Kentucky Law Journal, Vol. 92, No. 1 (2003-2004), pp. 263-278


The Supreme Court's decision last term in Grutter v. Bollinger answered important questions about the affirmative use of race in the educational context. I have been asked by the editors of the Kentucky Law Journal to explore the impact the decision is like to have on affirmative action in a different context--employment. Simply put, to what extent does Grutter affect a public or private employer's ability to voluntarily adopt an affirmative action plan in order to diversify its workplace? The short answer, of course, is that the Grutter decision does not directly apply to the affirmative use of race or other protected characteristics in the workplace. The Court was careful to limit its discussion to the question before it, specifically, "[w]hether diversity [was] a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities." The Court pointedly stated that "[c]ontext matters" when deciding whether race-based classifications were constitutional. Whether it would consider racial diversity a compelling enough reason to justify race conscious decision-making in other contexts, including employment, was left for another day. Nonetheless, I believe the decision will be front and center, as it should be, in discussions about affirmative action in the workplace. The affirmative use of race in employment is one of this country's most contentious issues, and while the Court has addressed affirmative action as a remedy for prior discrimination, it has not addressed the extent to which an employer may base decisions on the desire to obtain or maintain a racially diverse workforce. However, the Grutter Court's acceptance of diversity as a compelling state interest in the educational context suggests it may be receptive to that argument in the workplace as well. Complicating matters is the extent to which a constitutional analysis of diversity in the workplace may vary from a statutory one. This essay will not attempt a normative discussion concerning the affirmative use of race by employers. Rather, I hope to provide an overview of some of the legal issues that distinguish affirmative action in the employment context from affirmative action in the educational context, with a particular look at Title VII of the Civil Rights Act of 1964 and with a particular focus on diversity as a justification for workplace affirmative action.