Gavin Howe
Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. In the US, affirmative action is enforced by the Equal Employment Opportunity Commission, created by Title VII of the Civil Rights Act of 1964. Affirmative action policies are implemented by educational institutions and employers who contract with the government or receive federal funding. While affirmative action policies have been challenged in court, they continue to be enforced by federal and state laws, with some states like Kansas and Utah enacting their own affirmative action and anti-discrimination laws.
| Characteristics | Values |
|---|---|
| Purpose | Eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future |
| Applicability | Educational institutions, employers, federal contractors, subcontractors, grant recipients |
| Protected Characteristics | Race, colour, religion, sex, national origin, creed, age, disability, veteran status, gender identity, sexual orientation |
| US Laws | Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972, Age Discrimination Act of 1975, Equal Employment Opportunity Commission, Equal Pay Law, CROWN Act |
| State Laws | Kansas Act Against Discrimination, Utah's Equal Employment Opportunity (EEO) plan |
| Cases | Brown v. Board of Education, Regents of the University of California v. Bakke, Gratz v. Bollinger |
| Executive Orders | Executive Order 10925 (1961), Executive Order 11246 (1965), Executive Order 13279 (2002), Ending Illegal Discrimination and Restoring Merit-Based Opportunity (2025) |
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What You'll Learn
Affirmative action in education
In the context of education, affirmative action refers to policies that aim to increase opportunities for racial and ethnic groups that have historically faced barriers in institutions of higher education. Colleges and universities have implemented admissions policies that give more opportunities to disadvantaged groups. The use of affirmative action in higher education admissions has been the subject of litigation and debate, with some arguing that it is necessary to promote diversity and equity, while others disagree with the consideration of race and ethnicity in admissions decisions.
The Supreme Court has played a significant role in shaping affirmative action in education. In the landmark case of Brown v. Board of Education in 1954, the Court held that public schools could not exclude minority students from white schools, setting a precedent for education-based affirmative action cases. In Regents of the University of California v. Bakke (1978), the Court ruled that the Constitution prohibits schools from having racial quotas, while also upholding the limited use of race to promote diversity in higher education in cases like Fisher v. University of Texas at Austin (2016).
Despite the Supreme Court's rulings, affirmative action in education continues to be controversial. In 2023, the Court's decisions in cases involving the University of North Carolina and Harvard College further limited the use of affirmative action in college admissions. Additionally, executive orders issued by President Donald Trump in 2025 revoked affirmative action obligations concerning women and minorities for federal contractors and subcontractors, signalling a shift towards "merit-based opportunity".
Proponents of affirmative action in education argue that it addresses barriers faced by racial and ethnic minorities, promotes diversity and equity in higher education, and enhances educational experiences and outcomes for all students. On the other hand, opponents argue that considering race and ethnicity in admissions decisions is unfair and that admissions should be based solely on merit. Surveys show that Americans are divided over the issue, with some disapproving of race and ethnicity being considered in admissions decisions, while others recognise the benefits of diversity in higher education.
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Affirmative action and equal opportunities
Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of prior discrimination, and prevent such discrimination in the future. It typically addresses discrimination on the basis of race, creed, colour, national origin, sex, religion, and disability status. Affirmative action is mandated for employers who contract with the government or receive federal funds, who are required to document their affirmative action practices and metrics.
In the United States, affirmative action has existed in some form since the 19th century, but it was first formally introduced by President John F. Kennedy in 1961 with Executive Order 10925, which stated that government contractors must "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, colour, or national origin". This executive order was superseded by Executive Order 11246 in 1965, which prohibited employment discrimination based on race, colour, religion, and national origin by organisations receiving federal contracts and subcontracts.
The Civil Rights Act of 1964, enforced by the Equal Employment Opportunity Commission, also plays a key role in affirmative action and equal opportunities. Under Title VII of this Act, it is illegal for employers to make employment decisions based on race, colour, religion, sex, or national origin. Additionally, educational institutions that have acted discriminatorily in the past are required to take affirmative action as a remedy.
While affirmative action aims to promote equal opportunities by addressing past discrimination, it has also faced legal challenges and criticism. For example, in Richmond v. Croson, the Supreme Court held that strict scrutiny applies to state statutes that set standards for affirmative action. Additionally, in 2025, President Donald Trump issued an executive order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity", which revoked affirmative action obligations concerning women and minorities for federal contractors and subcontractors.
Despite these changes, affirmative action obligations concerning individuals with disabilities and veteran status remain in place. Furthermore, states like Kansas and Utah have also implemented their own affirmative action and equal opportunity laws. For instance, Kansas law requires employers to undertake affirmative action to eliminate discrimination in employment practices, and Utah mandates the development of an Equal Employment Opportunity (EEO) plan that adheres to federal guidelines.
In conclusion, affirmative action and equal opportunities are interconnected concepts. Affirmative action provides a framework to address and remedy unlawful discrimination, with a focus on specific protected characteristics. While there have been shifts in the legal landscape surrounding affirmative action, it continues to play a role in promoting equal opportunities, particularly in employment and education.
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Affirmative action for women
Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. In the United States, affirmative action includes government-mandated, government-approved, and voluntary private programs that grant special consideration to groups historically excluded from society, particularly racial minorities and women.
However, affirmative action has also been a controversial issue in American politics. Opponents argue that these policies discriminate against other racial and ethnic groups, such as Asian Americans and White Americans, and that they entail favoring one group over another based on racial preference rather than achievement. In 2025, President Donald Trump issued an executive order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity", which revoked affirmative action obligations concerning women and minorities for federal contractors and subcontractors. Despite this, federal contractors and subcontractors are still required to comply with obligations to not discriminate in employment on the basis of protected characteristics under applicable federal, state, and local laws.
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Affirmative action and anti-discrimination laws
Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. In modern American jurisprudence, it typically imposes remedies against discrimination on the basis of race, creed, colour, and national origin. Affirmative action policies are usually adopted to increase minority enrollment and take the form of preferences in admissions for applicants of a minority race.
Anti-discrimination laws prohibit workplace discrimination and are enforced by the US Equal Employment Opportunity Commission. These laws are in place to ensure that applicants or employees are treated without regard to race, religion, colour, national origin, or ancestry. For example, the Massachusetts Equal Rights Act prohibits discrimination against residents of long-term care facilities based on their actual or perceived sexual orientation or gender identity.
The relationship between affirmative action and anti-discrimination laws can be seen in the evolution of affirmative action policies. Initially, affirmative action policies were intended to be temporary measures to address past discrimination. Over time, the focus shifted from equality of opportunity to achieving equal representation and outcomes for minorities at all levels of society. This shift led to debates and legal challenges regarding the use of affirmative action, with some arguing that it violates the Equal Protection Clause of the Constitution.
Federal contractors and subcontractors are required to comply with affirmative action obligations concerning individuals with disabilities and veteran status, which are statutory requirements. However, as of 2025, federal contractors and subcontractors are no longer required to comply with affirmative action obligations concerning women and minorities due to an executive order issued by President Donald Trump, titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity". This order revoked Executive Order 11246, which had prohibited employment discrimination based on race, colour, religion, and national origin for organisations receiving federal contracts and subcontracts.
While the specific relationship between affirmative action and anti-discrimination laws may vary across states, as seen in the examples of state-specific laws, it is clear that both play a role in promoting equality and addressing discrimination in different contexts.
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Affirmative action and diversity, equity, and inclusion
Affirmative action has been a part of American jurisprudence since the 19th century but took its current form in 1961 with President Kennedy's Executive Order 10925. This order mandated that government contractors "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." The intent of this executive order was to strengthen efforts towards equal opportunity for all. Subsequent executive orders and court rulings have further refined and enforced affirmative action obligations, particularly for federal contractors and educational institutions.
Diversity, Equity, and Inclusion (DEI) initiatives are not specifically defined in Title VII of the Civil Rights Act of 1964. While Title VII prohibits employment discrimination based on protected characteristics such as race, colour, religion, sex, and national origin, it does not provide a "diversity interest" exception. This means that DEI initiatives, policies, or practices that involve employment actions motivated by an employee's or applicant's protected characteristics may be unlawful under Title VII. However, the Equal Employment Opportunity Commission (EEOC) has cautioned that careful implementation of affirmative action and diversity programs is necessary to avoid legal issues.
Both affirmative action and DEI play crucial roles in promoting fairness and inclusivity. Affirmative action provides a framework for legal measures to address historical discrimination and ensure equal opportunities in employment and education. DEI, on the other hand, addresses systemic inequalities and strives to create inclusive environments where everyone feels valued and respected. While affirmative action focuses on specific anti-discrimination measures, DEI takes a broader approach to promote systemic change and foster a sense of belonging for all individuals.
It is important to note that affirmative action does not grant special preferences or compromise valid job or educational qualifications. Instead, it aims to provide employers and educational institutions with the largest pool of qualified applicants from which to choose. By considering factors such as race, national origin, and gender, affirmative action ensures that women and minorities have full educational and workplace opportunities without compromising relevant qualifications. Similarly, DEI initiatives strive to create inclusive environments where individuals are valued for their unique characteristics, and everyone is treated fairly and justly.
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Frequently asked questions
Affirmative action is a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.
The concept of affirmative action has existed in America since the 19th century, but it first appeared in its modern form in President Kennedy's Executive Order 10925 in 1961. This order mandated that government contractors "take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, colour, or national origin".
Anti-discrimination laws prohibit discrimination on the basis of protected characteristics such as race, colour, religion, sex, national origin, disability, age, sexual orientation, and gender identity. Affirmative action is a remedy under the Civil Rights Act of 1964 when an employer has intentionally engaged in discriminatory practices. It also serves to prevent future discrimination.
