Affirmative Action: What Must a "remedial" Program Remedy?
| Jurisdiction | United States,Federal |
| Citation | Vol. 2 No. 7 Pg. 18 |
| Pages | 18 |
| Publication year | 1989 |
August, 1989
Dan R. Wake, J.
I. INTRODUCTION
Alice waited till the eyes appeared and then nodded. "It's no use speaking to it, " she thought, "till its ears have come, or at least one of them." In another minute the whole head appeared.. . The cat seemed to think that there was enough of it now in sight and no more of it appeared.
"Who are you talking to?" said the King, coming up to Alice and looking at the cat's head with great curiosity.
"It's a friend of mine—a Cheshire cat, " said Alice. . .
"Well, it must be removed, " said the king very decidedly, and he called to the queen, who was passing at the moment, "My dear! I wish you would have this cat removed!"
The queen had only one way of settling all difficulties, great or small. "Off with his head!" she said without even looking round.
[A great dispute ensued between the king, queen and royal executioner as to whether the Chesire cat could be beheaded.]
The executioner's argument was that you couldn't cut off a head unless there was a body to cut it off from.. . The king's argument was, that anything that had a head could be beheaded. . .
The queen's argument was that if something wasn't done about it in less than no time, she'd have everybody executed.. .[1]
Who was right? Can a Cheshire cat appearing with only a head be beheaded?
A somewhat analogous problem has recently been discussed by the Supreme Court regarding the prerequisites of an employer implementing a "remedial" affirmative action program. The problem, simply stated, is: Can an employer implement "remedial" affirmative action, which is designed to remedy the effects of past discrimination, if the employer never acted in a discriminatory manner? In the last 10 years, the Court has addressed this problem at least five times[2] and has answered "yes" on two occasions (i.e., an employer can implement affirmative action notwithstanding no showing of discrimination by the employer) and "no" on three (i.e., an employer cannot implement affirmative action in the absence of evidence that he discriminated). This essay will review these cases, suggest a ground for reconciling them and recommend an alternative approach for resolving these problems when they arise in the future.
One important caveat first. There are many important factors that are vital to determining whether a given affirmative action program will be found valid that are beyond the scope of this paper. For example, this paper will neither discuss nor analyze the level of scrutiny the Court applies to any given affirmative action classification, the impact of a court-order to remedy past practices and the differences in the level of scrutiny an employment scheme is given depending on whether the preferential treatment is extended at the hiring, promotion or layoff stage. While this paper will focus primarily on the necessity of an employer to make a showing of prior discrimination, the reader should be aware that these other issues are very much a part of the calculus used to determine the validity of an affirmative action program.
II. BACKGROUND
The following cases provide the background for a discussion on affirmative action plans. The selected cases are not meant to represent an exhaustive compilation of affirmative action decisions. Rather, the selected cases are included for one of two reasons: (1) the case incorporates most of the relevant concerns of an earlier decision and was selected simply because it rep-resents a more recent statement by the Court; or (2) the case significantly and relevantly added to the then existing base of affirmative action law.
The facts and procedural history of each case will be detailed in this section. Additionally, relevant portions of the Court's analysis will be discussed in later sections.
A. Title VII Cases
United Steelworkers v. Weber[3] —("Weber")
The United Steelworkers of America and the Kaiser Aluminum & Chemical Corp. entered into a collective bargaining agreement that covered the terms and conditions of employment at 15 Kaiser plants. The agreement included an affirmative action plan designed to eliminate the conspicuous racial imbalances in Kaiser's almost exclusively white work force. The affirmative action plan provided for on-the-job training programs to teach both black and white unskilled production workers the skills necessary to become craft workers. Fifty percent of the openings in these in-plant training programs were reserved for the black employees.
The Weber controversy centered on the operation of the affirmative action plan at Kaiser's plant in Gramercy, La., where less than 2 percent of the skilled craft workers at the plant were black even though the work force in the area was approximately 39 percent black.
The first training class at the Gramercy plant consisted of seven black and six white craft trainees. Mr. Weber was a white production worker with more seniority than any of the seven blacks selected, but less seniority than the six white trainees.
Mr. Weber brought a class action suit in federal district court claiming that the affirmative action program granted a preference to junior black employees at the expense of senior white employees and, therefore, resulted in discrimination in violation of Title VII. Both the District Court and the Fifth Circuit Court of Appeals agreed. The Supreme Court, however, did not agree and reversed.
Johnson v. Transportation Agency[4] —("Johnson ")
In 1978, the Santa Clara District Board of Supervisors unilaterally adopted an affirmative action plan. Pursuant to this plan, the Transportation Agency could take into consideration the sex of an employee when promoting within job classifications where women were substantially underrepresented in proportion to their representation in the county labor force. The official reason given for the affirmative action was that the "mere prohibition of discriminatory practices is [neither] enough to remedy the effects of past practices [nor] to permit attainment of an equitable representation of minorities, women and handicapped persons."[5]
In the Skilled Craft Worker category, none of the 238 positions were held by women.
In December 1979, the agency announced a vacancy for the promotional position of road dispatcher, which is within the Skilled Craft Worker category. Twelve employees applied, including Diane Joyce and Paul Johnson. Nine of the applicants, including Joyce and Johnson, were deemed qualified for the job and were interviewed by a two-person panel. Based on these interviews, Johnson tied for second with a score of 75, while Joyce ranked next with a score of 72.5. A second interview was conducted by three male agency supervisors, who ultimately recommended that Johnson, the male candidate, be promoted.
Joyce was apprehensive of possible prejudice against her because she had experienced difficulties with two of the three men on the final panel. Joyce therefore contacted the affirmative action officer and voiced her concerns. Accordingly, the affirmative action officer recommended to the agency director that Joyce get the promotion. After some deliberation, the director concluded that the promotion would be given to Joyce.
After receiving a right-to-sue letter from the Equal Employment Opportunities Commission, Johnson sued under Title VII and won in federal district court. The Ninth Circuit overturned the trial court's decision and on appeal, the Supreme Court affirmed the Ninth Circuit.
B. Fourteenth Amendment
Cases Wygant v. Jackson Board of Education[6] —("Wygant")
In the 1968-69 school year, when black students made up 15.2 percent of the student body, black teachers accounted for only 3.9 percent of the teaching staff in Jackson, Mich. The Jackson chapter of the NAACP filed a complaint with the Michigan Civil
Rights Commission charging discriminatory hiring practices. The Commission's investigation substantiated the allegations and the Jackson School Board accordingly took steps to hire more black teachers. Even though recruitment efforts were successful, layoffs became necessary just two years later. Since the layoffs were based on seniority, many of the newly hired black teachers were laid off, i.e., much of the gain made by the recruitment effort was lost.
The following year, racial tensions in the school system grew. A new contract was adopted which provided, inter alia, that should layoffs become necessary again, "at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff."[7]
Layoffs, in fact, became necessary again. Accordingly, the contract was implemented whereby some white teachers were laid off while other black teachers, with less seniority, were retained. Laid-off white teachers sued, claiming a violation of the Equal Protection Clause of the Fourteenth Amendment.
Relying on Weber, the district court granted the Board's motion for summary judgment. The Sixth Circuit affirmed. The Supreme Court reversed.
United States v. Paradise[8] —"Paradise") For nearly four decades, the Alabama State Police had not hired a single black trooper. In 1972, the federal district court imposed a hiring order and enjoined the Police Department from engaging in further discriminatory hiring or promotion practices. Seven years later, however, there were still no blacks at any upper level of the department. After four more years passed, two consent decrees and several unfulfilled promises by the department to develop an acceptable promotion scheme, the Court ordered that "for a period of time, " at least 50 percent of future promotions to the office of corporal must be black. This order was effective (1) so long as there were sufficient numbers of qualified black...
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