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Affirmative Action and the Law
Constitution
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Statutes Civil Rights Act
The Age Discrimination in Employment Act (29 U.S.C. 621 - 634) bans employment discrimination based on age for anyone forty years of age or older. The Rehabilitation Act of 1973 (29 U.S.C. 706, 791, 793, 794 & 794a) requires employers with government contracts and subcontracts of $2,500 or more to take affirmative action for qualified handicapped individuals. The regulations implementing the act require "reasonable accommodation" to the physical and mental limitations of handicapped employees and applicants. Affirmative Action for U.S. Veterans (38 USC 4142, et. al). Vietnam-Era Veterans Readjustment Assistance Act of 1974. The American with Disabilities Act of 1990 (42 U.S.C. 12101 - 12213) gives protections to qualified individuals with disabilities that are like those provided under Title VII. It also guarantees equal opportunity in employment, public accommodations, transportation, state/local government services and telecommunications. |
Pending Legislation Senate Bills
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Cases Supreme Court Cases
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| Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995) (Full Case) (Subcontractor that was not awarded guardrail portion of federal highway project brought action challenging constitutionality of federal program designed to provide highway contracts to disadvantaged business enterprises. Court held that: (1) subcontractor had standing to seek forward-looking declaratory and injunctive relief; (2) all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by reviewing court under strict scrutiny, overruling Metro Broadcasting, 497 U.S. 547 and (3) remand was required to determine whether challenged program satisfied strict scrutiny)[BACK] Metro Broadcasting, Inc. v. F.C.C., 497 U.S. 547 (1990) (Full Case) (Petitions were filed seeking review of Federal Communications Commission (FCC) order under program awarding enhancement for minority ownership in comparative proceedings for new licenses and challenging minority "distress sale" program permitting limited category of existing radio and television stations to be transferred only to minority controlled firms. Court held that: (1) program awarding enhancement for minority ownership in comparative proceedings for new licenses and minority "distress sale" program did not violate equal protection principles; (2) minority ownership policies were substantially related to achievement of legitimate government interest in broadcasting diversity; and (3) minority ownership policies did not impose impermissible burdens on nonminorities)[BACK] City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (Full Case) (Bidder brought suit challenging city's plan requiring prime contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more "Minority Business Enterprises." Court held that: (1) city failed to demonstrate compelling governmental interest justifying the plan, and (2) plan was not narrowly tailored to remedy effects of prior discrimination)[BACK] Johnson v. Transportation Agency, 480 U.S. 616 (1987) (Full Case) (Male employee who was passed over for promotion in favor of female employee brought Title VII suit against county transportation agency. Court held that county agency did not violate Title VII by taking female employee's sex into account and promoting her over male employee with higher test score, as decision was made pursuant to affirmative action plan directing that sex or race be considered for purpose of remedying underrepresentation of women and minorities in traditionally segregated job categories, and did not unnecessarily trammel rights of male employees or create an absolute bar to their advancement)[BACK] United States v. Paradise, 480 U.S. 149 (1987) (Full Case) (Parties to race discrimination suit brought against the Alabama Department of Public Safety requested that procedure be fashioned for selection of new state trooper corporals. The District Court required that 50 percent of promotions go to blacks, until either approximately 25 percent of rank was comprised of black troopers, or promotion plan for rank conforming with prior orders and decrees and other legal requirements was developed and implemented. Court held that the 50 percent promotion requirement was permissible under the equal protection clause of the Fourteenth Amendment, in that it was justified by compelling governmental interest in eradicating discriminatory exclusion of blacks from positions and was narrowly tailored to serve its purposes)[BACK] Local 28 of Sheet Metal Workers' Intern. Ass'n v. E.E.O.C., 478 U.S. 421 (1986) (Full Case) (Union and its apprenticeship committee appealed from orders finding them in contempt of court, imposing fines, and adopting amended affirmative action plan to govern their employment practices. Court held that: (1) remedies provision of Title VII did not preclude district court from ordering preferential relief benefiting individuals who were not actual victims of discrimination; (2) contempt fines and order that fines be placed in special fund to increase nonwhite membership in union and its apprenticeship program were proper remedies for civil contempt; and (3) neither imposition of nonwhite membership goal nor the fund order were violative of either Title VII or equal protection component of due process clause of the Fifth Amendment)[BACK] Local No. 93, Intern. Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, (1986) (Full Case) (Association of African American and Hispanic American fire fighters employed by city brought class action to redress alleged discrimination by city fire department in promotion of minority fire fighters. Court held that: (1) Title VII enforcement provision which precludes court from entering order requiring employer to give relief to employee who suffered adverse job action if action was taken for any reason other than discrimination on account of race, color, religion, sex or national origin does not preclude entry of consent decree that may benefit individuals who are not actual victims of employer's discriminatory practices; (2) consent decree is not "order" within meaning of enforcement provision of Title VII; and (3) intervening union's consent was not required to obtain court approval of consent decree)[BACK] Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (Full Case) (White school teachers brought action against school board and its members challenging validity of provision in collective bargaining agreement under which board extended preferential protection against layoffs to some minority employees. Court held that school board's policy of extending preferential protection against layoffs to some employees because of their race violated the Fourteenth Amendment)[BACK] Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) (Full Case) (After consent decrees had been entered in equal employment opportunity case against city, worker moved to restrain city from implementing layoff proposal in manner affecting minority firemen. Court held that: (1) the cases were not moot; (2) the District Court exceeded its powers in entering an injunction requiring white employees to be laid off when an otherwise applicable seniority system would have called for the layoff of black employees with less seniority; and (3) the District Court's order could not be justified as enforcing terms of the agreed-upon consent decree, as carrying out the purposes of the decree, as being within inherent authority to modify the decree, as being consistent with strong policy favoring voluntary settlement of Title VII actions, as being within the court's authority to award make-whole relief or as a valid Title VII remedial order)[BACK] Fullilove v. Klutznick, 488 US 448 (1980) (Full Case) (Associations of construction contractors and subcontractors and others brought action seeking preliminary injunction to prevent enforcement of "minority business enterprise" provision of Public Works Employment Act of 1977. Court held that "minority business enterprise" provision of Public Works Employment Act of 1977, which requires that, absent administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses by minority group members, was not unconstitutional)[BACK] United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193 (1979) (Full Case) (White employee brought action against employer and union challenging legality of plan for on-the-job training which mandated a one-for-one quota for minority workers admitted to the program. Court held that: (1) Title VII's prohibitions against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans, and (2) an affirmative action plan that was collectively bargained by an employer and a union and that reserved for black employees 50 percent of the openings in an in-plant craft training program until the percentage of black craft workers in plant was commensurate with percentage of blacks in local labor force did not violate Title VII's prohibition against racial discrimination; purposes of the plan mirrored those of the statute, the plan did not unnecessarily trammel the interests of white employees, and the plan was a temporary measure, not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance)[BACK] Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (Full Case) (White male whose application to state medical school was rejected brought action challenging legality of the school's special admissions program under which 16 of the 100 positions in the class were reserved for "disadvantaged" minority students. Court held that: (1) the special admissions program was illegal, but (2) race may be one of a number of factors considered by school in passing on applications, and (3) since the school could not show that the white applicant would not have been admitted even in the absence of the special admissions program, the applicant was entitled to be admitted)[BACK] Hopwood v. Texas, 78 F.3d 932 (1995) cert denited 116 S.Ct. 2581 (1996) (Full Case)(Nonminority applicants who were rejected by state university law school challenged law school's affirmative action admissions program as violating equal protection. Court of Appeals held that: (1) state university law school's admissions program which discriminated in favor of minority applicants by giving substantial racial preferences in its admission program violated equal protection, and (2) law of the case doctrine precluded proposed intervenors' challenge to denial of motion to intervene)[BACK] Taxman v. Board of Education, 91 F.3d 1547 (1996) cert granted 117 S.Ct. 763 (1997)(Full Case)(United States brought Title VII action challenging school board's affirmative action plan of preferring minority teachers over nonminority teachers in layoff decisions where teachers were equally qualified. White teacher intervened as plaintiff, asserting claims under Title VII and New Jersey Law Against Discrimination (NJLAD). The Court of Appeals held that: (1) nonremedial affirmative action plans are prohibited by Title VII; (2) board's plan violated Title VII, since it was adopted for purpose of promoting racial diversity, rather than to remedy discrimination or effects of past discrimination, and since it unnecessarily trammelled nonminority interests, in that it was governed by board's whim, was of unlimited duration, and imposed job loss on tenured nonminority employees).[BACK] |
| Executive Orders and Regulations Executive Order 8802 on June 25, 1941 by President Roosevel prohibited employment discrimination by the federal government, defense related industries, and federal contractors. This order was issued as a direct result of a threatened March on Washington by A. Phillip Randolph and 100,000 African American men. However, there was never effective enforced during the 1940s and 1950s. Executive Order 10,925 was issued on March 6, 1961 by President Kennedy directed federal contractors to 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. However, the Order failed to specify the kind of "affirmative action" federal contractors were expected to take to ensure compliance. Nor were there any reporting or monitoring procedures to measure compliance. Executive Order 11,246 issued in 1965 byPresident Johnson prohibit employment discrimination and require government contractors to take affirmative steps to hire minorities (and later, women); it also imposed requirements: first, to determine if minorities and women are being underutilized; second, if so, actually to develop and implement written affirmative action plans; and third, to submit periodic "compliance" reports. Where qualified minorities and women are underrepresented, a federal contractor's affirmative action plan must include "goals and timetables" for achieving a representative workforce. Executive Order 11,478 issued in 1969 by President Nixon required federal agencies to establish affirmative action programs for civilian employees. Following a five-month study, a Presidential Memorandum for Heads of Executive Departments and Agencies, dated July 19, 1995, declared in part: This Administration will continue to support affirmative measures that promote opportunities in employment, education, and government contracting for Americans subject to discrimination or its continuing effects. . . . [T] he Federal Government will continue to support lawful consideration of race, ethnicity, and gender under programs that are flexible, realistic, subject to reevaluation, and fair." |
| Law Review Excerpts |
