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Apart from providing fodder for Internet memes, Romney’s “binders of women” comment is recognized as illustration of affirmative action

October 19th, 2012  |  Cynthia L. Hackerott

It was the debate comment that launched a thousand memes, but it also illustrated an aspect of affirmative action that is rarely discussed in presidential campaigns and the coverage thereof.

During the presidential debate on Tuesday, October 16, candidate Mitt Romney described a predicament he faced when he first became governor of Massachusetts. Romney stated that, when he was hiring for positions in his cabinet, “all the applicants seemed to be men.”  He continued:

And I — and I went to my staff, and I said, “How come all the people for these jobs are — are all men.” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we — can’t we find some — some women that are also qualified?”

And — and so we — we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet.

I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.

I was proud of the fact that after I staffed my Cabinet and my senior staff, that the University of New York in Albany did a survey of all 50 states, and concluded that mine had more women in senior leadership positions than any other state in America.

Now one of the reasons I was able to get so many good women to be part of that team was because of our recruiting effort.

Subsequent reports have noted a factual dispute as to whether it was actually the women’s groups that presented these binders of qualified women to Romney, rather than Romney seeking them out on his own initiative. Regardless, it didn’t take long for several media commentators to point out that Romney, although he did not label it as such, was describing an instance of affirmative action. According to the former governor, when he realized he needed more diversity in his cabinet, he made the extra effort to seek out qualified women whom he may not have otherwise considered. These efforts illustrate the type of affirmative action know as “outreach.”

The OFCCP, the federal agency that enforces affirmative action requirements for private employers (covering only those employers who have qualifying government contracts) notes that “affirmative actions include training programs, outreach efforts, and other positive steps.”  As the term implies, “outreach” includes reaching out to colleges, ethnic media, or women and minority organizations to recruit jobseekers in order to increase the diversity of a given applicant pool.

A more recent example of an employer making extra effort to add qualified women to its applicant pool is a settlement between the OFCCP and agricultural products producer/distributer Monsanto Corporation. The Monsanto settlement illustrates both the training and outreach aspects of affirmative action. On July 26, 2012, a Labor Department ALJ approved a consent decree to settle OFCCP allegations that Monsanto violated Executive Order 11246 when it used a selection process that discriminated against female applicants for entry level operator-mechanic-engineer (O-M-E) positions at its production plant in Soda Springs, Idaho. Monsanto, while denying the allegations and asserting that the rejected applicants were lacking in qualifications, nevertheless agreed to implement a training program and engage in specified good faith efforts designed to remove barriers to employing female O-M-Es.

According to attorney John C. Fox, a former OFCCP official, this consent decree is the first ever settlement in the history of the Labor Department’s Solicitor’s Office to not include any backpay payment to resolve an OFCCP claim of unlawful discrimination. Rather, in the “highest and best tradition of affirmative action,” Monsanto has committed to create availability where there is very little by creating and sponsoring a paid apprentice training program, he pointed out. Fox believes this settlement will be the “future model” because many employers are leaving jobs unfilled due to the lack of vocational schools and training among jobseekers.

This type of thoughtful resolution is a “win-win” for employers and jobseekers and an example of affirmative action to which few would likely object.

Yet, all too often, especially in the political arena, the definition of “affirmative action” is limited to quotas/preferences, rather than the broader interpretation of the term which includes actions, such as outreach and training, designed to increase the diversity of pool of applicants an employer considers. As a result, many who style themselves as “against affirmative action” are operating from this limited definition, even though they may very well support outreach and training efforts.

It doesn’t help that political discourse in the United States frequently fails to note that racial and gender quotas are prohibited under U.S. law. Executive Order 11246, issued by President Lyndon B. Johnson and kept in force by every succeeding president, requires covered federal contractors to take affirmative action to employ, and advance in employment women and minorities. However, OFCCP regulations implementing this order expressly forbid the use of race or gender-based quotas (see, 41 CFR 60-2.16(e)) and the U.S. Supreme Court has repeatedly held that racial quotas are unconstitutional (see, Grutter v Bollinger, 539 U.S. 306, 84 EPD ¶41,415 (2003); Gratz v Bollinger, 539 U.S. 244, 84 EPD ¶41,416 (2003); and Regents of the Univ of California v Bakke, 438 U.S. 265, 17 EPD ¶8402 (1978)). Moreover, the use of such quotas would, with rare exceptions (such as a court-ordered remedy in an egregious case where discrimination has been proven in court), violate Title VII of the Civil Rights of 1964. Despite rhetoric to the contrary, there is no sign that the Obama Administration is planning to amend the Executive Order or its implementing regulations, or otherwise advocate a change in the existing law on quotas. (Note: Unlike race- or gender-based quotas, there is apparently not any case law interpreting the U.S. Constitution or any statutory requirement to indicate that quotas for other groups, such as the disabled or veterans, are unlawful.)

A fair discussion of affirmative action should encompass the full, broad definition that includes training programs, outreach efforts, and other positive steps, rather than be narrowly focused on an element that is outlawed in most circumstances. Romney’s recent debate comments could be used as a springboard to steer the discussion toward these broader parameters.