Recent Developments in the Analysis of Employment Practices

The recent “reverse”¹ discrimination decisions by the Supreme Court involving the admissions decision-making policies at the University of Michigan² illustrate the underlying need for private and public entities to justify the need to reach or maintain diversity within an organization. Clearly, the equality of the decision-making methodology and criteria used to obtain and maintain diversity was an issue, but perhaps more pressing was the question of whether such programs were necessary. The issue of parity is at the very center of these cases. If the normal admissions process would have resulted in obtaining the predicted number of minority admissions then there may no longer be a need for such programs. While the university cases have been most publicized recently, matters involving affirmative action plans and governmental programs to enhance diversity (such as minority contractor set-asides) face similar questions of parity.