ANTI-DISCRIMINATION IN THE WORKPLACE:

AFFIRMATIVE ACTION AND MANAGEMENT

Kristen Cretella
LER 458Y: History of Work in America
December 5, 2014

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According to Phil Johnson, Professor at the University of Sheffield Management
School and contributor in Human Resource Management: A Critical Approach, Human
resource management in contemporary organizations is usually prescriptively conceived
as an interrelated set of activities aimed at systematically enhancing the task performance
of employees in a manner commensurate with the strategic aims of senior management.1
The strategic aims of management reflect the goals of the entirety of the organization, and
therefore how these practices are achieved within the organization will vary in response
to the internal and external environments of the organization. Management consultant and
author of Armstrongs Handbook of Strategic Human Resource Management, Michael
Armstrong states, The overall purpose of human resource management (or people
management) is to ensure that the organization is able to achieve success through
people.2 Two essential components of human resource management are the recruitment
and selection processes. Through successful recruitment and selection, organizations can
accomplish goals and achieve success through people.
The purpose of this essay will be to analyze the significance of recruitment and selection
by human resource management, in relation to hiring candidates that will perform the
requirements of the job effectively and fit the organizational culture. In particular, hiring
candidates for the organization and not just the job. In addition, this paper will assess the
current anti-discrimination laws in the workplace and the complications they pose on
human resource management and objectives to hire candidates that will not only perform
efficiently and effectively, but also those who will fit into the organizational culture.
Title VII of the Civil Rights Act of 1964 prohibits discrimination by covered
employers on the basis of race, color, religion, sex and national origin. On July 2, 1965,

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the Equal Employment Opportunity Commission (EEOC) was established to enforce
laws against workplace discrimination, such as on the basis of those protected classes
under Title VII. To further enforce equal opportunity employment measures, affirmative
action plans and procedures were introduced to prevent discrimination against applicants
for employment and employees on the basis of color, religion, sex and national origin.
This paper will examine the significance of affirmative action plans and procedures and
complications employers face in recruitment and selection processes.
Affirmative action plans and procedures are often perceived as unfair treatment
and a restriction to an employers freedom to choose individuals who are the best fit for
the organization, on the basis of the individuals ability to perform the requirements of the
job and congruence to the culture of the organization.3 Specifically, human resource
management cannot choose candidates based solely on merit because affirmative action
forces employers to work against the best interest of their companies. Affirmative action
is known as unfair treatment because the law requires management to select candidates
on the basis of race and gender rather than just knowledge, skills, abilities and
organizational fit.
The recruitment and selection processes, stated by Rosalind Searle, Senior Lecturer in
Occupational Psychology at The Open University, May be the first formal interaction
which candidates have with the organization.4 The procedures and results of recruitment
and selection through the organization will impact the effectiveness and productivity of
the organization in the subsequent. Many definitions exist for recruitment and selection,
but all contain common elements such as the focus on the attraction, identification and
retention of staff.5 According to Lorraine R. Gardiner, Professor of Management

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Information Systems at California State University, Chico and Debra Armstrong-Wright,
Professor of Political Science at Auburn University, Organizations make hiring decisions
against the backdrop of their external legal environments and when the environment
includes legislation prohibiting discrimination in hiring for certain protected groups of
individuals, there are strong implications for selection decision processes.6 Antidiscrimination laws and affirmative action plans and procedures were enacted to protect
employees from unfair practices. Injudiciously, affirmative action plans and procedures
impose unfair restrictions on human resource management and employers.
Walter E. Block, the Harold E. Wirth Eminent Scholar Endowed Chair and Professor of
Economics at Loyola University New Orleans and Javier Portillo, Professor of
Economics at Loyola University New Orleans state, Anti-discrimination laws are based
on moral considerations, and seek to improve society by providing equality amongst
peers.7 The moral considerations in respect to recruitment and selection are based on an
ethical approach by human resource management, and involve, according to Michael
Armstrong, Treating people with equality in terms of the opportunities for employment,
learning and development provided for them.8 This ethical dimension of human resource
management poses a legal concern on the recruitment and selection processes used by
organizations. In addition, juxtaposing viewpoints exist on the effectiveness of antidiscrimination laws, and the challenges created in recruiting and selecting candidates
deemed as the best fit for the organization, in terms of integration and supplementing the
culture of the organization. Javier Portillo and Walter E. Block argue, Antidiscrimination legislation is used to equilibrate the playing field to help the
underprivileged,9 and ultimately pose unfair restrictions and difficulties on employers

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and human resource management. Anti-discrimination laws undermine the rights of
employers to hire individuals deemed the best fit for organizations.10 Organizational fit
refers to an individuals cohesiveness with the business strategy, organizational structure
and work processes, external environment, organizational culture and workplace
composition.11 These factors pertaining to organizational fit are becoming as increasingly
important as the capability to perform the requirements of the job.
The United States has a long history with racial and sex discrimination. To overcome
discrimination and inequality, the government paved the road to justice through equal
opportunity and affirmative action laws and policies.12 Affirmative action programs and
policies that enforce the anti-discrimination laws are designed to create equal
opportunities for both racial minorities and women in areas where they have traditionally
been denied access.13 Such laws came into existence during the Lyndon Johnson era,
when he signed the Civil Rights Act of 1964 and subsequently Executive Order 11246 on
September 24, 1965, which enforced affirmative action for the first time. According to
President Johnson, the executive order required government contractors to take
affirmative action toward prospective minority employees in all aspects of hiring and
employment. The United States Equal Employment Opportunity Commission (EEOC)
enforces all legal pronouncements regarding anti-discrimination in the workplace and
affirmative action programs.14 But these programs and policies ultimately do not permit
employers to choose candidates based on merit, but rather by race or gender.15 Corey A.
Ciocchetti and John Holcomb, Professors of Business Ethics and Legal Studies at the
University of Denver argue, Affirmative action remains controversial in American
jurisprudence and society in general.16 The controversy is the result of the

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ineffectiveness of these programs and policies for minorities, and the negative impact on
human resource management and organizations.
When considering the effects anti-discrimination laws and subsequent affirmative action
programs have on human resource management professionals, and their ability to recruit
and select candidates that will benefit the organization, one must understand and assess
the opinions of those human resource management professionals. For example, Barbara
Cohen Farber is the Executive Director of Administration and Human Resources at Lloyd
Staffing, a staffing firm on Long Island, New York. Her primary responsibility is to be the
matchmaker between a candidate and a client, ultimately to recruit candidates deemed
as the best fit for the organization asking for the assistance of Lloyd Staffing. According
to Barbara Cohen Farber, the anti-discrimination laws do not undermine the rights of
employers and in addition, do not pose a challenge for employers to hire candidates
deemed as the best fit for the organization. Barbara Cohen Farber states that employers
understand the laws and do not need to break them in order to hire the individuals they
really want.17 When discussing Title VII and the anti-discrimination laws enforced by
the EEOC, Farber states that employers have the ability to recruit and select candidates
that will benefit the organization, and are not just hired in order to meet a quota or ratio.
Farber also adds anti-discrimination laws provide both the employees and employers to
actively apply and hire as they so choose, and furthermore provide equality to all
individuals on both sides of the recruitment and selection processes.18
According to Barbara Cohen Farber, anti-discrimination practices and policies in the
workplace are not detrimental to human resource management, and allow employers to
choose candidates that will benefit the organization regardless of their race, color,

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religion, sex and national origin. In addition, advantages exist to affirmative action
practices and policies and commitment to obliging to the anti-discrimination laws in the
workplace. Firstly, affirmative action policies help to create a more diverse work
environment. Barbara Cohen Farber states that, Diversity in the workplace is good for
business because diversity provides different perspectives which can only be achieved by
having a diverse workforce.19 In terms of recruitment and selection, employers who
recruit from a diverse set of candidates are more likely to hire the best individuals that
will be the best fit for the organization.20 Because talent and creativity are essential to the
bottom line of an organization, recruiting candidates from the most diverse and largest set
of candidates therefore provides the greatest talent in the market.21 In addition,
organizations that comprise a multi-cultural employee roster are better positioned to serve
multi-cultural communities, by overcoming cultural and language barriers, and therefore
increasing their reach of markets and growth opportunities.
Individuals in favor of anti-discrimination laws, policies and practices enforcing
workplace diversity are also making a moral commitment, which provides justice and
equal treatment to all individuals.22 This is an advantage to the organization because
workplace diversity can help draw candidates that also share beliefs in the principles of
justice and fairness. Organizations that embrace affirmative action and follow the policies
regarding anti-discrimination laws in the workplace are therefore fostering a more
tolerant work environment, which reassures employees that their workplace contributions
are valued because of their commitment and positive impact within the organization. Not
only do affirmative action programs and policies enforce the laws regarding antidiscrimination in the workplace, but they also provide a more diverse and tolerant

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workforce, which is essential and beneficial to the development and bottom of the
organization.
Before Lyndon B. Johnson signed Executive Order 11246 on September 24, 1965,
President John F. Kennedy, on March 6, 1961, signed Executive order 10925, ordering
federally funded projects to take affirmative action to ensure that applicants are
employed, and employees are treated during employment, without regard to their race,
creed, color, or national origin. The original intent of this executive order was to affirm
the governments commitment to equal opportunity for all qualified individuals. This
executive order was superseded by Executive Order 11246. Opponents of affirmative
action believe equal opportunity is not achievable through affirmative action programs
and policies because of the negative consequences on some qualified individuals, human
resource management, and organizations striving to employ highly qualified candidates
who will work not only effectively and efficiently but also fit the organizational culture.
In addition, opponents of affirmative action do not believe incorporating race, color, sex
or national origin in the recruitment and selection processes will provide equality for both
the employees and employers.
To understand opposing arguments on affirmative action, one must comprehend
how affirmative action works and the original intent of the programs and policies. The
original intent of affirmative action was to assure that underrepresented groups, such as
women and minorities, were recruited for opportunities and positions in educational
institutions or when applying for jobs.23 Employers were encouraged to create
recruitment methods and policies to ensure that underrepresented groups be in a pool of
potential candidates for these opportunities.24 Affirmative action has four fundamental

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characteristics that must be followed in the workplace. First, programs may be set up
voluntarily by private organizations or supported by government agencies.25 Second,
when considering a candidate for a job or promotion, the program must look at personal
factors such as gender or race.26 But the candidate must be qualified for the job and
therefore indicating that affirmative action programs do not hire candidates based solely
on race or gender.27 Third, the program must be designed to redress past unfair treatment
of the gender or race group to which an individual belongs.28 Fourth, affirmative action
plans in the workplace can only be temporary solutions and are not meant to subsist
forever.29 Proponents of affirmative action believe only with positive-action programs can
discriminated groups achieve the equality of opportunity that has been given to
traditionally non-discriminated groups.30
As mentioned, affirmative action was originally designed to help correct past patterns of
discrimination.31 Throughout the years, employers are now, in addition to expanding
opportunities for underprivileged, implementing affirmative action programs to foster a
diverse workforce rather than to remedy past discrimination.32 Because of global business
and connectivity, a diverse and engaged workforce is fundamental to business and can
impact a companys future bottom-line positively.33 Diversity in the workplace is the
platform for innovation, creativity and productivity, and therefore affirmative action
programs and policies that foster a diverse workplace are not only advantageous to
employers, but also essential to the success of the business.34 Workplace diversity fosters
increased adaptability, broader range of services, and variety of viewpoints, therefore
meeting market and consumer demands more efficiently and resulting in higher
productivity. This is also to say, anti-discrimination laws and affirmative action policies

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enforced by the EEOC promote diversity in the recruitment and selection processes and
do not undermine the rights of employers to hire individuals who can perform the job
effectively and efficiently, and deemed the best fit for the organization.35
Workplaces that consider diversity a positive value therefore favor applicants who will
further diversify the organization and do so with no conflict with the principle of merit.36
Individuals deemed the best fit for the organization are therefore not selected only on the
basis of gender or race through affirmative action programs, and consequently the
decision resides in the individuals capability to perform the job and fit the culture of the
organization.37 In addition, Ciocchetti and Holcomb state, The hope is that the racism
that does exist in America will diminish, and that maintaining a diverse workforce can be
achieved solely on a merit basis.38
In addition to proponents of affirmative action, several disputes exist opposing
affirmative action programs and polices. Opponents believe the measures taken to
provide equality for women and minorities are unjust to employers and create an undue
hardship for organizations. One utilitarian argument against affirmative action
emphasizes the unintended consequences in the workplace. The argument states nonwhite men and women will not perform at optimum levels as long as they expect to be
given preferential treatment, and white men will not be motivated to perform effectively
and efficiently because they expect to lose in competition with those benefiting from
affirmative action programs and policies.39 In addition, this argument assumes white men
will abandon their careers that put them at a disadvantage because of affirmative action
programs and policies.40 The utilitarian perspective of affirmative action poses the
concern that the programs and policies pose an undue hardship on human resource

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management and organizations because employees are not performing at optimal levels,
and therefore negatively affecting the bottom line of the organization.
Both the United States House of Representatives and Senate have held hearings on
affirmative action pertaining to the legality of programs and policies and consequences of
such programs and policies in the workplace. The first such hearing of the 104th Congress
was held on March 24, 1995 before the House of Economic and Educational
Opportunities Subcommittee of the Committee on Employer-Employee Relations.
Subcommittee and Republican Representative Harris W. Fawell from Illinois opened the
hearing stating his opinion on affirmative action.
Harris Fawell opens the hearing by stating:
So it seems an employer, especially today, can be 'damned if he or she does or
damned if he or she doesn't.' If the employer chooses to use 'affirmative action'
race-based or gender-based employment to diversify the workforce, the employer
may be sued under charges of 'reverse discrimination.' On the other hand, if the
employer spends millions of dollars for so-called objective merit-based tests for
hiring or promotions, the 'numbers' may still show disparate impacts racially, thus
still subjecting the employer to charges of discrimination. On the other hand, if
the employer tries to hire outside the test results in an effort to get better
'numbers,' the employer will be again subject to charges of discrimination from
those who had high scores on the tests but were passed over in favor of employees
with lower scores.41
The concerns of Harris W. Fawell demonstrate the apprehensions opponents of
affirmative action have towards the programs and policies. Specifically, organizations
must now be capable of establishing programs and policies that do not violate the law but
also put the organizations best efforts to diversify the workplace and create equal
opportunities for all employees. Creating such a balance is challenging for organizations
whose bottom line is strongly manipulated by the efficiency of employees in their
abilities to perform the requirements of the job and meet organizational goals. In addition,

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affirmative action programs and policies create a burden on human resource management
to establish and enforce such programs and policies that comply with the laws. Rather
than exclusively focusing on recruitment and selection strategies targeting individuals
who will perform efficiently and effectively and fit the organizational culture,
organizations must comply with all regulations pertaining to affirmative action and
include protected classifications, such as race and gender, into the recruitment and
selection processes.
According to Brendan Joseph McCarthy, former Managing Director and Head of Sales
and Trading at Knight Capital Group, a global financial services firm, affirmative action
poses greater challenges for larger organizations and industries that are fast paced and
thriving from innovation and productivity. According to McCarthy, Financial services
firms such as Knight Capital Group rely profoundly on recruiting and selecting
individuals who will perform at optimum levels, exceed goals, and not crack under all of
the pressure.42 He adds, The job requires certain types of individuals, and those
qualifications and personalities are assessed critically, but characteristics such as race or
gender will not determine whether or not an individual will perform well.43 The bottom
line of Knight Capital Group relies profoundly on the performance of each employee and
his or her ability to perform the requirements of the job and fit the organizational culture.
Therefore, organizations such as Knight Capital Group require recruitment and selection
practices that will be predictive of an individuals skills, abilities, personality and
adaptability to fit the organizational culture. These distinct characteristics establish
whether an individual will be an effective and efficient employee, whereas race, gender,
color, religion, sex and national origin do not.

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As mentioned by Brendan McCarthy, the requirements of positions at Knight Capital
Group require specific individuals with certain characteristics and capabilities to perform
the job effectively and efficiently. To a greater degree, organizations strive to select
individuals who will perform well and benefit the organization, regardless of race,
gender, religion, sex and national origin. According to Jon Elster, author of Local Justice:
How Institutions Allocate Scarce Goods and Necessary Burdens, All persons should be
judged individually and not on the basis of characteristics of the group to which the
person belongs.44 When organizations are making selection decisions, the individuals
abilities and personality are taken into account, as well as other factors that are
extrapolative of how well the individual will perform. Basing recruitment and selection
decisions on group characteristics such as race, gender, religion, sex and national origin
will not benefit the organization or provide the organization with the best overall
candidates. Although affirmative action is designed to create equal opportunities for
individuals in the workplace, affirmative action programs and policies create a burden for
organizations because management must take into consideration characteristics such as
race and gender, which are not foretelling of an individuals capabilities to fit the
organizational culture and perform efficiently and effectively. The best recruitment and
selection strategies are based on merit, whereas affirmative action programs and policies
focus on characteristics such race and gender.

1 David G. Collings and Geoffrey Wood, Human Resource Management: A Critical Approach (New
York: Routledge, 2009). 19.
2 Michael Armstrong, Armstrongs Handbook of Strategic Human Resource Management
(Philadelphia: Kogan Page, 2011). 13.
3 Beverly L. Little, William D. Murray, and James C. Wimbush, Perceptions of Workplace
Affirmative Action Plans: A Psychological Perspective, Group & Organization Management 23, no. 1
(1998): 27-47.
4 Collings and Wood, Human Resource Management, 151.
5 Ibid.
6 Lorraine R. Gardiner and Debra Armstrong-Wright, Employee Selection Under Anti-Discrimination
Law: Implications for Multi-Criteria Group Decision Support, Multi-Criteria Decision Analysis 9, no.
1-3 (2000): 99-101.
7 Javier Portillo and Walter E. Block, Anti-Discrimination Laws: Undermining Our Rights, Journal
of Business Ethics 109, no. 2 (2011): 209.
8 Armstrong, Armstrongs Handbook of Strategic Human Resource Management, 15.
9 Portillo and Block, Anti-Discrimination Laws, 2012.
10 Ibid.
11 Frank Giancola, Determining Organizational Fit, Workspan (2006): 71.
12 Corey A. Ciocchetti and John Holcomb, The Frontier of Affirmative Action: Employment
Preferences & Diversity in the Private Workplace, University of Pennsylvania Journal of Business
Law 12, no. 2 (2010): 283.
13 Encyclopedia of Race, Ethnicity, and Society, s.v. Affirmative Action in the Workplace.
14 Chen Shih-Hsueh and Brian H. Kleiner, Developments Concerning Race Discrimination in the
Workplace, Equal Opportunities International 17, no. 3-5 (1998): 40-44.
15 Anne K. Knight, Striking the Balance Between Anti-Discrimination Laws and First Amendment
Freedoms: An Alternative Proposal to Preserve Diversity, Thomas Jefferson Law Review 30, no. 1
(2007): 249-278.
16 Ciocchetti and Holcomb, The Frontier of Affirmative Action.
17 Barbara Cohen Farber, e-mail message to author, October 13, 2014.
18 Ibid.
19 Ibid.
20 Encyclopedia of Business Ethics and Society, s.v. Diversity in the Workplace.
21 Laura Talbot-Allen, Diversity in the Workplace, CMA 69, no. 8 (1995): 3.
22 Alison M. Konrad, Pushkala Prasad, and Judith K. Pringle, Handbook of Workplace Diversity,
The Academy of Management 31, no. 4 (2006): 1100-1200.
23 Supreme Court Drama: Cases That Changed America, s.v. Affirmative Action.
24 Ibid.
25 Ibid.
26 Ibid.
27 Laura Talbot-Allen, Diversity in the Workplace, CMA 69, no. 8 (1995): 3.
28 Supreme Court Drama: Cases That Changed America, s.v. Affirmative Action.
29 Ibid.
30 Knight, Striking the Balance Between Anti-Discrimination Laws and First Amendment
Freedoms, 2007.
31 Shi-Hsueh and Kleiner, Race Discrimination in the Workplace, 1998.
32 Ciocchetti and Holcomb, The Frontier of Affirmative Action.
33 Encyclopedia of Contemporary American Social Issues, s.v. Affirmative Action.

34 Alison M. Konrad, Pushkala Prasad, and Judith K. Pringle, Handbook of Workplace Diversity,
The Academy of Management 31, no. 4 (2006): 1100-1200.
35 Portillo and Block, Anti-Discrimination Laws.
36 Encyclopedia of Social Problems, s.v. Affirmative Action.
37 Frank Giancola, Determining Organizational Fit, Workspan, (2006): 71.
38 Ciocchetti and Holcomb, The Frontier of Affirmative Action.
39 Mari Teigen, The Affirmative Action Controversy, Nordic Journal of Feminist and Gender
Research 8, no. 2 (2000): 63-77.
40 Ibid.
41 House and Senate Hold Hearings on Affirmative Action, Civil Rights Monitor 8, no. 1 (1995): 810.
42 Brendan Joseph McCarthy, telephone conversation to author, December 1, 2014.
43 Ibid.
44 Teigen, The Affirmative Action Controversy.