Document Type
Article
Publication Title
West Virginia Law Review
Abstract
I argue in Part II that affirmative action was understood by the Court in Weber and Johnson to be remedial in nature: It was aimed at remedying an imbalance caused by race or gender discrimination in labor markets. I show in Part III that the diversity rationale that dominates corporate affirmative-action advocacy today does not appear to be remedial in this sense. Its benchmark is the global marketplace—not the local labor market. Part III closely examines opinions by Justice Sandra Day O’Connor (the author of Grutter v. Bollinger) and concludes that it is not safe to read Grutter as an endorsement by Justice O’Connor of this corporate diversity rationale. Part III then turns to Justice Anthony Kennedy (the key swing vote on the current Court) and concludes that he would oppose an extension of Weber and Johnson to diversity-based corporate affirmative action. Part IV goes beyond the particulars of the jurisprudence of Justices O’Connor and Kennedy to review the way the current Court would likely view both remedial and diversity-based affirmative action under Title VII. After considering some mitigating factors, Part V concludes that even if remedial affirmative action were to survive through the operation of stare decisis, the Court’s discomfort with it will likely lead the Court to reject the extension of Weber and Johnson to diversity-based affirmative action.
First Page
1
Volume
118
Publication Date
2015
Recommended Citation
Malamud, Deborah, "The Strange Persistence of Affirmative Action Under Title VII" (2015). Faculty Articles. 753.
https://gretchen.law.nyu.edu/fac-articles/753
