What is the difference between affirmative action and title vii

The other involves the validity of voluntary affirmative action plans by public and private employers. Several basic principles emerge from the case law. First, a fundamental prerequisite to the adoption of minority goals or preferences is a remedial justification rooted in the employer's own past discrimination and its persistent workplace effects. Stricter probative standards mandated by the Constitution may bind public employers in this regard than apply to private employers under Title VII.

Basically, a "firm basis" in evidence—as revealed by a "manifest imbalance," or "persistent" and "egregious" disparities in the employment of minorities or women in affected job categories—has been viewed by the courts as an essential predicate for affirmative action preferences.

Secondly, beyond a record of past discrimination by the employer, all affirmative action plans are judged in terms of the burden they place on identifiable non-minorities. Thus, remedies that immediately result in the displacement of more senior white male employees—like promotion preferences or minority group protections against layoff—are most suspect and least likely to pass legal or constitutional muster.

At the other end of the spectrum, hiring or recruitment goals or preferences that do not "unnecessarily trammel" the "legitimate expectations" for advancement of non-minority candidates are more likely to win judicial acceptance.

Finally, all "race-conscious" affirmative action remedies must be sufficiently flexible, temporary in duration, and "narrowly tailored" so as to avoid becoming rigid "quotas. Even before the Supreme Court had spoken, every federal circuit court of appeals, in cases dating back to the very inception of the Civil Rights Act, had approved use of race or gender preferences to remedy "historic," "egregious," or "longstanding" discrimination.

This line of judicial authority was ratified by the Court's rulings in Local 28, Sheetmetal Workers v. To remedy years of union evasion, amounting to contempt of court, the Second Circuit had approved an order reinstating the minority membership goal and requiring that job referrals be made on the basis of one apprentice for every four journeyman. The Supreme Court affirmed, five to four. In the opinion, a plurality of four Justices held that Title VII does not preclude race-conscious affirmative action as a "last resort" for cases of "persistent or egregious" discrimination, or to dissipate the "lingering effects of pervasive discrimination," but that, in most cases, only "make whole" relief—in the form of back pay or specific hiring orders—for individual victims is required.

The plurality also felt that by twice adjusting the union's deadline, and because of the district court's "otherwise flexible application of the membership goal," the remedy had been enforced as a "benchmark" of the union's compliance "rather than as a strict racial quota. Meanwhile, one group of dissenting Justices found the referral quota excessive because economic conditions in the construction industry made compliance impracticable, while the other dissenters read Title VII to bar all judicially-ordered race-conscious relief for the benefit of non-victims.

A parallel situation was presented by Paradise. In , to remedy nearly four decades of systematic exclusion of blacks from the ranks of the Alabama State troopers, the district court ordered a hiring quota and enjoined the state from discriminating in regard to promotions.

Seven years later, a series of consent decrees calling for new nondiscriminatory promotion procedures was approved to rectify the total dearth of black troopers in the upper ranks. Only one round of promotions for corporal was made before the quota for that and the sergeant rank was suspended. A plurality of four Justices considered several factors in determining whether the plan violated the equal protection rights of white troopers: the necessity of the relief and the efficacy of alternative remedies, the plan's flexibility and duration, the relationship between the plan's numerical goals and the relevant labor market, and the plan's impact on the rights of third parties.

Significant was the fact that the order did not require the promotion of anyone and could be waived in the absence of qualified minority candidates, as it already had been with respect to lieutenant and captain positions. Finally, because it did not bar white advancement, but merely postponed it, the plan did not impose unacceptable burdens on innocent third parties.

The plurality opinion therefore concluded that the promotion quota was "narrowly tailored" and justified by the government's "compelling" interest in eradicating the state's "pervasive, systematic, and obstinate exclusion" of blacks and its history of resistance to the court's orders.

Justice Stevens, who provided the fifth vote for the Court's judgment, stated in a separate opinion that the district court did not exceed the bounds of "reasonableness" in devising a remedy.

One group of dissenting Justices, however, found the plan "cannot survive judicial scrutiny" because the one-to-one promotion quota is not sufficiently tied to the percentage of blacks eligible for promotion, while a separate dissenting opinion stated simply that the district court "exceeded its equitable powers.

The remedial justification for voluntary affirmative action in employment was explored by the Court in Wygant v. Jackson Board of Education. Seniority was to govern layoffs except that in no event were overall minority faculty percentages to be reduced. In the face of a constitutional challenge by ten laid-off white teachers, the Court voided the minority layoff provision, but no particular rationale commanded majority support.

Seven members of the Wygant Court agreed that some forms of voluntary affirmative action may be constitutionally justifiable on the part of a governmental entity itself guilty of past discrimination. However, neither the asserted interest in the presence of minority teachers as critical "role models," or to ameliorate "societal discrimination," provided "compelling" justification for the layoff plan absent "convincing" evidence of the board's own past discrimination. Moreover, while innocent non-minorities could be made to share some of the burden, the remedy could not intrude too severely upon their rights.

Because the minority layoff protection in Wygant "impose[d] the entire burden of achieving racial equality on particular individuals," Justice Powell concluded that innocent third parties were impacted too heavily. In this respect, the layoff provision was distinguishable from preferential hiring decisions, which "diffuse" the burden more generally.

Reserving judgment on the hiring issue, Justice White concurred that the layoff remedy went too far because it displaced more senior white employees in favor of minorities who were not actual discrimination victims.

In a separate concurrence, Justice O'Connor aligned herself with the Powell view that societal discrimination will not justify voluntary affirmative action remedies, and that the layoff plan was infirm because it was overbroad and not "narrowly tailored" to the board's past discrimination.

Significantly, Wygant was a constitutional case decided on Fourteenth Amendment equal protection principles. Corollary issues concerning voluntary affirmative action plans adopted by private employers under Title VII reached the Court in United Steelworkers v.

By reserving half of the company's craft training program slots for minorities, several white employees were passed over in favor of less senior blacks. There was no evidence that the under-representation of minorities in craft jobs was attributable to past discrimination by the employer. Nonetheless, relying on general judicial and research findings relative to nationwide patterns of minority exclusion from trade union membership, the Supreme Court ruled five to two that "racial preferences" in the program were a lawful means to combat "manifest racial imbalance" in craft positions resulting from "old patterns of racial segregation and hierarchy.

Conceding that Title VII could literally be read to bar all race-conscious employment practices, the Court decided that the purpose of the act, rather than its literal meaning, controlled. The legislative history and context from which the act arose, Justice Brennan wrote, compelled the conclusion that the primary purpose of Title VII was to "open employment opportunities for Negroes in occupations which have traditionally been closed to them.

Moreover, the specific plan in question, mandating a one to one racial ratio until a specific minority participation rate is achieved, was permissible affirmative action because it did "not unnecessarily trammel the interest of white employees. In Johnson v. Transportation Agency , 13 the Court reviewed a voluntary affirmative action plan adopted by a public employer, the Transportation Agency of Santa Clara County, California. That plan authorized the agency to consider the gender of applicants as one factor for promotion to positions within traditionally segregated job classifications in which women had been underrepresented.

Women were significantly underrepresented in the county's labor force as a whole and in five of seven job categories, including skilled crafts where all employees were men. The plan's long range goal was proportional representation. However, because of the small number of positions and low turnover, actual implementation was based on short term goals which were adjusted annually and took account of qualified minority and female availability.

No specific numerical goals or quotas were used. The petitioner in Johnson was a male employee who had applied for promotion to the position of road dispatcher, only to be rejected in favor of a female competitor.

Both the petitioner and the woman who won the promotion were deemed well qualified for the position, although the petitioner had scored slightly higher in the first round interview. The appointing official for the agency indicated that in reaching the decision to promote the female candidate, he had considered the candidates' qualifications, backgrounds, test scores, and expertise as well as gender considerations.

The Supreme Court upheld the county's action, six to three. Justice Brennan decided for the majority that Title VII was not coextensive with the Constitution and that, therefore, Weber not Wygant was controlling.

The noted disparities in female workforce participation satisfied the Weber requirement for a "manifest imbalance" since to require any additional showing could expose the employer to discrimination lawsuits and operate as a disincentive to voluntary compliance with the statute.

The Court likened the county plan to the treatment of race as a "plus" factor in the "Harvard Plan" for higher educational admissions approved by Justice Powell in the Bakke case.

In a caveat, however, the Court warned that "[i]f a plan failed to take distinction in qualification into account in providing for actual employment decision, it would dictate mere blind hiring by the numbers," and would be invalid because "it would hold supervisors to achievement of a particular percentage of minority employment or membership The dissenters criticized the majority for using Title VII "to overcome the effect not of the employer's own discrimination, but of societal attitudes that have limited entry of certain races, or of a particular sex, into certain jobs.

To date, therefore, the Supreme Court has permitted race-conscious hiring criteria by private employers under Title VII, either as a remedy for past discrimination or to redress a "conspicuous racial imbalance in traditionally segregated job categories," but refused to find that a state's interest in faculty diversity to provide teacher "role models" was sufficiently compelling to warrant a race-conscious layoff policy. Lower courts are similarly divided, though a few have applied an "operational need analysis" to uphold police force diversity policies, recognizing "that 'a law enforcement body's need to carry out its mission effectively, with a workforce that appears unbiased, is able to communicate with the public and is respected by the community it serves,' may constitute a compelling state interest.

A three-judge panel of the Seventh Circuit has pressed the legal debate one step further by relying on the student diversity rulings in the Michigan cases 17 to uphold Chicago Police Department's affirmative action hiring program.

The decision in Petit v. City of Chicago 18 found that large urban police departments have an "even more compelling need for diversity" than universities and affirmed the Chicago police program "under the Grutter standards. Outside of law enforcement, however, courts generally allow for consideration of race in hiring and promotion decisions only in response to demonstrable evidence of past discrimination by the employer or within the affected industry.

No rule of deference like that extended to educational institutions has been recognized for employers, nor is one necessarily implied by the Michigan cases.

In recent years, voluntary affirmative action measures appear to have become somewhat disfavored in the employment context, although related issues continue to be litigated. For example, in the Supreme Court issued a decision in Ricci v. DeStafano , 19 a Title VII case questioning whether the New Haven Fire Department could set aside the results of a promotion exam that would have disproportionately made more white firefighters eligible for promotion than minority firefighters. After the city set aside the test results, the white firefighters sued, claiming reverse discrimination, but the city argued that its actions were necessary in order to avoid subsequent charges of racial bias for implementing a test with a discriminatory effect.

Ultimately, the Court ruled in favor of the white firefighters, holding that the city had violated Title VII's prohibition against disparate treatment when it discarded the test results. Although the case did not involve affirmative action, the decision may make it more difficult for employers to voluntarily comply with Title VII by implementing affirmative action plans or by altering employment policies or practices that have an unintentionally discriminatory effect.

State and local programs mandating affirmative action in employment initially met with greater judicial approval than public contracting preferences for minorities in the wake of the Supreme Court's decision in City of Richmond v. Croson and Co. Depending on the stage of proceedings, a formal record of past discrimination may already have developed when agreement is reached. At the very least, there is usually some allegation of misconduct by the public employer. In addition, there may be underlying judicial findings of discrimination or district court involvement in fashioning or approving the consent decree, both of which are factors traditionally prompting deference by appellate courts when reviewing affirmative action efforts.

Between and , the Department of Justice sued public employers; of those, 93 were settled by consent decree. These court-approved agreements typically set goals and timetables for increasing minority and female under-representation in the workforce. Of the cases that the Justice Department still monitors, many stem from litigation dating back to the s, mainly against police and fire departments. Pena, 24 however, these orders and consent decrees have come under "strict scrutiny.

In , the Supreme Court declined to review a Fifth Circuit decision striking down the Dallas Fire Department's affirmative action plan. In City of Dallas v. Dallas Fire Fighters Association, 27 the appellate panel held that there was insufficient evidence of past discrimination in the Dallas Fire Department to justify the department's policy of promoting some women and minorities over white males who had achieved scores within the same "band" on a civil service examination.

Evidence of discrimination in the record consisted of a consent decree between the city and the Justice Department finding impermissible racial discrimination by the city under Title VII, and statistical underrepresentation of minorities in the ranks to which the challenged promotions were made.

The court recognized that "out-of-rank promotions do not impose as great a burden on non-minorities as would layoff or discharge. Seibels, 29 the Eleventh Circuit rejected both long term and annual goals imposed by consent decree for the hiring of firefighters and police officers by the City of Birmingham, Alabama. The main fault with the city's affirmative action plan was that it had become a permanent alternative to the development of nondiscriminatory tests and other valid selection procedures.

Rather than ending discrimination, the long-term goals in the plan were "designed to create parity between the racial composition of the labor pool and the race of the employees in each job position. On remand, the district court was ordered to "re-write the decrees to relate the annual goals to the proportion of blacks in the relevant, objectively qualified labor pool" and "to make clear that the annual goals cannot last indefinitely.

Likewise, an affirmative action promotional plan for the Maryland State Police, agreed to by the parties with consent of a federal district court, was subjected to strict scrutiny review and found wanting by the Fourth Circuit in Maryland Troopers Ass ' n v. The latter factor has frequently been determinative of the constitutional question in the judicial mind. The Court arguably has yet to precisely define "racial classification" for equal protection purposes, but a plurality of Justices have described the concept in terms of burdens or benefits placed on individuals because of race, or subjecting individuals to unequal treatment.

Race-conscious action by government or private employers that neither confers a benefit nor imposes a burden on individuals may not be subject to strict scrutiny or heightened judicial review. Thus, courts have not found data collection activities concerning the racial or gender makeup of a workforce to violate the Constitution.

A public university, for example, may be racially "aware" or "conscious" by amassing statistics on the racial and ethnic makeup of its faculty and encouraging broader recruiting of racial or ethnic minorities, without triggering strict scrutiny equal protection review.

Despite these two major exceptions, employers may not use affirmative action to hire more minority employees solely to increase the diversity of their workforce. As a result, the Fisher case only applies to schools, not employers.

Because the law does not allow employers to use affirmative action to increase the number of minority employees they hire, some employers have required employees to take diversity training.

A recent study shows that these efforts may backfire. Sociologists from Harvard University and Tel Aviv University found that mandatory diversity training sessions actually caused the number of minorities at those companies to drop. One explanation for this phenomenon is the mandatory nature of these training programs.

Forcing employees to sit through training can create resentment, which can overshadow any benefits of diversity training. What service are you interested in? What is your current employment status?

Position title. Salary annual Under to to to to Over What happened? I understand that any response to this form does not constitute legal advice or an attorney-client relationship. I would like to receive more information from the firm via email.

Advice , Race Discrimination. Talk To A Real Person. Skip directly to site content Skip directly to page options Skip directly to A-Z link. Section Navigation. Facebook Twitter LinkedIn Syndicate. Affirmative Employment. Minus Related Pages.

How is affirmative employment monitored? What is the difference between quotas and placement goals?