Affirmative Action and Binders Full of Women

By Associate Professor Aaron Caplan

Every year, my constitutional law students study Personnel Administrator of Massachusetts v. Feeney (1979), which involved a Massachusetts program giving veterans an employment preference when applying for state jobs. Since at that time veterans were overwhelmingly male, the law effectively locked females out of state jobs. The U.S. Supreme Court upheld the program, explaining that the state would not be discriminating by enacting a law that disproportionately harmed women -- unless the state chose that law "because of," and not merely "in spite of" its disparate impact.

I do not know whether Massachusetts still has a veterans preference, but according to presidential candidate Mitt Romney, he did his part to find state employment for women while he was governor of that state. As he told the story during the Oct. 16 debate:
As I was serving as governor of my state ... I had the chance to pull together a cabinet and all the applicants seemed to be men.

And I went to my staff, and I said, “How come all the people for these jobs are all men?” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we find some women that are also qualified?”

And we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet.

I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.

I was proud of the fact that after I staffed my Cabinet and my senior staff, that the University of New York in Albany did a survey of all 50 states, and concluded that mine had more women in senior leadership positions than any other state in America.

Now one of the reasons I was able to get so many good women to be part of that team was because of our recruiting effort. But number two, because I recognized that if you’re going to have women in the workforce that sometimes you need to be more flexible. My chief of staff, for instance, had two kids that were still in school. She said, I can’t be here until 7 or 8 o’clock at night. I need to be able to get home at 5 o’clock so I can be there for making dinner for my kids and being with them when they get home from school. So we said fine. Let’s have a flexible schedule so you can have hours that work for you.

According to the Boston Phoenix, women's groups assembled the resumes of qualified women in advance of the election, so Governor Romney may not have instigated the idea as he described. But as an article on Slate points out, Romney at least took the trouble to look through the binders, and hired quite a few women from those resumes.

There's a name for what Governor Romney described in the debate: affirmative action. An all-male list of finalists may signal something faulty about your search. Absence of women on the list of qualified applicants may tell you more about your assumptions about job qualifications than tells you about the capabilities of women. The obligation to reconsider institutional arrangements goes beyond the recruitment phase. The nature of workplace may need to change so that nontraditional workers can succeed once they are hired. Most of my students think this sounds pretty good. And a presidential nominee would not be boasting about his history of affirmative action it unless he thought it would generate mainstream support.

The U.S. Supreme Court is far less excited about affirmative action, at least where its goal is racial diversity. When New Haven, Connecticut was deciding which firefighters to promote, it discovered that its test resulted in a non-diverse list of finalists. Like Governor Romney, the City thought to consider if its screening methods were valid. The City examined its test, realized it was not validated to predict good performance as a senior firefighter, and sensibly sought to find a more inclusive and more accurate means of identifying leaders. But in Ricci v. DeStafano (2009), the Supreme Court held that the City had engaged in race discrimination when it declined to blindly follow the results of an inadequate test that excluded minorities without any showing of validity.

Did Governor Romney violate the equal protection clause as interpreted in Ricci when he asked to see a binder full of women? Not under current law -- but perhaps only due to a peculiar double standard. In Califano v. Webster (1977), the Supreme Court said that a desire to remedy society's history of discrimination against women was a suitable reason for an affirmative action program, but in City of Richmond v. J.A. Croson Co. (1989), the court stiffly resisted the idea that government could attempt to remedy society's history of discrimination on the basis of race.