This Note analyzes the "manifest imbalance" standard developed in Weber and Johnson and the various approaches the lower courts have taken in trying to apply the test. Part I examines the Weber and Johnson opinions in some detail, and argues that the Court intended to permit affirmative action aimed at remedying the evident effects of past discrimination, regardless of whether the employer or society at large is to blame. Section I.A describes the diverging constitutional and statutory standards for evaluating voluntary affirmative action programs, and the policies behind the divergence. Sections I.B and I.C take a closer look at the opinions in Weber and Johnson and Section I.D concludes that the Court has developed a Title VII standard that permits affirmative action aimed at remedying the lingering effects of societal discrimination. Part II focuses on the specific statistical formulation prescribed by Johnson for determining the existence of a "manifest imbalance" in an employer's work force. It traces the components of the Johnson test back to their roots in earlier Title VII jurisprudence, in which the test was used to detect illegal discrimination by a particular employer. Part III considers how the Johnson "manifest imbalance" test has worked in practice. It describes the varying and sometimes conflicting approaches taken by the lower courts in searching for the appropriate statistical work force comparisons, and suggests that Johnson's two-track test forces courts to undertake hairsplitting analyses of job qualifications and labor pools without giving them the criteria by which to make the necessary assessments. Finally, Part IV argues that the distinctions between skilled and unskilled job categories drawn by Johnson's two-track statistical test are unnecessary and, in fact, undesirable. The Note concludes by proposing a unified standard by which an employer's work force would, in all cases, be compared to the local general labor market to determine whether the requisite "manifest imbalance" exists. This section argues that such a unified standard is designed to reveal the continued impact of past societal discrimination, rather than evaluate a particular employer's culpability, and is therefore more consistent with Title VII's broad allowance for voluntary remedial measures, emphasized by the Court in Johnson and Weber. The unified test would also enable courts to sidestep most of the vexing questions of work force and labor pool analysis now required by Johnson and presented in Part III.
David D. Meyer,
Finding a "Manifest Imbalance": The Case for a Unified Statistical Test for Voluntary Affirmative Action Under Title VII,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol87/iss7/7