The 1995 Supreme Court decision in Adarand Contractors, Inc. v. Peña, which seemed to strike a blow to the federal government’s affirmative action policy, did not deliver a fatal one, according to a recent Department of Justice memorandum.
In the Adarand decision, the Supreme Court ruled that employment and contracting preferences based upon race, ethnicity and gender are unconstitutional, unless it is possible to demonstrate that job and contracting discrimination is an ongoing problem. Past discrimination is no longer relevant. What matters, the court ruled, is what is happening now.
Released in response to the Adarand decision last February, the Justice Department’s memorandum says there remains a role for affirmative action in the federal employment and contracting arena, albeit a finer, more narrowly tailored one.
The new federal policy could be useful to counties that have, in the wake of the Adarand decision, begun re-examining their own affirmative action policies.
The guidelines, which interpret the court’s ruling, go a long way toward affirming efforts toward achieving a diversified work force without engaging in racial quotas.
According to the Justice Department, affirmative action policies must be altered to show there is ongoing discrimination in government employment and contracting that can be remedied through a tailor-made response.
For example, the prerequisite for affirmative action, which shows evidence of present discrimination, does not have to be complicated. Small numerical differences between what would be expected if there were no discrimination and what actually occurs is one example.
Anecdotal and documentary evidence which demonstrates that minorities and women are underrepresented is another. In these and similar situations, the Justice Department believes that the government’s compelling interest to remedy discrimination can be shown.
To narrowly tailor a response to race-based discrimination, the department recommends that:
• race neutral solutions be considered before those utilizing race or ethnicity
• the manner of using race or ethnicity in drawing conclusions on discrimination be used judiciously
• the proportion of minorities within a job category not be compared to the proportion in the labor force since the proportion of qualified applicants may be substantially fewer than the eligible population
• consideration be given to the scope of the program, and
• consideration be given to the duration of the program and the impact on non-minorities.
The Administration’s hope, however, that this memorandum would put the issue of affirmative action to rest may have been premature. A bill prohibiting any types of affirmative action is winding its way through the House and Senate.
The bill, introduced in the House by Representative Charles T. Canady (R-Fla.) as H.R. 2128 (the Equal Opportunity Act of 1995), and sponsored in the Senate by Majority Leader Robert Dole (R-Kan.) as S.1085, would prohibit the federal government from implementing any type of affirmative action policy and would outlaw preferential treatment on the basis of race, color, national origin, or sex with respect to federal employment, contracts and programs.
The Senate Labor and Human Resources Committee recently held hearings on the bill. However, immediate action is considered unlikely. The bill, however, is likely to be reintroduced in the next Congress, where it may receive a more considered review.