Among the flurry of executive orders President Trump issued in his first days returning to the White House is the removal of prior executive orders that established actions required of federal contractors (including sub-contractors and grant recipients) towards improving the representation in their workforce of historically disadvantaged and excluded segments of our population. Such “affirmative action” programs have had a contentious reception over the decades since the most famous executive order, 11246, was issued by President Lyndon Johnson, one year after the passage of the Civil Rights Act of 1964.
At first, affirmative action requirements included establishing goals for improving representation of minorities and women. Contractors were required to make improvements in ratios of minorities and women in their companies. These quotas were resisted by employers because they argued they couldn’t find qualified candidates in certain role types who were from the historically under-represented categories. While their assertions in those early years were largely true, it is important to note that the dearth of qualified candidates was itself a result of actively excluding minorities and women from avenues of opportunity, such as educational institutions, training programs, entry level positions in certain professions and apprenticeships. But the requirement for quotas was loudly argued as a mandate to reduce the bar of competency for given positions.
There was merit in the argument against quotas. Even companies that were authentically attempting to improve representation of historically excluded categories of people could not fix the precursor problems in the educational system, nor could they instantly provide the experience and training to close the competency gaps in those population segments. So in 1980, the requirements of an affirmative action program were amended by the Office of Federal Contract Compliance Programs (OFCCP) to specify that achievement of goals was to be measured by “good faith efforts”, rather than reaching a specific ratio of representation of minorities, women and veterans.
Even without mandated quotas, many companies have emphasized achieving “diversity” and better ratios of “protected” categories of people. Diverse populations are more creative, productive and resilient. It makes good business sense. But other times, the motivation has been to present a better diversity “picture” to the outside world, achieved by reducing experience and competency requirements. This is pursuing form over substance. It has also been alleged that prioritizing candidates from under-represented groups actively discriminates against groups who are historically over-represented (such as white men). These likely realities underpin the objections to Diversity, Equity & Inclusion (DE&I) programs. However, when polled, most companies have responded that they preferred the regimen of “good faith” based affirmative action programs because it kept the improvement of representation across human categories in front of leaders and ensured broad outreach for candidates of all types. But the battle of the acronyms has now risen to the Executive Branch of the federal government, and the acronyms have lost. I don’t think it matters.
Is it the right thing to do, to ensure that people of all walks of life, all categories and demographic profiles, are invited to earn the economic opportunities available? Should we ensure that schools, universities, businesses and other organizations do not exclude some type of person on grounds that have nothing to do with their abilities, character or motivation to work? Can a business leader find ways to pursue the intent of “equal opportunity” that are not in violation of these new regulatory provisions?
My response is, “Yes, a leader can. Easily.” The guiding principles of a meritocracy haven’t changed. If a leader understands a given role, what competencies are required to meet or exceed expectations, and ensures that the process of measuring those competencies and character are valid assessments of demonstrated behaviors that exhibit the skills and abilities required, they will be doing the right thing and will be in compliance with the current legal framework required of federal contractors. If a leader makes sure that solicitations for candidates are as broad a net as possible, avoiding the typical narrow avenues of candidate flow that are lazily available, they will be attracting diverse applicants.
Leaders, you can still do the right thing, with these methods in mind. Don’t hire someone because they are black, a woman, disabled, gay, etc. And don’t exclude them because they are black, a woman, disabled, gay, etc. Hire them because they can do the job. Find ways to broaden recruiting outreach to a wider range of people, especially for entry level roles that provide a path up the economic ladder. Give everybody a shot to work for, and earn, whatever they can achieve according to their abilities and contributions.
All of my clients are honorable people with strong values. I guess I wouldn’t be working with them, nor they with me, if we didn’t share such values. None of them are going to change their values because of these new executive orders. They will comply, of course, but doing the right thing is still the right thing to do. Nothing in the changes represented by President Trump’s executive orders prohibits it.