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Summary

Affirmative action remains at the center of legal and political debate at the federal, state, and local levels. Seeds of the current legal controversy may be traced to the early 1960s as first the Warren and then the Burger Court grappled with the seemingly intractable problem of racial segregation in the nation's public schools. Judicial rulings from this period recognized an "affirmative duty," cast upon local school boards by the Equal Protection Clause, to desegregate formerly "dual school" systems and to eliminate "root and branch" the last "vestiges" of state-enforced segregation. Soon after, Congress and the Executive followed the Court's lead by approving a panoply of laws and regulations that authorize, either directly or by judicial or administrative interpretation, "race-conscious" strategies to promote minority opportunity in jobs, education, and governmental contracting. The historical model for federal laws and regulations establishing minority participation "goals" may be found in Executive Orders which since the early 1960s have imposed affirmative minority hiring and employment requirements on federally financed construction projects and in connection with other large federal contracts. Executive Order 11246, as presently administered by the Office of Federal Contract Compliance Programs, requires that all employers with 50 or more employees and federal contracts in excess of $50,000 file written affirmative action plans with the government. These must include minority and female hiring goals and timetables to which the contractor must commit its "good faith" efforts. The basic statutory framework for affirmative action in employment derives from the Civil Rights Act of 1964. Public and private employers with 15 or more employees are subject to a comprehensive code of equal employment opportunity regulations under Title VII of the 1964 Act. The Title VII remedial scheme rests largely on judicial power to order monetary damages and injunctive relief, including "such affirmative action as may be appropriate," to make discrimination victims whole. Except as may be imposed by order of a court to remedy "egregious" violations of law, however, or by consent decree to settle pending claims, there is no general statutory obligation on employers to adopt affirmative action plans. But the EEOC has issued guidelines to protect employers and unions from charges of "reverse discrimination" when they voluntarily take actions to eliminate the effects of past discrimination. In addition, federal departments and agencies are required to periodically formulate affirmative action plans for their employees and a "minority recruitment program" to correct minority "underrepresentation" in specific federal job categories.

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