Impermissible Collateral Attack Doctrine and Court-Approved Affirmative Action: New Perspectives After Wilks and the Civil Rights Act of 1991

Robert K. Robinson
Geralyn McClure Franklin

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DOI: 10.2190/58VM-W3R0-YNF1-NUK4

Abstract

Contrary to reports, the United States Supreme Court's June 12, 1989 ruling in the case of Martin v. Wilks did not eliminate affirmative action plans. It did remove the "impermissible collateral attack doctrine" defense by employers as a means to avert reverse discrimination lawsuits, whereby federal courts would deny actions for reverse discrimination by employees who were not party to consent decrees. However, the Wilks decision affects only those parties not privy to the decree. If, for example, white employees or their representatives had participated in the consent agreement, they would still be subject to the doctrine. These points were incorporated into the Civil Rights Act of 1991. Essentially, Wilks requires employers to establish practical and viable affirmative action plans, while simultaneously precluding poorly planned, quick-fix programs that unnecessarily exclude whites. Employers should ensure that their current plans are based on justifiable utilization analysis and that the goals and timetables are reasonable in light of the Wilks decision.

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