Employment Discrimination - Setser v. Novack Investment Co.: Section 1961 Challenges to Affirmative Action Programs
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Barker, James M.
INTRODUCTION|Setser v. Novack Investment Co. was a significant employment discrimination case decided by the Eighth Circuit. Setser, a reverse discrimination case, arose in the unusual context of a section 1981 challenge to an affirmative action plan developed pursuant to Executive Order 11,246. Although Title VII of the Civil Rights Act of 1964 was not at issue, the court's treatment of the affirmative action plan as a defense to a discrimination claim is equally applicable to reverse discrimination cases arising under Title VII. Thus, Setser highlights the broad deference the Eighth Circuit gives to employer-initiated affirmative action. In Setser, the Eighth Circuit joined a growing number of federal courts in holding that a section 1981 litigant is entitled to a jury trial on all of his legal claims, including a claim for backpay. With the national unemployment rate rapidly approaching nine percent, one commentator's prediction that "[t]he achievement of equal employment opportunity for minorities in an era of diminishing opportunities for the majority will be a primary concern in the 1980s" appears to be painfully accurate. And while the debate continues over the propriety of using specific goals or quotas to attain racial balance in the work force, many employers...
15 Creighton L. Rev. 971 (1981-1982)
Creighton University School of Law