The Truth About Affirmative Action in Employment

Affirmative action in employment is often mischaracterized, fueling confusion about its purpose and scope. There’s a common and harmful misconception that Executive Order 11246 requires employers to meet race-based quotas in their hiring practices, but this is incorrect – such quotas are prohibited by law. Understanding what employment-based regulations are and, importantly, the policies it enforces, is vital for our country and for the American workplace.

The OFCCP focuses on eliminating discriminatory employment practices and removing barriers to equal opportunity through robust outreach and recruitment for women, racial and ethnic minorities, individuals with disabilities, and protected veterans. The agency makes reference to affirmative action under a different meaning – as a “goal” which simply requires a contractor to take action and demonstrate a good faith effort that it engaged in positive outreach to try and attract more qualified candidates, including diverse applicants. 

However, once candidates apply for a position, a contractor cannot use race or sex as a factor but must hire based on merit.  It is important to understand that any employment practice that gives preference to one group over another is plainly illegal under EO 11246.  And, yes, EO 11246 protects whites and males just as it does other groups. This is about nondiscrimination and equal opportunity, not unlawful quotas.

“Any employment practice that gives preference to one group over another is plainly illegal under EO 11246.”

If the structures that uphold nondiscrimination in government hiring are eliminated, it would be to the detriment of historically under-represented groups, as well as whites and males. Supporters of the elimination of affirmative action should know that their own employment protections are at risk.

Why?

The Fine Print on Non-Discrimination and Affirmative Action

Federal contractors must abide by non-discrimination and affirmative action requirements and are subject to compliance audit by the Department of Labor’s OFCCP. These regulations derive from EO. 11246 on nondiscrimination in government contractor hiring, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans' Readjustment Assistance Act. OFCCP defines a contractor’s affirmative action obligations as a requirement to ensure that applicants and employees are treated without regard to their race, ethnicity, religion, sex, disability, status as a veteran, and other protected categories.  As the great majority of Americans agree, the notion of nondiscrimination and equal opportunity in hiring and employment is not controversial.

Affirmative action in this context does not mean hiring or promoting based on quotas, set-asides, or preferential treatment. It is explicitly illegal to do that. A review of OFCCP’s public enforcement database and recent settlements demonstrates that the agency does not require nor enforce a quota system and places most of its enforcement efforts on rooting out systemic discrimination in employment, including discrimination against whites and males. 

In fact, in a review of enforcement data from 2004-2024, OFCCP has never found a federal contractor in violation for not meeting an affirmative action goal. OFCCP’s enforcement efforts have been focused on identifying and remedying systemic discrimination.  Since 2019, OFCCP recompensed 163,257 alleged victims of discrimination. This includes back pay, front pay, benefits, and more, paid directly to the alleged victims. While most of the alleged victims of intentional discrimination were women and blacks, the third most alleged victims of discrimination were whites and males.  OFCCP recompensed 24,514 whites and males who were awarded settlements for alleged discrimination in hiring and compensation. 

Don’t Confuse This With DEI

Some individuals might interpret the enforcement statistics highlighting alleged discrimination against whites and males as due to corporate Diversity, Equity, and Inclusion (DEI) initiatives. A careful review of OFCCP settlements noted above shows no evidence that the alleged discriminatory practices were due to the organization’s DEI efforts.

"OFCCP recompensed 24,514 whites and males who were awarded settlements for alleged discrimination in hiring and compensation."

Affirmative Action Improves Employment Practices

In addition, there is clear evidence that contractors who engage in affirmative action are less likely to engage in discriminatory practices. A recent study by researchers at the University of Chicago and Berkley conducted an experiment on approximately 100 of the largest companies in the U.S. The researchers submitted resumes with equivalent qualifications but different demographic and personal characteristics. They changed applicant names that might suggest they were part of a particular racial/ethnic group or sex (e.g., Amy vs. Adam or Lamar vs. Adam).

Overall, the study found that employers contacted the presumed white applicants 9.5% more often than presumed Black applicants with similar qualifications.  However, the researchers concluded that federal contractors subject to OFCCP’s requirements were less likely to have discriminatory hiring practices. 

Most Americans agree that discrimination in employment is unacceptable.  Yet, the data and research are clear: discrimination in the U.S. still exists. EO 11246 and OFCCP have a positive impact on ensuring nondiscrimination in employment. Affirmative action is not a quota system. All protected groups, including whites and males, are covered, and compliance with OFCCP regulations requires effective and non-discriminatory employment practices. If EO 11246 and OFCCP are eliminated, it would be to the determinant of everyone in the American workforce, including historically under-represented groups, whites, and males.