Catholic University Law Review Volume 26 Issue 3 Spring 1977 Article 4 1977 How Far Can Affirmative Action Go Before It Becomes Reverse Discrimination? Stephanie Duncan-Peters Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Stephanie Duncan-Peters, How Far Can Affirmative Action Go Before It Becomes Reverse Discrimination?, 26 Cath. U. L. Rev. 513 (1977). Available at: https://scholarship.law.edu/lawreview/vol26/iss3/4 This Comments is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. COMMENTS HOW FAR CAN AFFIRMATIVE ACTION GO BEFORE IT BECOMES REVERSE DISCRIMINATION? One of the most volatile questions confronting federal courts today is to what extent they can utilize their broad equity powers to fashion an effec- tive remedy for the victims of unlawful employment discrimination with- out infringing on the legitimate expectations of other employees.' Per- vasive discrimination against minorities and women has been a deplorable characteristic of the national job market for many years. Only recently have these groups been permitted to demonstrate their capabilities in the employment arena on a par with other workers. In fact, commentators still cite statistical evidence of the survival of discriminatory hiring and promo- tional patterns.2 In order to remedy this continuing discrimination, and to effectuate the mandate of Title VII of the Civil Rights Act of 1964,8 federal district courts have begun to utilize their discretionary equitable powers to a greater extent. Although equitable remedies correcting past discrimination are laudable, it is clear nevertheless that such affirmative action may unjusti- fiably infringe on the rights of existing workers and thereby become subject to legitimate attack as a form of "reverse discrimination." Both the statutory language and legislative history of Title VII clearly indicate, as the Supreme Court recently confirmed in McDonald v. Sante Fe Trail Transportation Co.,4 that the Act does give rise to a cause of action 1. The United States Court of Appeals for the Second Circuit recently described this issue as "one of the most important and difficult questions currently facing the federal judiciary...." EEOC v. Local 638, Sheet Metal Workers' Int'l Ass'n, 532 F.2d 821, 823 (2d Cir. 1976). 2. See, e.g., Edwards, Race Discrimination in Employment: What Price Equality? 1976 U. ILL. L. F. 572, 579-80 (1976); Hill, The National Labor Relations Act and the Emergence of Civil Rights Law: A New Priority in Federal Labor Policy, 11 HARv. Civ. RiGHTs-Cv. LIB. L. REv. 299, 302 n.13 (1976). 3. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 253, as amended by Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e to 2000e-17 (Supp. III 1973). 4. 427 U.S. 273 (1976). Catholic University Law Review (Vol. 26:513 for reverse discrimination. Although undoubtedly intended as a means of providing equal employment opportunities to women and certain minority groups, 5 the Act, in fact, extends its protection to all persons, whether black or white, male or female. The Act, however, authorizes federal district courts to order appropriate "affirmative action" as a remedy for intentional discriminatory conduct.6 Affirmative action encompasses a broad span of remedies, some directed toward particular individuals and others toward entire groups. The difficult question, not yet addressed by the Court, is at what point such affirmative remedies give rise to a claim of reverse discrim- ination by infringing on the protected rights and expectations of white, male employees. Perhaps the most visible injury to the protected rights of employees occurs as a result of a quota-type affirmative relief. Quota relief typically imposes on the defendant-employer the burden of hiring or promoting a certain num- ber or percentage of persons of a particular race or sex. Although the appellate courts have split on whether quotas are a permissible Title VII 7 remedy, some circuits have recently expressed concern that quota relief may produce "innocent victims"-persons who would have been hired or promoted due to superior job qualifications but for the "remedial" order of a court binding the employer to a quota.8 Indeed, in the 1976 decision in 5. Accord, Griggs v. Duke Power Co., 401 U.S. 424 (1971): 'The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have oper- ated in the past to favor an identifiable group of white employees over other employees." Id. at 429-30 (quoting H.R. REP. No. 914, 88th Cong., 1st Sess. 18 (1963)). 6. Section 706(g) of the Equal Employment Opportunity Act, 42 U.S.C. § 2000e- 5(g) (Supp. III 1973). This section provides in relevant part: If the court finds that the respondent has intentionally engaged in or is in- tentionally engaging in an unlawful employment practice charged in the com- plaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . or any other equitable relief as the court deems appropriate. Id. (emphasis added). In Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), the Supreme Court noted that the purpose of section 706(g) was to grant wide discretion to the courts in "'exercising their equitable powers to fashion the most complete relief possible .. ."I d. at 764 (quoting Section-by-Section Analysis of H.R. 1746, accom- panying the Equal Employment Opportunity Act of 1972, Conf. Rpt., 118 CONG. REC. 7166, 7168 (1972) ). 7. Compare Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976) and Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976) with Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950 (1972). The types of quotas which have been ordered vary widely. In all, eight circuits have approved some form of temporary quota relief for discriminatory practices. See note 46 infra. 8. See, e.g., Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976). 1977] Affirmative Action Franks v. Bowman TransportationCo., 9 three Justices of the Supreme Court expressed similar concern. The McDonald and Franks decisions-more specifically, the concurring and dissenting opinions in Franks-portend a rough road ahead for affirma- tive action programs which increase employment opportunities for women and minorities at the expense of legitimate expectations of other workers. At the very least, court-imposed quota programs are likely to be subjected to an exacting scrutiny should the Supreme Court decide to review a case that mandates such relief. An analysis of the appellate decisions upholding the imposition of racial ratio hiring in constitutional, Title VII, or other fed- eral statutory contexts, indicates that the reasoning of those courts may well be unable to withstand careful scrutiny. For instance, until recently, courts have almost unanimously ignored the legislative history of Title VII. The relevant legislative history is not only unambiguous but it cannot reasonably be reconciled with the imposition of preferential hiring or promotions based on race, sex, or national origin. Furthermore, appellate courts have largely failed to apply the appropriate equal protection analysis when ordering quota remedies in a constitutional context. Accurate legislative and constitutional analysis would curtail quotas as an appropriate remedy except, perhaps, under the most egregious circumstances. I. THE SUPREME COURT SETS A LIMIT In McDonald v. Santa Fe Trail Transportation Co.,' 0 the Supreme Court unanimously held that Title VII of the Civil Rights Act of 1964"1 is "not limited to discrimination against members of any particular race" but pro- hibits discrimination by private employers in favor of minority racial groups as well as discrimination against minorities.' 2 The petitioners in McDonald, two white employees of the Santa Fe Trail Transportation Com- pany, sought relief when they were discharged for misappropriating cargo from a company shipment. The white employees contended that their dis- 9. 424 U.S. 747 (1976). See opinions of Chief Justice Burger (concurring in part and dissenting in part) and Justice Powell with whom Justice Rehnquist joined (concur- ring in part and dissenting in part). Id. at 780-81. 10. 427 U.S. 273 (1976). 11. Section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e- 2(a) (Supp. III 1973), provides in relevant part: "It shall be an unlawful employment practice for an employer-() . to discharge any individual, or otherwise to dis- criminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or na- tional origin. .. ." 12. 427 U.S. at 278-79. Catholic University Law Review [Vol. 26:513 charge was racially discriminatory because a black employee who had been charged with the same offense had not been dismissed. Relying on both the decisions of the Equal Employment Opportunity Commission (EEOC) and the legislative history of Title VII, the Court agreed. The EEOC, whose administrative interpretations of Title