Deck 7: Affirmative Action

Question 1

What is the underlying rationale behind the two opposing sides (opponents and proponents) concerning affirmative action (AA)?

Answer 1

Opponents - Their basic rationale for opposing AA is that equal opportunity is supposed to give everyone a fair chance in the workplace without regard to race, sex, etc; however, affirmative action is saying just the opposite: specifically, "we are going to treat you differently based on your membership in one of AA's preferred groups" Therefore, reverse discrimination against individuals who did not deserve it occursProponents - The basic rationale for AA is that the job market itself is already biased in favor of white males, as a result of a fundamentally flawed system AA is needed to remediate the flawed job market to an even playing field for every individual in the market AA is used to integrate minorities and women into jobs that were previously closed to them

Question 2

What are the three sources of AA? List and briefly explain each.

Answer 2

EO 11246Voluntary: Affirmative action in federal agencies and for contractors doing business with the federal government "Voluntary", however, is somewhat misleading, as it can also mean that a company is underutilized and has to come up with "voluntary" AA plans to remedy but not maintain discrimination within the companyCourt-related: Affirmative action as a court-ordered remedy in pattern or practice cases or in consent decrees designed to head off pattern or practice lawsuitsSet asides: Government laws or regulations setting aside percentages of government contract work for minorities or women

Question 3

What is the distinction between the "preferred groups" under AA and the "protected classes" under Title VII? What is included in the preferred groups as compared with protected classes?

Answer 3

The distinction is that "protected class" includes everyone within each class, while "preferred groups"only represent women and racial minoritiesUnder Title VII, a protected class includes the fair treatment of every member within each protected class That is, when Title VII says gender is a protected class, it means that both men and women are protected against unfair discrimination based on their sex In short, Title VII provides equal protection of all members of a groupHowever, when AA refers to a preferred group under gender, it means that AA only protects women When AA refers to racially preferred groups, it means they protect racial minorities not the majority "Preferred groups" applies to women and minorities ie, blacks, Hispanics, Native Americans, and Asian Americans Unlike protected classes, the preferred group does not protect both genders or all races Additionally, religion and national origin are not covered under preferred groups

Question 4

Why is the distinction between recruitment and selection important as they relate to AA issues?

Question 5

What is the legal standard for set asides and court-related remedies?

Question 6

What are the covered entities under AA?

Question 7

What are the covered practices under AA? What must an organization do if there is underutilization?

Question 8

What is the OFCCP's main administrative tool? What two other administrative procedures may they use?

Question 9

What remedies are available under EO 11246?

Question 10

What is the judicial scenario for AA?

Question 11

What is the Croson standard for state, local, and federal set-asides?

Question 12

What circumstances led the Supreme Court to uphold race as a factor in Grutter, and to strike down the plan in Grantz?

Question 13

What are the hallmarks of a narrowly tailored plan identified by O'Connor in the Grutter ruling?

Question 14

When is race preference likely to be upheld under constitutional rules and under Title VII rules?

Question 15

What are the five rules identified by Gutman et al. for satisfying the requirements of EO 11246?

Question 16

What is the definition of an applicant under the OFCCP Guidelines? How does this differ from the EEOC definition?

Question 17

Why is affirmative action (AA) not a homogeneous concept?

Question 18

What are some of the common misconceptions about AA?

Question 19

What were the major precursors to the evolution of EO 11246?

Question 20

What major action by President Johnson turned EO 11246 into a much stronger executive order than those orders by prior presidents?

Question 21

What is the major covered practice in EO 11246?

Question 22

What types of remedies may the OFCCP offer?

Question 23

Why is it so difficult for employers to fight these remedies?

Question 24

What was the unique issue addressed in Bakke?

Question 25

What issues were addressed in the Weber, Wygant, and Johnson cases?

Question 26

What was the unique issue addressed in
Stotts?

Question 27

What issues were addressed in the in the Weber, Wygant, and Johnson cases?

Question 28

What was the justification for the quota system in the Paradise case?

Question 29

What was the ultimate fate of the Wilks ruling in CRA-91 and why?

Question 30

What were the rulings in the Fullilove and Metro cases, and what was the ultimate fate of these rulings in the Adarand case?

Question 31

What were the shortcomings of the Richmond set-aside program in the The Aftermath of Croson and Adarand Croson case?

Question 32

What were the six major principles established for satisfying strict scrutiny in the Croson case?

Question 33

What was the ultimate fate of the DBE program in the Adarand case after the Supreme Court ruling 1995?

Question 34

What were the major pre-Grutter rulings on diversity as a compelling government interest?

Question 35

Why did some lower courts consider Bakke to be "bad law?"

Question 36

Why did Justice O'Connor favor the Michigan Law School plan on strict scrutiny but not the Michigan Undergraduate program?

Question 37

How did the Petit Court (7^th circuit) use the Grutter ruling in relation to police promotion?

Question 38

What was Justice Kennedy's ruling on narrow tailored solutions in the Parents cases?

Question 39

How does the OFCCP define "systemic" discrimination?

Question 40

What are some of the major affected class rulings by the OFCCP in recent years?

Question 41

How do the OFCCP and EEOC differ in their definitions of applicant for purposes of Internet recruitment?

Question 42

Which definition of applicant is more advantageous for employers?

Question 43

What rules do the authors recommend for dealing with tension between EO 11246 and Title VII?

Question 44

What are the major record-keeping requirements for Internet recruitment in view of the definition of applicant by the OFCCP?

Question 45

What is the argument in favor of diversity as a job-related feature of the selection process?

Question 46

What are the major implications of the case law discussed in this chapter for practices related to recruitment, selection, and retention?