EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Affirmative Action

August 17, 2006

Dear Professor :

This is in response to your letter of August 2, 2000, 2006, regarding the application of Title VII of the Civil Rights Act of 1964 to the [College’s Minority Recruitment Plan]. Specifically, you have inquired whether Title VII prohibits the allocation of funds to academic departments that make a hire from one of five federally defined underrepresented groups. We are aware of no case addressing the specific facts that you have described, and the Commission is unable to assess the legality of particular employment practices outside the context of specific charges of discrimination and a complete investigation. Nevertheless, we can provide general information about the law governing affirmative action programs.

As you know, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Although race should seldom be taken into account in the hiring context, the Supreme Court has repeatedly held that Title VII does not prohibit all race-conscious actions taken voluntarily by employers. See, e.g., United Steelworkers of America v. Weber, 443 U.S. 193 (1979). In the Civil Rights Act of 1991, Pub.L. No. 102-166, Congress specified that nothing in the Act “shall be construed to affect….affirmative action, or conciliation agreements, that are in accordance with the law.” In short, the Court and Congress have concluded that affirmative action can be a useful tool to combat barriers to equal employment opportunity. The Commission consistently encourages employers to adopt proactive measures, or “best practices,” that address such barriers while ensuring fairness to all employees.

Courts typically apply a three-part test to evaluate voluntary affirmative action plans under Title VII. First, there must be a manifest imbalance in the relevant workforce. Second, the plan must be temporary, seeking to eradicate traditional patterns of segregation. Finally, the plan cannot “unnecessarily trammel the rights” of non-beneficiaries. See, e.g., Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616 (1987).

Voluntary affirmative action programs implemented by governmental entities may also be scrutinized under the Equal Protection Clause of the U.S. Constitution. Voluntary affirmative action is constitutional when it serves a compelling government interest and is narrowly tailored to achieve that goal. Two cases, in particular, offer insight on the Supreme Court’s views on affirmative action in the context of higher educational institutions. In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the Court held that protecting minorities from faculty layoffs was unconstitutional but noted that “[i]n cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose.” The Court has also noted the importance of diversity in higher education, at least with respect to students, holding that achieving a diverse student body is a “compelling interest” for higher educational institutions. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003).

We hope that this information has been helpful. If you have reason to believe that the program discriminated against you in violation of Title VII, you may file a charge with EEOC at its San Francisco District Office, 350 The Embarcadero, Suite 500, San Francisco, CA 94105, 514-625-5600. That office will explain to you the procedures to be followed.

Please note that this letter does not constitute an opinion or interpretation of the EEOC within the meaning of section 713(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b).

Sincerely,

Peggy R. Mastroianni
Associate Legal Counsel

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