The Emerging Cronyism Defense and Affirmative Action: A Critical Perspective on the Distinction Between Colorblind and Race-Conscious Decision Making Under Title VII

In Foster v. Dalton, the United States Supreme Court approved of the promotion of a less-qualified white male over a better-qualified black female under very suspicious circumstances; in Taxman v. Board of Education, the court invalidated the retention of an equally qualified black female over her white counterpart. The law justifies the disparate results in Foster and Taxman by invoking the principle of race and gender “neutrality” in the decision making process. Under this principle, the law generally prohibits employment determinations based consciously on a person\u27s race or gender. An exception to the “neutrality principle” of Title VII is the doctrine set forth in United Steelworkers of America v. Weber and reaffirmed in Johnson v. Transportation Agency of Santa Clara permitting race- or gender-based decisions made pursuant to valid voluntary affirmative action plans. A valid plan, according to Weber and Johnson, has a purpose that mirrors Title VII\u27s purposes and does not unnecessarily trammel the interests of white male employees. Conversely, employment decisions made absent an intent to discriminate because of the employee\u27s protected characteristic are legal. In Taxman, since the board consciously took race into account in making its decision, the court evaluated the Piscataway affirmative action plan under the two prong Weber test and found the plan lacking because it did not have a remedial purpose. In Foster, the lower court found that Travis did not consciously consider race or gender; for this reason, the necessary element of intent to discriminate was absent. Under the “neutrality principle,” as framed by the courts, the Navy did not make an illegal discriminatory decision. But does this form of “neutrality” provide an adequate theoretical basis for the differentiation of these cases? Is there something so inherently wrong with a conscious consideration of race in Taxman that it should determine the outcome of the case? In contrast, why does the absence of a conscious intent to discriminate in Foster automatically relieve the actor of liability? Has discrimination law been misled by a false concept of neutrality and a misshapen notion of preference? Is there an alternative framework that will more appropriately lead to a just resolution of these cases? This Article analyzes these questions and provides a new conceptual framework for approaching the question of race-based and race-neutral decision making. Instead of relying on the simplistic difference between a race-based and race-neutral decision to distinguish between legal and illegal actions, this new framework considers a complex array of issues raised by the decision making process