Affirmative Action

• Pages: 95-115
• Author: George Rutherglen

95

Chapter 5

AFFIRMATIVE ACTION

Affirmative action raises questions at every level of civil rights

law. It is ultimately a subject for constitutional law, but it also raises

issues of statutory interpretation and regulatory authority. Under

Title VII, the controversy concerns the relationship between

scattered and incomplete provisions on affirmative action and the

main substantive and remedial provisions of the statute. Congress

has not stated in so many words either that affirmative action is

generally permitted or that it is generally prohibited, but instead has

maintained a studied ambiguity. This has left the statutory issues

mainly to be resolved by the courts. Title VII also raises

constitutional questions, but only insofar as government is involved

in affirmative action plans. The Fifth Amendment applies only to

action by the federal government and the Fourteenth Amendment

applies only to state action. Purely private forms of affirmative action

fall entirely outside these constitutional provisions. All of these

issues, both statutory and constitutional, are made more complicated

by the presence of two sets of regulations on affirmative action:

guidelines issued by the EEOC and a comprehensive set of

regulations governing federal contractors issued by the Office of

Federal Contract Compliance Programs (OFCCP) in the Department

of Labor.

Beneath all of the doctrinal complexity of these different sources

of law lies a fundamental question about affirmative action: how far

to follow each of the different perspectives on employment

discrimination law, and, in particular, how far to take the remedial

perspective in compensating for past discrimination in the absence of

proof that the beneficiaries of affirmative action have actually

suffered from past discrimination, no matter how remote it may be.

Limiting remedies only to proven victims of discrimination—as is

done routinely for all other claims of discrimination—would leave

many instances of discrimination entirely without any remedy. The

small amount of any possible recovery, procedural obstacles such as

the statute of limitations, or simple inadequacy of evidence, prevent

many otherwise meritorious claims from being successfully

prosecuted. The remedial perspective seeks to fill this gap in ordinary

enforcement of the civil rights laws by prescribing broader

prohibitions, such as the theory of disparate impact, or permitting

broader remedies, such as affirmative action. Yet the remedial

perspective cannot be carried so far as to allow affirmative action

without any connection to past discrimination (or, in the case of

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AFFIRMATIVE ACTION

Ch. 5

disabilities, natural disadvantage). Absent such a connection, a

remedial purpose would then be wholly lacking, resulting in violation

of the principle of equality as colorblindness without any justification

whatsoever. Preserving the appropriate balance between a remedial

conception of equality and the conception of equality as

colorblindness turns out to be a difficult task even when it is

undertaken without the heated rhetoric that usually accompanies

political debates over affirmative action.

A. Statutory Issues

As originally enacted, Title VII contained two provisions on

affirmative action: one, a narrow provision that allows preferences in

favor of Native Americans on or near a reservation,

1

and the other, a

general disclaimer of any form of required affirmative action.

2

The

former has given rise only to limited litigation, mainly over

constitutional issues discussed later in this chapter. Nevertheless, it

is remarkable that affirmative action in favor of Native Americans

has gone virtually unnoticed. Evidently, this form of affirmative

action remains on such a small scale that, in most parts of the

country, it does not create the appearance of any significant

advantage conferred on a racially defined group. The reaction to

affirmative action in favor of larger racial and ethnic groups, and in

favor of women, of course, has been quite different.

The other provision in Title VII as originally enacted, section

703(j), addressed this more significant and more volatile issue.

Section 703(j) was one of several important exceptions and

qualifications to Title VII that were added on the floor of the Senate

without consideration by committee, as part of an overall compromise

to assure passage of the statute. This parliamentary strategy was

necessary to prevent Title VII from being referred to committee and

killed by powerful southern senators, while at the same time

permitting amendments so as to gain the two-thirds majority then

required to end debate on the floor of the Senate. For this reason,

section 703(j) is both crucial to understanding the application of Title

VII to affirmative action and somewhat difficult to understand itself.

It states that “[n]othing contained in this title shall be interpreted to

require any employer, employment agency, labor organization, or

joint labor-management committee subject to this title to grant

preferential treatment to any individual or to any group because of

the race, color, religion, sex, or national origin of such individual or

group. . . .”

3

1

§ 703(i), codified as 42 U.S.C. § 2000e–2(i) (2018).

2

§ 703(j), codified as 42 U.S.C. § 2000e–2(j) (2018).

3

§ 703(j), codified as 42 U.S.C. § 2000e–2(j) (2018).