Affirmative action versus diversity in the workplace

The U.S. Supreme Court is predicted to significantly modify the use of race- conscious admissions decisions, known as Affirmative Action, in higher education following oral arguments in October in two cases involving Harvard University and the University of North Carolina.

The most common theme expressed by the court — doubt that the institutions would ever concede an “endpoint” on the timeline for the end of race-conscious admissions to build diverse student bodies.

In October an Iowa federal judge issued a permanent injunction against the city of Cedar Rapids’ ordinance establishing a threshold number of “people of color” to serve as members of the Cedar Rapids Citizen Review Board to oversee certain police interactions in the community — which the city was in the process of revising anyway.

The plaintiff was a white person who applied for membership on the board but was rejected. The court found that the plaintiff had shown a certain harm to his constitutional right of equal protection because the policy barred him from being considered for five positions on the board solely because of his race.

The court found that if an opening became available, the city could consider candidates’ race — it just has to be considered and weighed with various other factors of qualifications and could not be a threshold factor that makes or breaks a candidate.

On the other hand, without an injunction the court found that members of the public who were not people of color would continue to not be considered each time they apply if the empty seat needed to be filled by a person of color to meet the minimum quota.

In the employment context, so-called Affirmative Action plans should not be confused with diversity initiatives.

Yet many employees resist diversity efforts because they confuse “affirmative action” with “diversity.”

While both encourage the hiring of groups that historically have faced discrimination, “affirmative action” plans, or AAPs, generally involves certain government contractors and subcontractors required by law to engage in affirmative action to hire women, minorities, veterans and individuals with disabilities — although voluntary AAPs are permitted to remedy past discrimination if certain conditions are met.

In contrast, diversity programs are voluntary management efforts to promote an inclusive workforce.

Such changes also can cause stress and poor morale if not well managed.

“There are in fact barriers that are faced by African Americans even though we don’t have laws that separate people on the basis of race anymore,” Merck CEO Kenneth Frazier said in a television interview.

“We still have customs. We still have beliefs. We still have policies. We have practices that lead to inequity.”

Businesses, he continued, “have to use every instrument at their disposal to reduce these barriers that existed.”

Next month: How can an employer improve diversity in the workplace?

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.