Affirmative action policies are those where an group or a institution actively do their utmost best to provide better opportunities for groups from the past who were often times rejected from the American society. Most often times Affirmative action focal point is employment as well as education. In institutions that offers education of higher quality, affirmative action as it relates to administrative polices allows access to education for the same set of groups that have been excluded in the past. This set of group may include both minorities and women. Affirmative action programs today has cause major controversy and most often time debates surrounding this topic have become intense.
The end results of the 1960’s Civil rights Movement was the affirmative action which was created to offer equal opportunities for individuals of minority groups as well as women in education and employment. President John F. Kennedy In 1961 was the first person to utilize the term Affirmative Action in an Executive Order that would ensure that government contractors would take ‘affirmative action to make certain that qualified candidates are guaranteed a job and that employees are treated fairly during employment, without regardless of their nationality, race, or gender.’ (National Conference of State Legislatures , 2014)
An example of affirmative action was in the 1980’s where the case Farmer vs. the University of Maryland School of Medicine. The school was under attack on the grounds of admission unfairness or discrimination. The plaintiff, Rob Farmer, had been deprived of pursuing his career at the school due to the fact he was denied admission. Farmer’s complaint was due to the fact the University required lower standards, that is the grades and test scores does not need to meet certain standards in order to be accepted into the school.
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The school was therefore criticize because the admission members favored the minority groups to some extent. For this reason, the plaintiff argued on the grounds that his test scores and grades were far more higher than the black students that are being accepted In 2001, the judge ruled in favor of the defendant because it is been said the denial of acceptance of Mr. Farmer (plaintiff) was not based on race case was dismissed by a federal judge who stated that Farmer’s rejection from the University was not based on race, but on his academic ability. (McBride)
Opponents of affirmative action usually describe it as a major departure from equal opportunity’s goal it started out with. In their description, the founding fathers of today’s civil rights change the conception of racial, ethnic and gender discrimination as deliberate mistreatment and severely limited the remedy to equal treatment as it became to be known. Affirmative action came into being by displacing these time honored precepts with the revolutionary notion that the group effects of societal bias warrant government intervention, completely apart from the question of intention. The outcome, according to these opponents, has been the superior of protected group preference and the results are considered unfair as it relates to equality. (Leiter & Leiter, 2011)
In the case of Allan Bakke vs. University of California Allan Bakke, a old white man in his thirties, who had applied to the University of California Medical School two time. Mr. Bakke, however was rejected both times. The school however, held in reserve 16 seats in each class of one hundred for qualified minorities as way of honoring its obligations to the affirmative action program within the university. This was done in an effort to restore longstanding, the prohibition of minorities within the medical profession. Both Mr. Bakke’s GPA as well as his test scores were above those of any of the minority students who were accepted in the school, the same two years he got his application rejected. Bakke argue in court that he was being rejected from pursuing his medical career at the university solely on the basis of race. Bakke sued the university claiming that that the medical school’s admission policy violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause. The court ruled in Mr. Bakke favor, stating that the university discriminated against racial groups. (OYEZ)
Employment at will on the other hand, came about as the major rule in the unlawful discharge cases in America during the 19th century. This principle emphasizes that a organization should have the choice to release or keep hold of employees at will for good reasons, for no cause, or even for bad cause, without thereby being at fault for an unlawful act. Hence, the doctrine of employment at will is well known in the American legal system. In recent years, however, this doctrine has been undermined. Within businesses, employers are now finding that the legal environment as it relates to the right to fire is perplexing and fully grown with potential liability. (Sentell & Robins, 2008)
There are a number of exceptions under the policy of employment at will. An worker is wrongfully release from his or her duty or position when the discharge is against an public policy that it well established by the state. For example, most states within the United States, an employer cannot discharge a worker for claiming his or her compensation after being seriously wounded on the job, or for saying no to an employer who is giving them the order to break the law for the benefit of a company. (Sentell & Robins, 2008) In the case of Michigan Ebling v. Masco Corporation, after being employed to the company for five and two years, Mr. Ebling was released from his position by the Masco Corporation without any explanation. With that said, Mr. Ebling found the need to commenced actions against the Masco Corporation as he believe that he was discharge wrongfully. He claimed to the court that discharge go against his employment agreement where the corporation only had the right to release him from duty only if they had a good reason. The verdict ruled in the favor of Mr. Ebling and was later compensated in the amount of $300,000 due to the fact the discharge denied him to exercise stock options.
The second most important exception under the employment at will policy is that it is useful when an implied contract is created between an company and employee, even though it wasn’t communicated between both parties and also there is no written document to prove that employment relationship exist. Usually employment is not usually ruled by a contract, however an employer may possibly make oral or written representation to workers so as to lay out what is required by each employee and the consequences that may arise if these rules or guidelines are not adhere to. If such is the case, a contract for employment is created through the representation.
The third exception to the employments is accepted only in 11 states in the United States. It is the exception for a covenant of good faith and fair dealings. It is the most important departure from the established employment at will policy. Instead of denying terminations based on a contract formulated by a employer or by public policy, this exception ensures that a covenant of good faith and fair dealing is being incorporated into every employment relationship. This exception has been clarified and the true meaning is either that employer workforce choices are focus to a ‘just cause’ standard or that discharges are normally made in bad faith or driven by malice. The third exception was evident in the case of SONS OF THUNDER INC V. BORDEN INC.
DeMusz an employee of Borden persuaded Sons of Thunder to purchase a boat in order honor its obligations outlined by the contract with Borden. With that said, Sons decided that they were going to apply for the loan in order to purchase the boat. After the boat was purchased Borden guaranteed Sons of Thunder that the contract was long term and therefore the profit was more than enough to cover for the loan. However after the boat was ready for business, Borden had a new management team and therefore decided not to honor Sons of Thunder’s contract throughout the first four months the business was in operation for and therefore decided to put into effect the 90 day termination clause in the contract. the plaintiff Sons of Thunder, Inc was compensated for damages in the amount of $412,000 based on the violation of an implied covenant of good faith and fair dealing on grounds to terminate the plaintiff’s contract. (Barrett & Renard, 1998)
In conclusion both Affirmative Action and Employment at will are both beneficial when they are utilized in the correct way. With that said, these policies also have negative aspects associated with them. Affirmative action was created to help resolve inequalities in the past that both women and minorities had to suffer. However, it can be at a disadvantage to an individual who have work hard from their achievements and qualifications only to be deprived of a job opportunity to minorities who are less qualified. As it relates to employment at will it is beneficial to employees as it give them the flexibility to be able to leave a job at any time for any reason. However it can be at an disadvantage to employees as there is some level of uncertainty due to the fact employers can terminate their contract without notice. In the end both are beneficial when they are used in the right way.
