The history of employment in this country is the history of racism. Using public and private mechanisms as well as violence to devise and enforce segregation and preferential treatment, the white male institutionalized an unprecedented advantage in the labor market. Yet this is rarely acknowledged as a factor in the current widening economic disparity between whites and blacks. Today, many white Americans, cloaked in the myth of colorblindness and meritocracy, refuse to see the persistence of racial prejudice, disadvantage and discrimination in the labor market.
This article is a call for a radical reconstruction of the private labor market through re-embracing affirmative action as an effective tool to achieve equality. Part II traces the growing income and wealth disparity between blacks and whites and links the history of segregation and implicit bias in the labor market as a factor contributing to economic disparity. Part III is a historical account of the movement for racial equality, tracing the alliance between nondiscrimination and affirmative action and the triumph of equal opportunity (formal equality) over equality of outcomes (substantive equality). Part IV examines the legal justification and viability of affirmative action programs under the Fourteenth Amendment and Title VII. Part V is a roadmap for how we can re-embrace affirmative action in the private employment sector, from reframing the dialogue to grassroots pressure on large employers and unions to adopt affirmative action plans that include race-conscious decisionmaking.
48 U. Balt. L. Rev. 203 (2019).