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Publication Date

2009

Abstract

This Article criticizes the Supreme Court's requirement, under Title VII of the 1964 Civil Rights Act, that a voluntary affirmative action plan must seek to eliminate "a manifest imbalance in traditionally segregated job categories." Although supposedly advancing the goals of Title VII, the manifest imbalance requirement interferes with achieving those goals. It prevents civically conscientious employers from instituting affirmative action, while it does nothing to promote the values of equal employment opportunity, meritocracy, or fairness to non minority workers. For example, in Schurr v. Resorts International Hotel, Inc., 196 F.3d 486 (3d Cir. 1998), a hotel in Atlantic City adopted a race-conscious affirmative action plan to combat minority unemployment in a city afflicted with urban blight. The Third Circuit,applying the manifest imbalance requirement, invalidated the plan because the hotel could not show a history of discrimination in the casino industry. The hotel had to dismantle the plan because of a casino-like game of chance that bore no relation to the needs of the minority community. The Article concludes that the law should abandon the manifest imbalance requirement and encourage voluntary affirmative action plans as long as they adequately protect the rights of non minority workers. Only when minority underemployment is eliminated nationwide should affirmative action end.

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