Affirmative action redux
lesl at UDEL.EDU
Mon Mar 5 22:56:05 PST 2001
the arg would be that to avoid Title VII liability as an employer whose employment practices "tend to discriminate on the basis of race" (because of disproportionately low percentages of blacks on the faculty [of a formerly de jure seg'd pub. university]--our percent of black faculty is four. National percent is five. This puts us twenty percent lower than what appears to be the qualified labor pool. [believe me, I would not stoop to this use of statistics if
not driven by Sup Ctdecisions that make little sense to me], states as employers should be allowed to take flexible affirmative measures to desegregate traditionally seg'd job categories [i.e. introduce greater racial diversity into their work force] as long as they are not trammeling the rights of non-minority applicants /employees (as happens with, e.g. race-based layoffs.). So whadya think?
Bill Funk wrote:
> Leslie Goldstein wrote:
> > as of 1987, s.ct. said in Johnson v. Trans. Agency, which did involve a
> > state hiring agency that the rules under Title VII were that (1)
> > flexible affirmative consideration in hiring for members of groups
> > disfavored in "traditionally segregated job categories" were not
> > unlawful so long as they did not "unnecessarily trammel the rights of
> > non-minority "applicants. Court relied on Weber.
> Correct me if I'm wrong, but wasn't Johnson a Title VII case? That is, it did not address the constitutionality of the affirmative action in that case. In my original response I said that I didn't see how the Court would uphold such a plan as Leslie described under the 14th Amendment. It is not inconceivable that the Court would say that Title VII allows private employers more leeway in affirmative action than the 14th Amendment allows to government actors.
> Again, however, I would love to hear an argument how the Court's current 14th Amendment jurisprudence would allow racially conscious hiring of minorities to avoid a disparate impact of facially neutral hiring policies on minorities.
> Bill Funk
> Lewis & Clark Law School
More information about the Conlawprof