Reverse Discrimination and Remedial Affirmative Action in Employment

Abstract

Public sector employers are governed by two standards in the design and application of voluntary remedial affirmative action plans: Title VII of the Civil Rights Act of 1964 (as amended) and the equal protection provisions of the Constitution. Since these plans are subject to challenge under reverse discrimination claims, they must be carefully designed to avoid vulnerability to such charges under either a statutory or constitutional claim. However, the Supreme Court has interpreted the legal acceptability of voluntary affirmative action differently under the statute than under the Constitution. Title VII allows a more permissive standard than does the 14th or 5th amendments. An analysis and comparison of Court rulings under both standards illustrate these differences. To avoid successful challenge of a voluntary remedial plan, a public employer must abide by the more conservative criteria of the Constitution. In so doing, some kinds of remedial action available to those in the private sector is barred to their public sector counterparts. Further Court rulings may clarify these apparent differences.