Why We Act Affirmatively

Because uncle Jack told us to, and he shook Frank Sinatra’s hand.  Then Congress passed laws requiring it for individuals with disabilities (1973) and Vietnam era veterans (1974, now applicable to a broader group of veterans).1

While the term “affirmative action” is often associated with a decision or outcome, it’s a process.  A better name would be “affirmative actions” to describe the additional steps required of contractors.  Rather than just avoiding a prohibited (negative) outcome of unequal opportunity, a contractor must also take certain (affirmative) steps to ensure equal opportunity.  Those steps collectively, are affirmative action.  The government’s goal is that individuals or groups not be denied opportunity in the workplace based on immutable characteristics because it acts against the general welfare of the country as a whole.  The government pursues that goal in part through its purchasing power - federal contracts.  A contractor communicating its intent / obligation to provide equal opportunity with applicants / employees is a good way to make all people feel equally welcome, and along with reviewing recruiting, selection processes, and outcomes (required of larger contractors), provides a better likelihood of achieving equal opportunity.

Diversity is a by-product of that process, not the goal.  In recent years companies have initiated diversity and inclusion programs as a business management strategy and while similar (and complimentary) to affirmative action to some extent, they are not motivated by the same thing as affirmative action.  Diversity is a strategy to engage different viewpoints to make better decisions and to reach a broader group of customers and employees; it is forward looking and primarily focused on business outcomes with the added benefit of a perceived moral virtue.  (The “inclusion” part of diversity and inclusion more closely mirrors the goal of affirmative action, but even that is also a necessary part of the diversity business strategy - the exchange of conflicting ideas and values needs a culture of acceptance to function smoothly.)  Affirmative action, while also in many cases leading to positive business outcomes, was designed to address past wrongs (and / or later expanded to provide an additional benefit to individuals with disabilities and certain veterans), and is focused on individual or societal well-being rather than business results; it is a program for the public good carried out voluntarily by private sector employers whether it helps their bottom line or not.

Affirmative action led by example and helped foster the diversity and inclusion movement, but it doesn’t care whether or not competing ideas help reach a better business result, or about the virtues of inclusion on the culture of a company; it doesn’t really care if people are nice to each other.  It cares that every individual has the same opportunity to work / advance in any job for which they are qualified without regard to race, religion, origin, gender, disability or veteran status, and that companies take the actions required to ensure that.

1EO 11246 (1965) issued by President Johnson, has several predecessor equal opportunity and affirmative action EOs.  The first was EO 8802 (June 1941) which prevented discrimination on the basis of “race, creed, color or national origin” by contractors fulfilling defense contracts (expanded to all agency contracts in 1943 by EO 9346).  Later EOs introduced a standard contract clause (EO 10557, 1954); and in 1961 President Kennedy’s EO 10925 (Part III) added for the first time a requirement that contractors take “affirmative action to ensure” non-discrimination in hiring, training, advancement, and compensation, as well as introducing the contract clause which is still in use (with later modifications) and which clause defined certain additional actions required by contractors - job advertisement taglines, employee / applicant notice, union notice, information report filing, and clause flow-down to subcontracts.  EO 11246 incorporated EO 10925, and also for the first time gave regulatory and enforcement power to the DOL which established the (then) OFCC (now OFCCP), which in 1970 promulgated the formal AAP regulations, as amended, in force today (41 C.F.R. 60-2, see proposed rule amending 60-2 in 2000), which used as a template for AAPs the “plans for progress” developed by certain contractors following EO 10925.