Affirmative Action Constitutional standard Public employers Public coercion of private employers action) Statutory standard Public and private employers Judicial enforcement Explicit statutory approval of affirmative action for Native Americans Affirmative Action Standards Constitutional Standards Prohibited Strict scrutiny (Adarand) Intermediate Level (Important purpose) Morton v. Mancari – Rational Basis Permitted Statutory Standards Prohibited Egregious Discrimination (Sheet Metal Workers) – BFOQ (not race) Manifest Imbalance (Weber) Legitimate non-discriminatory reason Permitted Adarand Construction v. Pena All racial classifications by government will be subject to strict scrutiny under the Constitution and will thus survive only if they are narrowly tailored to serve a compelling governmental interest is the exception to this . . . Nation Americans have a more lenient standard Mancari (1974) Morton v. Mancari Indians have preference for employment/promotion with the Bureau of Indian Affairs and non-Indian employees challenge this preference under Equal Employment Opportunity Act of 1972 and Due Process Clause Indian Reorganization Act of 1934 provides preference to Indians Statutory Question Whether Indian preference under the IRA, was repealed by Title sub silentio, VII and EEOA A found that Congress did not intend to repeal the Indian preference – Constitutional Question Whether the Due Process Clause of the 5th Amendment protects the A Indians are a tribal group and non-Indians in the Bureau of – Indian Affairs interferes with their ability to govern themselves Court applies a lower standard than strict scrutiny, Indians got more deference
Affirmative Action Constitutional standard Public employers Public coercion of private employers action) Statutory standard Public and private employers Judicial enforcement Explicit statutory approval of affirmative action for Native Americans Affirmative Action Standards Constitutional Standards Prohibited Strict scrutiny (Adarand) Intermediate Level – Morton v. Mancari (Important purpose) Rational Basis Permitted Statutory Standards Prohibited Egregious Discrimination – (Sheet Metal Workers) BFOQ (not race) Manifest Imbalance (Weber) Legitimate non-discriminatory reason Permitted Adarand Construction v. Pena All racial classifications by government will be subject to strict scrutiny under the Constitution and will thus survive only if they are narrowly tailored to serve a compelling governmental interest Mancari is the exception to this . . . Nation Americans have a more lenient standard Morton v. Mancari (1974) Indians have preference for employment/promotion with the Bureau of Indian Affairs and non-Indian employees challenge this preference under Equal Employment Opportunity Act of 1972 and Due Process Clause Indian Reorganization Act of 1934 provides preference to Indians Statutory Question Whether Indian preference under the IRA, sub silentio, was repealed by Title VII and EEOA A – found that Congress did not intend to repeal the Indian preference Constitutional Question Whether the Due Process Clause of the 5th Amendment protects the A – Indians are a tribal group and non-Indians in the Bureau of Indian Affairs interferes with their ability to govern themselves Court applies a lower standard than strict scrutiny, Indians got more deference
Employment-Discrimination-Berry-MS.docx