Defending the utterly defensible
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5 March 2014
The Supreme Court will establish when and how employers can use race-based policies this term. Satvinder Juss reports. Dr Satvinder Juss is a Harkness Fellow working in Washington DC and a Human Rights Fellow at Harvard Law School.
"Affirmative action" remains a much neglected social policy in Britain. It grants judges in the US the power to remedy unlawful discrimination and requires a federal government contractor to benefit under-represented minority or women workers.
There are three types of affirmative action programmes:
Needs-based programmes, which target inner-city areas. Groups that are disproportionately in need benefit disproportionately from them. A similar policy was advocated in Britain after the inner-city rioting of the early 1980s.
Outreach programmes, which target under-represented groups to attract qualified candidates. They bring employment opportunities to their attention and provide them with training. This model secures a level playing field for minority applicants, but it has not been effectively advocated in Britain. v Preferential treatment, which accords particular types of preferences for particular types of situations. All candidates may be equally well-qualified or the preferred candidate may be less well-qualified. This is the most controversial model and is largely unfamiliar in Britain.
The Supreme Court in the US will this term set a new standard for affirmative action in the workplace, and establish the circumstances under which employers can use race-based policies. Ironically, the case it will use is a "reverse discrimination" case.
In 1989, a New Jersey school board had to lay off some teachers in reverse order of seniority. The dismissals proceeded smoothly until the end of the selection process when the board was faced with the situation of dismissing one of two teachers that it had hired on the same day nine years before.
Sharon Taxman was white. Debra Williams was black. The board dismissed Taxman and preserved the job for a minority member. The school board had no history of past discrimination and, as such, an affirmative action plan adopted in 1975 was not remedial. However, it called for favouring minority applicants over whites "when candidates appear to be of equal qualification".
The Federal Justice Department is in the unique position of having been on both sides of this litigation during the Bush and Clinton administrations. At stake are weighty questions of how to achieve diversity, pluralism and genuine equality of opportunity.
Is the board's action acceptable, as the Clinton Justice Department argued, in order to provide a role model for black children and keep at least one black teacher on an otherwise white faculty of the business department of the school, even though there were many black teachers in other departments? Or is it unfair, as the Bush lawyers thought, since the white teacher, though equally well-qualified, lost out because of her race? More importantly, is having a job different from wanting a job, and is being hired different from being fired?
Solicitor-General Walter Dellinger, contends that affirmative action can be justified both to remedy past discrimination and to promote racial diversity. In education, diversity can enrich academic experience. In policing, diversity in an integrated community can create better relationships.
However, the school never demonstrated what social goal would be achieved by having a diverse business education department. The lower court ruling was clear that the Civil Rights Act 1964 only allows race-based preferences to redress past discrimination. The Solicitor-General, therefore, concedes that Taxman's dismissal is indefensible for two reasons. First, the board had not formally justified its reasons for diversity at the departmental level; and second, because race-based lay offs, as opposed to hiring or promotion decisions, require strong justification.
The Supreme Court drew a distinction between hiring and laying off in a 1986 decision. Hiring a minority worker from a large pool of applicants is a defensible form of preferential treatment. Laying off a particular white person to preserve a black person's job infringes the white worker's rights. However, the Supreme Court has never ruled that affirmative action can only be used in the context of past discrimination.
Although gender-based affirmative action is now universally endorsed, race-based policies are curiously shunned. Yet, in education and policing, recruitment policies based on minority preferential-treatment are not only defensible, but a legitimate goal of social policy for a multi-racial society.