What Factors Influence Judges’ Rulings About the Legality of Affirmative Action Plans?
When implementing affirmative action programs involving race and gender, human resource practitioners must balance efforts to increase workforce diversity against the need to avoid illegal reverse discrimination. The tension between non-discrimination law and preferential treatment is explored. In reverse discrimination case law, affirmative action plans are evaluated by judges along two dimensions: remedial need and limiting harm. The legal literature specifies certain factors such as statistical imbalance, employee qualification, and duration of plan that are usually examined within these two dimensions.
A content analysis of 80 federal court cases was conducted to quantitatively analyze the weight and importance of these factors within judicial rulings as well as contextual factors (e.g., judge’s political affiliation, beneficiary of program) that may influence the outcome of affirmative action lawsuits.
It was found that remedial need can be demonstrated by large statistical disparities in the workforce, and was also more likely to be found by Democratic than Republican judges. Limiting harm is more likely to be supported by plans that are of limited duration and do not use reserved slots, or quotas.
The study provides empirically based recommendations for the design of legally defensible affirmative action plans that involve preferential treatment.
KeywordsAffirmative action Reverse discrimination Employment law Personnel selection Strict scrutiny
This research was supported by the Psychology Research Fund from the Institute of Psychology, Illinois Institute of Technology, and FDCP Complex Faculty Grant from The Chicago School. We are also grateful to Richard Gonzalez for his assistance and support, as well as Roya Ayman and Nambury Raju. We thank Shani Austin,Angela Bartels, Porcia Beasley, Sarju Bharucha, Katie Cisneros, Justin Greenfield, Hatton Greer, Eunseon Ha, Rebecca Kohn, Suzanne Seiler, Phillip Terrazzino and Tyler Vandermeeden for their invaluable assistance with the coding of cases.
- Aliotta, J. M. (1988). Combining judges’ attributes and case characteristics: An alternative approach to explaining Supreme Court decision-making. Judicature, 71, 277–281.Google Scholar
- Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.Google Scholar
- Biddle, D. A. (2006). Adverse impact and test validation: A practitioner’s guide to valid and defensible employment testing (2nd ed.). Burlington, VT: Ashgate.Google Scholar
- Carrell, M. R., & Mann, E. E. (1993). Defining workforce diversity programs and practices in organizations. Labor Law Journal, 44, 755–764.Google Scholar
- Coil, J. H., & Rice, C. M. (1993). Managing work force diversity in the nineties: The impact of the Civil Rights Act of 1991. Employee Relations Law Journal, 18(4), 547–565.Google Scholar
- Dallas Fire Fighters Association v. City of Dallas, Tex. 1995. N.D. Tex. 885 F. Supp. 915.Google Scholar
- Doverspike, D., Taylor, M. A., & Arthur, W., Jr. (2000). Psychological perspectives on affirmative action. New York, NY: Nova Science.Google Scholar
- Doverspike, D., Taylor, M. A., & Arthur, W., Jr. (2006). Psychological perspectives on affirmative action. New York, NY: Nova Science.Google Scholar
- Fuller, J.A., Freeman, S., Kurowski, R.M. (2007). Leadership and career development programs for women at PepsiCo. E. I. Desrosiers (Chair). Focusing on women: Workplace initiatives that develop women leaders. Symposium presented at the 22nd annual conference of the Society for Industrial/Organizational Psychology, New York, NY.Google Scholar
- Gray, J. A. (1992). Preferential Affirmative Action in Employment. Labor Law Journal, Januray, 23-30.Google Scholar
- Gutman, A. (2000). EEO law and personnel practices (2nd ed.). Thousand Oaks, CA: Sage Publications.Google Scholar
- Haley, R. B. (1990). Back to the future: An economic approach to affirmative action. Labor Law Journal, 41, 808–820.Google Scholar
- Kilberg, W. J. (1995). Adarand, affirmative action and diversity. Employee Relations Law Journal, 21(3), 1–4.Google Scholar
- Kravitz, D. A., Harrison, D. A., Turner, M. A., Levine, E. L., Chaves, W., Brannick, M. T., et al. (1997). Affirmative action: A review of psychological and behavioral research. Bowling Green, OH: Society for Industrial and Organizational Psychology.Google Scholar
- Local No. 93, Intern. Association of Firefighters. 1986. AFL-CIO C.L.C. v. City of Cleveland, 106 S. Ct. 3063.Google Scholar
- Robinson, R. K., Fink, R. L., & Allen, B. M. (1997). Adarand Constructors, Inc. v. Pena: New Standards Governing the Permissibility of Federal Contract Set-Asides and Affirmative Action. Labor Law Journal, 46, 661–668.Google Scholar
- Robinson, R. K., Fink, R. L., & Allen, B. M. (1998). Affirmative action in the public sector: The increasing burden of “Strict Scrutiny”. Labor Law Journal, 49, 801–809.Google Scholar
- Siskin, B. R., & Trippi, J. (2005). Statistical issues in litigation. In F. J. Landy (Ed.), Employment discrimination litigation: Behavioral, quantitative, and legal perspectives (pp. 132–166). San Francisco: Jossey-Bass.Google Scholar
- Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Google Scholar
- United States v. Paradise, 1987. 107 S. Ct. 1053. Google Scholar
- Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U.S.C. § 4212.Google Scholar
- Walworth, C. R., & DiChristina, W. D. (1994). The long road back to Birmingham: Race-conscious affirmative action and reverse discrimination. Employee Relations Law Journal, 20(3), 407–419.Google Scholar
- Weisberg, A.C. & Carey, L.B. (2007). Women’s initiatives: Today’s business case for retaining and advancing women. E. I. Desrosiers (Chair). Focusing on women: Workplace initiatives that develop women leaders. Symposium presented at the 22nd annual conference of the Society for Industrial/Organizational Psychology, New York, NY.Google Scholar