Public sector employers are governed by two standards in the design and application of voluntary remedial affirmative action plans: Title VII of the Civil Rights Act of 1964 (as amended) and the equal protection provisions of the Constitution. Since these plans are subject to challenge under reverse discrimination claims, they must be carefully designed to avoid vulnerability to such charges under either a statutory or constitutional claim. However, the Supreme Court has interpreted the legal acceptability of voluntary affirmative action differently under the statute than under the Constitution. Title VII allows a more permissive standard than does the 14th or 5th amendments. An analysis and comparison of Court rulings under both standards illustrate these differences. To avoid successful challenge of a voluntary remedial plan, a public employer must abide by the more conservative criteria of the Constitution. In so doing, some kinds of remedial action available to those in the private sector is barred to their public sector counterparts. Further Court rulings may clarify these apparent differences.
Confronting the challenge of equal employment opportunity is a continuing and complex responsibility for all employers, particularly those in the public sector. Public agencies are expected to engage in fair employment practices that satisfy multiple objectives. Among the most important of these are (1) avoiding discriminatory treatment or impact against any individual or group, (2) redressing the effects of historical occupational exclusion, and (3) building a workforce that mirrors our increasingly diverse society. Since these objectives sometimes conflict with one another, both public and private employers often find that even their best efforts are vulnerable to legal attacks by concerned parties.
One important and growing area of contention is that of "reverse discrimination." This concept is based on the argument that majority group members are being illegally disadvantaged in employment opportunities because of affirmative action programs that are established to improve opportunities for traditionally underrepresented groups such as women and racial minorities.
Ironically, the legal underpinnings for affirmative action programs also form the basis for attacks upon them. In the public sector the primary justification for remedial employment policies comes from Title VII of the Civil Rights Act of 1964 (as amended) and the equal protection clause of the 14th amendment to the Constitution of the United States (the due process clause of the 5th amendment for federal employment).
While both the statute and Constitutional amendments have been recognized by the courts as grounds for affirmative action, both have also been ruled as prohibitions against preferential employment practices in certain fact-specific situations. Compounding the problem is the possibility that what may be permissible under statutory law may be forbidden by the Constitution. For the public employer, the potential for legal liability may seem especially daunting regardless of the course of action taken.
Although greater clarification by the Supreme Court is needed, tentative guidelines for defensible affirmative action plans can nevertheless be developed through analysis of past court rulings. The following discussion should not be regarded as legal advice, but it attempts to reconcile the paradoxical issues of EEO, affirmative action programs, and reverse discrimination in the light of current court interpretation. To begin the analysis, a definition of affirmative action, the justifications for its use, and the focus of this paper are provided.
Affirmative Action in the Employment Setting
Affirmative action provides some consideration of a person's race, gender, or ethnicity in making decisions for selection, promotion, retention, or other personnel action. It is necessarily a group-directed process since its purpose is not to identify victims of past exclusion, but to engage in future-directed conduct that will result in greater inclusion of underrepresented groups. …