We’ve all heard the line before: “I oppose racial preferences, but I support affirmative action.” I’ve long written that distinction off as some sort of lawyerly, quasi-Clintonian (or Bushian, for that matter, see “affirmative access”) sophistry. I figured, hey, a rule that just says “don’t discriminate” isn’t calling on you to do any affirmative act; thus, it is better described as “negative,”not “affirmative” action. Clearly, anything worthy of the adjective “affirmative” must involve something that goes above and beyond a simple policy of not discrminating. Right?

Wrong. John Rosenberg points out that “affirmative action,” as originally prescribed by Lyndon Johnson’s Executive Order No. 11246, required that federal contractors be colorblind, not that they “affirmatively” embark on any new compensatory discriminations of their own. The key language from Section 202(1) of that order read as follows:

Except in contracts exempted in accordance with Section 204 of this Order, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:
“During the performance of this contract, the contractor agrees as follows:
The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. 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. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.

In other words, the “affirmative act” required of employers was not that they reverse-discriminate (which would in fact violate the order), but rather, that they be proactive in ensuring that none of their subordinates discriminate by race, creed, color or national origin. The difference between this kind of “affirmative action” and a simple rule of “negative action” (don’t discriminate) is that the latter may have left too much room for a see-no-evil, “I didn’t do it, nobody saw me, you can’t prove anything” approach.