Affirmative action has an extensive legislative history with origins dating back to early debates concerning the application of the Fourteenth Amendment. The first governmental reference to affirmative action in the US was Executive Order 10925, issued by US President John F. Kennedy in March 1961. The order established the President’s Commission on Equal Employment Opportunity and outlined new protocol for government contractors in hiring, stating, “[t]he 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.”

The order was followed by Executive Order 11246, signed by US President Lyndon B. Johnson in September 1965. This order used similar language as the previous order, but extended the scope to religion and sex as well.

Following President Kennedy’s order, Congress passed the Civil Rights Act of 1964. Although the act did not explicitly use the terminology “affirmative action,” it created the Equal Employment Opportunity Commission (EEOC), which replaced President Kennedy’s Commission and granted government agencies the ability to enact regulations to assist in ending discrimination. The EEOC continues to operate today as an enforcement agency for claims concerning workplace and employment discrimination.

Since the 1960s, other departments of the federal government have passed affirmative action regulations and work on issues pertaining to it. Most notably, the Department of Labor (DOL) oversees the Office of Federal Contract and Compliance Programs (OFCCP). The OFCCP resulted from an effort by President Jimmy Carter to consolidate all federal affirmative action enforcement responsibilities into one department. Today, the OFCCP also advises other federal agencies and general employers in the private sector on affirmative action protocol.

At the state level, approaches to affirmative action have varied. Seven states have passed bans on affirmative action programs to varying degrees, mostly focusing on public education and employment. Four of these, Oklahoma, Arizona, Nebraska and Michigan, were voter referendums that formally amended their state constitutions to ban certain forms of affirmative action. California and Washington also passed referendums banning affirmative action, but through legislation rather than constitutional amendments. In January 2012, a New Hampshire bill that prohibited affirmative action in admissions and employment at state colleges and universities took effect.

Courts have ruled on a series of lawsuits challenging these bans, although they all still stand as passed. The most notable of these is a successful challenge in the lower courts to the Michigan referendum that was granted certiorari by the US Supreme Court in March 2013.

Outside of the above-mentioned states, most publicly funded colleges and universities have some sort of affirmative action program for admission and hiring practices. Programs vary across a wide range of practices, including race or gender acting as a criteria included in an overall mix to determine qualified candidates. The US Supreme Court has offered some criteria for what is and is not acceptable for affirmative action policies in rulings outlined more fully below.