Literature Review Chapter: Affirmative Action

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[. . .] 6 million women were plaintiffs in the case, all of whom were employed in some capacity by Wal-Mart from the time of December 16, 1998; and 3) Wal-Mart is a cultural leader in the retail space as the company holds the position of biggest private employer in the United States (Spangler, 2008).

A key factor in the Dukes case is that the employees believed they were discriminated against as women because the Wal-Mart practice of allowing absolute discretion by local manager to determine pay, training opportunities, and promotions established conditions under which rampant discrimination could -- and apparently did -- occur (Aron, 2011). Women employees testified that they were targets of exasperating and blatant discrimination that often came in the form of ignorant and discriminating remarks that alone could trigger individual legal action (Aron, 2011). Notably, Justice Ginsburg observed that individual damage claims would not have an impact on the sizable, institutionalized gender discrimination practiced by Wal-Mart, citing this data: "Women fill 70% of the hourly jobs in the retailer's stores, but make up only 33% of the management employees… The higher one looks in the organization, the lower the percentage of women" (Aron, 2011). An important aspect of the Dukes case is that it clearly signals to the retail industry that women specifically, and the public in general, are giving considerable attention to the issue of gender discrimination in the workplace. Private employers can no longer presume to have a buffer against class action legal suits regarding job discrimination (Spangler, 2008). Dukes also provides a clear view of the power social institutions have on discrimination in the workplace; the influence of a pro-business Supreme Court was unequivocally demonstrated in this case, one in a series of decisions with social transformative ramifications (Aron, 2011).

Waypole and Godfrey (2012) provided advice and guidance to recruiters in their brief article that emphasized equality and inclusion as substantive tenets of modern recruitment practices. Their words to employers was to always hire the most suitable, qualified applicants without regard to disability, race, or sex (Waypole & Godfrey, 2012). When people from protected classes or historically marginalized groups are business owners, it might seem that they escape or avoid much of the discrimination faced by other minorities or women and that Waypole and Godfry (2012) warned about in their guidelines. One of the primary battlegrounds for affirmative action has been in union halls, and ancillary to this are the contractual arrangements made with small- and medium- sized businesses owned by minorities and women. Balchflower (2007) wrote extensively about affirmative action in the construction industry, and examined the changes in the construction arena since the 1980s. Of particular note is Balchflower's (2007) extension of the research into the area of credit granted to small businesses. The rate of discrimination regarding credit granting to self-employed minorities is quite high, and includes paying higher rates of interest than similarly situated white males (Balchflower, 2007). According to Balchflower (2007), the many public sector procurement programs designed to eliminate discrimination from contracting have had very little beneficial impact on women-owned and minority-owned businesses. The 1989 Supreme Court Cronson case was a watershed legal action that diluted the clout and protections previously provided by these procurement programs (Balchflower, 2007). He concluded that there has been a widespread and deepening "deterioration of the relative positions of African-Americans, white females, and Asians compared to white males both nationally and in construction in the years after the Cronson decision" (Balchflower, 2007). A rather startling finding of Balchflower's (2007) was that when small business owners applied for business credit card through automated processes, there was no evidence of any race effects. Balchflower asserted that this finding supported his earlier work (Balchflower, et al., 2003, Balchflower & Wainwright, 2005) that minority-owned and black-owned firms were considerably more likely to be denied loans and to experience higher interest rates than were white males.

A number of states have formalized the procurement processes for the public sector construction, with Proposition 209 in California serving as one of the more exacting models for policy (Marion, 2009). Proposition 209 forbids consideration of gender or race when awarding contracts that are funded by California state funds, but does not apply to federally-funded construction projects (Marion, 2009). The two different groups that resulted from this inadvertent partitioning provided a valuable comparison as the federal projects were still characterized by preferences then disallowed in the state-funded construction projects in California (Marion, 2009). An important finding of Marion's (2009) was that fraudulent front companies substantively reduced the direct positive benefits to minority business owners. The work of Blanchflower and Wainwright (2005) supported this theory and underscored the vulnerability of the procurement protection programs to fraud. Marion (2009) further studied affirmative action as it related to minority-owned and women-owned businesses in the highway procurement and construction. Marion's (2002) is an important reminder of the potential impact of the utilization of disadvantaged business enterprises (DBEs) as the scope of public sector highway and related projects is substantive. Indeed, Marion (2002) refers to the census conducted in the industries in 2002, which indicate, "72.6% of the revenue earned by firms in the highway, street, and bridge construction industry was from government-owned projects" (p.899). From this, it is apparent that a reciprocal effect is likely in the relation of public procurement policy and the way business is conducted with DBEs in the highway construction industry. While Marion (2009) found that the costs were higher for contracting under conditions of affirmative action, the study acknowledges that positive aspects external to the construction costs alone accrue. Indeed, increased minority employment, self-employment, and entrepreneurship are important benefits to maintain as future research is conducted (Marion, 2009).

Bates (2009) delved deeper into the policy problem by examining detailed data about spending and perspectives of workers in the public sector procurement sector. A primary objective of Bates' (2009) research was to learn how minority business enterprises (MBEs) were affected by preferential procurement policies. One research question Bates (2009) explored had to do with the sense that the spending occurring as a result of targeting MBEs is a form of reverse discrimination. The research indicates that the objective of establishing a level playing field is elusive, and driven by regulatory policy and subsequent legal actions, the procurement policies that are designed to provide preferential treatment to minority business enterprises often fall short of this lofty goal (Bates, 2009). Bates' (2009) findings are not astonishing -- as they clearly support the work of others engaged in preferential procurement policy -- but they are stark. Bates (2009) confirmed that these procurement policies may, in fact, result in only very small economic impacts at the local level, and that only minimal assistance to minority business enterprises is achieved.

In 1972, a Revised Order No. 4 from the Secretary of Labor, followed the Executive Order, and directive form the Department of Health, Education, and Welfare about implementation of the affirmative action regulations arrived on higher education campuses (Fullinwider, 2013). With the construction industry functioning as testing grounds for procurement policy, the directives borrowed the apparatus of that sector (Fullinwider, 2013). The emphasis in the policy implementation language was on plans, goals, timetables, and even underutilization analyses (Fullinwider, 2013). Soon a uniform system wit a one-size-fits-all mentality was imposed on all types of institutionalized endeavor. (Fullinwider, 2013) Universities and colleges were not exempted from these policy changes, and they soon became a hotbed of contention that revolved around, inter alia, affirmative action (Fullinwider, 2013). In the beginning stages of policy implementation, prior to Revised Order #4, very little impact was felt on the established order of things related to higher education (Fullinwider, 2013). Representation became a watchword, but increasing representation came with all manner of impractical steps that would seem to increase diligence without producing any noticeable change (Fullinwider, 2013). But when women were included in the protected classes under Revised Order #4, the intangible became tangible as women were earning advanced degrees at rapid and robust rates (Fullinwider, 2013). The parallels of federal contractors being forced to achieve proportional representation and university search committees hiring proportional numbers of women faculty were sobering to those who had spent their lives in protected ivy-covered towers (Fullinwider, 2013). Sides were rapidly chosen, with defenders and offended being equally vehement (Fullinwider, 2013).

Teranishi and Briscoe (2008) approach the study of affirmative action in college choice by African-Americans from a critical race theory framework. A qualitative study, the work of Teranishi and Briscoe (2008) provides insight into the lived experiences of black high school students with respect to Proposition 209. According to Teranishi and Briscoe (2008), high stakes college admission practices and processes in California manifested racialized ideologies. A strength of this research is that it extends beyond the more typical examination of how affirmative action influenced institutional admissions practices, to explore more deeply how these policies and practices impacted black high school students seeking admission to colleges and universities (Teranishi & Briscoe, 2008). The findings indicate that black high… [END OF PREVIEW]

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APA Format

Affirmative Action.  (2014, July 4).  Retrieved June 17, 2019, from

MLA Format

"Affirmative Action."  4 July 2014.  Web.  17 June 2019. <>.

Chicago Format

"Affirmative Action."  July 4, 2014.  Accessed June 17, 2019.