L’Affirmative Action et l’ancienneté : rencontre des deux ‘Amériques sociales’

• Main Author: Donna Kesselman
• Format: Article
• Language: fra
• Published: L’Harmattan 2005-01-01
• Series: Droit et Cultures
• Subjects: affirmative Action; Civil Rights; collective bargaining; race; Supreme Court; trade unions
• Online Access: http://journals.openedition.org/droitcultures/1592

The article explores how Affirmative Action plans were introduced into the American workplace in relation to Supreme Court jurisprudence. The new group-based rights conflicted with existing shopfloor institutions set up by trade unions through collective bargaining, most notably seniority systems. The Supreme Court endeavored to achieve equal rights in the workplace while preserving the essential gains of labor. Beyond the traditional doctrine of balancing of interests, its active role was one of coining a series of compromises, progressively adapted to the changing degree of consensus around affirmative action. The Court served as the intermediary for political forces searching for a means of expression while having to confront at once the complex interactions of state institutions and the authority of the Constitution, notably the 14th Amendment with its equal protection clause. Our study of the major Supreme Court decisions involving affirmative action labor law specifically brings out the motive of “intent”, which the Court regularly invokes but interprets from different angles. This becomes its litmus test to measure the degree of political support or resistance which formed the consensus around affirmative action at any given moment. We also discuss the important role played by trade unions, who are brought to confront their own History of racism: their dilemma, and how they resolve it, directly impact the constitution of this new form of collective, for group-based, social rights in the United States.