An Issue of Affirmative Action

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Affirmative action may be described as guidelines or practices that are intended to curtail or end practices that may seem discriminatory. In America since independence, the nation has had to undergo various forms of affirmative actions in order to make the nation more habitable and conducive to everybody living there. The actions have also seen the nation mark tumultuous times because great struggle had to be employed in order to attain the kind of civil liberties they enjoy in the current times. Employment at will on the other hand is a definition given to the scenario where an employee may see himself or herself terminated at any time without any reason being provided, and likewise, the employee may also quit from his or her job without having to provide an explanation for the action. This type of engagement at the employment scene seems to offer flexibility for both parties. Affirmative action as well as employment at will have their good side as well as their downside depending upon the preferences of the people involved.

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In 2008, several students who had completed high school filed a suit against University of Texas. The learners placed an argument in court that the race factor should not be used in admission criteria as other non-racially driven modalities could also achieve similar results in the pursuit of diversity within the institution. The court decided to rule in favor of the university. It contended that the institution had complied with the rules and regulations set out in the admission requirements (NCSL, 2016). In cases that followed, court went ahead to uphold the ruling in favor of the institution, though in 2013, judges were of the view that even though they had upheld the decision in favor of the university, admission criteria related to racial factor had to be conducted under a watchful eye.

During the late 1970s, the issue of affirmative action was presented before the United States Supreme Court, where Justice Powell found it compelling that state had interest in propagating diversity among the student bodies; a scenario which was envisaged as being in the best interest of all involved. This trend as supported by the highest court in America, has seen the current education scenario being that of equality being a pillar being pursued within the walls of learning institutions. Affirmative action has been viewed as a means of promoting social mobility for groups of individuals who had previously being victimized (Shafer, 2018). When students benefit from affirmative action at learning institutions, they have an opportunity of contributing to their respective society positively.

In a case titled Griggs v. Duke Power Company of 1971, the court held that pre-meditated racial discrimination was prohibited. It also added that employment guidelines as well as hiring procedures past or current that were discriminatory in nature were at fault and should not be encouraged to continue. Prohibition was also placed against practices aimed at blocking the advancement of black employees and employers were directed to remove such policies. The plaintiff`s argued that the kind of tests Duke Power Company subjected them did not have a verifiable way of discerning an applicant`s performance in relation to the job applied for. The ruling against the power company breathed a new lease of life for those who were involved in the fight for civil rights in America (United States History, n.d.). Employers were put on notice that when they were recruiting employees, the staff roll should reflect an effort to achieve racial diversity at the work place.

In a case known as Swindol v. Aurora Flight Sciences Corp. decided by the Fifth Circuit Court of Appeals in August 2016, an employee was fired for locking a gun inside a vehicle after parking it; which was termed as a violation against what the company rules stipulated. The court tasked with determining the case requested the state supreme court to check as to whether this matter was one of public policy issue in relation to the rules governing the subject of employment at will procedures. The Fifth Circuit court did find the employee had a claim. It went ahead and stated that employees could not solely be fired on the premise that they possessed firearms in their places of work (Robertson, 2016). This development sent human resource experts and employers to the drawing board as far as the issue of implementing company policies were concerned.

In mid-20th century, California Court of Appeal heard a case where an employee who was in the labor union insinuated that he was fired for refusing to lie to investigators regarding unscrupulous deeds at the union. The court upon hearing the facts and details subjected before it, decided that indeed the employee had been victimized for refusing to toe the line as far as the employer`s demands were concerned. Judiciary in this instance was also found to have played a moral role in determining the case as it did. Despite of this monumental ruling by the court, states within America were lax in compliance. It is visible that current day employers seem not to fully comply with the precedence set by the court; and as such most of them seem to pull in different directions to what their employees expect of them. In the judicial circles around the year 2001, courts began finding one fault or the other in regard to policies dealing with employment at will; the most noticeable being statures dealing with public policy. It was only about four states which were yet to identify any misgivings about the laws. Thirty-eight states possessed what was termed as implied contract, this seemed to be an improvement of the employment at will modality. This provided a safeguard geared towards offering job security; employees would not need to fear arbitrary sackings (Mises Institute, 2005). Termination would follow a laid down avenue prescribed and outlined in the employee handbook.

In a case titled, Brockmeyer v. Dun & Bradstreet, the court pronounced that public policy statutes should apply neither to instances merely on the basis of legislative outlines or what the judiciary assumes to be notions associated with public policy. In this case, the plaintiff was an employee of Dun & Bradstreet, for about 11 years since 1969; the last three years holding the position of district manager in charge of credit services department. Brockmeyer was a staff member known for being above average in performance. February 1980 saw his employers discover a malpractice on his part, it was thought that he was away on official company duty but in reality he took his secretary out for fun in the expedition. In addition, he had also taken to taking marijuana in the presence of other staff of the company. His immediate bosses decided to talk to him about the incident and eventually told him he could either be terminated or get a reassignment within the company. The superiors also added that he could no longer work together with his secretary; hence probability of having her moved elsewhere was rife. When Brockmeyer was unable to get a suitable reassignment for his former secretary, the lady resigned and sought to sue the firm for sexual impropriety (Muhl, 2001). Brockmeyer was willing to support her in the case, though the company settled the matter and they decided to fire Brockmeyer three days after.

Brockmeyer had the view that his termination had violated the rules of the Wisconsin State and sought redress in court for that matter. Wisconsin Supreme Court found that despite what Brockmeyer was alluding to, that he was wrong and the company had followed procedure in their actions. The court also indicated that the employer was on the right as far as the reasons the provided for his termination were concerned. This court let itself to operate within the confines of public policy having to be well-defined as articulated in public policy framework (Muhl, 2001). The court also offered a leeway to employers that as long as they worked within acceptable framework, terminating employment for staff that go awry was in order.

The case, Franco v. Lipposcience, Inc., North Carolina Supreme Court affirmed a decision which had earlier been made by North Carolina Court of Appeal. The plaintiff in the case had been an employee of the company, holding the rank of Vice President of the Marketing department. He got terminated and was bringing a claim against breach of contract by his former employer to the court. The court also found a question lingering as the case went ahead, which was whether or not he was an employee at will. It is a common occurrence to find that most workers were employee at will hence could be fired anytime at a blink of an eye. Termination which would have seen no reasons or grounds being offered as to why that was being done. There are aspects where a worker may not be termed as employee at will and one of them is if he or she has a written and signed contract directly between him and the company or through a union. The other reason is where the courts have barred employers from executing arbitrary dismals on flimsy grounds. Where the national government or the federal one has provided express guidelines as to how such matters can be handled outside employee at will arrangements. In order to get a headway in the case, the court was working towards ascertaining if the former employee had a contract that could be authenticated if available or not. When his father was retiring from the company, he negotiated a type of severance agreement. The position his father held initially before retirement was that of board chairman. The company is understood to have stated that it would not retaliate possibly due to the arrangement it had made with his father. The employee went on to sue the company due to the conviction that they had gone against their word. The court therefore in agreement with the court of appeal decided that the non-retaliation issue was not put in writing in the contract or severance agreement and therefore it lacked the binding element on the side of the employer (Ghosh, 2009). This realization therefore made the employee to be relegated to the precincts of being employee at will.

There are various reasons that can work for the plaintiff when presenting the issue of being an employee at will, one of them is being dismissed for no particular reason. This is a common front which has for many years caused a rift within the employment scene. The other reason may be violation of particular rights by the employer in the guise that the company or institution is enforcing laid down rules that work against those outlined publicly by the national or federal government. Discrimination based on religion, race or probably disability are also grounds that may make courts to side or rule in favor of the employee as opposed to the employer. Human resource personnel thereby are expected to keep a look out for the trends in the national scene and make strides towards complying with them.

Employees may also see themselves being on the receiving end if they abuse the statute on public policy and go out to do what they want regardless of rules and laws. Affirmative action is a positive step as it seeks to right the wrongs within society. In situations where individuals’ rights are encroached on by various entities including employers, the courts would be bound to rule in favor of the aggrieved individuals. This may be so as the judicial mechanism is also keen on seeing a just and equal society. Affirmative action that is sought in the judicial system yet plaintiff seeks to override the rights of others for his or her own benefits then this effort becomes annulled by judicial proceedings.


  1. Ghosh, N. (2009). Supreme Court Affirms COA on Employment At Will Case. Retrieved from
  2. Mises Institute. (2005). In Defense of Employment-at-Will | Arthur Foulkes. Retrieved from
  3. Muhl, C. (2001). The employment-at-will doctrine: three major exceptions. Retrieved from
  4. NCSL. (2016). Affirmative Action: Court Decisions. Retrieved from
  5. Robertson, L. (2016). Two Recent Federal Court Decisions Explore the Limits of the At-Will Employment Doctrine | Employment Law Worldview. Retrieved from
  6. Shafer, L. (2018). The Case for Affirmative Action. Retrieved from
  7. United States History. Affirmative Action. Retrieved from
  8. Kloppenberg, L. A. (2001). Playing it safe: How the Supreme Court sidesteps hard cases and stunts the development of the law. New York: New York University Press.


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An Issue Of Affirmative Action. (2020, Mar 23). Retrieved May 28, 2023 , from

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