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Hastings Law Journal

Authors

Karen G. Kramer

Abstract

Affirmative action hiring and promotion programs are intended to provide minority workers the opportunity to enter or advance into positions traditionally closed to them by discrimination. However, minority employees hired under these programs generally have less seniority than white employees. Consequently, layoffs based solely on seniority are likely to disproportionately affect minorities and undermine the affirmative action hiring and promotion programs. An extention of private voluntary affirmative action to layoffs, through the implementation of "seniority overrides," would work to alleviate this inequity. This Note discusses whether private employers may voluntarily implement such seniority overrides to preserve the gains realized by affirmative action hiring and promotion programs when layoffs threaten to undermine those gains. The Note first examines whether seniority overrides are prohibited by the special protection afforded seniority systems under section 703(h) of title VII of the Civil Rights Act of 1964. The Note then considers whether seniority overrides withstand scrutiny under the Supreme Court's analysis in United Steelworkers o/America v. Weber of permissible voluntary affirmative action programs in the private sector. The Note concludes that private sector seniority overrides are both legal and essential to the success of affirmative action programs.

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