This report discusses current constitutional and statutory requirements related to affirmative action in employment. Seeds of the legal controversy regarding affirmative action may be traced to the early 1960s as first the Warren and then the Burger Court grappled with the seemingly intractable problem of racial segregation in the nation's public schools. Judicial rulings from this period recognized an "affirmative duty," cast upon local school boards by the Equal Protection Clause, to desegregate formerly "dual school" systems and to eliminate "root and branch" the last "vestiges" of state-enforced segregation. In the employment context, the Court has similarly upheld the constitutionality of affirmative action plans adopted by or imposed upon governmental entities with a history of past discrimination. Meanwhile, Congress and the Executive followed the Court's lead by approving a panoply of laws and regulations which authorize, either directly or by judicial or administrative interpretation, "race-conscious" strategies to promote minority opportunity in jobs, education, and governmental contracting. The basic statutory framework for affirmative action in employment derives from Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, national origin, religion, or sex. The Title VII remedial scheme rests largely on judicial power to order monetary damages and injunctive relief, including "such affirmative action as may be appropriate," to make discrimination victims whole. Except as may be imposed by order of a court to remedy "egregious" violations of law, however, or by consent decree to settle pending claims, there is no general statutory obligation on employers to adopt affirmative action plans. However, the Equal Employment Opportunity Commission (EEOC) has issued guidelines to protect employers and unions from charges of "reverse discrimination" when they voluntarily take actions to eliminate the effects of past discrimination. In addition, federal departments and agencies are required to periodically formulate affirmative action plans for their employees and a "minority recruitment program" to correct minority "underrepresentation" in specific federal job categories. The historical model for federal laws and regulations establishing minority participation "goals" may be found in Executive Orders which since the early 1960s have imposed affirmative minority hiring and employment requirements on federally financed construction projects and in connection with other large federal contracts. Executive Order 11246, as currently administered by the Office of Federal Contract Compliance Programs, requires that all employers with 50 or more employees and federal contracts in excess of $50,000 file written affirmative action plans with the government. These must include minority and female hiring goals and timetables to which the contractor must commit its "good faith" efforts. Smaller contractors are bound by the nondiscrimination requirements of the Executive Order, but are not required to maintain formal written programs. Judicial decisions early on upheld the executive order program as a constitutionally valid governmental response to racial segregation in the construction trades and affected industries. By the mid-1980s, the Supreme Court had approved the temporary remedial use of race- or gender-conscious selection criteria by private employers under Title VII. These measures were deemed a proper remedy for "manifest racial imbalance" in "traditionally segregated" job categories, if voluntarily adopted by the employer, or for entrenched patterns of "egregious and longstanding" discrimination by the employer, if imposed by judicial decree. In either circumstance, however, the Court required proof of remedial justification rooted in the employer's own past discrimination and its persistent workplace effects. Thus, a "firm basis" in evidence, as revealed by a "manifest imbalance"—or "historic," "persistent," and "egregious" underrepresentation—of minorities or women in affected job categories was deemed an essential predicate to preferential affirmative action. Of equal importance, all racial preferences in employment were to be judged in terms of their adverse impact on "identifiable" non-minority group members. But the consideration of race or gender as a "plus" factor in employment decisions, when it did not unduly hinder or "trammel" the "legitimate expectations" of non-minority employees, won ready judicial acceptance. Affirmative action preferences, however, had to be sufficiently flexible, temporary in duration, and "narrowly tailored" to avoid becoming rigid "quotas." Judicial precedents on affirmative action in employment have developed along two concurrent but not necessarily coterminous lines. One line of authority delineates the permissible scope of affirmative action imposed by judicial decree to remedy proven violations of Title VII or the Constitution. The other involves the validity of voluntary affirmative action plans by public and private employers. Several basic principles emerge from the case law. First, a fundamental prerequisite to the adoption of minority goals or preferences is a remedial justification rooted in the employer's own past discrimination and its persistent workplace effects. Stricter probative standards mandated by the Constitution may bind public employers in this regard than apply to private employers under Title VII. Basically, a "firm basis" in evidence—as revealed by a "manifest imbalance," or "persistent" and "egregious" disparities in the employment of minorities or women in affected job categories—has been viewed by the courts as an essential predicate for affirmative action preferences. Secondly, beyond a record of past discrimination by the employer, all affirmative action plans are judged in terms of the burden they place on identifiable non-minorities. Thus, remedies that immediately result in the displacement of more senior white male employees—like promotion preferences or minority group protections against layoff—are most suspect and least likely to pass legal or constitutional muster. At the other end of the spectrum, hiring or recruitment goals or preferences that do not "unnecessarily trammel" the "legitimate expectations" for advancement of non-minority candidates are more likely to win judicial acceptance. Finally, all "race-conscious" affirmative action remedies must be sufficiently flexible, temporary in duration, and "narrowly tailored" so as to avoid becoming rigid "quotas." Even before the Supreme Court had spoken, every federal circuit court of appeals, in cases dating back to the very inception of the 1964 Civil Rights Act, had approved use of race or gender preferences to remedy "historic," "egregious," or "longstanding" discrimination. This line of judicial authority was ratified by the Court's rulings in Local 28, Sheetmetal Workers v. EEOC and United States v. Paradise . The former involved contempt proceedings against a union with an established history of racial and ethnic discrimination for its willful violation of a judicially imposed 29% minority membership goal. To remedy years of union evasion, amounting to contempt of court, the Second Circuit had approved an order reinstating the minority membership goal and requiring that job referrals be made on the basis of one apprentice for every four journeyman. The Supreme Court affirmed, five to four. In the opinion, a plurality of four Justices held that Title VII does not preclude race-conscious affirmative action as a "last resort" for cases of "persistent or egregious" discrimination, or to dissipate the "lingering effects of pervasive discrimination," but that, in most cases, only "make whole" relief—in the form of back pay or specific hiring orders—for individual victims is required. The plurality also felt that by twice adjusting the union's deadline, and because of the district court's "otherwise flexible application of the membership goal," the remedy had been enforced as a "benchmark" of the union's compliance "rather than as a strict racial quota." Rounding out the five-Justice majority was Justice Powell, who emphasized the history of "contemptuous racial discrimination" revealed by the record, and the temporary and flexible nature of the remedy. Meanwhile, one group of dissenting Justices found the referral quota excessive because economic conditions in the construction industry made compliance impracticable, while the other dissenters read Title VII to bar all judicially-ordered race-conscious relief for the benefit of non-victims. A parallel situation was presented by Paradise . In 1972, to remedy nearly four decades of systematic exclusion of blacks from the ranks of the Alabama State troopers, the district court ordered a hiring quota and enjoined the state from discriminating in regard to promotions. Seven years later, a series of consent decrees calling for new nondiscriminatory promotion procedures was approved to rectify the total dearth of black troopers in the upper ranks. In the interim, however, the court ordered a one-to-one racial quota for the rank of corporal and above, provided sufficient qualified blacks were available, until 25% of each rank was black. Only one round of promotions for corporal was made before the quota for that and the sergeant rank was suspended. The Supreme Court granted review of the order under the Equal Protection Clause. A plurality of four Justices considered several factors in determining whether the plan violated the equal protection rights of white troopers: the necessity of the relief and the efficacy of alternative remedies, the plan's flexibility and duration, the relationship between the plan's numerical goals and the relevant labor market, and the plan's impact on the rights of third parties. Significant was the fact that the order did not require the promotion of anyone and could be waived in the absence of qualified minority candidates, as it already had been with respect to lieutenant and captain positions. It was also tied to the percentage of minorities in the area workforce, 25%. Finally, because it did not bar white advancement, but merely postponed it, the plan did not impose unacceptable burdens on innocent third parties. The plurality opinion therefore concluded that the promotion quota was "narrowly tailored" and justified by the government's "compelling" interest in eradicating the state's "pervasive, systematic, and obstinate exclusion" of blacks and its history of resistance to the court's orders. Justice Stevens, who provided the fifth vote for the Court's judgment, stated in a separate opinion that the district court did not exceed the bounds of "reasonableness" in devising a remedy.