Which Actions Are Legal?

It seemed easy in theory: getting a majority of Supreme Court Justices to sign a single opinion clarifying the rules for combatting discrimination. But from 1979 until the Johnson decision last week, that goal eluded a deeply divided high court, which had stitched together majorities through a patchwork quilt of separate opinions that raised as many questions as they answered. Which forms of affirmative action are legal? When are they mandatory? Are quotas ever permissible? Required? Even though the Supreme Court will continue to refine the boundaries of affirmative action through a case-by-case approach, the Johnson decision has helped clear up the role that various remedies can play.

Voluntary affirmative action. According to last week's ruling, companies and agencies have the option of adopting voluntary programs to hire and promote qualified minorities and women to correct a "manifest imbalance" in their representation in various job categories, even when there is no evidence of past discrimination. Decisions should not be made exclusively on the basis of race or sex, explains Assistant Professor Kathleen Sullivan of the Harvard Law School. However, these factors can now be legally weighed in the balance, says Sullivan, "with a thumb on the scale."

Mandatory affirmative action. The federal courts have imposed involuntary plans in some cases where there is strong evidence of previous discrimination against women, blacks and other minorities and employers have persistently refused to correct it. Evidence of minority employment is also required, under Executive Orders, for federal contractors.

Quotas. The Supreme Court last year upheld a rigid court-imposed numerical quota for the employment of blacks and Hispanics in a case where a sheet-metal union's resistance to integration had been marked by "foot-dragging egregious noncompliance." Quota plans, however, remain legally questionable in most cases.

Layoffs. White males appear to enjoy greater legal protection in job-loss situations than in affirmative-action cases covering hiring and promotion. Last year the high court rejected a Jackson, Mich., plan that laid off white teachers while retaining black teachers with less seniority. The plan, said the court, violated the equal-protection clause of the Constitution.

The tangle of case law in these areas reflects the complicated trade-offs and choices posed by affirmative action. But flexibility, rather than rigid standards, remains the Supreme Court's guiding principle as it struggles to codify equality in employment.