What Factors Influence Judges’ Rulings About the Legality of Affirmative Action Plans?
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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.
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