Are affirmative action plans legal?

An Affirmative Action Plan ("AAP") sets standards for the recruiting, hiring and promotion of women and minorities (to eliminate the present effects of past employment discrimination).

The Federal Government, and some states and localities have such plans. Other states and localities (such as California and Houston, Texas) have passed referenda making it illegal for the state and local government to make classifications on the basis of race.

The appropriateness of Federal and State affirmative action efforts as attempts to remedy past discrimination is a current matter of significant legal debate and political controversy. As what promised to be a landmark case that the United States Supreme Court had agreed to decide, involving a New Jersey teacher who was white and who was dismissed in favor of a minority teacher, has just been settled, so a definitive answer may be years away.

In the private sector, an employer’s voluntary AAP to remedy racial or gender imbalances in what had been segregated job categories is probably lawful and would not be deemed to be discriminatory, although specific advice from an experienced attorney based on the unique factual pattern would be advisable.