Affirmative Action and What It Means for Women

Affirmative action programs have played a critical role in opening up opportunities for women and minorities to begin to take their rightful place in our society. But equal opportunity for women is still a long way off. Eliminating or curtailing affirmative action would not only halt the forward progress that women, as well as minorities, have been able to achieve; it would mark a giant leap backward in this nation's journey toward equal opportunity for all.

BARRIERS TO ADVANCEMENT FOR WOMEN REMAIN PERVASIVE

Discrimination against women is deeply rooted in our society. Though much progress has been made since the days when classified ads listed job openings for women and men separately and many prestigious universities were completely closed to women, sex discrimination persists today. New examples surface on an almost daily basis. Over 900 past and present women brokers at Merrill Lynch assert that they have experienced gender-based discrimination.⁽¹⁾ Officials at M.I.T. admit long-standing and pervasive discrimination against women on its faculty, reaching all areas of employment -- hiring, awards, promotions, committee appointments, and allocation of research funding.⁽²⁾ The EEOC settles a class action law suit on behalf of hundreds of women employees at a Mitsubishi plant who had endured sexually explicit verbal harassment and threats of sexual attack.⁽³⁾ A woman relegated to 21 years behind a grocery store cash register is denied opportunities for training and advancement offered to male employees -- including her own teenaged son.⁽⁴⁾ A study reveals that a female musician has a 50% greater chance of advancing in the orchestra selection process if she performs behind a screen; if the judges can see that the player is female, she is much less likely to progress past the preliminary auditions and ultimately land a job.⁽⁵⁾ Texaco agrees to give 186 of its female employees more than $3 million in back wages and pay adjustments to settle findings that the company consistently had paid women in professional and executive positions less than their male counterparts.⁽⁶⁾

The persistence of discrimination against women is demonstrated not only by horror stories like these but by abundant data as well. For example:

According to the March 1995 report of the Glass Ceiling Commission, 95 to 97% of the senior managers of Fortune 1000 industrial and Fortune 500 companies are male. In the Fortune 2000 industrial and service companies, only 5% of senior managers are women (and virtually all of these are white).⁽⁷⁾ A 1999 report reveals that only 3.3% of the top-earning corporate officers in Fortune 500 companies are women.⁽⁸⁾

An earnings gap exists between women and men across a wide spectrum of occupations. In 1999, for example, full-time women physicians earned 62.5% of the weekly wages of male physicians, and women in sales occupations earned only 59.9% of the wages of men in equivalent positions.⁽⁹⁾ A recent study of pediatricians on medical school faculties revealed a discrepancy between salaries of male and female professors at every rank.⁽¹⁰⁾ Women working full-time, full-year still earn, on average, only 73 cents for every dollar earned by men.⁽¹¹⁾ Minority women fare significantly worse. An African-American woman earns just 63 cents to every dollar earned by white men while a Hispanic woman earns only 53 cents on the dollar.⁽¹²⁾

While women are over half the adult population⁽¹³⁾ and nearly half the workforce in this country,⁽¹⁴⁾ they remain disproportionately clustered in traditionally female jobs with lower pay and fewer benefits.⁽¹⁵⁾ For example, in 1999 approximately one in four employed women worked in an administrative support or clerical job, and 78.7% of administrative workers in all industries are women.⁽¹⁶⁾ And while approximately 98% of all secretaries, stenographers and typists are women, women's salaries in these positions are only 90.1% that of their male counterparts.⁽¹⁷⁾

While the gender gap in higher education has all but disappeared with women now earning 55% of all bachelor's and masters degrees, they still lag behind in many respects. Women earn only 39.9% of doctorate degrees, and remain under-represented in many areas not traditionally studied by women. According to the most recent available data, women receive only about 16% of undergraduate engineering degrees, 13% of doctorate degrees in engineering, and only 20% and 23% of doctorate degrees in mathematics and physical sciences. In the lucrative and growing field of computer sciences, women receive only about 28% of bachelor's degrees and 15% of doctorates. Yet women still account for over 75% of recipients of undergraduate degrees in education, and 86% of those awarded in library sciences.⁽¹⁸⁾

Women remain severely under represented in most non-traditional professional occupations as well as blue collar trades. For example, women are only 10.6% of all engineers; 3.1% of airplane pilots and navigators; less than 2% of carpenters and auto mechanics; 15.7% of architects; and about one-quarter of doctors and lawyers. Women are 99% of dental hygienists, but are only 16.5% of dentists.⁽¹⁹⁾

As a result of the wage gap, 47% of women working full-time, full-year earn less than $25,000 per year, compared to only 29% of working men.⁽²⁰⁾

Even where women have moved into occupations and professions in significant numbers, they have not moved up to the same degree. Women are 26.6% of lawyers, but only 14.5% of partners in large law firms.⁽²¹⁾ Women are 73% of public school teachers, but only 34.5% of principals.⁽²²⁾ In 1994, women comprised 24% of medical school faculties but less than 10% of full professors and only 4% of department chairs.⁽²³⁾

Women of color have lagged particularly far behind in both employment and education. For example, in 1998, the median weekly salary for Black women was $400 compared to $468 for white women and $615 for white men. Hispanic women earned a median weekly income of only $337.⁽²⁴⁾ Even in sectors where women have made inroads into management, minority women continue to be underrepresented. In the banking industry, only 2.6% of executive, managerial and administrative jobs were held by Black women, and 5% by Hispanic women, compared to 37.6% by white women.⁽²⁵⁾ In the hospital industry, Black and Hispanic women each held 4.6% of these jobs, while white women held 50.2%.⁽²⁶⁾ At the top, women of color represented only 11.2% of all corporate officers in Fortune 500 companies.⁽²⁷⁾ Women of color also earn fewer college degrees than white women. In 1997, white women made up 39% of college undergraduates and 42% of graduate students; minority women were only 16% of undergraduates and 10% of graduate students.⁽²⁸⁾

Although white men constitute a minority of the total work force (46%),⁽²⁹⁾ they dominate the top jobs in virtually every field.⁽³⁰⁾ Moreover, white males' median weekly earnings in 1999 were 32% higher than those of any other group in America. A white man earns, on average for full-time work, almost 56% more than a Black woman, and over 83% more than a Hispanic woman.⁽³¹⁾

Although some women choose to devote themselves to family concerns or to jobs with lower pay for a range of reasons, such choices do not fully explain the disparities between men's and women's salaries. One study shows that after about 11 years on medical school faculties, 23% of men but only 5% of women had achieved the rank of full professor - and the gap persisted when researchers held constant the number of hours worked per week.⁽³²⁾ Another study, of graduates of the University of Michigan Law School from 1972 through 1975, revealed significant wage differentials between male and female lawyers after 15 years of practice, even when hours of work, family responsibilities and other variables were held constant.⁽³³⁾ These women have made the same career choices as men, worked the same hours as men, yet still earn less.

Sex discrimination, including sexual harassment, continues to be a serious barrier to the advancement of women. In 1999, nearly 24,000 individual sex discrimination complaints were filed with the Equal Employment Opportunity Commission.⁽³⁴⁾ This number includes over 15,200 sexual harassment claims - up significantly from the 10,500 filed in 1992.⁽³⁵⁾ A 1998 national survey found that the majority, 64%, of American women do not think employers are doing a good job in treating women fairly for pay and promotions.⁽³⁶⁾ In a 1994 survey by the Labor Department, 61% of women surveyed said they had little or no likelihood of advancement; and 14% of white women and 26% of women of color reported losing a job or promotion because of sex or race.⁽³⁷⁾ The March 1995 Glass Ceiling Commission report cites another survey finding that 25% of the women surveyed felt that "being a woman/sexism: was the biggest obstacle they had to overcome, and 59% said they had personally experienced sexual harassment on the job."⁽³⁸⁾

A multi-year study of sex and race discrimination in employment that is now under way measures intentional discrimination by comparing employment patterns reported by individual business establishments with those in peer establishments operating in the same industry, in the same local labor market and employing workers in the same occupational group, based on data submitted by these businesses to the Equal Employment Opportunity Commission. According to the study's findings in the first two states it has examined, 25% of the establishments in Washington State and over 28% of the establishments in Georgia were discriminating against women in at least one occupational category in 1997.⁽³⁹⁾

WHAT IS AFFIRMATIVE ACTION FOR WOMEN?

In employment, examples of affirmative action programs are recruitment and outreach efforts to include qualified women in the talent pool when hiring decisions are made; training programs to give all employees a fair chance at promotions; and in some cases the use of flexible goals and timetable (not quotas) as benchmarks by which to measure progress toward eliminating severe under-representation of qualified women in specific job categories.

In education, affirmative action programs for women include grants and graduate fellowship programs aimed at helping women move into fields where their participation has been discouraged, such as engineering, math and the physical sciences. They also include programs to prepare and motivate girls and women for study in non-traditional fields.

For women business owners, affirmative action programs include laws that encourage government agencies and contractors to do business with qualified women-owned companies, as well as programs providing financial, management and technical assistance to women business owners.

AFFIRMATIVE ACTION WORKS

Affirmative action programs make a difference. A government study showed that women made greater gains in employment at companies doing business with the federal government, and therefore subject to federal affirmative action requirements, than at other companies: female employment rose 15.2% at federal contractors, and only 2.2% elsewhere. The same study showed that federal contractors employed women at higher levels and in better paying jobs than other firms.⁽⁴⁰⁾

Many individual companies that have adopted affirmative action plans have demonstrated the impact on women. For example, after IBM set up its affirmative action program, its number of female officials and managers more than tripled in less than ten years.⁽⁴¹⁾ Corporate commitment to women and minorities enabled Corning to double its number of female and black employees and increase the proportion of women managers to 29%.⁽⁴²⁾ Motorola has been rewarded with an increased representation of women and people of color in upper-level management. The company had two women and six persons of color as vice president in 1989, but boasts 33 female and 40 minority vice presidents today.⁽⁴³⁾

Affirmative action requirements have changed entire industries. In 1978, the Labor Department's Office of Federal Contract Compliance (OFCCP) reviewed the employment practices of the five largest banks in Cleveland. Three years later, the percentage of women officials and managers at these institutions had risen more than 20%. When OFCCP first looked at the coal mining industry in 1973, there were no women coal miners. By 1980, 8.7% were women.⁽⁴⁴⁾

Litigation against police and fire departments has resulted in affirmative action plans that have produced dramatic increases in the employment of women (and minorities) in these fields as well.⁽⁴⁵⁾ In 1983, for example, women made up 9.4% of the nation's police, and 1% of firefighters. Sixteen years later, women are 16.9% of police, and 2.8% of firefighters.⁽⁴⁶⁾

Women-owned businesses, which have also benefitted from affirmative action requirements, have increased since 1987 by 103%. Today, there are nearly 9.1 million woman-owned businesses, employing over 27.5 million people.⁽⁴⁷⁾

AFFIRMATIVE ACTION IS NOT QUOTAS OR HANDOUTS FOR THE UNQUALIFIED

Affirmative action is not "quotas" nor the substitution of numerical dictates for merit-based decisions. Some affirmative action plans include the management tools of numerical goals or targets for representation of women or minorities, and timetables for meeting those objectives. But the courts have held that these goals and timetables must be flexible and take into account such factors as the availability of qualified candidates. They may not constitute "blind hiring by the numbers;" if they do, they are unlawful.

The program that imposes affirmative action requirements on federal contractors, under Executive Order No. 11246, expressly states that "Goals may not be rigid and inflexible quotas which must be met, but must be targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work."⁽⁴⁸⁾

Johnson v. Transportation Agency of Santa Clara County, illustrates the use of flexible goals in practice.⁽⁴⁹⁾ There were no women in the agency's 238 "skilled craft worker" positions, which included road dispatchers. Under its affirmative action plan, the agency set a target for increased employment of women in this category (and others in which they had been under-represented), and in its effort to meet the goal it took gender into account in deciding to promote a woman, rather than a man with substantially equal qualifications, to road dispatcher. Gender was only one factor among many considered, and the woman who received the promotion was fully qualified for the job. The Supreme Court ruled that this constituted a reasonable approach to eliminating an obvious gender imbalance in the workforce.

Research confirms that affirmative action does not lower the quality of workers' performance on the job. In a 1996 study of the performance of new hires by over 3,200 employers, economists from Michigan State University compared the performance of employees who were identified as having benefitted from an affirmative action plan with the performance of white men in comparable jobs and other employees hired without affirmative action. The researchers concluded that there is "essentially no performance shortfall" among most groups of women and persons of color hired under affirmative action programs.⁽⁵⁰⁾

A 1998 study concluded, further, that affirmative action increases the number of recruitment and screening practices used by employers, increases the number of minority or female applicants as well as employees, and increases employers' tendencies to provide training and to formally evaluate employees. The researchers also found that when affirmative action is used in recruiting, it does not lead to lower credentials or performance of women and minorities hired.⁽⁵¹⁾

Finally, no evidence supports the notion that "reverse discrimination" is widespread. According to a report commissioned by the Labor Department, very few complaints of reverse discrimination are filed and the great majority of those claims lack merit. Of over 3,000 reported discrimination opinions from federal courts, fewer than 100 involved claims of reverse discrimination; in only six individual cases was the claim substantiated. In one claim rejected by the courts, two employees who were dismissed for sleeping on the job alleged that they were fired so their company could replace them with a person of color or a woman. Not surprisingly, they could offer no evidence to support this accusation.⁽⁵²⁾

AFFIRMATIVE ACTION BENEFITS EVERYONE

Programs that increase opportunities for women and minorities are beneficial to our whole society:

Affirmative action programs that help women advance in the workplace are helping their families to make ends meet. Most women, like men, work because of economic need; indeed, many women are the sole source of support for their families.⁽⁵³⁾

Replacing the "old boys network" with job postings, outreach and training ensures that all workers - women and minorities, but others, too - have a fair shot at advancing in the workplace.

Affirmative action programs expand the talent pool for businesses to draw on, and many companies report that a diverse workforce has led to enhanced performance and productivity. The bipartisan Glass Ceiling Commission reported that companies which are committed to hiring and promoting women and minorities have higher annualized returns on average than those with intact glass ceilings.⁽⁵⁴⁾ DuPont Co. set - and exceeded - higher goals than any affirmative action regulations required, and the company reports that it has been rewarded by the development of new ideas and markets.⁽⁵⁵⁾ It is therefore not surprising that surveys show that a large majority of executives at large companies supports the use of affirmative action programs.⁽⁵⁶⁾

Diversity in our colleges and universities improves the learning process for everyone. As Justice Powell wrote in the Bakke case, the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.⁽⁵⁷⁾

Enrollment and scholarship programs that promote diversity in professional schools indirectly serve the public in dramatic ways. For example, the advancement of women in fields of medical science has been accompanied by increased attention to women's health issues such as breast cancer and expanded research in those areas. And research has shown that female and minority doctors have a much greater likelihood of treating traditionally undeserved patients: the poor, recipients of Medicaid, and members of minority groups.⁽⁵⁸⁾

Communities benefit from affirmative action in myriad other ways. For example, a commission reviewing police misconduct concluded that hiring women police officers is a necessary step in decreasing the incidence of police violence and harassment.⁽⁵⁹⁾ Furthermore, studies indicate that the increased presence of women in the police force and the criminal justice system improves the handling of domestic violence cases and the enforcement of domestic violence laws.⁽⁶⁰⁾ These changes benefit women, children and all other members of the family and community who are affected by violence in the home.

The National Women's Law Center is a non-profit organization that has been working since 1972 to advance and protect women's legal rights. The Center focuses on major areas of importance to women and their families, including employment, education, reproductive rights and health, family support and income security, with special attention given to the needs of low-income women.

NOTES

1. 1.. Randall Smith, "Merrill to Start Settlement of Gender-Bias Complaints," Wall Street Journal, June 7, 1999.

2. 2.. Carey Goldberg, "M.I.T. Admits Discrimination Against Female Professors," New York Times, March 23, 1999 at A5.

3. 3.. Kirstin Downey Grimsley, "Mitsubishi Settles for $34 Million: Amount is Record in Harassment Suits," Washington Post, June 12, 1998 at A1.

4. 4.. Barbara R. Bergmann, In Defense of Affirmative Action 48 (1996).

5. 5.. Christina Duff, "Out of Sight Keeps Women in Mind for U.S. Orchestra Spots," Wall Street Journal, March 7, 1997 at B4.

6. 6.. AFL-CIO and the Institute for Women's Policy Research, Equal Pay for Working Families: National and State Data on the Pay Gap and Its Costs 5 (1999).

7. 7.. Federal Glass Ceiling Commission [FGCC], Good for Business: Making Full Use of the Nation's Human Capital iii-iv (1995).

8. 8.. Catalyst, Census of Women Corporate Officers and Top Earners (November 1999).

9. 9.. Bureau of Labor Statistics, U.S. Department of Commerce, Employment and Earnings, Annual Averages, Table 39 (January 2000).

10. 10.. Kaplan et al., "Sex Differences in Academic Advancement," New England Journal of Medicine, Oct. 24, 1996.

11. 11.. U.S. Census Bureau, Current Population Reports, P 60-206, Money Income in the United States: 1998, U.S. Government Printing Office, Washington, D.C., September 1999. Table 10.

12. 12.. Id.

13. 13.. Census Bureau, U.S. Department of Commerce, Statistical Abstract of the United States, Table 16 (1999).

14. 14.. Id. at Table 653.

15. 15.. Employee Benefits Research Institute, Sources of Health and Characteristics of the Uninsured, Analysis of the March 1998 Current Population Survey (1998) (women are heavily concentrated in low-income jobs, where employers are less likely to offer health insurance).

16. 16.

. U.S. Department of Labor, Bureau of Labor Statistics (2000) Employment and Earnings, Table 11. Employed persons by detailed occupation, sex, race, and Hispanic origin, 1999 annual averages.

17. 17.. Id.

18. 18.. Statistical Abstract of the United States, supra note 13 at Tables 331 & 332 (1999).

19. 19.. Employment and Earnings, Table 11 supra note 16.

20. 20.. Census Bureau, Money Income in the United States, 1998 supra note 11.

21. 21.. National Association of Law Placement, Directory of Legal Employers (1998).

22. 22.. National Center for Education Statistics, U.S. Department of Education, Schools and Staffing Survey at Table 68 & 88 (1996).

23. 23.. Ruth L. Kirschstein, "Women Physicians: Good News and Bad News," New England Journal of Medicine, April 11, 1996.

24. 24.. Bureau of labor Statistics, U.S. Department of Commerce, Highlights in Women's Earnings at Table 1.

25. 25.. FGCC, supra note 7 at 79.

26. 26.. Id.

27. 27.. Catalyst, Census of Women Corporate Officers and Top Earners, New York, November 1999.

28. 28.. U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics (1999) Table 210. http://nces.ed.gov/pubs2000/digest99/d99t210.html

29. 29.. Statistical Abstract of the United States, supra note 13 at Table 650 (1999).

30. 30.. FGCC, supra note 7 at iii-iv.

31. 31..Employment and Earnings, supra note 9 at Table 37.

32. 32.. Tesch et al., "Promotion of Women Physicians in Academic Medicine, Journal of the American Medical Association, April 5, 1995.

33. 33.. Wood et al., "Pay Differentials Among the Highly Paid: The Male-Female Earnings Gap in Lawyers Salaries," Journal of Labor Economics, July 1993.

34. 34.

. Equal Employment Opportunity Commission (January 2000) Sex-Based Charges 1992-1999, http://www.eeoc.gov/stats/sex.html.

35. 35.. Equal Employment Opportunity Commission,(January 2000) Sexual Harassment Charges: 1992-1999, http://www.eeoc.gov/stats/harass.html.

36. 36.. Family Matters: A National Survey of Women and Men, conducted for The National Partnership for Women and Families, 1998, http://www.nationalpartnership.org/survey/survey8c.htm.

37. 37.. Women's Bureau, U.S. Department of Labor, "Working Women Count!" at 10 (1994).

38. 38.. FGCC, supra note 7 at 148.

39. 39.. Alfred W. Blumrosen, Marc Bendick Jr., John J. Miller, Ruth G. Blumrosen, Employment Discrimination Against Women in the State of Washington, 1997, Rutgers Intentional Employment Discrimination Project, Rutgers Law School at 12 (October 1998); and Alfred W. Blumrosen, Marc Bendick Jr., John J. Miller, Ruth G. Blumrosen, Employment Discrimination Against Women and Minorities in Georgia, Rutgers Intentional Employment Discrimination Project, Rutgers Law School at 12 (February 1999).

40. 40.. Citizens' Commission on Civil Rights, Affirmative Action to Open the Doors of Job Opportunity 123-129 (1984).

41. 41.. Id.

42. 42.. Citizens' Commission on Civil Rights, Affirmative Action: Working & Learning Together 21-23 (1996).

43. 43.. Id.

44. 44.. Affirmative Action to Open Doors of Job Opportunity, supra note 40.

45. 45.. Id.

46. 46.. Statistical Abstract of the United States, supra note 12 at Table 675 (1999).

47. 47.. U.S. Small Business Administration, Office of Women's Business Ownership, Facts About Women Owned Business, (1999).

48. 48.. 41 C.F.R. § 60-2.12(e).

49. 49.. 480 U.S. 616 (1987).

50. 50.

. Harry Holzer & David Neumark, National Bureau of Economic Research, "Are Affirmative Action Hires Less Qualified? Evidence from Employer-Employee Data on New Hires," Working Paper No. 5603 at 3 (1996).

51. 51.. Harry J. Holzer, David Neumark, National Bureau of Economic Research, "What Does Affirmative Action Do?" Working Paper No. 6605 (1998).

52. 52.. Alfred W. Blumrosen, Bureau of National Affairs, Labor Department, "How the Courts are Handling Reverse Discrimination," March 23, 1995.

53. 53.. Equal Pay for Working Families, supra note 6 at 13.

54. 54.. FGCC, supra note 7 at 5 (a study of the Standard and Poors 500 found average annualized returns of 18.3% for companies committed to affirmative action, compared to 7.9% for businesses where glass ceilings were firmly in place).

55. 55.. Jonathan Glater & Martha Hamilton, "Affirmative Action's Corporate Converts," Washington Post, March 19, 1995 at H1.

56. 56.. "Large-Company Executives Support Affirmative Action & Diversity, Finds Poll," Fair Employment Report, February 12, 1997 at 30.

57. 57.. Regents of University of California v. Bakke, 438 U.S. 265, 313 (1978) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).

58. 58.. Joel C. Cantor, et al., "Physician Service to the Underserved: Implications for Affirmative Action in Medical Education," 33 Inquiry 167, 173 (1996).

59. 59.. Report by the Women's Advisory Council to the Los Angeles Police Commission, September 1993).

60. 60.. See, e.g., "Police Perceptions of Spouse Abuse: A Comparison of Male and Female Officers," Journal of Criminal Justice, vol. 13 pp 29-47 at 30 (1985).