AFFIRMATIVE ACTIONand sex of their employees to uncover patterns of
‘‘underutilization’’ and to develop programs to
overcome this underutilization and thus to take
account of the race, national origin, and sex of
applicants for employment and of candidates for
promotion. To many advocates of expanded civil
rights, this is seen as only the next and a most
necessary step in achieving equality for groups
that have in the past faced discrimination. To
others, who may also deem themselves advocates
of civil rights and of the interests of minority
groups, affirmative action, in the form in which it
has developed, is seen as a violation of the first
requirement for a society that promises equal
opportunity, that is, to treat individuals as indi-
viduals independent of race, national origin, or sex.
This apparent contradiction between civil rights
and affirmative action may be glimpsed in the very
language of the Civil Rights Act of 1964, the
central piece of legislation that banned discrimina-
tion in government programs, public facilities,
and employment. In the debate over that act, fears
were expressed that the prohibition of discrimina-
tion in employment, as codified in Title VII, would
be implemented by requiring certain numbers of
employees to be of a given race. This fear was dealt
with by placing language in the act that was under-
stood at the time specifically to forbid the practices
that are required under affirmative action since
the late 1960s and early 1970s. Title 703 (j) reads:
Nothing contained in this title shall be
interpreted to require any employer... to
grant preferential treatment to any individual
or to any group because of the race, color,
religion, sex, or national origin of such
individual or group on account of an
imbalance which may exist with respect to the
total number or percentage of persons of any
race, color, religion, sex, or national origin
employed by any employer.However, federal executive orders governing
how the federal government does its business may
set their own standards, independent of statutory
law. The first executive order using the term af-
firmative action was issued by President John F.
Kennedy in 1961. It created a President’s Commit-
tee on Equal Employment Opportunity to moni-
tor the obligations contractors undertook to ex-
tend affirmative action. At this time, the general
understanding of affirmative action was that it
required such things as giving public notice that
the employer did not discriminate, making the
availability of positions and promotions widely
known, advertising in minority media, and the
like. With the Civil Rights Act of 1964—which not
only prohibited discrimination on grounds of race,
color, and national origin but also on grounds of
sex—a new executive order, no. 11,246, was for-
mulated by President Lyndon B. Johnson and
came into effect. It replaced the President’s Com-
mittee on Equal Employment Opportunity with an
Office of Federal Contract Compliance Programs
(which still operates). Subsequent federal regula-
tions of the late 1960s and early 1970s specified
what was meant by affirmative action in the execu-
tive order, and the meaning of affirmative action
was considerably expanded into the full-fledged
program that has existed since 1971. Revised or-
der no. 4 of that year, which is part of the Code of
Federal Regulations and is still in effect, reads in part:An affirmative action program is a set of
specific and result-oriented procedures to which
a contractor commits itself to apply every good
effort. The objective of those procedures plus
such efforts is equal employment opportunity.
Procedures without efforts to make them work
are meaningless; and effort, undirected by
specific and meaningful procedures, is inade-
quate. An effective affirmative action program
must include an analysis of areas within which
the contractor is deficient in the utilization of
minority groups and women, and further, goals
and timetables to which the contractor’s good
faith efforts must be directed to correct the
deficiencies and, [sic] thus to achieve prompt
and full utilization of minorities and women,
at all levels and in all segments of its work
force where deficiencies exist. (Code of Feder-
al Regulations 1990, pp. 121–122)Much of the controversy over affirmative ac-
tion is over the term goals and timetables: Are these
‘‘quotas’’? Supporters of affirmative action say
not—only good faith efforts are required, and if
they fail the contractor is not penalized. Further
controversy exists over the term utilization: What is
the basis on which a group is found ‘‘underutilized,’’
and to what extent is this evidence of discrimina-
tion? Similarly, there is considerable dispute over
how to label these programs. ‘‘Affirmative action’’