The strongest case in the criminal law annals for race-based affirmative action occurs in “drug possession offenses,” Heffernan writes. The drug busts show “compelling evidence of discrimination against blacks,” the author insists; moreover, he claims that many law enforcement personnel have admitted that they practice “a kind of affirmative action: they admit that they selectively enforce anti-drug laws in the black community.” The justification for busting black people in the inner city is that “heightened enforcement is good for the community,” and further, the reason so many African-American men are caught dealing drugs is that is much easier for police to find crimes among poor people — this assumes that many blacks in inner cities are low income — because poor people “are more likely to commit those crimes in public places” (Heffernan, p. 225).
All of the issues that Heffernan has referenced contribute to the reason that the criminal justice system has been burdened down with litigation vis-a-vis affirmative action.
Dr. Stan Malos of San Jose State University writes that one of the most common complaints in courts of law — by those opposing affirmative action — is that is “unfairly squeezes employers between the competing demands of disparate treatment and disparate impact law” (Malos, 2009). In other words, the employer wishes to abide by the law, plans to abide by the law, but if he or she does hire a member of the minority community in order to seek a sense of fairness, a member of the majority could sue based on alleged discriminatory practices. The definitions that appeared in Section 104 of the Civil Rights Act of 1991 failed to fully define what a “business necessity” is, or what “job-relatedness” is, in terms of the legal justification for affirmative action.
And so with the 1991 Civil Rights Act, and with Hopwood v. State of Texas, U.S. App. Lexis 4719, 5th Cir. March, 1996 — which struck down the admissions policy at the University of Texas law school that previously had given preference to African-American and Latino applicants — courts have had their share of difficult and confusing laws and policies to work through. This would be a definite answer to the question as to why criminal justice systems see affirmative action as a veritable nightmare.
Meantime, Malos mentions that in Section 106 of the 1991 Civil Rights Legislation there is a provision against “race-norming” of employment tests; race-norming means that the scores of the tests would be adjusted to give a better chance to African-Americans, an ethnic group that doesnt as a rule do as well on standardized tests. Malos asserts that because of Section 106 is was “more likely” that certain employers with imbalances based on demographics in their workforces “would be forced to adopt outright racial preferences.”
The author notes the obvious: giving racial preferences means a much greater chance that the employer would be hit with a reverse discrimination attack. Another section of the 1991 legislation, Section 116, uses direct and simple language to assert that nothing in the legislation “should be construed to affect affirmative action [programs] that are in accordance with the law,” Malos continues. He claims that language carries the “implied caveat” that not every program is totally legal and above board.
The argument that the courts and criminal justice system in general struggle with the confusing and somewhat arbitrary nature of affirmative action is made all the more apparent and justified by focusing on that 1991 law. Malos complains that rather than directly and explicitly “validating or preserving programs” that are in compliance and accordance, the language in the law leaves the “propriety of individual AAPs up to the courts.”
The author of this article references a scholarly piece by Don Munro who argues that the 1991 Civil Rights legislation creates a “decidedly muddied picture of congressional intent.” Apparently, Munro believes (referenced by Malos) that the members of Congress who wrote the legislation actually supported the need for affirmative action, but conservatives managed to frame the debate as about “quotas” — not just fairness in hiring. “In their rush to define the Civil Rights bill as anti-preference legislation” those who supported affirmative action were responsible for the provisions in the bill that allegedly “cancel out” the “proaffirmative actions sections” (Malos).
Question Three: Briefly discuss the major federal legislative acts governing public sector employment.
The Fair Labor Standards Act (FLSA): This law sets up standards for basic minimum wage and overtime pay — and it applies to public and private employment. Employers must pay employees — unless they are exempted — the federal minimum wage and overtime pay of one-and-one-half times the regular rate of pay. In non-agricultural work, this law places restrictions on the hours that children that are not yet 16 may work. And children under 16 years of age may not be hired for work that takes place during regular school hours.
If an employee has a complaint against an employer — that relates to the particulars of the Fair Labor Standards Act — that complaint is to be filed with the Department of Labors Wage and Hour Division — 1-866-4-U.S.-WAGE.
Also certain jobs that are considered dangerous cannot be given to those individuals that are under 18.
The Copeland “Anti-Kickback Act”: The legislation prohibits federal contractors or subcontractors that are involved in repair of buildings or actual contractor work from “inducing an employee to give up any part” of the pay he or she has earned. It also requires subcontractors and contractors to provide compliance paperwork every week.
The report by contractors must include the amount of wages that are paid to every employee that is working under the above-named kind of work.
Executive Order 11246 (E.O 11246): This executive order prohibits federal contractors and subcontractors and contractors that receive federal assistance (generally those contractors that have contracts worth $10,000 or more) from being discriminatory-based or religion, gender, national origin, color or race. Contractors that fall under the purview of this order must provide equal opportunity in the form of affirmative action. This makes certain that all applicants have an equal opportunity to be hired.
As part of this executive order, federal contractors are required to keep records of all employment and all personnel during a period of two years “from the date of the making of the personnel record or the personnel action, whichever occurs later.” The kinds of records that are required to be kept include: “job descriptions”; posting of available job slots; advertisements for jobs; “records of job offers; applications and resumes; interview notes; tests and test results; written employment policies and procedures; and personnel files.”
Those contractors that have less than 150 employees or whose government contract is less than $150,000, need keep the above-mentioned records for just one year.
The Davis Bacon and Related Acts (DBRA): places requirements on all subcontractors and contractors that are involved with work on federal or District of Columbia construction projects (or federally assisted contracts) that is more than $2,000, to pay the workers involved “not less than the prevailing wage rates and fringe benefits for corresponding classes of laborers and mechanics employed on similar projects in the area.”
In addition to the Davis Bacon Act Congress has passed legislation that adds the prevailing wage provisions to about 60 other laws. This is the “related acts” part of the legislation. These 60 additional laws have to do with construction projects that receive insurance, or loan guarantees, grants or loans through the federal government.
The Davis Bacon and Related Acts bill is under the DOL, and the Wage and Hour Division of the DOL handle the enforcement of this legislation.
Eckholm, Erik. (2010). Congress Moves to Narrow Cocaine Sentencing Disparities. The New
York Times (p. a-16). Retrieved February 2, 2011, from General Reference Center Gold.
Heffernan, William C., and Kleinig, John. (2000). From Social Justice to Criminal Justice:
Poverty and the Administration of Criminal law. New York: Oxford University Press U.S..
Malos, Stan. (2009). The Commentators Speak: Emerging Trends in the Legal Analysis of Affirmative Action. Society for Industrial & Organizational Psychology, Inc. Retrieved
February 2, 2011, from http://www.siop.org/tip/backissues/tipjul96/MALOS.aspx.
Mauer, Marc. (2004). Race, Class, and the Development of Criminal Justice Policy. Review of Policy Research, 21(1), 79-92.
Nicholon-Crotty, Sean, Peterson, David a.M., and Ramirez, Mark D. (2009). Dynamic
Representation(s): Federal Criminal Justice Policy and an Alternative Dimension of Public
Mood. Political Behavior, Vol. 31, 629-655.
The Copeland “Anti-Kickback” Act..