Affirmative Action in the United States refers to Equal Employment Opportunities set by the government which requires that Federal contractors and subcontractors should strictly follow. The major purpose of this is to ensure that there is prevention of employees or job seekers against discrimination on the basis of colour, race, religion, national origin and sex. In the U.S affirmative action is offered by the United States Department of Labour through outreach campaigns, employee and management development, employee support program s and targeted recruitment. The aim of affirmative action is to fight the long-standing demerits associated with historical discrimination. There is also the desire to see to it that all public institutions are more representative of the people that they serve. This paper seeks to address two cases that clearly indicate the extent to which affirmative action is practiced in Human Resource Management practices.
Fullilove v.Klutznick. Facts of the case
In the case of Fullilove v. Klutznickthere had been a long-standing case of discrimination within the construction industry facing Congress. It was argued that despite the fact that construction companies made up over 10% of the total population, there was favouritism against the minority business owners who in many instances were found being locked out of major building trades and instead, their white counterparts took up the deals. Following the enactment of the Public Works Employment Act in 1977, the law provided for a stipulation where 10% of all federal monies was channelled to the minority-owned businesses.
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This provision was however challenged in court by Fullilove and a group of non-minority contractors forming the basis of this case. According to the plaintiffs, they had sustained economic injury occasioned by the enforcement of the 10% provision. In their opinion, this stipulation contravened their rights as provided for in the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution. It was also in contravention of the Civil Rights Act of 1964 which protected their right not to be discriminated against. The respondent in this particular case was the U.S secretary of Commerce Philip M. Klutznick.
The plaintiffs were applying for an injunction to prohibit the channelling of more federal money to the minority as well as making the Public Works Employment Act declared unconstitutional. This was first case taken to the District Court which dismissed the above mentioned claims on the grounds that the set-aside program was constitutionally valid. When they appealed at the Court of Appeal, the same judgement was held on all counts: they had to appeal to the highest court on the land. In this final appeal, the Supreme Court held that Congress “could constitutionally use its spending power to remedy past discrimination”.
The Supreme Court affirmed the rulings of the subordinate courts terming their decisions as constitutionally correct. In as much as the six-justice bench differed in their reasoning, it was agreed that the set-aside program was in line with the provisions of Equal Protection Clause as well as the Civil Rights Act. Chief Justice Burger clearly stated that the constitution provided for the Spending Power of Article 1 of the constitution and as such, it was justified for Congress to come up with such a decision. He stated “it is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees”. He observed that it was the duty of Congress to come up with provisions that avoided discrimination of any kind.
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Watson v. Fort Worth Bank and Trust. Facts of the Case
The plaintiff was a black employee at Fort Worth Bank and Trust who had on four occasions denied promotion to a supervisory position in favour of white applicant. The bank argued that in assessing the plaintiff’s candidacy, interviews, experience requirements as well as rating scales had been used. In their opinion, this was not to undergo any valid process, an issue that the plaintiff argued against terming it as discrimination under Title VII of the 1964 Civil Rights Act .
The district court agreed that it was not a requirement that the method used for promotion should have undergone any validation, the plaintiff was required to show evidence that there was intentional discrimination. The court held that, “while the plaintiff made a prima facie case of discrimination, the bank had a legitimate non-discriminatory basis for not promoting her”.
The highest court of the land, the Supreme Court affirmed her claim stating that the bank had acted in a manner suggesting discrimination since the bank used subjective selection procedures that did not meet the generally accepted standards as well as lacking evidence of being valid in relation to the inferences drawn from them.
Relation to HRM Policies and Procedures
In this regard, the two above mentioned cases are related with HRM practices that provide for lack of discrimination in employment procedures right from interviews to final employment. According to Heathfield (2011), in the event of disparate-impact as was in this precedent-setting case, it is upon the defendant to prove that the employment practice in question is necessary for the running of the business. In my opinion, the fact that the law was applied selectively in the sense that in the second case only the whites were promoted means that there was discrimination though not expressly displayed. According to Employee Selection and Development, it beats legal logic to justify that the practice by the bank was not discriminatory: if Watson had applied for promotion four times, what was the major reason for not employing her? HRM policies and procedures demand that there should not be procedures that expressly or indirectly discriminate against others whatever the reason. It should be noted that the interpretation as well as implementation of affirmative action especially in employment has been hotly contested since its inception in the 1960s. A central bone of contention is what qualifies discriminatory practices?