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The Death Throes of Affirmative Action? - The Adarand and Kalanke Decisions
and Implications for Australia
Ian Ireland
Law and Public Administration Group
Contents
Major Issues
Introduction
Legal Implications of Adarand and Kalanke Decisions
for Australia
Other Implications
Arguments For and Against Equal Opportunity Programs
and Laws
Eckhard Kalanke v. Freie Hansestadt Bremen
Adarand Constructors, Inc. v. Pena
Endnotes
In 1995 both the United States Supreme Court and the European Court
of Justice delivered landmark rulings on affirmative action laws.
On 12 June 1995 the United States Supreme Court in Adarand Constructors,
Inc v. Pena(1) (Adarand), by a five to four majority, overturned the
Court's previous position on affirmative action programs and held that
'strict' scrutiny is the standard of constitutional review for federal,
state or local government affirmative action programs making decisions
based on racial or ethnic classifications. The court held that such laws
or programs must be 'narrowly tailored measures that further compelling
governmental interests'.
On 17 October 1995 the European Court of Justice in Eckhard Kalanke
v. Freie Hansestadt Bremen(2) (Kalanke) unanimously held as contrary
to a Council of the European Communities Directive, a Bremen law giving
female candidates with the same qualifications as male applicants preference
in areas where women were under-represented.
While neither of these decisions have direct legal impact in Australia
they have ignited a world-wide debate on race or gender-based equal opportunity
and the philosophy underpinning them.
In Australia, the Adarand decision has been used to urge policy makers
and legislators to impose closer scrutiny on Australia's affirmative action
laws.
Key issues include:
- whether governments should grant preference to individuals because
of their race or gender;
- whether affirmative action programs and/or laws provide a valid remedy
for past disadvantage; and
- whether existing affirmative action programs and laws are an unnecessary
regulation of the private sector.
(a) Federal Equal Opportunity Laws
Persons are provided with equal opportunity if they are not discriminated
against on the basis of certain irrelevant characteristics such as age,
race, sex, or social status.(3) Equal opportunity legislation aims to
prohibit individual instances of discrimination and places certain specified
obligations on people not to do certain acts and a remedy when prohibited
acts occur. All Australian jurisdictions have enacted equal opportunity
legislation. The following federal equal opportunity legislation is currently
in force:
- Disability Discrimination Act 1992
- Human Rights and Equal Opportunity Commission Act 1986
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
(b) Federal Affirmative Action Laws
In contrast to equal opportunity legislation, which aims to prohibit
individual instances of discrimination, affirmative action legislation
aims to overcome entrenched discrimination.(4)
The principal affirmative action legislation in Australia is the Affirmative
Action (Equal Opportunity for Women) Act 1986. This legislation aims
to improve the status of women in employment by requiring certain employers
to promote equal employment opportunity for women by developing and implementing
an affirmative action program.(5)
The Affirmative Action (Equal Employment Opportunity for Women) Act
1986 covers all higher education institutions and employers (other
than public sector employers) employing 100 or more employees. They are
required to develop and implement affirmative action programs for women
and to submit annual reports on the progress of those programs. Public
sector employers are covered by public sector equal employment opportunity
legislation. For example, section 22B of the Commonwealth Public Service
Act 1922 requires federal government departments to implement affirmative
action programs in relation to certain disadvantaged groups.
There are eight steps to an affirmative action program, as described
in the Affirmative Action (Equal Employment Opportunity for Women)
Act 1986, which an employer must take, namely:
- issue an affirmative action policy statement to all staff
- appoint a senior manager to oversee the program
- consult with employees, particularly women
- develop a profile showing jobs where men and women work
- review personnel policies and practices
- set goals for the program
- monitor the program and evaluate its achievements.
The Affirmative Action Agency, which administers the Affirmative
Action (Equal Employment Opportunity for Women) Act 1986, names organisations
failing to submit a report or providing a program. The report is tabled
in the Australian Parliament.
On 1 January 1993 the Keating Government introduced a policy of contract
compliance under which organisations failing to comply with the Affirmative
Action (Equal Employment Opportunity for Women) Act 1986 are ineligible
for government contracts and specified forms of industry assistance.(6)
Neither the Affirmative Action (Equal Employment Opportunity for
Women) Act 1986 or any other Australian equal opportunity legislation
imposes quotas. No Australian legislation requires that a certain number
of women or other persons be employed.
The Adarand and Kalanke decisions have no direct legal implications
for Australian equal opportunity and affirmative action laws. Australian
courts and legislators are not bound by American or European law.
Australia is not subject to the European directive on equal treatment
for men and women as regards access to employment, and does not have the
same legislative or constitutional provisions relied on in the US case.
Australian equal opportunity and affirmative action legislation has
little in common with the United States or Bremen models. Australian legislation
is designed to eliminate discrimination by employers, as distinct from
proscribing, equal opportunity. As the federal director of the Australian
Affirmative Action Agency has said:
Ours is very pro-active. It is a form of legislation that is promoting
companies into best practice human resource management as opposed to any
reverse discrimination, ... I think the Australian version works much
more effectively because ours is really an educative form of legislation,
as opposed to quotas.(7)
A similar view has been expressed by the president of the New South
Wales Anti-Discrimination Board, Mr Chris Puplick, who said:
Australia did not have formal affirmative action programs in the same
sense as the US and special exemption provisions under the Anti-Discrimination
Act were granted on a different basis. Most discrimination questions in
Australia involve individuals rather than groups, whereas the Americans
are much more inclined to make broad generalisations about groups.(8)
While the Adarand and Kalanke decisions cannot be said to have direct
legal implications for the application of Australian equal opportunity
and affirmative action laws, the two cases have given an impetus to an
often heated global debate on the rationale for affirmative action. The
central debating points, equally applicable to Australia, include:
- Whether equal opportunity programs and/or laws are a valid remedy
for past disadvantage. For example, United States House of Representatives
Speaker, Newt Gingrich, is reported as saying:
It is antithetical to the American dream to measure people by the genes
of their great-grand mothers.(9)
- Whether issues of group differences are matters which should be dealt
with by legislation and the courts.
- Whether existing equal opportunity programs and laws are an unnecessary
regulation of the private sector.
- Whether existing equal opportunity programs and laws encourage formal
compliance in lieu of real commitment on the part of employers.
- Whether governments should grant preferences to some individuals and
not to others because of their race or gender.
In Australia, the Adarand decision has been used to urge policy makers
and legislators to scrutinise our laws more closely. For example, the
director-general of the Australian Chamber of Commerce and Industry, Bryan
Noakes, is reported as saying that the Affirmative Action Agency:
had required employers to provide information which his organisation did
not believe was relevant and that some employers had complained both to
his organisation and the agency itself of being harassed.(10)
Arguments used by opponents of equal opportunity programs and laws include:
- That race and gender based programs and laws are no more that a euphemism
for race or sex discrimination.(11)
- That the rationale for using race and gender based programs and laws
to remedy past disadvantage is invalid. Opponents maintain that if disadvantage
were the real concern, then disadvantage would be the sole criterion.
They maintain that race or gender cannot be used as a rationale because
not all, and not only, women and ethnic minorities have been disadvantaged.(12)
- Race and gender based programs and laws impose additional burdens,
such as reporting requirements, on private businesses which must be
passed on to consumers.
- Gender based preference leads to lower standards in professions where
physical strength is a prerequisite, are an invitation to fraud in the
context of government contracts and lead to polarization, conflict and
ill-will.(13)
Supporters of equal opportunity programs and laws argue otherwise. They
say:
- That equal opportunity programs and laws aim to elimination existing
disadvantage rather than past disadvantage, that they are an effective
means of allowing women and minorities to have a greater role in today's
society and eliminate requirements unrelated to ability to perform a
particular job.(14)
- That goals and timetables focus attention on progress towards non-discriminatory
practices.
- There is no evidence that equal opportunity programs and laws give
preference to unqualified women and minorities, displacing qualified
persons.
- Equal opportunity programs and laws enable women and minorities to
compete for jobs they are qualified for but previously were unable to
obtain because of requirements unrelated to ability to perform the jobs.(15)
(a) The Facts
Kalanke involved a challenge to an equal employment opportunity law
of the German State of Bremen. Two candidates for the post of Section
Manager in the Bremen Parks Department were shortlisted, the plaintiff,
Eckhard Kalanke and Heike Glissman. They were equally well qualified.
However, a recommendation that Kalanke be awarded the job was rejected
because of paragraph 4 of the 1990 Bremen Law on Equal Treatment for Men
and Women in the Public Service. It stipulated that in areas where women
are under-represented, like the Parks Department, a qualified woman must
be appointed ahead of a man with the same credentials.
Paragraph 4 reads:
Appointment, assignment to an official post and promotion
- In the case of an appointment (including establishment as a civil
servant or judge) which is not made for training purposes, women who
have the same qualifications as men applying for the same post are
to be given priority in sectors where they are under-represented.
- In the case of an assignment to a position in a higher pay, remuneration
and salary bracket, women who have the same qualifications as men
applying for the same post are to be given priority if they are under-represented.
This also applies in the case of assignment to a different official
post and promotion.
- ...
- Qualifications are to be evaluated exclusively in accordance with
the requirements of the occupation, post to be filled or career bracket.
Specific experience and capabilities, such as those acquired as a
result of family work, social commitment or unpaid activity, are part
of the qualifications within the meaning of subparagraphs (1) and
(2) if they are of use in performing the duties of the position in
question.
- There is under-representation if women do not make up at least
half of the staff in the individual pay, remuneration and salary brackets
in the relevant personnel group within a department. This also applies
to the function levels provided for in the organisation chart.(16)
In proceedings before the Labour Court, Mr Kalanke argued that he was
better qualified than Ms Glissman, and that by reason of its quota system,
the 1990 Bremen Law on Equal Treatment for Men and Women in the Public
Service was incompatible with the Bremen Constitution, the German Constitution
and the German Civil Code. Kalake's application was dismissed by the Labour
Court and, on appeal, by the Regional Labour Court.
In subsequent proceedings before the Federal Labour Court, the Court
accepted the Regional Labour Court's finding that Kalanke and Ms Glissman
were equally qualified for the position and that it was bound by the Regional
Labour Court's finding that women were under-represented in the Bremen
Parks Department. The Federal Labour Court held that the quota system
was compatible with German constitutional and statutory provisions. However,
the Federal Labour Court considered that doubts remained whether the quota
system was compatible with the Council of the European Communities Directive
76/207.
Articles 1 and 4 of Council of the European Communities Directive 76/207
provide:
Article 1
1. The purpose of this Directive is to put into effect in the Member
States the principle of equal treatment for men and women as regards
access to employment, including promotion, and to vocational training
and as regards working conditions and, on the conditions referred to
in paragraph (2), social security. This principle is hereinafter referred
to as 'the principle of equal treatment.'
2. With a view to ensuring the progressive implementation of the principle
of equal treatment in matters of social security, the Council, acting
on a proposal from the Commission, will adopt provisions defining its
substance, its scope and the arrangements for its application.
Article 4
Application of the principle of equal treatment with regard to access
to all types and to all levels, of vocational guidance, vocational training,
advanced vocational training and retraining, means that Member States
shall take all necessary measures to ensure that:
(a) any laws, regulations and administrative provisions contrary to
the principle of equal treatment shall be abolished;
(b) any provisions contrary to the principle of equal treatment which
are included in collective agreements, individual contracts of employment,
internal rules of undertakings or in rules governing the independent
occupations and professions shall be, or may be declared, null and void
or may be amended;
(c) without prejudice to the freedom granted in certain Member States
to certain private training establishments, vocational guidance, vocational
training, advanced vocational training and retraining shall be accessible
on the basis of the same criteria and at the same levels without any
discrimination on grounds of sex.
The Federal Labour Court stayed the proceedings and sought a preliminary
ruling from the European Court of Justice on the following questions.
1. Must Article 2(4) of Council Directive 76/207/EEC of 9 February 1976
on the implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training and promotion,
and working conditions, be interpreted as also covering statutory provisions
under which, when a position in a higher pay bracket is being assigned,
women with the same qualifications as men applying for the same position
are to be given priority if women are under-represented, there being deemed
to be under-representation if women do not make up at least half of the
staff in the individual pay brackets in the relevant personnel group within
a department, which also applies to the function levels provided for in
the organisation chart?
2. If Question 1 is answered in the negative:
Must Article 2(1) of Council Directive 76/207/EEC be interpreted,
having regard to the principle of proportionality, as meaning that it
is not permissible to apply statutory provisions under which, when position
in a higher pay bracket is being assigned, women with the same qualifications
as men applying for the same position are to be given priority if women
are under-represented, there being deemed to be under-representation
if women do not make up at least half of the staff in the individual
pay brackets in the relevant personnel group within a department, which
also applies to the function levels provided for in the organisational
chart?(17)
(b) The European Court of Justice Decision
The European Court of Justice held that the exemption in Articles 2(4)
of the Council of European Directives 76/207 precluded national rules
like the Bremen law.
The Court held that, as a derogation from an individual right, Article
2(4), must be interpreted strictly. The court said while Article 2(4)
allows for national measures to help women compete in the job market on
an equal footing with men, the Bremen law went further than this.
National rules which guaranteed women absolute and unconditional priority
for appointment or promotion went beyond promoting equal opportunities
and overstepped the limits of the exception in Article 2(4) of the Directive.(18)
Further more, in so far as it seeks to achieve equal representation
of men and women in all grades and levels within a department, such
a system substitutes for equality of opportunity as envisaged in Article
2(4) the result which is only to be arrived at by providing such equality
of opportunity.(19)
(a) The Facts
Adarand involved a constitutional challenge to a federal Department
of Transport program compensating government contractors who hire subcontractors
certified as small businesses controlled by socially and economically
disadvantaged individuals.
The legislation established a government-wide goal that 5% of the total
value of all prime contract and subcontracts be awarded to these companies
each financial year.
In Adarand, the prime contractor awarded a subcontract to Gonzales Construction,
a company controlled by socially and economically disadvantaged individuals.
Adarand Constructors, a company not controlled by socially and economically
disadvantaged individuals, had submitted the lowest bid. It sued the Department
of Transport, claiming that the Department of Transport program, with
its racial classifications, was in breach of the equal protection guaranteed
by the U.S. Constitution's Fifth Amendment.
The United States District Court for the District of Colorado granted
summary judgment for the Department of Transport. The Court of Appeals
for the Tenth Circuit affirmed the district court's judgement, holding
that the Department of Transport's action satisfied the requirements of
'intermediate scrutiny', which it determined was the applicable standard
of review for racial and ethnic classifications under the US Supreme Court's
decisions in Fullilove v. Klutznick(20) and Metro Broadcasting,
Inc. v. FCC(21).
In Metro Broadcasting, Inc. v. FCC, a case which involved a challenge
to two race-based policies, Justice Brennan, in delivering the opinion
of the Supreme Court stated what intermediate scrutiny required.
We hold that benign race conscious measures mandated by Congress - even
if those measures are not remedial in the sense of being designed to compensate
victims of past governmental or societal discrimination - are constitutionally
permissible to the extent that they serve important governmental objectives
within the power of Congress and are substantially related to achievement
of those objectives.(22)
(b) The United States Supreme Court Decision
By a five to four majority, the Supreme Court in Adarand overruled Metro
Broadcasting's more lenient standard of constitutional review, and
held instead, that 'strict scrutiny' was the standard for federal, state
or local government affirmative action programs making decisions based
on racial or ethnic classifications.
Justice Sandra Day O'Connor in her majority opinion held:
A free people whose institutions are founded upon the doctrine of equality
should tolerate no retreat from the principle that government may treat
people differently because of their race only for the most compelling
reasons.(23)
Metro Broadcasting's untenable distinction between state and federal
racial classifications lacks support in our precedent, and undermines
the fundamental principle of equal protection as a personal right.(24)
Citing with approval the words of Justice Stewart in Fullilove v.
Klutznick, Justice O'Connor held:
Under our Constitution, any official action that treats a person differently
on account of his race or ethnic origin is inherently suspect and presumptively
invalid.(25)
Under 'strict scrutiny', affirmative action programs that use racial
or ethnic classification as a basis for decision making will only be constitutional:
if they are narrowly tailored measures that further compelling governmental
interests.(26)
Justice O'Connor held:
The unhappy persistence of both the practice and the lingering effects
of racial discriminations against minority groups in this country is an
unfortunate reality, and government is not disqualified from acting in
response to it. As recently as 1987, for example, every Justice of this
Court agreed that the Alabama Department of Public Safety's 'pervasive,
systematic, and obstinate discriminatory conduct' justified a narrowly
tailored race-based remedy.(27)
Justices Scalia and Thomas, two members of the majority, wrote separate
opinions which took a more stringent position in relation to the standard
of constitutional review for federal affirmative action measures.
For example, Justice Scalia held:
In my view, government can never have 'compelling interest' in discriminating
on the basis of race in order to 'make up' for past racial discrimination
in the opposite direction. Individuals who have been wronged by unlawful
racial discrimination should be made whole; but under our Constitution
there can be no such thing as either a creditor or a debtor race. ...
. To pursue the concept of racial entitlement - even for the most admirable
and benign of purposes - is to reinforce and preserve for future mischief
the way of thinking that produced race slavery, race privilege and race
hatred. In the eyes of government, we are jut one race here. It is American.(28)
The four dissenting Justices in Adarand reaffirmed the intermediate
scrutiny standard established in Metro Broadcasting, Inc. v. FCC
and would have upheld the Department of Transport program on the basis
of Fullilove v. Klutznick.
In Fullilove v. Klutznick, the Supreme Court upheld federal legislation
requiring that at least ten percent of certain grants for public works
projects must be used to procure goods and services from minority businesses.
In Adarand, Justices Stevens and Souter argued that the Department of
Transport program was more narrowly tailored than the legislation upheld
in Fullilove v. Klutznick.
All four dissenting Justices emphasised that a distinction exists between
racial and ethnic classifications designed to help minorities and classifications
that discriminate against them. For example, Justice Stevens held:
The consistency that the Court espouses would disregard the difference
between a 'No Trespassing' sign and a welcome mat. ... It would equate
a law that made black citizens ineligible for military service with a
program aimed at recruiting black soldiers. An attempt by the majority
to exclude members of a minority race from a regulated market is fundamentally
different from a subsidy that enables a relatively small group of newcomers
to enter that market. An interest in 'consistency' does not justify treating
differences as though they were similarities.(29)
- Adarand Constructors, Inc v. Pena, 1995 U.S. LEXIS 4037.
- Eckhard Kalanke v. Freie Hansestadt Bremen, European Court
of Justice, C-450/93, Oct 17 1995.
- Australian & New Zealand Equal Opportunity Law & Practice,
CCH Australia Limited, Vol. 1, p. 3,031.
- Practitioners Guide To Equal Opportunity Land And Practice,
CCH Australia Limited, 1992, p. 41.
- Australian & New Zealand Equal Opportunity Law & Practice,
CCH Australia Limited, Vol. 1, p. 13,431.
- ibid., p. 13,471.
- The Australian, 14 June 1995.
- ibid.
- The Financial Review, 24 February 1995.
- The Canberra Times, 25 October 1995.
- American Bar Association Journal, May 1995, Vol. 81, p. 40.
- ibid.
- ibid.
- ibid., at p. 41.
- ibid.
- ibid., at paragraph 3.
- ibid., at paragraph 11.
- ibid., at paragraph 22.
- ibid., at paragraph 23.
- U.S. 448.
- U.S. 547.
- ibid., at pp. 564 and 565.
- Adarand Constructors, Inc v. Pena, 1995 U.S. LEXIS 4037, at
p. 51.
- ibid., at p. 65.
- ibid., at p. 64.
- ibid., at p. 51.
- ibid., at p. 68.
- ibid., at pp. 72 and 73.
- ibid., at p. 82.
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