Title VII Of The Civil Rights Act Of 1964 And Affirmative Action

• Jurisdiction: United States,Federal
• Law Firm: Jones Day
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Trials & Appeals & Compensation, Diversity, Equity & Inclusion
• Author: Mr Eric Dreiband and Ben Constine
• Published date: 10 May 2023

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...