The Diversity Rationale for Affirmative Action in Employment after Grutter: The Case for Containment
Mellott, Jared M., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. NARROW RANGE OF INTERESTS THAT JUSTIFIED AFFIRMATIVE ACTION UNDER EQUAL PROTECTION BEFORE GRUTTER A. National Security B. Diversity of Viewpoints in Public Higher Education C. Remediation of Identifiable Past Discrimination II. EXCLUSIVE NARROW REMEDIAL EXCEPTION TO TITLE VII BEFORE GRUTTER A. Narrow Remedial Exception to Title VII B. Other Possible Title VII Exceptions 1. Concurring Opinions in Johnson 2. Taxman v. Board of Education III. GRUTTER'S EXPANDED DIVERSITY RATIONALE FOR AFFIRMATIVE ACTION A. The Opinion B. Resulting Opening for Expanded Affirmative Action After Grutter IV. UNITED STATES COURTS OF APPEALS CASES EVALUATING DIVERSITY JUSTIFICATIONS IN EMPLOYMENT A. United States Courts of Appeals Cases Anticipating the Grutter Rationale 1. Wittmer v. Peters: Employment Diversity Interest in Boot Camp Penal Institutions 2. Reynolds v. City of Chicago: Recognition of Work force Diversity and Operational Effectiveness as Compelling Interests in Police Forces B. The Seventh Circuit's Application of Grutter to the Diversity Rationale in Police Forces V. UNCONSTITUTIONALITY OF EXPANDING THE DIVERSITY RATIONALE TO PUBLIC EMPLOYMENT UNDER EQUAL PROTECTION A. Summary of the Case for Workforce Diversity B. Absence of Independent Countervailing Constitutional Interests Supporting Work force Diversity 1. Lack of First Amendment Connection to General Diversity Interest in Public Employment 2. Inapplicability of Security Interests to Public Workforce Diversity C. Inherent Tendency of Affirmative Action in Public Employment To Fail Narrow Tailoring Requirement of Strict Scrutiny 1. Severe General Burdens of Affirmative Action 2. Exacerbated Injuries of Affirmative Action in Employment 3. Ability To Achieve Workforce Diversity Without Affirmative Action VI. ILLEGALITY OF A DIVERSITY RATIONALE IN PRIVATE SECTOR EMPLOYMENT UNDER TITLE VII A. Categorical Wording of Title VII's Text B. Congressional Intent for a Broad Antidiscrimination Principle in Title VII C. Inadequacy of Equitable Considerations To Justify a Diversity Exception to Title VII 1. Relatively Insubstantial Nature of Benefits of Diversity in Private Business 2. Relatively More Severe Nature of Some Injuries from Private Sector Affirmative Action CONCLUSION
In recent years, American employers expanded racially preferential "affirmative action" (1) policies geared toward hiring, retaining, and promoting racial minorities for positions that they might otherwise not gain in a more color-blind society. (2) The less sweeping affirmative action policies of an earlier era were based on remedial justifications. (3) But as past acts of invidious discrimination collectively became a more distant memory, (4) employers began justifying the expansion of affirmative action in terms of a very different rationale: diversity. (5) Colleges and universities used a similar rationale for affirmative action for decades before employers embraced the diversity rationale. A series of court battles has defined the permissible bounds for the use of such policies in the university context. (6) But judicial guidance on the new type of diversity-based affirmative action in employment has been almost nonexistent.
This new type of diversity-based affirmative action in employment initially seems suspect as a matter of law. The Equal Protection Clause renders all racial discrimination in the public sector presumptively invalid, including discrimination in favor of minorities. (7) Similarly, Title VII of the Civil Rights Act of 1964 protects individuals of all races from racial discrimination in the private sector, apparently subject only to narrow remedial exceptions. …