United States: Title VII Of The Civil Rights Act Of 1964 And Affirmative Action

Eric S. Dreiband¹

Benjamin P. Constine

National Conference on Equal Employment Opportunity Law

I. Introduction

This paper describes the federal law standards that govern the use of race and other protected traits in voluntary affirmative action plans under Title VII of the Civil Rights Act of 1964. In particular, this paper describes the provisions of Title VII that prohibit and otherwise regulate the use of race, sex, and other protected traits in the workplace, regulations about employer affirmative action plans issued by the U.S. Equal Employment Opportunity Commission ("EEOC"), and decisions by the Supreme Court of the United States and other federal courts about the use by employers of race and sex as part of voluntary affirmative action programs.

There are certain conclusions about the use of race and sex that follow from Title VII's text, structure, and history. First, Title VII generally prohibits the use of race, sex, and other protected traits in employment. Second, Title VII's text expressly permits the use of otherwise protected traits in certain limited circumstances, such as those involving Native Peoples, namely, what Title VII describes as "preferential treatment to Indians." Third, Title VII does not require any form of preferential treatment. Fourth, the Supreme Court has interpreted Title VII to permit employers to consider race and sex in limited circumstances as part of remedial and voluntary affirmative action plans. In such limited circumstances, employers may temporarily seek to remedy prior discrimination, segregated workforces, or a manifest imbalance in their workforce to attain a more balanced workforce. Employers may not, however, use race, sex, and other protected traits to maintain a balanced workforce, and they may not utilize quotas or engage in racial balancing. Fifth, Title VII prohibits race-based action unless an employer has—and can demonstrate—a strong basis in evidence that, had it not acted, it would have been liable under Title VII's disparate-impact prohibitions. Finally, the Supreme Court has not decided whether Title VII permits employers to use race, sex, or other protected traits as part of a nonremedial² affirmative action or diversity program. Several U.S. Courts of Appeals and district courts have determined that Title VII does not permit an employer with a racially balanced workforce to grant a nonremedial racial preference in order to promote racial diversity.

Because the Supreme Court has not considered whether Title VII permits nonremedial affirmative action plans, this paper also describes the Supreme Court cases involving the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Title VI of the Civil Rights Act of 1964, and the use of race in university admissions programs and by public schools. The Court has recognized that colleges and universities can consider race as part of a nonremedial and "holistic" approach to admissions under certain, narrow circumstances. However, the Court has made clear that the Fourteenth Amendment and Title VI prohibit racial balancing and racial quotas, and that any use of race must be limited in time.

Challenges to the admissions processes at Harvard College and the University of North Carolina are pending before the Supreme Court currently, and whatever the Court does with those cases may impact or, at a minimum, inform how both the Supreme Court and other federal courts will treat nonremedial employer diversity programs. The Court scheduled oral argument for October 31, 2022, and the Court will likely issue decisions in the Harvard and North Carolina cases in or around June 2023.

This paper proceeds chronologically. Part II of the paper begins with the enactment of Title VII in 1964 and describes the statutory text that regulates affirmative action in employment. Part III describes regulations about affirmative action that the EEOC adopted and two seminal Title VII Supreme Court cases about affirmative action. Part IV describes federal court decisions that considered Title VII challenges to affirmative action plans after the Supreme Court established the standards that apply to such plans. Part V discusses Supreme Court decisions about the use of race in college and university admissions and by public schools and the adoption of the "strong basis in evidence" standard for the use of race by employers.

II. 1964 – Congress Enacts Title VII

Congress passed the Civil Rights Act of 1964 in order to eliminate race and other forms of discrimination in voting, public accommodations, employment, education, and other areas. Title VII of the Civil Rights Act prohibits employment discrimination because of an individual's "race, color, religion, sex, or national origin."³ It also states that an employer shall not "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."⁴

Title VII also prohibits the discriminatory use of test scores. Specifically, an employer may not "in connection with the selection or referral of applicants or candidates for employment or promotion, . . . adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin."⁵

Additionally, Title VII has specific language about the "preferential treatment" of workers. Section 703(j) is titled "Preferential treatment not to be granted on account of existing number or percentage imbalance." It provides that no employer is required to "grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group" on account of any workforce imbalance of the number of people employed in that protected class.⁶

In fact, the only text that expressly grants employers the ability to provide preferential treatment, relates only to Native People (described as "Indians" under the Act):

Another provision of Title VII also addresses potential preferential treatment. Section 704(b) prohibits "any notice or advertisement relating to employment . . . indicating any preference. . . or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference . . . or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.⁸

Finally, Section 712 does not "repeal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans."⁹

To view the full article, click here.

Footnotes

1. Eric S. Dreiband is a partner in the Washington, D.C. office of Jones Day. Benjamin P. Constine is an associate in the Washington, D.C. office of Jones Day. Kristin M. Simonet, an associate in the Minneapolis office of Jones Day, also contributed to the writing of this paper.

2. A "nonremedial" affirmative action or diversity program is one that does not attempt to remedy prior discrimination, or manifest imbalance in traditionally segregated job categories, and instead purports to promote diversity by considering traits such as race and sex. See, e.g., Regents of Univ. of California v. Bakke, 438 U.S. 265, 305 (1978) (Powell, J.); Grutter v. Bollinger, 539 U.S. 306, 328 (2003) (explaining that there are other permissible uses of race besides "remedying past discrimination"); see also Johnson v. Transp. Agency, Santa Clara Cnty., 480 U.S. 616, 640–41 (1987); United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 208 (1979).

3. 42 U.S.C. § 2000e-2(a).

4. Id.

5. 42 U.S.C. § 2000e-2(l).

6. 42 U.S.C. § 2000e-2(j).

7. 42 U.S.C. § 2000e-2(i).

8. 42 U.S.C. § 2000e-3(b). Title VII also provides that "it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor- management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise[.]" 42 U.S.C. § 2000e-2(e). This "bona fide occupational qualification" defense does not extend to race or color discrimination.

9. 42 U.S.C. § 2000e-11.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.