Affirmative action

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Yesterday a journalist asked me about the background of the term "affirmative action". I turned up a few things like this, from a (2006 reprint of a) 1954 book French Administrative Law and the Common-Law World:

Or similarly this passage, where "a request that an allegedly illegal administrative act be annulled" is contrasted with "[a request] that the administration be ordered to take some affirmative action … to repair an injury caused by an improper administrative act".

So it seems that when the term began to be used in reference to remedying the effects of segregation and other race- or sex-based discrimination, the idea was that people who had been excluded from education or employment deserved not just the nullification of discriminatory laws or policies, but also "affirmative action" to repair the injury.

But sometimes the meaning of "affirmative action" in older texts seems more general, apparently not meaning much beyond an emphatic form of simple "action". Here's an example from a (2006 reprint of a) 1930 book Legislative Principles: The History and Theory of Lawmaking by Representative Government:

(Though perhaps "affirmative action" here still means "formal legislative ratification", as opposed to a mere failure to take formal action to object?)

And the OED's entry suggests a very different relationship to the modifier affirmative:

affirmative action n. orig. U.S. action taken to affirm an established policy; spec. active measures taken by an employer, college, etc., to provide opportunities for members of minority groups, women, or other people regarded as having suffered from discrimination.

In any case, it seems that as a result of late-20th-century America's intense concern with racial and sexual politics, a legal term of art that earlier had much broader application has changed its meaning, at least in popular discourse, to refer specifically to policies to repair the effects of past race or sex discrimination.

But I'm not an expert in legal terminology. Perhaps some commenters can clarify the history and present legal usage of this term.

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17 Comments »

  1. GeorgeW said,

    April 24, 2014 @ 7:53 am

    It would seem to me that 'action' would be the alternative to 'inaction' and 'affirmative action' would be the opposite of 'negative action' (like repeal of existing legislation, reversing policy, etc.). So, 'affirmative' action seems to be redundant. This, of course, would be a literal interpretation which is certainly not controlling in language.

    In any event, I think 'affirmative action' has now taken on a specialized meaning. I would be confused were it used in another context

  2. Alan Gunn said,

    April 24, 2014 @ 9:10 am

    I think the first official use of the term "affirmative action" to refer to steps to counter racial discrimination was in President Nixon's executive order requiring Federal contractors to take "affirmative action" to make sure they were not overlooking qualified minority workers. This would have been around 1970. Given Nixon's reputation, this may seem like an odd thing for him to have done, but the target was probably labor unions, many of which in those days were blatantly discriminatory, sometimes expressly and sometimes by giving preference in membership to relatives of existing union members.

    This is just from memory. I have an even more vague memory of Vietnam veterans being the first group to be entitled to "affirmative action" by Federal legislation (as opposed to Nixon's executive order, but I could easily be wrong about that.

    [(myl) The OED gives a quotation from J.F. Kennedy in 1961:

    1961 J. F. Kennedy in N.Y. Times 7 Mar. 27/3 The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated, during employment, without regard to their race, creed, color or national origin.

    ]

  3. Hitchcock said,

    April 24, 2014 @ 9:57 am

    The phrase appears in the text of Title VII of the 1964 Civil Rights Act (i.e., the title addressing employment discrimination), in particular in sec. 706(g). The provision authorizes courts to enter injunctions as remedies for unlawful discrimination, including orders that require an employer to take "affirmative action" (such as reinstatement of employees). Traditional principles governing injunctive relief tended to limit orders that commanded (as opposed to prohibited) particular conduct, and also looked with a jaundiced eye on orders to carry out personal-service relationships. The express authorization of such orders was probably thought necessary to offset the influence of these principles.

    I don't know but suspect that the phrase came into its more current use by way of references to "voluntary affirmative action," that is, through language that enhanced the legitimacy of the conduct by incorporating it into claims that employers (and others) could voluntarily engage in conduct that courts were already expressly authorized to order.

  4. J. W. Brewer said,

    April 24, 2014 @ 10:05 am

    http://en.wikipedia.org/wiki/Executive_Order_11246 may be close to the origin of the modern U.S. political sense – the phrasing appears in an executive order issued by Pres. Johnson in '65 whose subsequent application/extension by the Nixon Administration led to some high-profile court controversies in '70-'71.

  5. J. W. Brewer said,

    April 24, 2014 @ 12:06 pm

    One would have to do some corpus-type searching systematically to confirm this, but my hunch is that the newer sense of "affirmative action" has probably crowded out the older sense in legal prose – certainly if I were writing a brief and wanted to use that older/broader sense I would rephrase so I didn't confuse the reader by inadvertently summoning up all of the complex associations of the modern more racialized sense. I did find in a moment's googling a 2001 Supreme Court opinion that used the older sense (referring to the inferences to be drawn or not drawn from the "absence of affirmative action by Congress"), but that turned out to be in quotation marks and was taken in haec verba from an earlier 1971 opinion when the phrase was perhaps still in transition.

  6. Y said,

    April 24, 2014 @ 1:39 pm

    I like the Israeli Hebrew term, אפליה מתקנת, i.e. 'corrective discrimination', which is not so euphemistic.

    [(myl) I gather that the British use "positive discrimination".]

  7. Alan Gunn said,

    April 24, 2014 @ 2:13 pm

    Well, "corrective discrimination" and "positive discrimination" may be accurate descriptions of some "affirmative action" practices today, but as recently as the 60's and perhaps early 70's it seems to have meant (at least on paper) just making sure one wasn't overlooking qualified minorities. This involved not only prohibiting blatant discrimination but looking into things like whether hiring methods and job requirements might be discriminatory, perhaps just by accident (as when businesses used word-of-mouth, rather than ads, to spread news about job openings). That is, the idea was not just to stop discriminating but to take steps to make sure your practices weren't discriminatory. Looked at that way, it seems to me to have made sense to call what was being asked for "affirmative action," to show that it involved more than just not explicitly discriminating.

  8. J. W. Brewer said,

    April 24, 2014 @ 2:43 pm

    I think there was a semantic shift, where what started in the U.S. as practices merely (at least in theory) aimed at affirmatively encouraging people from hitherto excluded or underrepresented groups to apply for a job at your company or admission to your university or whatever (rather than just saying "ok, ok, if it's illegal to discriminate against them if and when they apply, I guess we won't do it anymore, but whether they apply in the first instance is up to them and I have no obligation to encourage it") became supplemented by varying degrees of actual or perceived preferential/differential treatment in the hiring/admissions process. Because the latter was a more controversial policy, the name for the earlier iteration could be and was used by its supporters to describe the new development somewhat euphemistically, but soon enough the benefit of euphemism wore off and "affirmative action" merely became a synonym for what was at one transitional point in AmEng commonly called "reverse discrimination."

    It's perhaps actually of some interest lexically, because it's not one of those politically-charged issues where each side has their own name for it that implies their own framing of the issue (pro-choice v. pro-life, estate tax v. death tax, etc.). The group that just lost its supreme court case was the Coalition to Defend Affirmative Action By Any Means Necessary; and from the other side referring to someone as, e.g., an "affirmative action hire" well may be taken as pejorative/stigmatizing w/o any need to swap in a different phrase for the practice. (Does "diversity hire" sound less pejorative/stigmatizing? If so, it would be an instance of the Euphemism Treadmill in action.)

  9. dw said,

    April 24, 2014 @ 4:37 pm

    Here's a plausible story of the semantic development.

    1. "Action" means "doing something".

    2. A new kind of "action": "negative action" (*not* doing something) is introduced. (here's a Google Books links from a 19th century book on ethics).

    3. We now need a new way of expressing the original concept of "doing something". Since "affirmative" can be, in certain contexts, the opposite of "negative", it seems natural to call this "affirmative action" (even though it has nothing to do with affirming).

    4. The phrase "affirmative action" is used prominently in laws and orders relating to alleviating the effects of racial inequality. At this point, the phrase still just means "doing something".

    5. The phrase becomes associated exclusively with racial inequality/discrimination.

  10. D.O. said,

    April 24, 2014 @ 4:45 pm

    There is a number of recent cases where "affirmative action" is used in broader sense. You can fish for them from here. For example, from Little v. Jones (10th circuit, 2010)

    A mandatory preliminary injunction—one which requires the nonmoving party to take affirmative action—is "an extraordinary remedy" and is generally disfavored.

    apparently echoing (but not quoting) AG of Oklahoma v. Tyson Foods (10th circuit, 2009)

    We consider a preliminary injunction to be an extraordinary remedy, and caution courts against granting injunctions that alter the status quo or that require the "nonmoving party to take affirmative action—a mandatory preliminary injunction—before a trial on the merits occurs."

    which throws us back to another 10th circuit opinion from 2008 purportedly citing O Centro, 10th circuit case from 2004, in which this exact phrase does not occur. Oops.

    Anyways, the broad sense is probably disfavored, but alive. Just like preliminary injunction.

  11. John Baker said,

    April 24, 2014 @ 5:36 pm

    "Affirmative action" was originally a legal term, with no special reference to race or civil rights. The OED has an 1834 example. Here's one from 1835 that is particularly helpful in showing the original meaning of definite action that must be taken. "Infant," in this example, means a minor.

    "When the law terms a contract merely voidable, it means that it is valid and effectual unless and until the party does something, which he may do, to avoid it, and the term therefore is applied with great propriety, to certain consummated acts of an infant, as where he has paid money, delivered property in exchange, &c., &c.; but it is improperly applied, I apprehend, to every case of a prospective act agreed to be performed by an infant, for in respect to such, the affirmative action of the infant to disannul them is not required. On the contrary, they are null and unenforcible against the infant except he does something to ratify them."

    Mason & Hale v. Denison & Denison, 15 Wend. 64 (N.Y. 1835) (emphases added, here and below).

    In time the term came specifically to mean to take corrective action, but not necessarily in the civil rights context. For some years the leading example was Section 10[c] of the National Labor Relations Act of 1935, which provided that the National Labor Relations Board was "to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act."

    With judicial remedies for civil rights violations beginning in the 1950s, "affirmative action" began to be used specifically to order judicial or regulatory remedies for past racial discrimination, as in this example from 1957: "After extensive hearings, the [New York State Commission Against Discrimination] upheld the complaint and made an order directing the membership corporation to cease and desist from the unlawful discriminatory practice and requiring the membership corporation to take stated affirmative action. " Castle Hill Beach Club v. Arbury, 142 N.E.2d 186, 187 (N.Y. 1957).

    In 1961, President Kennedy issued an executive order requiring government contractors to agree to take affirmative steps to prevent discrimination. The order required government contracts to include the following language: "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." Exec. Order No. 10925, sec. 301 (Mar. 6, 1961).

    The contemporary sense of the term, which the OED defines as "active measures taken by an employer, college, etc., to provide opportunities for members of minority groups, women, or other people regarded as having suffered from discrimination," seems to stem from Kennedy's executive order, with influence from the sense of corrective action to redress past wrongs in the judicial context.

  12. GeorgeW said,

    April 24, 2014 @ 7:32 pm

    Are there contexts in which 'affirmative action' is used that 'action' alone would not be appropriate or sufficient?

  13. J. W. Brewer said,

    April 24, 2014 @ 8:30 pm

    GeorgeW: there are lots of places where customary legalese jargon/idioms seems to have some redundancy but lawyers get semi-instinctively nervous about what might happen if you started to Omit (Seemingly) Needless Words. I have an inchoate sense that the "affirmative" adds some nuance, which might or might not be right, but it's much easier to leave it in than try to make that intuition explicit and come to a conclusion as to how accurate it is. Also certain fixed phrases become just that and are left alone because they are familiar and comforting and do not need compositional analysis.

  14. dw said,

    April 24, 2014 @ 9:19 pm

    @GeorgeW:

    I suggested above that the original purpose of the apparently redundant phrase "affirmative action" may have been in response to the seemingly contradictory "negative action" (meaning refraining from doing something).

    I've found 19th-century references to "negative action", meaning "refraining from doing something", in the context of philosophy, but not, admittedly, in Anglo-American law — but I haven't looked very hard.

  15. Jonathan Mayhew said,

    April 25, 2014 @ 9:27 am

    You can stop discriminating in an instant, but still end up with an all-white work force or neighborhood or whatever. The word "affirmative" recognizes the need to take actions beyond just stopping discrimination. So officially scratching a written policy that says "we won't hire blacks here" is a kind of "negative action." Actually hiring African Americans would be an "affirmative" one.

  16. J. W. Brewer said,

    April 25, 2014 @ 11:07 am

    Jonathan Mayhew: The intermediate step (which is what a lot of the initial focus in the '60's was about) would be to take various affirmative steps to publicize the abandonment of your prior discriminatory policy to the pool of qualified potential black applicants who because of your prior reputation otherwise wouldn't have bothered to apply. The difficulty, of course, is that the best evidence that those efforts have been sufficiently vigorous is the actual hiring of some appropriate-seeming number of black employees, which then creates incentives for quotas, differential standards etc. as the quickest and simplest way to get to that desired outcome. (Obviously one can mount a defense of those last-mentioned approaches on their own merits – I'm making a separate point about their attractiveness for more cynical reasons as a quick-and-dirty way to demonstrate effective compliance with a different and less-controversial-in-theory policy mandate whose outcome is otherwise difficult to measure directly.)

  17. Mr Punch said,

    April 27, 2014 @ 1:04 pm

    The second usage cited, "affirmative action by successive Legislatures," involves a somewhat different sense of "affirmative" – it means a "yes" vote.

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