Affirmative Action

Author:George Rutherglen

Affirmative action has caused more controversy in civil rights law than any other issue. In employment discrimination law, the controversy has occurred at several different levels: in the terms of the statute itself, in the requirements of the Constitution, and in guidelines promulgated by the EEOC. As the preceding section explains, the Civil Rights Act of 1991 generated debate over affirmative action, mostly as it related to the theory of disparate impact. In its final form the Act contained three provisions directly related to affirmative action: first, the prohibition against "group norming" of scores on employment tests-adjusting test scores on the basis of race, national origin, sex, or religion;[192] second, general procedural restrictions on collateral attack on injunctions and consent decrees, mainly designed to protect judicially ordered or judicially approved affirmative action plans;[193] and third, the uncodified disclaimer that nothing in the Act's amendments to Title VII affects existing affirmative action plans.[194]

Only the third provision is discussed in this section of the monograph. The first concerns tests and is discussed in the preceding section;[195] the second concerns procedures for enforcing Title VII and is taken up in the section on preclusion.[196] The third provision, discussed below, leaves affirmative action under Title VII as it was before the Civil Rights Act of 1991.

Statutory Issues

As originally enacted, Title VII contained two provisions on affirmative action: a narrow provision that allows preferences in favor of Native Americans on or near a reservation,[197] and a general disclaimer of any form of required affirmative action. The former has given rise only to limited litigation, mainly over constitutional issues discussed later.

The latter has been far more significant, and was one of several important exceptions and qualifications added to Title VII to ensure its passage. Consequently, the general disclaimer of required affirmative action in section 703(j) both limits and defines the prohibitions in Title VII against discrimination.

Section 703(j) states that "[n]othing contained in this title shall be interpreted to require" preferential treatment of any individual or group on the basis of race, national origin, sex, or religion.[198] In addition to the questions raised by the theory of disparate impact, discussed earlier, two questions have arisen about the language of section 703(j): first, whether "require" should be read as "require or permit,"

thus making section 703(j) a prohibition against all forms of preferential treatment, either undertaken voluntarily by an employer or required by the government; and second, whether "[n]othing in this title" should refer only to the prohibitions against discrimination in Title VII or also to the provisions for remedying violations of Title VII.

The first question was resolved by the Supreme Court in favor of a literal interpretation of the word "require." Title VII does not prohibit preferential treatment voluntarily undertaken by an employer. The second question was resolved by the Supreme Court in favor of a nonliteral interpretation of the phrase "[n]othing in this title." Title VII does not prohibit courts from requiring preferential treatment as a remedy for employment discrimination, but it authorizes them to do so only in narrowly limited circumstances.

The Supreme Court decided that Title VII does not prohibit voluntary preferential treatment in United Steelworkers v. Weber.[199] Kaiser Aluminum & Chemical and the United Steelworkers had entered into a collective bargaining agreement that established a preference for black employees for admission to on-the-job training programs for craft positions. In particular, one-half of the openings in these programs were reserved for black employees. The Court characterized this preference as a wholly voluntary and private effort to eliminate the racial imbalance in Kaiser's workforce of craft employees.[200] But as Justice Rehnquist emphasized in his dissent,[201] evidence in the record suggested that this preference was adopted after an investigation by the Office of Federal Contract Compliance Programs, which enforces the nondiscrimination and affirmative action obligations of federal contractors under Executive Order 11,246.[202] Because the Court found no government involvement in the preference, it avoided any constitutional question about government power to establish or require preferences in employment.[203] The Court's holding was limited to Title VII and to wholly voluntary private preferences. The Court found in the statute and its legislative history a congressional policy to preserve management and union freedom to devise remedies for discrimination without government interference.[204] Consequently, wholly voluntary, private preferences violate neither section 703(j) nor the prohibitions against discrimination in section 703(a) and (d).

The Court's holding was further limited to the characteristics of the Kaiser preference. This preference was a permissible racial classification under Title VII because it was "designed to break down old patterns of racial segregation and hierarchy" and because it did "not unnecessarily trammel the interests of the white employees."[205] On the first point, the Court relied on the nearly complete absence of blacks from craft positions in Kaiser's workforce and the long history of exclusion of blacks from craft positions generally.[206] On the second point, the Court emphasized that the preference did not require the discharge of white workers, that it did not prevent the training and promotion of white employees, and that it was a temporary measure designed to end as soon as the racial imbalance in craft positions ended.[207]

In Johnson v. Transportation Agency,[208] the Supreme Court upheld a preference in favor of women. The case involved a public employer, but it was decided entirely under Title VII because the plaintiff failed to assert any claim under the Constitution.[209] Over two bitter dissents,[210] the Court continued to adhere to the decision and reasoning in Weber, modifying its analysis in only one significant respect: by suggesting that a preference would be upheld only if it were flexibly applied according to the proportion of the favored group-here women-who possessed the qualifications for the job.[211] Justice O'Connor, in a separate opinion, would have taken this reasoning a step further and required evidence sufficient to make out a prima facie case of past discrimination against women, equating "manifest imbalance" under Weber with proof of disparate impact.[212] This reasoning reveals the systematic connection between the theory of disparate impact and permissible forms of affirmative action, since both are concerned with the effects of employment practices. Nevertheless, this reasoning was not strictly necessary to the decision, because the imbalance in Johnson, as in Weber, was substantial. No woman had ever previously been employed in the position in dispute, or even in the same department.[213]

The Court's treatment of judicially ordered preferences has been more complicated, if not more confusing, than its treatment of wholly private preferences. The case closest to Weber, Local No. 93, International Association of Firefighters v. City of Cleveland,[214] concerned a consent decree that settled claims of racial discrimination in promotions in the Cleveland Fire Department. The plaintiffs and the city had reached agreement on the consent decree, but the union representing the firefighters, most of whom were white, had intervened in the action and objected to the decree because it established a preference in promotions. The only question presented to the Supreme Court was whether Title VII authorized the district court's approval of the consent decree. The Court held that it did, even if it would not have authorized the district court to impose the same preference by its own order.[215] Instead, the same standards governing purely private preferences under Weber also governed judicial approval of consent decrees under Title VII.[216] The Court held, however, that the consent decree was binding only on the plaintiffs and the city, not on the union or on white employees, and in particular, it did not preclude the latter group from objecting in timely fashion to the district court's action on constitutional...

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