Throughout the history of the united states we have had many run ins with discrimination, from the natives to the African Americans, and we can all agree that discrimination is unjust and is unconstitutional. That said how is affirmative action okay or different than regular discrimination, it is inherently unconstitutional and destroys the philosophy of meritocracy and reinforces negative views on minorities.
What exactly is affirmative action? Well affirmative action is, as according to the google definition, “an action or policy favoring those who tend to suffer from discrimination, especially in relation to employment or education; positive discrimination.”, but it’s origins lie within executive order 10925. Executive order 10925 was signed around the civil rights movement in 1961 to help ensure that people of color wouldn’t be discriminated against during the hiring process. It specifically states in Section 3, “The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to 1 their race, creed, color, or national origin.”, but as we see both contradict each other. One states no discrimination and the other clearly acknowledges its discrimination, so we already see that the modern-day iteration of affirmative action differs from the original but what makes it unconstitutional? In the bill of rights amendment 14 section 1, it states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states…”. that said by putting into play affirmative action you are in a sense abridging someone else’s access to that job as this “positive discrimination” is still discrimination, so you are purposefully denying someone the right to the job, and as we see in the 14th amendment that is unconstitutional.
Now we established that affirmative action is unconstitutional we must talk about how it can truly hinder a business if all they factor in is diversity. Generally, a corporation or business wants to hire people based on their ability to perform. It maximizes efficiency and promotes competition to improve at what they are doing. so, given the scenario of 2 workers, one does outstanding work and the other doesn’t, the average person would pick the outstanding employee for a raise or promotion because he’s qualified. This thought process is the philosophy of meritocracy, the belief that people should be hired based on ability, not gender, race, or religion. Affirmative action is the opposite of this, and this can result in very discriminatory practices which land the wrong people in the wrong jobs, causing a loss of profits. According to the Association for Talent Development’s 2014 state of industry report, although a little dated, states, “$1,208 per employee on training and development. For companies with fewer than 500 workers, that number is even higher, coming in at $1,888 per employee”. That’s just the cost for training and taking in to account the process of finding a person for the job, hiring an employee who isn’t qualified adds up. So affirmative action if not implemented well enough can cause a loss of profits, and seeing as how there could be a lack of motive as people aren’t hired based on qualification productivity can fall as well.
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As a result of these biases affirmative action reinforces stereotypes. To assume automatically that people of color are disadvantaged reinforces those stereotypes that they had a rough upbringing and as such deserve special treatment. But doing this much would be to disregard the fact that people of color although sharing the same skin tone do not come from the same place or background. If this is the case the hiring process can seem dark and can come off as the company filling a quota. To further add insult to injury hiring based on race can also mean they don’t factor in intelligence, which can be insulting and, currently seeing as how we exist in an outrage culture, can be very demeaning, and a shot at one’s character or group of people almost defeating the entire purpose of diversity through affirmative action.
To conclude affirmative action is very much ironic as it fails to truly achieve what it wants, affirmative action is unconstitutional and helps perpetuate stereotypes, but there are gaps in what I’ve stated. To begin yes affirmative action is inherently unconstitutional as it is defined. Courts have come to the decision that affirmative action is okay, but only to an extent, there is a limit which affirmative action is considered okay before it can be deemed discriminatory, and the argument that unqualified candidates are hired solely based on color is not necessarily representative of every company’s hiring process, but one thing I can fully state is that rather hire based on race, religion, or some other parameter, we should hire based on intellect and qualifications. Rather a diversity of ideas then a diversity of color, but there are 40 years of precedents that won’t allow such a practice to just stop. Judges would rather stay out of history then potentially have their name in a bad one, which leads to many issues like affirmative action being tossed to the side as things that have been established are very difficult to change, which is a major flaw with judicial review as judges would rather not be activists. 8 states do not partake in affirmative action but do have their own way of creating diversity, and we can only hope that down the line race and color doesn’t have to be something that should ever be taken into account when hiring a person or for the sake of diversity, as it in and of itself promotes what it seeks to end which is discrimination.
