Affirmative Action or Reverse Discrimination: The Head and Tail of "Weber.".

Although Weber is clearly a case of immense symbolic significance, it is still a very limited ruling. At one point in his opinion, Justice Brennan states: "Congress did not intend to limit traditional business freedom to such a degree as to prohibit all raceconscious affirmative action. We therefore hold that Title VII's prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans." Justice Brennan then indicates that there is no need in Weber for the Court to "detail the line of demarcation between permissible and impermissible affirmative action plans." All of these observations are obviously intended to focus on the limited nature of the Court's ruling. It is because of this that the issue having to do with the legality of the affirmative action requirement under Executive Order 11246 will now take on such significance. Unless Weber is seen to encourage (or even require) affirmative action, and the perception becomes the reality, the decision will mean virtually nothing if the requirement of affirmative action under Executive Order 11246 is struck down. Employers will have no incentive to act voluntarily-and, if past history is any guide, there is no reason to believe that they will-absent the federal "prod" under the Executive Order. Weber is significant because employers may now easily act, pursuant to the federal prod and without having to engage in extended formal hearings on a charge of discrimination, to give temporary, preferential remedies to undo the lingering effects of past discrimination. The threat of suit under Title VII plainly does not serve as a similar prod, in part because of recent changes in the law under Title VII which makes the burden of proof more difficult for plaintiffs.