The Frontier of Affirmative Action: Employment Preferences and Diversity in the Private Workplace

TLDR: The authors analyzes the history and precedent surrounding race-based preferences in the public sector, public employment and private employment arenas and proposes three key components that any preference plan promulgated under the Diversity Spotlight Rationale must contain to have a chance before the current Supreme Court.

Abstract: The Supreme Court has decided only a dozen prominent cases on the topic of affirmative action. The impact of each decision, however, has profoundly shaped public policy and societal expectations. Few topics generate such passion and controversy within academia, business, government, the legal profession and the social sciences – not to mention among the citizenry and the press. The paper demonstrates that the affirmative action of our parents will not be the affirmative action of our children. What is significantly different today is that the justification for preference plans has changed drastically from backwardlooking to forward-looking. The Remedial Rationale – justifying preferences based on past wrongs – is fading into history and the Diversity Spotlight Rationale – justifying preferences to attain diversity solely for the sake of diversity – is emerging as the new frontier. In the private workplace arena, prominent businesses now claim an interest in fostering diversity within their ranks to better compete, market and think in an ever-globalizing economy. Diversity Spotlight Rationale-based arguments such as these butt heads with the express language and anti-discriminatory thrust of Title VII but might be in line with decades-old Supreme Court opinions. This article analyzes the history and precedent surrounding race-based preferences in the public sector, public employment and private employment arenas. It then delves into the foundation of the Diversity Spotlight Rationale and proposes three key components that any preference plan promulgated under the DSR must contain to have a chance before the current Supreme Court. Finally, this paper predicts that the Roberts Court – even with the confirmation of Sonia Sotomayer – will side with a strict statutory interpretation of Title VII and strike down a voluntary, forwardlooking, diversity-based workplace affirmative action plan. This prediction is based on Justice Kennedy’s general anti-affirmative action stance, a conservative-learning Court and the written positions staked out by Justices Thomas, Scalia, Alito, Roberts and Kennedy. THE FRONTIER OF AFFIRMATIVE ACTION: EMPLOYMENT PREFERENCES & DIVERSITY IN THE PRIVATE