Employment Discrimination

"Racial and ethnic distinctions of any sort are inherently suspect and thus call for the the most exacting judicial examination. There are two prongs to this examination. First, any racial classification must be justified by a compelling governmental interest. Second, the means chosen by the State to effectuate its purpose must be "narrowly tailored to achievement of that goal." The level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination."1 Thus, whites are protected against governmental racial discrimination under the same standards as black and ethics minorities. However, governments do have compelling reasons to remedy past illegal treatment of racial or ethnic groups. The remedy necessary will involve consciousness of race. To this degree the Constitution is not "color blind." However, a public employer may not simply assume from the "under-representation" of minorities that there has been illegal conduct on the part of the governmental employer against those minorities. There needs to be a finding of illegality form a responsible governmental authority.2 Furthermore, the method selected to remedy the effects of past illegal conduct can go no further than is necessary to remedy those effects. Thus, a racial classification may not be used to insure or maintain a racial balance. It must be temporary, in that it will be abandoned at the point that the illegal conduct has been remedied. The method or plan utilized must be the least intrusive alternative. It must not unduly trammel the rights of individuals in other racial or ethnic groups by requiring their discharge or precluding them from employment.

If you are not sure whether you have been discriminated against, please call our New York offices at (212)564-1589 to speak with an attorney. www.lawschell.com

1. Wygant v. Jackson  Bd. of Education, _U.S. _ 106 S. Ct. 1842, 90 L.ED. 2d  260 (1986)

2. Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978)