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 Kenneth R. Davis

excerpted Wrom: PEGAUTFJMVRESKPNKMBIPBARHDMNNSKVFVW Argument for Affirmative Action as a Mandatory Remedy In Systemic Racial Discrimination Cases , 107 Dickinson Law Review 503-570, 503-509, 560-570 (Winter 2003) (373 Footnotes Omitted)

Denounced by some and praised by others, affirmative action inflames emotions and incites debate. Critics label affirmative action a euphemism, a twist of linguistic chicanery that condones reverse discrimination. Supporters hail it as an enlightened imperative for achieving social justice. Sometimes the rhetoric is overheated and accusatory. A University of Tennessee student announced at the University of Michigan's Ann Arbor campus: "Either you're for racism, injustice, and inequality, or you're for justice and equality--which is affirmative action." Occasionally the message turns ugly. At the same campus, graffiti scrawled in yellow chalk declared: "Only niggers want affirmative action."

An approach to break the stranglehold of racial discrimination, affirmative action takes a person's race into account in making decisions, particularly in the areas of employment and education. Affirmative action is predominantly voluntary. Its success in the workplace depends on the good will of employers who choose to consider race in hiring and promotion decisions. Even freedom to do good deeds has its limits. Because affirmative action plans sometimes unfairly penalize unprotected workers, voluntary affirmative action plans must conform to the legal requirements of Title VII of the 1964 Civil Rights Act (Title VII). To prevent voluntary affirmative action programs from deteriorating into platforms for reverse discrimination, the Supreme Court, in United Steelworkers of America v. Weber and Johnson v. Transportation Agency, held that affirmative action plans must apply only to job categories in which minorities are traditionally underrepresented. Such plans may not exalt race over merit as a job qualification.

The duty to make reasonable accommodations for employees is legally distinct from affirmative action, but the two concepts are interwoven. This duty finds limited application under Title VII, for while a diluted version of reasonable accommodation applies to religious discrimination cases, it does not apply at all to cases of discrimination based on race, sex, or national origin. The duty to provide reasonable accommodations, however, is indispensable in disability cases. Most notably, Title I of the Americans with Disabilities Act (ADA) requires employers make reasonable accommodations for individuals with disabilities who can perform essential job functions when such accommodations are in place.

In passing the ADA and creating the employer's duty to make reasonable accommodations, Congress recognized that disabled people "occupy an inferior status" in society. Disability civil rights law, including the duty to provide reasonable accommodations, seeks to abolish this caste system. Another rationale for applying the reasonable accommodation principle to disability cases is that some disabled individuals can be productive workers if employers take measures to diminish the effects of disabilities on workplace performance. When a reasonable accommodation removes the hampering effect of a disability, the worker, the employer, and society benefit.

One may analogize disability cases to race cases. Physical and mental impairments and unfounded stereotypes hinder the disabled from getting jobs. Similarly, an impoverished environment, racial stereotypes, and a contracted range of educational and employment opportunities constrain minority workers, particularly African-Americans, from achieving in all phases of their lives, including on the job. These disadvantages, which might be called "societally induced racial disabilities," hinder African-Americans in the same way that physical and mental disabilities hinder the disabled. Members of both classes--African-Americans and the disabled--are able to perform essential job functions with "reasonable accommodations." In the context of racial discrimination, a reasonable accommodation might take the form of a traditional affirmative action plan aimed at increasing the number of blacks in an employer's workforce, or affirmative action might take the form of a special recruiting and training program aimed to overcome the educational or experiential disadvantages of identified minority workers.

Although reasonable accommodation and affirmative action are not identical, reasonable accommodation is comparable to affirmative action in according a preference to the protected class. Both concepts assume that the beneficiaries will perform essential job functions adequately. Both concepts entail costs to the employer, including direct and indirect expenses resulting from inefficiencies in the workplace. The purpose of both concepts is to eradicate stereotypes, stigmas, and the effects of disadvantage, whether physical, mental, or social. The scope of the preference that reasonable accommodation affords the disabled often equals and sometimes exceeds the scope of the preference that affirmative action affords minorities.

Despite the bias against African-Americans that persists in our society, Congress has not created an analogous duty to accommodate blacks in the workplace by making some form of affirmative action mandatory. Many reasons account for Congress's inaction. First, many in Congress oppose affirmative action on moral and practical grounds. Second, Congress must respond to popular sentiment, much of which objects to race-conscious affirmative action. Many may be more responsive to the needs of the disabled rather than the needs of minorities, because physical disabilities are more visible than societally induced disadvantages. Third, race is a constitutionally suspect classification, whereas disability is not. Thus, any race-conscious classification must meet the most rigorous constitutional test.

Of course, Congress would never create a general duty for all private employers to adopt affirmative action plans, and, if it did, outrage would thunder throughout the nation. Aside from being politically untenable, such a law would violate the guarantee of equal protection under the Fifth and Fourteenth Amendments. There is, however, a more limited and less provocative means of mandating affirmative action. The approach is court-ordered affirmative action. Section 706(g) of Title VII provides that a court may "order such affirmative action as may be appropriate," as a remedy for civil rights violations. Because court orders are state action, court-ordered affirmative action plans must meet not only the requirements of Title VII but also those of the Equal Protection Clause of the Fourteenth Amendment or the equal protection component of the Due Process Clause of the Fifth Amendment. Unlike a global duty to engage in affirmative action, appropriate court-ordered affirmative action does not offend the Constitution because courts impose the duty to engage in affirmative action against only those who have violated civil rights law.

The Supreme Court has provided guidance as to the constitutional standard applicable to affirmative action remedies. In Local 28 of Sheet Metal Workers International Association v. EEOC, the Supreme Court suggested that the Constitution confines such relief to egregious or persistent violations. The Court's suggestion was wrong. All statistical civil rights violations are serious enough to justify appropriately tailored affirmative action. No civil rights violation is ordinary. The Court seemed to recognize this in the Sheet Metal Workers decision by stating that the Constitution permits court-ordered affirmative action to eliminate "the lingering effects of pervasive discrimination," a requirement that arguably applies to any systemic civil rights violation.

This article argues that the primacy of the policy to eradicate racial discrimination supports mandatory court-ordered affirmative action in systemic racial discrimination cases. Making affirmative action mandatory, where statistical violations are proven, would place the policy to rid the workplace of racial discrimination on an equal footing with the policy to rid the workplace of discrimination against the disabled. This article proposes that the applicable constitutional standard, the strict scrutiny test, is met even when statistical violations fall short of "egregious or persistent." Strict scrutiny is satisfied when the defendant violates Title VII either by engaging in a pattern and practice of discrimination or by engaging in disparate impact discrimination. Both violations are based on a significant disparity between the workforce of the employer and the relevant labor market. Affirmative action is the most effective measure to end the effects of such violations.

Part II of this article presents Title VII's policy justifications and legal requirements for private, voluntary affirmative action programs. After examining the duty to provide reasonable accommodations for individuals with disabilities, Part II compares voluntary affirmative action to this duty. Analogizing the effects of disabilities to the effects of racial bias, Part II argues that reasonable accommodation is essentially a transmutation of affirmative action. Part II concludes that affirmative action, like the duty to make reasonable accommodations, should be mandatory under appropriate circumstances to afford African-Americans the same level of civil rights protection provided to the disabled.

Part III proposes what the contours of court-ordered affirmative action should be in racial discrimination cases. This part analyzes the Supreme Court's constitutional standard for imposing affirmative action relief. After exposing ambiguities in the Court's decisions, the author argues that court- ordered affirmative action is a constitutional remedy for any pattern and practice violation and any disparate impact violation. Such a remedy must be narrowly tailored to avoid trammeling the rights of non-minority workers or unduly injuring the violator. The author proposes that Congress adopt this standard.

Part IV concludes that the threat of mandatory, court-imposed affirmative action will deter racial discrimination in the workplace. To avoid the risk of facing compulsory affirmative action, employers engaging in intentional, systemic discrimination may abandon illegal practices. For the same reason, those committing disparate impact violations will comb their procedures to identify and ultimately to rid themselves of any practice arguably subjecting them to liability.

. ..

The controversy over what remedies should be available to disadvantaged minorities seems never to abate. The argument is a nagging splinter in the body politic. Issues debated in 1964 occupy scholars today. Opinions voiced on television news programs echo concerns raised in Congress forty years ago. Some advocate more drastic approaches such as the payment of reparations, while others complain that even voluntary affirmative action goes too far.

Affirmative action is akin to reasonable accommodation. They may not be identical twins, but they are hard to tell apart. Both remedies seek to rid the disadvantaged of the debilitating effects of obstacles to employment. The symptoms hindering the physically and mentally disabled are more palpable than those that hinder racial minorities, but the effects are the same. An education that ended after the seventh grade is a burden. Life in an impoverished environment is another burden. Immersion in a society that tells you on television, in magazines, on the street, and in the workplace that you are not as worthy as white people is perhaps the greatest burden of all. Societally induced racial disability deserves the same legal recognition as physical and mental disabilities. The stereotype of racial inferiority is as harmful as the belief that the disabled are incapable of putting in a good day's work.

If affirmative action is viewed as a reasonable accommodation, it should, for the sake of consistency in the law, be mandatory in appropriate cases. The issue becomes how to fashion the mandatory remedy consistent with constitutional principles. Sheet Metal Workers and Paradise have blessed court-ordered affirmative action, but Croson and Adarand require that court- ordered affirmative action meet the strict scrutiny test. The government has a compelling state interest in eradicating discrimination. This compelling state interest justifies mandatory court-ordered affirmative action in appropriate cases. Disparate impact and pattern and practice cases are ripe for mandatory court-ordered affirmative action because both types of violations involve statistical disparities between the employer's workforce and the relevant labor market. Affirmative action is an indispensable method for rectifying such disparities. As long as the plan is narrowly tailored, mandatory court-ordered affirmative action in such cases satisfies strict scrutiny.

To ensure fairness and efficacy, affirmative action plans should be subject to continuing judicial supervision. The district court presiding over the case should have the authority, at the remedy stage, to order the defendant or a court-appointed administrator to submit a mandatory affirmative action plan for judicial consideration. The plan could propose any of a number of strategies including race-conscious hiring and training practices and special educational, supervisory, and apprenticeship programs for minorities. Before approving the plan, the court should consider the plan's feasibility and probability of success, giving due consideration to the company's financial condition and its other resources.

Mandatory court-ordered affirmative action would present a controversial addition to civil rights law. Some would argue that the proposal would oppress employers responsible merely for unintentional violations of Title VII. It is true that mandatory court-ordered affirmative action, as proposed in this article, would raise the stakes for offenders. But, in doing so, it might deter violations. Although disparate impact is by definition unintentional, employers faced with the prospect of mandatory affirmative action would likely sift through their employment practices to rid themselves of those that might instigate an unhappy judicial encounter. Critics will object that the proposal would erect obstacles blocking non-minority workers from employment opportunities. One might better focus, however, on the other side of the argument: The proposal would foster equality of opportunity for the population of African-Americans, and achieving such equality is at the heart of civil rights law.

. Associate Professor of Legal and Ethical Studies, Fordham University Graduate School of Business Administration; B.A., State University of New York at Binghamton, 1969; M.A., California State University at Long Beach, 1971; J.D., University of Toledo College of Law, 1977.

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