Preferential Remedies for Employment Discrimination

A basic thesis of this article is that much of the current concern about alleged “reverse discrimination” in employment ignores the reality of the situation. In Part I it will be contended that although color blindness is a laudable long-run objective, it alone will not end discrimination; thus, it will be argued that some form of “color conscious” affirmative action must be employed in order to achieve equal employment opportunity for minorities and women. The most effective form of affirmative action is temporary preferential treatment, and it will be asserted in Part II that such relief can be justified under the Constitution. Similarly, in Part m, it will be argued that preferential remedies can be justified under present statutory provisions governing employment discrimination. Finally, in Part IV, two conclusions will be drawn: first, that while it is accurate to suggest that some minority persons or women who currently benefit from preferential remedies might not have been hired but for their race or sex, this does not mean that these individuals are not qualified, and second, that the opponents of preferential remedies have grossly exaggerated the impact of such remedies by failing to recognize that, in reality, the cases in which preferential remedies have been ordered have generally involved small numbers of positions and have imposed the remedy for relatively short periods of time.

Before proceeding, however, it is necessary to point out that this article will take a broad approach, sometimes sacrificing specificity in an attempt to provide an overview to the problem of preferential remedies. It is hoped that this overview will demonstrate that the true value of the preferential remedy is in raising the consciousness of the community and encouraging voluntary affirmative action programs that will, by putting people together in the workplace, teach that all are equal.