children indicates that Caucasians will become a statistical minority in the early 2040s.

Not surprisingly, American capitalism has also contributed to the advancement of affirmative action in the workplace. In a headline case accepted for argument before the United States Supreme Court in 2012, more than 50 brand-name corporations submitted amicus briefs supporting affirmative action for student applicants to higher education. The big business argument in favor of affirmative action? Diversity helps boost sales, increase productivity, lower turnover, accelerate product entry into varying markets, and better prepare students for the inherent diversity of the modern global economy.

It would seem that the contemporary definition and application of “affirmative action” is much closer to the grand vision of equality for all workers as originally penned by President Kennedy.

Reaching the Apex of Diversity in Hiring Practices

At the beginning of this article, we stated that the term “affirmative action” has gotten stuck in its earliest conception in the minds of many, and has not been allowed to grow up to reflect its current meaning – a meaning preciously close to its origins in President John F. Kennedy’s Executive Order 10925, issued March 6, 1961.

Is it any different from how most people think about the audits of hiring practices conducted by the Office of Federal Contract Compliance Programs (“OFCCP”)?

Reported cases in recent years illustrate that for at least several years OFCCP has cited companies for discriminatory hiring practices where Caucasian and/or male applicants were under-represented. In one case, discrimination in hiring was against African-American and Caucasian applicants in favor of Hispanic applicants. In another case, a company with multiple locations was found to have engaged in differing discriminatory practices among all ethnic and gender groups, differing from one location to another.

It’s no mystery how these kinds of findings can be realized during an audit. The analysis of discriminatory hiring processes includes an analysis of the current workforce and local demographics. So, for example, within a particular industry in a particular municipality, one ethnic group or gender may be over/under represented. Or, for example, the employee with hiring authority may have a conscious or subconscious preference for a particular ethnicity or gender, resulting in a concentrated pool of employees that does not reflect diversity.

As OFCCP compliance analysis has become more sophisticated, so, too, should the hiring policies and self-audits conducted by companies seeking and benefiting from federal contracts. Computer software now runs adverse impact analyses and shortfall results for all ethnicities and genders, and allows companies an opportunity to self-remediate and thoroughly document efforts at the creation of diversity in the workplace.

In the more than 50 years since President Kennedy issued Executive Order 10925, meanings of “equality,” “diversity,” and “affirmative action” have evolved. Along with the philosophical evolution, there has been a methodology and compliance audit evolution. Isn’t it time to equate “equality in the workplace” with “everyone’s protected?”



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