Damned if you do, damned if you don’t

There has always been friction in the law when it comes to affirmative action. On one hand, you are required to address and remedy prior discrimination in the workplace, and several statutes identify preferential hiring as part of that remedy. The rules of when such preferences are permitted as a carefully calculated and approved remedy—and when they are subject to attack as an unlawful preference based on race or other category—have never been easy to navigate. Another set of crosscurrents has just been put at play by the U.S. Supreme court, making the following question even more difficult: When, if ever, can an employer take specific steps designed to tilt a hiring decision in favor of diversity? Several newly filed lawsuits will answer that question.