Affirmative Action in the Workplace : Forty Years Later

The authors, in order to sift through the increasingly muddy waters of affirmative action, provide an overview of the development of permissible preferential treatment based on race, national origin, or gender in the forty years since Title VII was enacted. The article discusses the state of the law for affirmative action plans adopted by government contractors as well as those that are judicially imposed. The focus of the piece is on the voluntary race, national origin and gender-conscious plans in the private sector. The authors conclude that although in the forty years since Title VII was enacted the validity of voluntary affirmative action is not longer in question, private employers remain reluctant to adopt such practices for several reasons. First, because the Supreme Court has failed to define the line between permissible and impermissible affirmative action. Second, because voluntary affirmative action requires a finding of past discrimination or a significantly imbalanced workforce, employers may be reluctant to implement such programs and risk that these factual predicates will be used against them in litigation. And third, even if a business is not deterred by the litigation threat, the potential for public and/or employee relations repercussions remains, resulting from the stigma of an employer's acknowledgement of past discrimination or a conspicuous imbalance in its employee population. Finally, the authors suggest that in order to mitigate these concerns, the courts should construe or Congress should amend Title VII to permit voluntary affirmative action on the basis of workplace diversity