Affirmative Action

• Pages: 99-114
• Author: George A. Rutherglen

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Chapter 5

AFFIRMATIVE ACTION

Affirmative action rai ses 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. Und er

Title VII, the controversy concerns the relationship between

scattered and incomplete provisions on affirmative action and the

main substant ive 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 involve d

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 provi sions. All of these

issues, both statutory and constitutional, are made more complicated

by the presence of two sets of regulations on aff irmative action:

guidelines issued by the EEOC and a compre hensive 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 differe nt 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 o f 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 p ossible 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 civ il rights laws by prescribing broader

prohibitions, such as the theory of disparate impact, or pe rmitting

broader remedies, such as affirmative action.

The decisions under Title VII from the 197 0s and 1980s sought

to fill this gap with standards notably more lenient than those under

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AFFIRMATIVE ACTION

Ch. 5

the Constitution. In recent years, however, these decisions have

fallen into near-total ne glect. In any case, the re medial perspective

cannot be severed from any connection to past discrimination. Absent

such a connection, a remedial purpose would then be wholly lacking,

resulting in denial of equal treatment wi thout any justification

whatsoever. Preserving the appropriate balance between a remedial

conception of equality and other conceptions of equality 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 g iven 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 cre ate 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 add ed on the floor of the Sena te

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 amendment s so as to gain the two-thirds majority then

required to end d ebate o n the floor of the Senate. For this rea son,

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 subje ct to this title to grant

preferential treatment to any individual or to any group because of

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).