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Excerpted from: Hina B. Shah, Radical Reconstruction: (Re) Embracing Affirmative Action in Private Employment, 48 University of Baltimore Law Review 203 (Spring, 2019) (652 Footnotes) (Full Document)

The history of employment in this country is the history of racism. Using public and private mechanisms as well as violence to devise and enforce segregation and preferential treatment, the white male institutionalized an unprecedented advantage in the labor market. Yet this is rarely acknowledged as a factor in the current widening economic disparity between whites and blacks. Today, many white Americans, cloaked in the myth of colorblindness and meritocracy, refuse to see the persistence of racial prejudice, disadvantage and discrimination in the labor market.

Racial discrimination against blacks has a singular, unique history in this country, which continues to shape their economic progress and opportunities. For close to three centuries, whites systematically and rationally created an exclusionary system, enforced by the state and through violence, that disadvantaged and excluded blacks and other nonwhites to confer benefit on whites. Even after a bloody Civil War resulted in dismantling the 246-year-old American institution of slavery, racial exclusion and preferential treatment of whites persisted, including in employment. White men had access to the entire labor market, and the most desirable jobs were exclusively theirs, cocooned from competition. While the Civil Rights Act of 1964, outlawing discrimination in employment, education, and public accommodation, dismantled many of the “formal barriers and symbolic manifestations of subordination,” racism persisted and remains a permanent feature of American society. Today, race discrimination in employment, while subtler, is still the norm and blacks are discriminated against “at a distressingly uniform rate.” A large body of empirical evidence demonstrates the pervasiveness of unconscious or implicit bias and discriminatory behavior. Race discrimination and segregation *205 continue to persist in the labor force, choking off opportunity to stable, life-long employment. Today's widening disparity between black and white economic progress can be traced, in some measure, to “ancient brutality, past injustice and present prejudice.”

In the contemporary discourse, nondiscrimination and affirmative action are juxtaposed as contradictory doctrines. The argument that one cannot be colorblind and ensure equal opportunity while using race preferences is filtered through a majoritarian lens that discounts the long history of preferential treatment for whites.

By excluding blacks from a sizeable segment of the labor market for centuries, whites gained a systemic, locked-in advantage that continues to benefit them. Affirmative action provides a preference to blacks and other nonwhites as a counterweight to this historical advantage. Furthermore, affirmative action is a tool to combat the existence of current implicit bias in the labor market. By inserting race into conscious decision-making, it disrupts the subconscious biases that results in discriminatory decisions.

Historically, affirmative action was embraced as a means towards nondiscrimination. Civil rights leaders in the early twentieth century and during the Civil Rights Movement mounted direct action campaigns targeting employers to proportionally hire blacks.  Affirmative action has long accompanied the government's efforts towards nondiscrimination. From the Freedman's Bureau during Reconstruction to the executive orders mandating affirmative action in federal agencies and federal contracting, the federal government recognized affirmative action and nondiscrimination as compatible mechanisms to achieve equality. After the passage of the Civil Rights Act of 1964, this country robustly engaged in forging a new path towards equality, rooting out systemic discrimination and promoting affirmative action based on race. Both public and private sector employers along with the judiciary embraced race-conscious affirmative action programs that included timetables and numerical goals to increase the proportional representation of nonwhites in the workforce. These programs opened up the labor market for blacks to more skilled and higher paying occupations and had a direct impact on black economic progress.

The experiment was short lived however, as Ronald Reagan's Administration unleashed a full scale retrenchment in both enforcement and commitment to affirmative action. Notably, while the Administration was bombastic about dismantling affirmative action, much of the federal affirmative action policies and programs survived, albeit narrower in scope. Nonetheless, the rhetorical assault on affirmative action successfully shifted the public dialogue  and the private sector's appetite for such programs. Today, affirmative action in private-sector employment is brushed aside as an untenable remedy, surely to be struck down by the United States Supreme Court. At first glance, the Supreme Court's constitutional analysis of the validity of affirmative action programs under the Equal Protection Clauses is marred by historical amnesia and ideological instability. Many of these decisions are fractured and doctrinally unstable, resting on political ideology rather than grounded in historical and contemporaneous reality. But a close examination of affirmative action cases provides guidance in structuring viable race-based affirmative action programs that can withstand constitutional challenges. While the Supreme Court has narrowly and often inconsistently interpreted the scope of the Fourteenth Amendment's tolerance for race-conscious remedies, it has not shut its door on affirmative action. The Court has consistently acknowledged that affirmative action remains a constitutionally viable remedy. The Supreme Court has also upheld affirmative action programs challenged under Title VII of the Civil Rights Act, which prohibits discrimination in employment based on, among other things, race.

Although the Supreme Court's many plurality and 5-4 majority opinions fail to provide a coherent doctrinal thesis, some clear answers emerge:

1) Schools and universities can use race as a factor in furtherance of diversity;

2) Private employer can use race as a factor in designing voluntary affirmative action programs, subject to certain limitations;

3) Local governments can use race as a factor in hiring and contracting if a clear record is established of a history or ongoing practice of discrimination;

4) Federal government can require contractors to have affirmative action plans for hiring and subcontracting, subject to certain limitations;

5) Public employers may take affirmative race-based actions where there is strong basis in evidence of disparate impact liability; and

6) Courts may order affirmative action that includes racial quotas where discrimination has been established.

Today, the nascent progress on employment equality has stalled. Race discrimination and segregated workforces are just as much a reality today as they were for much of this country's history, contributing to widening economic disparity between whites and blacks. The time is ripe to lay the political and social groundwork to re-embrace affirmative action in private employment. It has been an effective remedy to integrate the workplace and increase black economic progress. Re-embracing affirmative action in private employment will require a recommitment by civil rights leaders, politicians, employers, unions, and workers to prioritize and reframe affirmative action as an antidote to discrimination and a counterweight to centuries of preferential treatment of whites.

A shift in the public discourse is feasible today thanks in large part to an already vital ongoing civil rights dialogue. Movements such as #BlackLivesMatter and #MeToo have profoundly shifted the frames used to discuss police brutality and sexual assault on women. Another movement, #Occupy has essentialized income inequality between the 1% and the 99%. When gay civil rights leaders embraced a new framing for gay marriage, it led to greater public acceptance and a legal revolution. Sustained public messaging defeated an anti-affirmative action ballot measure in Colorado. Public pressure can be the “spur or catalyst” for employers, unions and politicians to “eliminate ... the last vestiges of an unfortunate and ignominious page in this country's history.”

In the past, robust federal enforcement of nondiscrimination and affirmative action oversight were a critical force on employers to integrate their workforce. Today, that environmental pressure will need to come from companies that are leaders in their industry and unions. Large employers already are champions of affirmative action in education and understand the value of a diverse workforce. The Supreme Court, as well as federal and state affirmative action mandates for government contractors, already provide a road map for employers to voluntary adopt affirmative action plans, including race-conscious decision-making. Unions, who rely on black membership for their survival, have begun tackling racial equity within their movements. They can play a central role in including affirmative action plans in their collective bargaining agreement as well as moving the Democratic Party to re-embrace affirmative action.

This article is a call for a radical reconstruction of the private labor market through re-embracing affirmative action as an effective tool to achieve equality. Part II traces the growing income and wealth disparity between blacks and whites and links the history of segregation and implicit bias in the labor market as a factor contributing to economic disparity.

Part III is a historical account of the movement for racial equality, tracing the alliance between nondiscrimination and affirmative action and the triumph of equal opportunity (formal equality) over equality of outcomes (substantive equality).

Part IV examines the legal justification and viability of affirmative action programs under the Fourteenth Amendment and Title VII.

Part V is a roadmap for how we can re-embrace affirmative action in the private employment sector, from reframing the dialogue to grassroots pressure on large employers and unions to adopt affirmative action plans that include race-conscious decision-making.

While it seems quixotic to advocate for affirmative action in the midst of rising white supremacy and its imprimatur through state action, it is important to lay the groundwork for a radical reconstruction. The fight over equality must include a demand for affirmative steps to combat discrimination. Lyndon Johnson provides a beacon of light on this issue; for the first twenty years as a Senator from Texas, Johnson voted against every civil rights measure that came up for a vote, including a bill to stop lynching. Yet, by the time he was president, he spearheaded the passage of the Civil Rights Act and forcefully advocated for affirmative action:

We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.

[. . .]

The unfinished work on racial equality that abruptly halted in the 1980s must be reinvigorated in the employment arena. Affirmative action is one effective tool to combat discrimination and stem the widening economic disparity between blacks and whites. Using affirmative action to increase black employment is both constitutionally and statutorily viable. While the Supreme Court has narrowly interpreted the Fourteenth Amendment, frustrating the intent and purpose of the Amendment, it has not shut its door on affirmative action. In the employment context, there is a greater opportunity for constitutionally valid affirmative action plans. The Supreme Court has approved of affirmative action plans in educational institutions and to remedy past discrimination in public employment. Furthermore, the Supreme Court has approved of voluntary affirmative action plans adopted by private employers under Title VII as a means to effectuate the purpose of Title VII.

Affirmative action has been decimated through the normative shift brought about by the Reagan Administration's efforts to frame it as reverse discrimination. Reagan assaulted affirmative action to brazenly appease white racial anxiety. Reagan launched his presidential campaign in Philadelphia, Mississippi--a town made famous by the murder of three civil rights workers--and opposed the Civil Rights Act, the Voting Rights Act, the 1968 Fair Housing Act, and a federal holiday honoring Dr. King. The Reagan Administration's offensive to dismantle and disinvest in the civil rights infrastructure is coming full circle with the Trump presidency.

The time is ripe to muster the political will to overcome the stasis on affirmative action in employment. Key leadership of civil rights organizations, private employers, unions and grassroots community activists should embrace employment equity as a pressing civil rights issues. The widening economic gap between whites and blacks is a national disgrace. We must reignite the quest for equality in employment by re-embracing affirmative action in private employment.


Hina B. Shah is an Associate Professor of Law and Director of the Women's Employment Rights Clinic at Golden Gate University School of Law.