Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis

Notes

247 Notes Q Chapter 1. Introduction 1. In this book “discrimination” means invidious (i.e., unfair or unjust) treatment of people. “Societal (systemic) discrimination” means societally rooted invidious treatment of people on account of group membership or affiliation. “Protected group” means the racial and ethnic (national origin/ancestral) and gender groups covered by antidiscrimination laws and regulations. “Minorities” are the racial and ethnic groups so covered. “Affirmative action” means the general policy for treating societal discrimination. There are many specific policies for implementing this general policy. 2. Disparate treatment of individuals remains a legitimate topic, but, in our view, a relatively noncontroversial antidiscrimination target, and we have accordingly paid little attention to it. 3. For analysis of compensation theory, see page 53. 4. Title VII of the 1964 Civil Rights Act, Pub L 88–352, 78 Stat 241, codified, as amended, at 42 USC § 2000e et seq (2000). 5. Congressional Research Service, The Library of Congress, American Law Division , Compilation and Overview of Federal Laws and Regulations Establishing Affirmative Action Goals or Other Preferences Based on Race, Gender, or Ethnicity: A Report to Senator Robert Dole at 5–32 (February 17, 1995). The material in this report has been rearranged, and the abbreviation U.S.C.S. therein has been changed to read USC. 6. Affirmative Action Review: Report to the President 40–42, 55–63 (July 19, 1995) submitted by George Stephanopoulos, Senior Adviser to the President and Christopher Edley Jr., Special Counsel to the President. 7. 42 USC § 2000e et seq. 8. 29 CFR Part 1608. The guidelines state the EEOC’s position that when employers voluntarily undertake in good faith to remedy past discrimination by race or gender-conscious affirmative action means, the agency will not find them liable for reverse discrimination. 9. 42 USC § 2000e–16(b). 10. 42 USC § 2000e–16(b)( l). 11. 5 USC § 7201. 12. 5 CFR § 720.205(b) (1991). 13. 15 USC § 636(j)(15). 14. 10 USC [§] 2323. 15. See Surface Transportation Assistance Act of 1982, Pub. L. 97–424, 96 Stat. 2100 (January 6, 1983); superseded by Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub L 100–17, 101 Stat 132 (STURAA); Intermodal Surface Transportation Efficiency Act of 1991. 16. 15 USC § 644(g); Federal Acquisition Regulation, 8 CFR § 52.219–8. 17. “Small” varies with the industry, but the maximum number of employees varies between 500 and 1,500. See Federal Acquisition Regulations (FAR) Part 19.102. The DOD wealth test is personal assets not more than $750,000, excluding business assets and personal residence. 18. 49 CFR part 23; 48 CFR § 52.219–8. 19. Sources for this section from The New York Times, natl ed are Steven Holmes, Administration Cuts Affirmative Action While Defending It, A17 (May 6, 1997); John M. Broder, U.S. Readies Rules over Preferences Aiding Minorities, A1, A13 (May 6, 1997); Steven Holmes, Broadcasters Vow to Keep Affirmative Action, A12 (July 30, 1998); Neil Lewis, F.C.C. Revises Rule on Hiring of Women and Minorities, A6 (January 21, 2000). Other sources are Jonathan Peterson, Clinton to Unveil New Approach to Job Preferences, The Los Angeles Times, A1, A15 (June 24, 1998); The White House, Office of the Press Secretary, Procurement Reform: SDB Certification and the Price Evaluation Adjustment Program, 1ff (June 24, 1998). 20. 515 U.S. 200. 21. Published Papers and Addresses of President William J. Clinton, Remarks on Affirmative Action, July 19, 1995 at 1113 (U.S. Government Printing Office, 1995). 22. In 1994, two scholars reported that in the largest of the SDB programs— Section 8(a)—99% of the benefits went to businesses owned by people of color. George R. La Noue and John C. Sullivan, Presumptions for Preferences, 4 J of Policy History 439, 463 (1994). Chapter Two. The Roots of Affirmative Action, the Women’s Movement, and the Groups Covered by Affirmative Action 1. See chs 3, 4, 5, 6 in this volume. 2. See Herman Belz, Equality Transformed 12–13 (Transaction, 1991) to this effect. 3. Eric Foner, Reconstruction 67 (Perennial/Harper, 1988) (emphasis added). 4. During the final phase of the War, and for two years after it ended, federal policy for relations with the South was controlled by Johnson’s so-called “Presidential Reconstruction” program. See Eric McKittrick, Andrew Johnson and Reconstruction (U of Chicago Press, 1960); Herman Belz, A New Birth...