The Enduring Controversy: Developments in Affirmative Action Law in North America 1

This article seeks to examine the current state of the law on affirmative action in the United States and Canada. Drawing upon developments at both a statutory and constitutional level it considers to what extent the law permits or requires measures to alter the composition of institutions to make them more representative in terms of race or gender. Its primary focus is on employment. It argues that constitutional provisions and judicial interpretation in Canada has been more sympathetic to affirmative action measures, especially in the past decade. After surveying the early development of affirmative action law in the United States it focuses on recent developments, notably the Civil Rights Act of 1991 and recent Supreme Court decisions such as the Adarand v Pena case, to examine the extent to which the scope for affirmative action measures has been reduced. In Canada the article considers both Charter equality jurisprudence and statutory developments such as the Employment Equity Act of 1986. The article concludes by observing that the position remains complex but that there is scope for affirmative action measures in both jurisdictions, perhaps more so in Canada where such measures do not require a backward looking, compensatory rationale. It also suggests that such measures may now have become well established in the human resources strategies of large corporations in both jurisdictions, rendering their disappearance unlikely.