Document Type

Article

Publication Date

1976

Abstract

Title VII of the Civil Rights Act of 1964 was adopted in an atmosphere of monumental naivete. Congress apparently believed that equal employment opportunity could be achieved simply by forbidding employers or unions to "discriminate" on the basis of "race, color, religion, sex, or national origin," and expressly disavowed any intention to require "preferential treatment." Perhaps animated by the Supreme Court's stirring desegregation decisions of the 1950's, the proponents of civil rights legislation made "color-blindness" the rallying cry of the hour. Today we know better. The dreary statistics, so familiar to anyone who works in this field, tell the story. Others have provided exhaustive surveys of the figures, and I shall not review them at any length. It is enough to observe that after a decade of federally enforced nondiscrimination in employment, minorities are still twice as likely as whites not to have jobs. The median family income of blacks as compared with that of whites has improved negligibly, from 54 percent in 1964 to 58 percent in the mid-70's. Minorities continue to occupy a disproportionately low percentage of the more attractive positions. The employment situation of women in relation to white males is similarly bleak. If we are to secure genuine equality of opportunity for the races and the sexes in the job market within the foreseeable future, something more is plainly needed than the mere prohibition of positive acts of discrimination and the substitution of a policy of passive neutrality. "Affirmative action" of the sort that has been ordered by the federal courts and federal agencies has held out the greatest promise of success and, at the same time, has aroused the fiercest opposition. This article will focus upon the nature and the legality of this potent but controversial weapon against discrimination.