The Prevention Justification for Affirmative Action

Abstract

An impressive body of research shows that minorities and women are less likely to succeed in workplaces where they are present in token numbers. Discrimination is more likely to hold back blacks and women in workforces with a dramatic racial or gender imbalance. Thus, an employer seeking to prevent future discrimination in the workplace might use preferences to achieve a better racial or gender balance.

The Supreme Court has consistently explained that the primary purpose of Title VII is to encourage employers to prevent workplace discrimination. An affirmative action plan that used preferences to achieve a better racial or gender balance would be consistent with that purpose. More importantly, a close look at the Court's Title VII affirmative action jurisprudence reveals that this "prevention justification" is consistent with existing doctrine. The Article concludes with a detailed explanation of whether and how an affirmative action plan aimed at preventing future discrimination could satisfy existing Title VII doctrine.

Keywords: affirmative action