The Legal Environment of Affirmative Action
(continued; Section 3)
State Laws and Executive Orders
New York State Human Rights Law (Executive Law, Article 15)
The Human Rights Law provides that it shall be an unlawful discriminatory
practice for an employer, licensing agency, employment agency, labor organization
or joint labor-management committee controlling apprentice training programs
to discriminate against any individual on the basis of his/her age, race,
creed, national origin, sex or disability or marital status or to make
any inquiry regarding these factors. (With respect to age, the Human Rights
Law prohibits discrimination against any individual 18 years of age or
older except where age is a bona,fide occupational qualification.)
The law also provides that it shall be an unlawful discriminatory practice
to deny a license or employment to an individual on the basis of his/her
having been convicted of one or more offenses or by reason of a finding
of lack of good moral character when such denial would be a violation
under Article 23-A of the Correction Law. It is also unlawful to inquire
as to, or act adversely upon, any arrest or criminal accusation not then
pending against an individual which was followed by a termination of that
criminal action or proceeding in favor of the individual.
Correction Law, Article 23 A, Section 752
This law prohibits discrimination in the granting of a license or employment
against persons previously convicted of one or more criminal offenses,
or who have been found to lack "good moral character", when
such finding is based upon the fact that the person has been convicted
of one or more criminal offenses unless:
- there is a direct relationship between one or more of the previous
offenses and the license or employment sought; or
- the issuance of the license or granting of the employment would
involve an unreasonable risk to property or to the safety or welfare
of specific individuals or the general public.
Labor Law (Article 8, Section 220e)
All contracts with the state or municipality require the insertion of
a clause by which the contractor and/or subcontractors agree not to discriminate
on the basis of race, creed, color, national origin, disability or sex
in the hiring and employment of persons.
Executive Law (Article 15-A, Section 310, et seq)
Requires all state contracts and all documents soliciting bids or proposals
for state contracts to contain or make references to a provision, among
others, that the contractor will not discriminate against employees or
applicants for employment because of race, creed, color, national origin,
sex, age, disability or marital status, and will undertake or continue
existing programs of affirmative action to ensure that minority group
members and women are afforded equal employment opportunities without
discrimination. Further, requires contractors to make good faith efforts
to solicit active participation by minority or women-owned business enterprises.
Gubernatorial Executive Orders
Executive Order No. 5 (2/16/83) - Established the Women's Division in
the Executive Chamber to advise the Governor on all matters relating to
women and to work closely with state agencies to insure that women's interests
and perspectives are considered in the formulation of public policy.
Executive Order No. 6 (2/18/83) - Assigned responsibility to the Department
of Civil Service and-some other state agencies for insuring equal employment
opportun- ities for women, minorities, disabled person and Vietnam Era
Executive Order No. 7 (2/18/83) - Established a Governor's Advisory Committee
for Hispanic Affairs.
Executive Order No. 19 (5/31/83) - New York State policy statement on
sexual harassment in the workplace.
Executive Order No. 28 (11/18/83) - Established a Task Force on Sexual
Orientation Discrimination. The Executive Order prohibits discrimination
on the basis of sexual orientation by a state agency or instrumentality
in the provision of any services or benefits. Further, it requires agencies
and departments to prohibit discrimination based on sexual orientation
in any matter pertaining to employment and directs the Office of Employee
Relations to promulgate clear and consistent guidelines prohibiting discrimination
on such basis.
Executive Order No. 28.1(4/27/87) - Amends Executive Order No. 28 by
directing that the responsibility to review and promulgate regulations
prohibiting discrimination on the basis of sexual orientation and to implement
a procedure to ensure the swift and thorough investigation of complaints
of discrimination based on sexual orientation be transferred from the
Governor's Office of Employee Relations to the Division of Human Rights.
Executive Order No. 66 (6/5/85) - Establishes a Governor's Advisory Committee
for Black Affairs.
Executive Order No. 82 (5/2/86) - Establishes the Governor's Office for
Executive Order No. 96 (4/27/87) - Promotes the New York State policy
against age discrimination in the workplace by requiring the head of each
agency, department, board, commission or other entity to issue and provide
to all employees a statement defining and prohibiting age discrimination
in the workplace and to examine the age distribution of their workforce
to facilitate compliance with State and Federal law and the achievement
of a non-discriminatory work environment.
Major Federal Court Cases
Griggs v. Duke Power Company, 401 U.S. 424 (1971)
Petitioners, a group of incumbent black employees, instituted an action
against the Duke Power Company, their employer, challenging the requirement
of a high school education or the passing of two standardized general
intelligence tests for employment in or transfer to certain jobs.
The District Court found that prior to July 2, 1965, the effective date
of the Civil Rights Act of 1964, the Duke Power Company openly discriminated
on the basis of race in the hiring and assigning of employees at its Dan
River Plant. The Plant was divided into five operating departments: (1)Labor,
(2)Coal Handling, (3)Operations, (4)Maintenance, and (5)Laboratory and
Test. Blacks were restricted to employment in the Labor Department where
the highest paying jobs paid less than the lowest paying jobs in the other
departments. In 1955 a policy was instituted requiring a high school education
for initial assignment to any department except Labor and for transfer
from Coal Handling to any of the three "inside" Departments
of Operations, Maintenance and Laboratory and Test.
In 1965, Blacks were no longer restricted to the Labor Department but
were required to have a high school education to transfer. New employees
were required to pass two professionally developed tests as well as to
have a high school diploma. Transfers were permitted from Labor or Coal
Handling without a high school education if the applicant passed two tests
- the Wonderlic Personnel Test and the Bennett Mechanical Aptitude Test.
Neither test was directed or intended to measure the ability to perform
a particular job or category of jobs and operated to disqualify blacks
at a substantially higher rate than white applicants.
The Court held that under Title VII of the Civil Rights Act of 1964,
practices, procedures or tests neutral on their face, and even neutral
in terms of intent, cannot be used if they operate to "freeze"
the status quo of prior discriminatory practices. Title VII prohibits
not only overt discrimination but also employment practices that are fair
in form, but discriminatory in operation. Such practices are prohibited
unless they can be shown to be related to job performance. Any given requirement
must have a manifest relationship to the employment in question, the touchstone
being business necessity.
The Court further upheld the Equal Employment Opportunity Commission's
interpretation of Section 703 (h) of Title VII, which authorizes the use
of "any professionally developed ability test which is not designed,
intended, or used to discriminate because of race", as permitting
the use of job related tests.
Wards Cove Packing Company, Inc., et al v. Frank Atonio, et al.,
490 U.S.__*,104 LEd 2d 733, (1989).
Respondents, a class of non-white cannery workers who were employed at
petitioners' salmon canneries, brought a suit pursuant to Title VH of
the Civil Rights Act of 1964, as amended, alleging that a variety of petitioners'
hiring and promotion practices had denied them and other non-whites employment
in the higher paying non-cannery jobs on the basis of their race.
The Court set forth the proper application of Title VIPs disparate impact
theory of liability. The Court held that the proper statistical comparison,
which generally forms the basis for the initial inquiry in a disparate
impact case, is between the racial composition of the qualified persons
in the labor market and the racial composition of persons holding the
jobs at issue. The Court noted that racial imbalance in one segment of
an employer's work force does not, without more, establish a prima facie
case of disparate impact with respect to the selection of workers for
the employer's other positions.
Secondly, the Court held that a plaintiffs burden in establishing a prima
facie case goes beyond a showing of a statistical disparity in the employer's
work force. The Court ruled that the plaintiff must isolate and identify
the specific employment practices that are allegedly responsible for any
observed statistical disparities.
The Court held that if a prima facie case of disparate impact with respect
to an employment practice is established, the employer then bears the
burden of producing evidence of a business justification for the employment
practice. The Court emphasized, however, that the burden of proving that
a specific employment practice caused discrimination remains with the
plaintiff The Court further noted that there is no requirement that the
challenged practice be essential or indispensable to the employer's business
for it to pass muster.
Finally, the Court concluded that a plaintiff may still prevail where
an employer carries its burden of persuasion on the question of business
justification, if the plaintiff can persuade the fact finder that there
are other equally effective tests or selection devices, without a similarly
undesirable racial effect, which would serve the employer's legitimate
hiring interests. The Court indicated that factors such as the cost of
other burdens of the proposed alternative selection devices are relevant
in determining whether a test or selection device is equally effective.
* No page numbers, Supreme Court Volumes not yet published.
Clara Watson v Fort Worth Bank and Trust, 487 U.S. ___*, 102 LEd
2d 827, (1988)
Petitioner, a black employee of respondent bank, was denied four promotions
within the bank based on the subjective judgment of white supervisors
who were acquainted with petitioner and the nature of the job being applied
for. She brought suit under Title V11 of the Civil Rights Act of 1964,
as amended, alleging that the bank had unlawfully discriminated against
blacks in hiring, compensation, initial placement, promotions, terminations,
and other terms and conditions of employment
The Court concluded that subjective or discretionary employment practices
may be analyzed under the disparate impact approach, not solely under
the disparate treatment approach which had previously been used to analyze
such cases and which requires a plaintiff to prove that the defendant
had a discriminatory intent or motive.
The Court further set out the following standards of proof as applicable
in such "disparate impact" cases:
- The plaintiff must identify the employment practice allegedly responsible
for the statistical disparity.
- The plaintiff must offer statistical evidence sufficient to show
that the practice challenged has caused the exclusion on the basis of
membership in a protected class.
- In defense, the defendant must present evidence that the challenged
practice is based on legitimate business reasons manifestly related
to the employment in question.
- The plaintiff must then show that an alternative exists, which would
equally serve the employer's legitimate business interests without an
adverse effect on the protected class.
The Court's opinion emphasized that the ultimate burden of proof rests
with the individual alleging discrimination.
* No page numbers, Supreme Court Volumes not yet published.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Respondent Green, a black employee of McDonnell Douglas Corp., was laid
off in the course of a general reduction in McDonnell Douglas' work force.
Green, a long-time activist in the civil rights movement, engaged in deliberate,
unlawful activity against McDonnell Douglas as part of a protest that
his discharge and the hiring practices of McDonnell Douglas were racially
motivated. Subsequently, McDonnell Douglas publicly advertised for persons
of Green's trade and Green applied for reemployment. His application was
denied and the stated reason was Green's participation in the unlawful
activity. Green brought suit against McDonnell Douglas alleging that they
refused to rehire him because of his race and color and his persistent
involvement in the civil rights movement He claimed this was in violation
of Sections 703(a) and 704(x) of Title VII of the Civil Rights Act of
1964 which, respectively, prohibit racial discrimination in any employment
decision and forbid discrimination against applicants or employees for
attempting to protest or correct allegedly discriminatory conditions of
The Court set forth a model for establishing a prima facie case of disparate
treatment. The complainant in a Title VII trial has the burden of establishing
a prima facie case by showing:
- that he/she belongs to a racial minority;
- that he/she applied and was qualified for a job for which the employer
was seeking applicants;
- that despite his/her qualifications, he/she was rejected and,
- that, after the rejection, the position remained open and the employer
continued to seek applicants from persons with complainant's qualifications.
Green met this burden.
The burden then shifts to the employer to articulate some legitimate
non-discriminatory reason for the rejection. In this case, the Court held
that the reasons set forth by McDonnell Douglas met this burden.
Finally, a complainant must be given the opportunity to show that the
reasons stated by the employer are merely a pretext for discrimination.
Evidence which may be relevant here includes the employer's general policy
and practice with respect to minority employment and/or evidence that
white employees similarly situated were treated differently. The Court
held that Green had not been given the opportunity to present evidence
that the reasons stated by McDonnell Douglas for their refusal to rehire
him were merely a coverup for a racially discriminatory decision and therefore
sent the case back down for further proceedings.
Brenda Patterson v. McLean Credit Union, 491 U.S.__*, 105 LEd
2d 132, (1989)
Upon being laid off by respondent credit union, petitioner, a black woman,
brought an action pursuant to the Civil Rights Act of 1866, (42 USC 1981)
alleging that respondent had harassed her, failed to promote her to an
intermediate accounting clerk position, and discharged her because of
The Court declined to overrule an earlier decision, in Runyon v. McCrary,
427 U.S. 160 (1976), thereby reaffirming that Section 1981 prohibits discrimination
in the making and enforcement of private contracts.
However, the Court held that Section 1981 is restricted in its application
to the making and enforcement of contracts alone, and that is does not
extend to conduct by an employer after the contractual relationship has
been established. Thus, it would not serve as a basis for lawsuits involving
imposition of discriminatory working conditions which are actionable under
Title VII. The Court noted that damages under Title VII are limited to
compensation for lost wages, but that other compensatory and punitive
damages are available under 42 USC 1981. In this particular case, the
Court concluded that petitioner's racial harassment claim was not actionable
under Section 1981.
However, the Court indicated that petitioner's claim that respondent
failed to promote her because of her race may be actionable under Section
1981, if the promotion gives rise to an opportunity for a new and distinct
relation between the employer and the employee.
* No page numbers, Supreme Court Volumes not yet published.
Reverse Discrimination and Affirmative Action
Regents of the University of California v. Bakke, 438 U.S. 265
The Medical School of the University of California at Davis instituted
a special admissions program designed to assure the admission of a specified
number of students from certain minority groups. The special program consisted
of a separate admissions system operating in coordination with the regular
Allan Bakke, a white male, applied to the Medical School in 1973 and
1974. His application was considered and rejected under the regular admissions
process. In both years, applicants were admitted under the special program
with grade point averages, MCAT scores and benchmark scores significantly
lower than Bakke's. Bakke filed suit alleging that the Medical School's
special admissions program operated to exclude him from the school on
the basis of his race in violation of his rights under the Equal Protection
Clause of the Fourteenth Amendment, the California Constitution and Title
VI of the Civil Rights Act of 1964.
The Court held that classifications based on race and racial background,
such as the special admissions program, are inherently suspect and thus
call for the most exacting judicial scrutiny. Such classifications must
be shown to be precisely tailored to serve a compelling governmental interest.
In order to justify the use of a suspect classification, a state must
show that its purpose or interest is both constitutionally permissible
and substantial, and that the use of the classification is "necessary"
to the accomplishment of its purpose or the safeguarding of its interests.
The Court noted that it had never approved a classification that aids
persons perceived as members of relatively victimized groups at the expense
of other innocent individuals. It noted that in the absence of judicial,
legislative, or administrative findings of constitutional or statutory
violations where racial preferences have been fashioned as remedies for
those constitutional or statutory violations resulting in identifiable,
race-based injuries to the individuals held entitled to the preference.
Although the Court found the attainment of a diverse student body to
be a constitutionally permissible goal for an institution of higher education,
it held that the assignment of a fixed number of places to a minority
group not to be a necessary means toward that end
The Court determined that the Medical School had failed to carry its
burden of demonstrating that the classification was necessary to promote
a substantial state interest.
United Steel Workers of America v. Weber, 443 U.S. 193 (1979)
Kaiser Aluminum and the United Steel Workers entered into a collective
bargaining agreement which included a voluntary affirmative action program
that reserved fifty percent (50%) of the openings in an on-the-job training
program for blacks. The voluntary program was to continue until the percentage
of black craft workers in the plant was commensurate with the percentage
of blacks in the local labor force. The program was designed to teach
unskilled production workers the skills necessary to become craft workers.
Weber, a rejected white applicant who had more seniority than the most
junior black selected into the program, brought suit alleging that the
filling of the positions pursuant to the affirmative action program resulted
in junior black employees having preference over more senior white employees.
He claimed this practice discriminated against him and other similarly
situated white employees. He said it was in violation of Sections 703(x)
and (d) of Title VII of the Civil Rights Act of 1964, which make it unlawful
to discriminate because of race in hiring and in the selection of apprentices
for training programs.
The Court held that the prohibition against racial discrimination found
in Section 703 must be read against the background of the legislative
history of Title VII and the historical context from which it arose. Congress'
goal was to open employment opportunities for minorities, especially blacks.
It would thus be inconsistent with the legislative purpose tointerpret
Title VII to prohibit private voluntary race conscious affirmative action
programs designed to correct racial imbalances.
The Court found the Kaiser-USWA affirmative action plan to be permissible
in that the plan:
- was designed to break down old patterns of racial segregation and
- did not unnecessarily trammel the interests of white employees, and
- was a temporary measure and it was not intended to maintain racial
balance, but simply to eliminate a manifest racial imbalance.
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