The Affirmative Action Puzzle by Melvin I. Urofsky

Author:Melvin I. Urofsky
Language: eng
Format: epub
Publisher: Knopf Doubleday Publishing Group
Published: 2020-01-27T16:00:00+00:00

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THE NEW LAW SATISFIED no one. On the one hand, several provisions regarding the ability and willingness of employers to have special programs for women and minorities now gave opponents new weapons. Section 106, for example, outlawed race norming, or the adjustment of test scores to make minorities more competitive. The next part, section 107, which responded to the Price Waterhouse decision, could almost be read as abolishing all affirmative action. On the face of the law, it outlaws all decisions based on race, color, sex, or national origin as a “motivating factor,” but affirmative action plans do in fact take those considerations seriously. It would be possible, according to a legal scholar, that in some discrimination cases employers would now have to prove the validity of their affirmative action plans.

On the other hand, the statute also created incentives for employers to engage in race- and gender-conscious plans. Here the reversal of Wards Cove revived the disparate-impact test and would lead employers to hire and promote minorities and women in order to have the right numbers if sued in a discrimination case. Section 108 would make it harder, if not impossible, for groups not party to a consent decree to challenge it in court such as the firefighters had done in Martin v. Wilks. The new provision allowing jury trials would also encourage employers not only to set up affirmative action programs but to make sure they worked properly to avoid the expenses associated with a trial.

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