Eric S. Dreiband1
Benjamin P. Constine
National Conference on Equal Employment Opportunity Law
This paper describes the federal law standards that govern the use of race and other protected traits in voluntary affirmative action plans under Title VII of the Civil Rights Act of 1964. In particular, this paper describes the provisions of Title VII that prohibit and otherwise regulate the use of race, sex, and other protected traits in the workplace, regulations about employer affirmative action plans issued by the U.S. Equal Employment Opportunity Commission ("EEOC"), and decisions by the Supreme Court of the United States and other federal courts about the use by employers of race and sex as part of voluntary affirmative action programs.
There are certain conclusions about the use of race and sex that follow from Title VII's text, structure, and history. First, Title VII generally prohibits the use of race, sex, and other protected traits in employment. Second, Title VII's text expressly permits the use of otherwise protected traits in certain limited circumstances, such as those involving Native Peoples, namely, what Title VII describes as "preferential treatment to Indians." Third, Title VII does not require any form of preferential treatment. Fourth, the Supreme Court has interpreted Title VII to permit employers to consider race and sex in limited circumstances as part of remedial and voluntary affirmative action plans. In such limited circumstances,...
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