Technical Affairs

Mike Aamodt, Associate Editor

This month's column features a clarification/editorial on affirmative action and another piece of HR humor.

Affirmative Action is More than Preferential Hiring

Though the topic of affirmative action is not really a "technical affairs" issue, uninformed media coverage of several recent events concerning affirmative action (e.g. Taxman v. School Board of Piscataway, California's Prop 209, Houston's affirmative action initiative in the November election) has prompted this column. It appears that the concept of affirmative action is widely misunderstood.

For example, the media have extensively reported that the case of Sharon Taxman versus the School Board of Piscataway, NJ (to be heard in January, 1998 by the U.S. Supreme Court) will decide the future of affirmative action. Conservatives hope this case will end affirmative action whereas liberals hope the Court will use this case to guarantee the future of affirmative action.

When this case is decided, liberals and conservatives alike will be disappointed because, contrary to its portrayal in the media, the Taxman case will not decide the future of affirmative action. It will only decide if a particular affirmative action plan was improperly administered.

To understand this perspective, let's look at the facts of the case. Sharon Taxman and Debra Williams were teachers in the Piscataway, N.J. school system. Both had been hired in 1980, worked in the same department, and received similar performance ratings. In 1989, budget problems forced the school system to lay off one teacher. The school board chose to layoff Taxman, who is White, rather than Williams, who is Black. The board's reason was that keeping Williams would increase the school's diversity.

In 1993, a federal court ruled that the Piscataway school system was wrong in using race as a factor in its employment decision and awarded Taxman $144,000 in back pay. Such a decision was not unexpected. For years, the courts have asked three primary questions in determining the legality of using race/gender/national origin in employment decisions.

Was there a history of discrimination in the organization? Typically this history is determined by a large disparity between the percentage of minority employees in various positions within the organization and the percentage of qualified minorities in the relevant geographic area (depending on the position, this area can be local, regional, or national).
Were goals based on the qualified work force rather than the area population? This question concerns which of two types of populations was used to statistically determine disparities and to set affirmative action goals. In establishing numerical disparity, the percentage of qualified minorities in the relevant geographic area, as opposed to the percentage of minorities, must be used. For example, several southern states are under court supervision to increase the number of minority faculty in their public universities. Rather than a goal consistent with the percentage of African-Americans in the United States (roughly 12%), the goal of 2% is based on the qualified work force: African-Americans with Ph.D.'s. This example is important because it illustrates that the courts are not unreasonable when it comes to setting affirmative-action goals. They realize that a university cannot hire minorities in numbers equal to the national population because a lower percentage of minorities than nonminorities have doctorates.
Did the affirmative action plan trammel the rights of nonminorities? To determine the legality of an affirmative action program, the courts examine the extent to which the program "unnecessarily trammels" the rights of nonminorities (this is one of the rare opportunities for people - other than Detroit Tiger fans - to use the word "trammel"). That is, a plan that helps females cannot deny the rights of males. Preference can be given to a qualified minority over an equally qualified nonminority, but a lesser qualified minority can never be hired over a more qualified nonminority. For an affirmative action plan to be "narrowly tailored" and not trammel the rights of nonminorities:
- The magnitude of the goal must be reasonable
- All people hired/promoted must be qualified
- Race/gender can be used if several people are equally qualified

In the Taxman case, the court ruled that Piscataway could not show a history of discrimination as the percentage of African-American teachers in both the high school and the school system was in line with the percentage of African-Americans in the local community. Because there was no history of discrimination, the court ruled that the desire for diversity did not outweigh Taxman's right to keep her job.

Piscataway disagreed with this decision and filed an appeal that will be heard by the U.S. Supreme Court. Should the Supreme Court agree with Taxman, the decision will only reinforce existing case law. It will not eliminate affirmative action in general nor will it eliminate the potential for considering race/gender/national origin as a factor when the percentage of minorities in an organization falls well below the percentage of minorities in the qualified work force.

Considering race or gender as a factor in employment decisions will still be legal when the preferential hiring or promotion decision was the result of a history of discrimination, the proper hiring goals were used, and a minority and nonminority applicant were equally qualified. It is important to understand that preferential hiring or promotion is never legal when a member of a protected class is hired over a more qualified nonminority applicant.

Why then is the Taxman case so newsworthy? The media have portrayed the case as determining the future of affirmative action. Unfortunately, this portrayal is not accurate because the case involves only one aspect of affirmative action.

Affirmative action is a broad term encompassing a number of employment strategies that can be placed into three categories. The first affirmative action strategy is the intentional recruitment of minority applicants. For instance, to increase the number of minority employees, an organization makes such efforts as recruiting at historically black and female colleges and working with local NAACP chapters.

The second strategy is the removal of workplace practices that discourage minorities from applying for or accepting jobs with an organization. Such practices might involve organizational policy, supervisor attitudes, or the way in which a workplace is decorated. For example, an African-American employee in a southern city filed a lawsuit alleging race as the reason he wasn't promoted. As evidence, he cited the embroidered Confederate flag hanging in his supervisor's office. The city's affirmative-action officer suggested that flag be removed because, even though the supervisor was a Civil War enthusiast rather than a racist, a Confederate flag in a supervisor's office might give the perception of institutional acceptance of racism.

As another example, it is a common practice for police applicants in small towns to receive information and obtain employment applications directly from the police department. However, many minorities are uncomfortable going to a police station and asking White police officers for information and application materials. As a result, an easy affirmative-action strategy would be to have employment applications available at the city's personnel office.

Diversity training and prompt investigation of discrimination complaints are also two common examples of this affirmative action strategy.

The third strategy is preferential hiring and promotion of minority applicants. This is the strategy outlawed by Proposition 209 and the one that will be addressed by the court in the Taxman case. The first two affirmative action strategies are not at issue and probably never will be. Thus, the Taxman case (as well as California's Proposition 209) involves race-based employment decisions in particular, not affirmative action in general.

Why is this an important point? When we talk about a court or a politician being for or against affirmative action, we are trying to oversimplify a complex issue. I would venture to guess that most Americans are in favor of many aspects of affirmative action but oppose preferential hiring or promotion. Or they might favor preferential hiring or promotion in some, but not all cases (this is a view also held by most courts). Thus, it is possible to support affirmative action in general but disagree with certain specific aspects or practices.

California's Proposition 209 and the City of Houston's affirmative action proposition are prime examples of this thinking. California voters approved Prop 209 which outlawed the specific affirmative action strategy of preferential hiring, yet Houston voters did not approve their ballot initiative that would have outlawed affirmative action in general.

Like most things in life, affirmative action can be good in some cases and bad in others. For affirmative action to be accepted by the public, two things must happen. One, if we are going to intelligently discuss specific affirmative action cases or practices, it is essential that we talk in specifics rather than generalities.

Two, organizations must understand the concepts of affirmative action and practice it legally. Legal affirmative action plans -- even those involving preferential hiring -- do not take jobs away from qualified nonminorities. However, illegal affirmative action plans -- and there are plenty of them -- not only discriminate against nonminorities, but result in resentment toward legal affirmative action plans.

I have colleagues at other universities who generally favor affirmative action, yet are outraged at the specific affirmative action strategies used at their institutions. For example, to increase diversity and provide a role model for its female graduate students, one department hoped to fill an opening for a faculty position with a female. When the top five applicants were male, the department suspended its search until the following year. The next year, the top two candidates included a male and a female and the department decided that if the female didn't accept the job, they would again suspend the search.

At another university, the vice-president told a faculty personnel committee "don't even bother sending the names of any white males to my office." At yet another university, the personnel department told the faculty "the next seven openings must be filled by females."

All three of these examples demonstrate the improper and illegal use of affirmative action. And that is what the Taxman case is about. For years, the courts have allowed the "narrowly tailored" use of preferential hiring and they will probably continue to do so in the future. But when preferential hiring becomes so absolute that it denies employment opportunities to an entire class of people (e.g. males), the courts will rightfully rule that it is illegal.

Affirmative action is great policy when used appropriately, and a terrible one when applied inappropriately. In January, the Supreme Court will decide whether Piscataway used a particular affirmative action strategy in an appropriate manner. It will not, however, decide the overall merits of affirmative action.

Any comments, thoughts, agreements, disagreements with this month's column? We would love to hear them. E-mail your thinking to me at maamodt@runet.edu and let me know if you would like your thoughts included in the next issue of the ACN.

HR Humor

Here is a piece of HR humor that ACN reader Don Scott found on the internet and forwarded to me (as is usual with internet stuff, I do not know its initial source). Keep those jokes coming!!!

Unusual Things That Occurred in an Interview

A job applicant challenged the interviewer to an arm wrestling match
A candidate said he never finished high school because he was kidnaped and kept in a closet in Mexico
A balding candidate excused himself and returned to the interview a few minutes later wearing a toupee.
Applicant refused to sit down and insisted on being interviewed standing up.
Candidate announced she hadn't had lunch and proceeded to eat a hamburger and french fries during the interview.
Candidate fell and broke his arm during the interview.
Interviewee wore a Walkman, explaining that she could listen to the interviewer and the music at the same time.
Applicant dozed-off during the interview.
Applicant interrupted the interview to phone her therapist for advice on how to answer specific interview questions.
Applicant refused to sit down and insisted on being interviewed standing up.

Mike Aamodt, a Professor of Psychology at Radford University serves as our Associate Editor for the Technical Affairs column and as our unofficial humor editor. If you have a technical question you want answered/discussed, wish to comment on this month's article, or want to share a humor item please contact Mike. He may be reached by email(maamodt@runet.edu), phone [(540) 831-5513)] or fax [(540) 831-6113].