Expert: Michael Troy - 6/30/2006

Question
Dear,

I am foreign student writing a paper about positive/affirmative action in employment.
I would be very pleased if you could provide me an overview of the Supreme Court decisions and arrests related to affirmative action linked to employment as well as the recent change and developments in this field.
Thank you very much.

Laurie

Answer
Hi Laurie,

In the 1960's and 70's the Courts took a fairly liberal view in allowing employers, and in some cases requiring employers to give preferences to certain racial groups.  Such actions, it was believed would make up for the past discrimination against these groups and bring minorities into different labor markets closer their percentage in the overall population.

However, they courts never really did a good job explaining how, in view of federal laws banning all race or sex discrimination of any sort, how discrimination against certain groups coudl be allowed.

The Supreme Court finally delivered a landmark case in 1987 called Croson v. Richmond.  There, the Court held that States could not have discriminatory policies in favor of minorities except in extremely rare cases where the entity that has the policy is making up for its own past discrimination in a narrow, focused and time-limited program.  A few years later, the Court expanded the program to Federal programs in Adarand v. Pena.

In private employment cases, the text of Title VII of the Civil Rights Act of 1964 seems to indicate that any discrimination against or in favor of minorities in illegal.  However, lower courts have allowed some preferences for minorities.  The Supreme Court has not clearly weighed in on whether private programs should be held to a standard different than it set fort in Croson and Adarand, but most lower courts seem to apply the same standards.

A different standard has developed for school admissions, where admissions departments may give a limited preference to minority applicants in order to achieve a diverse student body.  This notion was recently reaffirmed in Gratz v. Univ. of Michigan and Grutter v. Univ. of Michigan Law School.

You can look up any of these cases by going here:

http://www.findlaw.com/casecode/supreme.html

Just type in the case names.

- Mike