In United Steelworkers of America v. Weber, the U.S. Supreme Court upheld the legality of preferential treatment, making it possible for affirmative action programs to continue.
The passage of Title VII of the Civil Rights Act of 1964
The government therefore imposed on federal contractors the duty to undertake “affirmative action,” that is, to engage in special efforts to hire and promote members of groups that were underrepresented in their workforces. The overall goal was to bring groups that had been discriminated against into statistical parity in the workforce at a faster-than-natural rate. Affirmative action required employers to compare the relevant labor market to their present labor forces and to identify discrepancies and situations in which minorities and women were underrepresented. They then had to file written affirmative action plans that included goals, timetables, and strategies to correct the deficiencies.
Opponents soon chose to test the validity of affirmative action by questioning the legality of the results the legislation created. Affirmative action has been interpreted in several ways. It was commonly understood that an employer undertaking affirmative action would actively recruit underrepresented groups, eliminate managerial prejudices toward underrepresented groups, and remove employment practices that put victims of previous discrimination at a disadvantage. There has never been a question about the legality of these types of practices. To most employers, however, it seemed that the safest way to comply with affirmative action involved extending preferential treatment to qualified members of underrepresented groups through the use of hiring quotas. This meant, for example, that if women were underrepresented in a particular company, and a woman and a white man applied for a job and had the same qualifications, the woman would be given preference. At the extreme, quotas might also result in the hiring of less-qualified women and people of color over white men. Such practices resulted in what was called reverse discrimination
Such a result appeared to be in conflict with Title VII (section 703), which specifically prohibits discrimination in employment based on race, gender, color, religion, or national origin. The basic issue was therefore whether an affirmative action plan that classifies people according to their race, gender, and national origin and then makes employment decisions at least partially based on those classifications violates Title VII. Opponents of affirmative action argued that its practical effect mandated preferential treatment for certain groups of people, while Title VII specifically stated that it did not require the granting of preferential treatment. A series of court cases, most of which reached the U.S. Supreme Court and culminated in the ruling in United Steelworkers of America v. Weber, eventually decided the fate of affirmative action.
The Supreme Court initially seemed to take a position against preferential treatment, in Griggs v. Duke Power Company (1971).
The arguments against preferential treatment seemed to grow stronger in 1976 with McDonald v. Santa Fe Trail Transportation Company.
Another 1976 ruling, this time by a lower court, ordered American Telephone and Telegraph
A more direct blow was dealt to affirmative action in Regents of the University of California v. Bakke (1978).
The net effect of these decisions placed employers in a difficult position and affirmative action in potential jeopardy. In the light of the various rulings, employers believed that they had to find ways to increase the presence and position of underrepresented groups without causing any discrimination against the white majority. Such a balancing act was extremely difficult, if not impossible. The controversy was finally decided in 1979 with United Steelworkers of America v. Weber.
In 1974, the United Steelworkers of America
The basic issue was whether a private-sector employer could voluntarily implement an affirmative action plan that involved preferential treatment when there was no proof of prior discrimination but the workforce did demonstrate racial or sexual imbalance. The Court’s majority opinion, authored by Justice William J. Brennan, stated that any employer or union that was trying to eliminate imbalances in its workforce could voluntarily use a plan that involved preferential treatment, even if that plan benefited individuals who had not themselves been the victims of discrimination. In reaching this decision, the justices emphasized that Kaiser’s affirmative action plan was the result of negotiation and agreement between the company and the union. The Supreme Court further stipulated that although Title VII does not require preferential treatment, neither does it prohibit it.
The Weber decision did not legitimate all quota systems. It stated that in order for a quota system to be lawful, it must be part of a permissible affirmative action plan. The Court offered the following guidelines as to what constitutes a permissible affirmative action plan: It is designed to break down old patterns of discrimination, it does not needlessly trammel the interests of white employees, it does not create an absolute bar to whites, it is a temporary corrective measure, and it has the goal of eliminating racial imbalance.
Writing for the minority, Justice William H. Rehnquist authored a strong dissent in the Weber case. He quoted convincing evidence from the Congressional Record that indicated that some members of Congress, including strong proponents of the civil rights bill, did indeed intend that Title VII prohibit all preferential treatment.
Review of the findings of Weber and the previous cases results in a multifaceted scenario. If an employer has been found guilty of employment discrimination, affirmative action involving preferential treatment appears to be sanctioned by Title VII, which allows the courts to impose any relief or affirmative action deemed appropriate. In these cases, the affirmative action is viewed as a remedy for illegal behavior—that is, a way to redress an imbalance created by deliberate discrimination. If an employer has an imbalanced workforce but has not been found guilty of discrimination, the courts have no power to order any plan involving preferential treatment. A firm is free, however, to adopt measures voluntarily that result in preferential treatment, provided they are part of a permissible affirmative action plan. Although “permissible” has never been specifically defined, the five criteria laid out in Weber are regarded as useful guidelines. Finally, a firm cannot voluntarily adopt preferential treatment tactics that are not part of a permissible affirmative action plan.
The Weber ruling is especially noteworthy because it is one of the few in American judicial history in which a court has rejected the actual wording of a statute in favor of what the court interprets as the legislative intent. The Supreme Court acknowledged that Title VII does indeed prohibit all racial discrimination but contended that the law had to be interpreted in the context of the history and purpose of Title VII. The Court held that the primary concern of Title VII was the plight and position of African Americans, and it was therefore illogical to assume that the act would therefore ban all voluntary and race-conscious efforts to correct the effects of past discrimination. In effect, the Court said that despite the inevitable result of reverse discrimination, preferential treatment is permissible when its goal is the correction of long-standing social problems. Based on this reasoning, and despite subsequent challenges, most major firms in the United States implemented affirmative action, and most plans involved some degree of preferential treatment.
The battle was far from over. From its inception, affirmative action has had its detractors and its defenders. Both proponents and opponents of affirmative action continued to make valid and legitimate points about the evils and the benefits of preferential treatment. Some voiced moral and societal objections; opponents protested that it is unfair to require present generations to pay for the sins of predecessors, that affirmative action causes discrimination against white men, and that all employment decisions should be based solely on merit. Detractors further argued that any legislation that allows preferential treatment is bound to increase hostility toward the groups it is meant to help. Others pointed out, however, that relying on the natural progression of time to correct the effects of past discrimination would take far too long and would perpetuate an untenable situation.
Although the Weber ruling may have settled prominent legal questions about preferential treatment and affirmative action, it by no means ended the controversy. The continuing debate again took center stage in the late 1980’s, when a more conservative Supreme Court handed down a series of decisions unfavorable to affirmative action and equal employment opportunity legislation. Congress quickly responded with the Civil Rights Act of 1991,
Legislative and judicial activity concerning affirmative action continued to generate uncertainty for businesses, as they did their best to hire and promote women and people of color while still trying to treat individual white men fairly. This balancing act appeared to produce mixed results; for example, affirmative action helped women and people of color gain entry into organizations, but they were not necessarily promoted into higher and more influential positions.
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Buchholz, Rogene A. “Equal Employment Opportunity.” In Business Environment and Public Policy. 4th ed. Englewood Cliffs, N.J.: Prentice Hall, 1992. Provides a concise and understandable synopsis of affirmative action. Gives insights into both sides of the issue. Includes an excellent summary of major cases dealing with affirmative action. -
Dudley, William, ed. Racism in America: Opposing Viewpoints. San Diego, Calif.: Greenhaven Press, 1991. Among other topics, presents a series of essays arguing both for and against affirmative action. Provides moral and societal context to the debate in a lively style. -
Eisenberg, Theodore. Civil Rights Legislation. 3d ed. Charlottesville, Va.: Michie, 1991. Provides the text of the Supreme Court’s Weber ruling and those of other significant affirmative action cases. Intended for readers with some background in the law. -
Hall, Kermit L., ed. The Oxford Guide to United States Supreme Court Decisions. New York: Oxford University Press, 1999. Collection of brief essays on more than four hundred significant Supreme Court decisions. Includes discussion of affirmative action cases. Includes glossary. -
Ledvinka, James, and Vida Scarpello. Federal Regulation of Personnel and Human Resource Management. 2d ed. Boston: PWS-Kent, 1991. Provides an excellent, easy-to-read history of the controversy surrounding preferential treatment in hiring. -
Player, Mack. Federal Law of Employment Discrimination in a Nutshell. 5th ed. St. Paul, Minn.: West, 2004. Reference guide to employment discrimination law lays out the highlights in a brief, orderly fashion. Includes table of cases and index. -
Weiss, Robert J. “We Want Jobs”: A History of Affirmative Action. New York: Routledge, 1997. Presents the history of African Americans’ struggles to achieve workplace equality. Includes index.
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