Wheel of Fortune: A Critique of the "Manifest Imbalance" Requirement for Race-Conscious Affirmative Action Under Title VII

Kenneth R. Davis, Fordham University

Abstract

The Article criticizes the Supreme Court's requirement that a voluntary affirmative action plan must seek to eliminate "a manifest imbalance in traditionally segregated job categories." Although supposedly advancing the goals of Title VII, the manifest imbalance requirement interferes with achieving those goals. It prevents civically conscientious employers from instituting affirmative action, while it does nothing to promote the values of equal employment opportunity, meritocracy, or fairness to nonminority workers. For example, in Schurr v. Resorts International Hotel, Inc., 196 F.3d 486 (3d Cir. 1998), the hotel, located in Atlantic City, adopted a race-conscious affirmative action plan to combat minority unemployment in a city afflicted with urban blight. Despite the needs of Atlantic City’s beleaguered minority population, the Third Circuit invalidated the plan because the hotel could not show a history of discrimination in the casino industry. The manifest imbalance test operated like a wheel of fortune costing minority workers jobs. The Article concludes that the law should abandon the manifest imbalance requirement and encourage voluntary affirmative action plans as long as they adequately protect the rights of nonminority workers. Only when minority underemployment is eliminated nationwide should affirmative action end.