March 1998
PISCATAWAY TOWNSHIP BOARD OF EDUCATION v. TAXMAN --:
A WARNING FLAG FOR “POLITICALLY CORRECT”
DIVERSITY PROGRAMS
Mark F. Sullivan
Assistant General Counsel - Litigation
GTE Network Services
Legal Department
One GTE Place
Thousand Oaks, California 91362-3811
(805) 372-6505
DILEMMA: Most Employers Want To Be “Good Corporate Citizens” And Are
Highly Motivated To Have An Equal Employment Opportunity Program That They
Can Be Open And Honest About.
Many Employers Also Understand That, With A
Diverse Customer Base, It Is Simply Good Business To Hire, Employ And
Promote A Diverse Workforce That Is More Likely To Know And Meet The Needs
Of That Customer Base. How Does Such An Employer Increase The Diversity Of
Its Workforce Without Subverting The Integrity Of A True “Equal
Opportunity” Policy, Let Alone Incurring Liability Under Fair Employment
Laws?
If It ever was the answer to this dilemma, a “politically correct” system
of preferences disingenuously labeled as “goals” can no longer be that
answer in the legal environment of 1998.
I.
OVERVIEW OF THE TAXMAN CASE AND THE PENDING FARMER CASE
A.
The Settlement That Settled Nothing.
On Monday, January 19, 1998, the Wall Street Journal in its daily “Rule
of Law” column (page A15) highlighted the apparent futility of the
short-lived “peace” that a consortium of civil rights groups had
gained when they settled Board of Education of the Township of
Piscataway v. Taxman , No. 96-679, virtually on the eve of the scheduled
January 14, 1998 oral argument before the Supreme Court. In an article
entitled “Nevada Offers Supreme Court Another Piscataway”, Roger
Clegg, general counsel of the Center for Equal Opportunity, a
Washington, D.C.-based “think tank”, pointed out that a similar or
even better case was “right behind” Taxman with the December 30, 1997,
filing by the Pacific Legal Foundation of a Petition For Writ Of
Certiorari to the Nevada Supreme Court in University and Community
College System of Nevada v. Farmer, 930 P.2d 730 (Nevada, 1997). In
this newest filing with the Court, the issue is whether, for the sake of
“diversity”, an employer with no adjudged history of discrimination
could prefer a black male immigrant over a white female with equal
credentials (and pay the black male significantly more.)
Mr. Clegg
summarizes this newest offering of a “reverse discrimination” issue
to the Supreme Court with the following provocative observation: “How
plausible is it that the university is making up for the wrongs
suffered by victims of American slavery by hiring a sociologist from
Uganda?” As Mr. Clegg observed, “The groups [that settled Taxman]
were afraid that the Supreme Court would rule against the school board,
establishing a precedent that would damage the cause of racial
preferences.” However, with the Nevada Farmer case, the court will not
only have opportunity to decide the “reverse discrimination” issue
which had been raised in Taxman, but will have that issue presented in
the context of a diversity program that has every appearance of being
founded on “political correctness” rather than on any effort to remedy
past discrimination.
B.
of
The Department of Justice’s Positions in the Piscataway Township Board
Education v. Taxman Case -- All Four Of Them!
The Taxman case was remarkable not only because of the unprecedented
11th hour settlement, but also because it was a case in which the United
States government engaged in a virtual tour de force in flip-flopping.
This was soundly criticized in an amicus curiae brief filed with the
Supreme Court on behalf of a group of eight Republican Senators who
stated that, since the Executive Branch had filed a brief as an amicus,
the Court should hear from the Legislative Branch as well:
Excerpt From Amicus Brief Of Senators Lott, Thurmond, Nickles, Mack,
Craig, Coverdell, McConnell And Gordon.:
“The Department of Justice has taken four different positions in this
case--some of them consistent with the language and intent of the Civil
Rights Act and some of them lamentably lacking that consistency. n2
n2 The Department of Justice filed suit against the Piscataway Board of
Education on January 28, 1992. Seventeen months later (and five months
after President Clinton had taken office), the Department still believed
that the Board had unlawfully discriminated against Mrs. Taxman. On June
28, 1993, the Department of Justice filed a reply memorandum in which it
argued that the Board's "use of a race-conscious affirmative action
policy to terminate the employment of Sharon Taxman on the basis of her
race was unlawful" because "it was not intended to remedy the effects of
past discrimination or to eliminate any manifest racial imbalance in
[the Board's] teacher workforce." The Department also argued that the
Board's "use of a race-conscious affirmative action policy created an
absolute bar to the selection of Sharon Taxman on the basis of her race
and unnecessarily trammeled her employment interests." Mem. of Plaintiff
United States in Opp. to Defendant's Motion for Summ. Judgment and in
Response to Defendant's Reply Brief Opposing Plaintiff's Motion for
Partial Summ. Judgment, United States v. Bd. of Ed. of the Twnshp of
Piscataway (D.N.J.) (Civ. Action No. 92-340 (MTB)) at page i.
In its
amicus brief to the Third Circuit, the Department reversed itself on
both points and asked that the case it had won in the district court be
reversed. Brief for the United States as Amicus Curiae, United States v.
Bd. of Ed. of the Twnshp of Piscataway (3rd Cir.) (Nos. 94-5090,
94-5112) at pages i, 11 et seq. (Sept. 1994).
In this court, the
Department first argued that the "court of appeals incorrectly decided
an issue of broad national significance" but that the petition for
certiorari should be denied. Brief for the United States as Amicus
Curiae, On Pet. for a Writ of Cert. to the U.S. Ct. of Apps. for the 3rd
Circ., United States v. Bd. of Ed. of the Twnshp of Piscataway (U.S. No.
96-679) at 8 (June 1997). The Department seemed to fear that, if the
petition were granted, this Court might actually decide for Mrs. Taxman
("The unusual facts of this case . . . also create a significant
possibility that the Court could conclude that the layoff decision in
this particular case was unjustified"). Id.
In its brief on the merits, the Department of Justice continues to
maintain that the court of appeals erred but asks that the Third
Circuit's judgment be affirmed on the grounds that Mrs. Taxman's
interests were "unnecessarily trammeled." Brief for the United States as
Amicus Curiae Supporting Affirmance at 7 (Aug. 1997). While the
Department's brief on the merits has returned part way to the correct
position from which it started in 1992 and 1993, the Department still
cannot bring itself to file a brief "for the Respondent" but has filed a
brief "supporting affirmance," but on narrow grounds.
The United
States won this case in the district court (in 1993) but then attempted
to switch sides (in 1994). What the Department had once seen as unlawful
racial discrimination became in 1994 acceptable race-based social
engineering. n3 When the court of appeals refused to allow the
Department to change sides, the Department withdrew from the case and
left Mrs. Taxman to continue her fight alone. The Department took a
third position in its brief on the petition for certiorari, and it now
takes a fourth position in its amicus brief on the merits. That brief
is, of course, styled as the "Brief for the United States," but the
rightful position of the United States must be found in the text of the
Civil Rights Act of 1964 and not in the Department's brief.
n3 In an article lamenting that the "civil rights movement has turned
away from its original principled campaign for equal justice under law
to engage in an open contest for social and economic benefits conferred
on the basis of race," Morris B. Abram, who was one of the early leaders
of the civil rights movement, contrasts "social engineers" with "fair
shakers." "Fair shakers" are those who, like Mr. Abram himself, believe
in the "original vision of the civil rights movement," namely "equality
of opportunity and a fair shake for individuals." M. Abram, "Affirmative
Action: Fair Shakers and Social Engineers," 99 HARV. L. REV. 1312-13
(1986).
As Members of the Congress of the United States, Amici Senators have
strong and abiding interests in a proper construction of the statute and
in the institutional powers and prerogatives of Congress. These
interests have not been represented adequately in the "Brief for the
United States" or in other briefs.”
C.
The Statutory And Legislative History Supporting The Challenges To
Discrimination In The Name Of “Diversity”
Many of the amici supporting Ms. Taxman posed philosophical arguments
that any alleged interest in “diversity” itself is too vague to have
any standards to determine what is or is not “enough” diversity or
“too much” diversity. However, Ms. Taxman and most of the amici
supporting her rested on two strong bases: clear statutory language and
an even clearer legislative history:
Excerpt From Brief Of Respondent Taxman
“A. Statutory Language
We begin with the language of @ 703 of Title VII. Section 703(a)
provides:
(a) It shall be an unlawful employment practice for an employer --
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment because of
such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, religion, sex,
or national origin.
42 U.S.C. @ 2000e-2 (emphasis supplied). When Congress amended Title VII
in 1972 to include governments within the covered class of employers, it
made no change in "the substantive standards governing employer
conduct." Johnson, [Johnson v. Transportation Agency, 480 U.S. 616
(1987)] 480 U.S. at 627-28 n.6.
Section 703's prohibition against race-based discrimination is
categorical, on its face admitting of no exceptions. Congress pointedly
excluded race from the types of classifications in @ 703(e) that might
constitute "a bona fide occupational qualification reasonably necessary
to the normal operation of [the] particular business or enterprise. . .
." 42 U.S.C. @ 2000e-2(e). (See pp. 30-31, infra).
The protections of @ 703(a) clearly extend to nonminorities, like
Taxman, complaining of discrimination because of their race. See
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976) (Title
VII "prohibits all racial discrimination in employment, without
exception for any group of particular employees") (emphasis in
original); also Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)
("discriminatory preference for any group, minority or majority, is
precisely and only what Congress has proscribed"); Furnco Construction
Corp. v. Waters, 438 U.S. 567, 579 (1978) ("the obligation imposed by
Title VII is to provide an equal opportunity for each applicant
regardless of race, without regard to whether members of the applicant's
race are already proportionately represented in the work force")
(emphasis in original).
This Court in Weber [United Steelworkers v. Weber, 443 U.S. 193 (1979)]
adopted a nonliteral reading of @ 703(a) -- departing from the plain
meaning of the statute as confirmed by the legislative history --but it
did so solely in order to afford some allowance for employers to use
racial preferences in the remedial context. The Court reasoned that, in
light of the failure expressly to provide that Title VII does not
"permit racially preferential integration efforts" 443 U.S. at 205
(emphasis in original) and the strong emphasis Congress placed on
encouraging voluntary compliance, Title VII would not be interpreted as
"the first legislative prohibition of all voluntary, private,
race-conscious efforts to abolish traditional patterns of racial
segregation and hierarchy." Id. at 204 (emphasis supplied).
Without defining the outer limits of affirmative action for remedial
purposes, the Weber Court held that the purposes of the plan in that
case did "mirror those of the statute," in that they were "designed to
break down old patterns of racial segregation and hierarchy," id. at
208. The plan sought to increase the number of qualified black craft
workers available to the employer and thus redress the persisting
effects of widespread "exclusion from crafts on racial grounds . . .
[judicial findings of which were] so numerous as to make such exclusion
a proper subject for judicial notice," id. at 198 n.1 (emphasis
supplied).
Johnson [Johnson v. Transportation Agency, 480 U.S. 616 (1987)] extended
the approach in Weber by permitting race-based measures to redress "a
'conspicuous . . . imbalance in traditionally segregated job
categories.'" "480 U.S. at 630 (quoting Justice Blackmun's concurrence
in Weber, 443 U.S. at 209) (emphasis supplied). Justice Brennan noted
for the Court, however, that "the requirement that the 'manifest
imbalance' relate to a 'traditionally segregated job category' provides
assurance both that sex or race will be taken into account in a manner
consistent with Title VII's purpose of eliminating the effects of
employment discrimination, and that the interests of those employees not
benefiting from the plan will not be unduly infringed." 480 U.S. at 632
(emphasis supplied). n14
n14 In her opinion concurring in the judgment, Justice O'Connor insisted
that "an affirmative action program . . . that can be equated with a
permanent plan of 'proportionate representation by race and sex,' would
violate Title VII." 480 U.S. at 656. On the facts of the case before the
Court, Justice O'Connor was satisfied that "respondents had a firm basis
for adopting an affirmative action program." Id. She noted that "at the
time the plan was adopted, there were no women in its skilled craft
positions," even though it was conceded that "women constituted
approximately 5% of the local labor pool of skilled craft workers in
1970. . . . Thus, when compared to the percentage of women in the
qualified work force, the statistical disparity would have been
sufficient for a prima facie Title VII case brought by unsuccessful
women job applicants." Id. (Emphasis in original).
B. Legislative History
The limitations placed by the Court on its holdings in both Weber and
Johnson reflect the Court's awareness that the exceptions from race
neutrality it was prepared to recognize cut against the grain of the
shared understanding of Title VII's Congressional supporters and
opponents alike. An examination of the legislative history of Title VII
confirms that Congress meant what it said in @ 703, and left little
room, if any, for employers to discriminate on account of an
individual's race for nonremedial, operational purposes. n15
n15 We note that -- aside from a variety of policy arguments to the
effect that covered employers might find it useful to use racial
preferences for hiring and assigning workers, whether as a means of
"preventing future violations of Title VII" (Br. for Petitioner 23) or
promoting "the understanding and tolerance that derive from educating
children in a racially and culturally diverse environment" (id. at 28)
-- Petitioner points to no specific Title VII legislative history in
support of its "nonremedial" interpretation.
As the Court noted in Weber, Title VII's opponents raised "two related
arguments against the bill. First, they argued that the Act would be
interpreted to require employers with racially imbalanced work forces to
grant preferential treatment to racial minorities in order to integrate.
Second, they argued that employers with racially imbalanced work forces
would grant preferential treatment to racial minorities, even if not
required to do so by the Act." 443 U.S. at 205 (emphasis in original).
Weber found that Congress clearly addressed the first objection by
enacting @703(j), 42 U.S.C. @ 2000e-2(j). n16 No change was needed,
however, to respond to the second objection raised by opponents -- that
employers would react to Title VII's directive by engaging in race-based
hiring and promotion decisions -- because, as Title VII's supporters
repeatedly emphasized, Title VII itself would prohibit such
discrimination.
n16 Section 703(j) provides in relevant part that: "nothing contained in
[Title VII] shall be interpreted to require any employer . . . to grant
preferential treatment to any individual . . . because of the race . . .
of such individual" merely because of a statistical imbalance between
utilization and availability of individuals of that race. As Senator
Humphrey explained during the debates over Title VII, @ 703(j) was added
to make clear that Title VII did not require an employer "to achieve any
sort of racial balance in his work force by giving preferential
treatment to any individual or group. . . . This subsection does not
represent any change in the substance of the title. It does state
clearly and accurately what we have maintained all along about the
bill's intent and meaning." 110 Cong. Rec. 12723 (1964) (emphasis
supplied).
Early in the House's consideration of H.R. 7152 -- the
bill that would become the Civil Rights Act of 1964 -- Representative
Celler, chair of the Judiciary Committee and the individual responsible
for introducing the legislation in that chamber, emphasized that "the
bill would do no more than prevent . . . employers [from] discriminating
against or in favor of workers because of their race, religion, or
national origin." 110 Cong. Rec. 1518 (1964) (emphasis supplied).
In
the extensive debate over the bill in the Senate, H.R. 7152's supporters
returned again and again to the theme that Title VII required race
neutrality in employment decisions. Senator Humphrey, the majority whip
and perhaps the bill's prime moving force in the Senate, responded to a
political advertisement's charge that the word "discrimination" in the
bill would come to mean requirements of racial balance:
[Title VII] does not limit the employer's freedom to hire, fire, promote
or demote for any reasons -- or no reasons -- so long as his action is
not based on race. . . . The meaning of racial or religious
discrimination is perfectly clear. . . . It means a distinction in
treatment given to different individuals because of their different
race, religion, or national origin. . . .
110 Cong. Rec. 5423 (1964).
When the formal Senate debate on H.R. 7152 began on March 30, 1964,
supporters of the bill selected Senator Humphrey and Senator Kuchel, the
minority whip, as bipartisan managers for the entire civil rights bill.
Senators Clark and Case were the bipartisan captains responsible for
Title VII. n17
n17 See Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L.
Rev. 431, 444-45 (1966).
In his opening remarks at the start of the formal Senate debate, Senator
Humphrey addressed Title VII's opponents, stating unequivocally that the
legislation would not permit discrimination in favor of any racial
group:
Contrary to the allegations of some opponents of this title, there is
nothing in it that will give any power to the Commission or any court
to require hiring, firing or promotion of employees in order to . . .
achieve a certain racial balance.
That bugaboo has been brought up a dozen times; but it is nonexistent.
In fact, the very opposite is true. Title VII prohibits
discrimination. In effect, it says that race, religion and national
origin are not to be used as the basis for hiring and firing.
110 Cong. Rec. 6549 (1964) (emphasis supplied).
It is claimed that the bill would require racial quotas for all hiring,
when in fact it provides that race shall not be a basis for making
personnel decisions. Id. at 6553.
Senator Kuchel pressed the same
view in his first major speech on the bill:
Employers and labor organizations could not discriminate in favor of or
against a person because of his race, his religion, or his national
origin. In such matters . . . the bill now before us . . . is color
blind. Id. at 6564 (emphasis supplied).
A few days later, Senators Clark and Case jointly submitted their
interpretative memorandum:
It has been suggested that the concept of discrimination is vague. In
fact it is clear and simple and has no hidden meanings. To discriminate
is to make a distinction, to make a difference in treatment or favor,
and those distinctions or differences in treatment or favor which are
prohibited by [@ 703] are those which are based on any five [sic] of the
forbidden criteria: race, color, religion, sex, and national origin. Any
other criterion or qualification for employment is not affected by this
title.
There is no requirement in title VII that an employer maintain a
racial balance in his work force. On the contrary, any deliberate
attempt to maintain a racial balance, whatever such a balance may be,
would involve a violation of title VII because maintaining such a
balance would require an employer to hire or to refuse to hire on the
basis of race. It must be emphasized that discrimination is prohibited
as to any individual.
Id. at 7213 (emphasis supplied). n18
n18 See also Senator Williams' response to the view that employers would
be coerced into granting racial preferences to minorities:
Those opposed to H.R. 7152 should realize that to hire a Negro solely
because he is a Negro is racial discrimination, just as much as a
"white only" employment policy. Both forms of discrimination are
prohibited by title VII of this bill.
Some people charge that H.R.
7152 favors the Negro, at the expense of the white majority. But how
can the language of equality favor one race or one religion over
another? Equality can have only one meaning, and that meaning is
self-evident to reasonable men. Those who say that equality means
favoritism do violence to common sense.
110 Cong. Rec. 8921 (1964) (emphasis supplied).
On May 25, Senator Humphrey took the floor again to address the issue of
preferential treatment:
The title does not provide that any preferential treatment in employment
shall be given to Negroes or to any other persons or groups. It does not
provide that any quota systems may be established to maintain racial
balance in employment. In fact, the title would prohibit preferential
treatment for any particular group, and any person, whether or not a
member of any minority group, would be permitted to file a complaint
of discriminatory employment practices.
Id. at 11848 (emphasis suppled).
Ultimately, a bipartisan coalition was formed, resulting in the
substitution of the so-called Dirksen-Mansfield amendment for the
House-passed bill. The substitute bill was introduced on May 26. It
contained a number of clarifying amendments, including @ 703(j), but
left untouched the basic prohibitory language of @ 703(a).”
II.
THE EMPLOYER’S DILEMMA: CONDUCTING A “DIVERSITY” PROGRAM
CONSISTENT WITH THE PROBABLE OUTCOME OF THE INEVITABLE, NEXT
TAXMAN CASE WITHOUT “GIVING AWAY THE STORE” TO THE PLAINTIFFS’
BAR.
A.
The Risk In Attempting To Quantify Historic “Under-Representation” Of
Minorities Or Of Women -- The Assault On The WellIntentioned Employer’s
“Self Critical Analysis” Privilege.
Since there is a clear warning in Taxman and its inevitable progeny that
it might well be actionable to grant employment preferences based on
factors prohibited by Title VI unless such preference can be
demonstrated to be a remedy for a real past wrong affecting the
employee group in question, a well-intentioned employer might be
tempted to analyze its own historic workforce to determine if, and to
what extent, it has “underutilized” women and minorities (to use an
OFCCP term of art.) Such a well-intentioned employer might quickly
learn the true meaning of the adage that no good deed goes unpunished.
In the 1980s, a body of principally Eastern state federal trial court
and appellate court opinions and Eastern state law school law review
commentaries had begun creating the comforting impression of a
groundswell of support for a new privilege that would allow a wellintentioned employer to engage in this type of analysis without fear
that a plaintiff’s lawyer would use this work as a major weapon against
the employer -- a “smoking gun” admission of discrimination.
See
Webb v. Westinghouse Electric Corp., 81 F.R.D. 431, 433 (E.D. Pa. 1978);
O’Connor v. Chrysler Corp., 86 F.R.D. 211, 217 (D.Mass. 1980); Coates
v. Hohnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985); Jamison v.
Storer Broadcasting Co., 511 F.Supp. 1286, 1296 (E.D. Mich. 1981),
aff’d in part and rev’d in part 830 F.2d 194 (6th Cir. 1987);
Flanagan, Rejecting A General Privilege For Self-Critical Analysis, 51
Ge. Wash. Law Rev. 551 (1983); Comment, Stimulating Corporate SelfRegulation -- The Corporate Self-Evaluation Privilege: Paradigmatic
Preferentialism or Pragmatic Panacea, 87 Nw. U. Law Rev. 597 (1993);
Note, The Privilege of Self-Critical Analysis, 96 Harv. L. Rev. 1083
(1983).
This comfort has now all but evaporated, particularly in the Western
states within the federal Ninth Circuit. See Gonzales v. Police Dept.
of San Jose, California, 901 F.2d 758, 759 (9th Cir. 1990) holding that
there is no “self-critical analysis” privilege in the Ninth Circuit.
See also Griffith v. Davis, 161 F.R.D. 687, 701, fn. 17 (C.D.Cal. 1995)
[no Ninth Circuit case recognizes the privilege]; T.W.A.R. v. Pacific
Bell, 145 F.R.D. 105, 108 (N.D.Cal. 1992) [same]; Pagano v. Oroville
Hosp., (E.D.Cal. 1993) 145 F.R.D. 983, 690 (E.D.Cal. 1993) [no such
privilege in hospital peer review context].
A similar result is likely in the Eastern states as well after the
United States Supreme Court rejected a similar privilege claim for
university tenure peer reviews in University of Pennsylvania v. EEOC,
493 U.S. 182 (1990).
The final blow to this emerging new privilege was delivered by Cloud v.
Superior Court, 50 Cal.App.4th 1552, 1556-59. In this case, a
California intermediate appellate court rejected any new privilege
unless it was based on an express statute.
B.
Reasonable “Critical Analysis” Under the OFCCP’s Guidance
The Office of Federal Contract Compliance Programs (OFCCP) has issued
guidance to Federal contractors on the allegedly ideal approach to
establishing an affirmative action plan. See BNA Labor Relations
Reporter, Vol. 8A, Fair Employment Practices Manual, Tab 443
“Approaches To Affirmative Action”. With no comment on the absence of
any privilege protecting that plan (including the absence of any
privilege against an adverse action by the OFCCP itself), the OFCCP’s
guidance states:
“The objective [of a “self-analysis”] is to determine whether
employment practices tend to exclude, disadvantage, restrict, or
result in adverse impact or disparate treatment of certain groups,
or leave uncorrected the effects of prior discrimination, and, if
so, to attempt to determine why.”
“If the reasonable self-analysis shows that one or more
employment practices tend to have an adverse impact on the
employment opportunities of a specific group, leave uncorrected
the effects of prior discrimination, or result in disparate
treatment of a specific group, the employer has a reasonable basis
for concluding that affirmative action is appropriate ... Care
should be taken to make sure a voluntary affirmative action
program is limited in time and scope to do no more than correct
the results of past discrimination.” [Emphasis added.]
C.
The OFCCP’s Required Report
The principal report required of a Federal contractor by the OFCCP is an
“EMPLOYER INFORMATION REPORT, EQUAL EMPLOYMENT OPPORTUNITY, FORM EEO1". In addition to basic address and identification information, this
report requires employers to list, by total number, the employees in
Nine (9) Categories defined using job codes taken from the last
decennial census:
“Official and Managers”
“Professionals”
“Technicians”
“Sales Workers”
“Office and Clerical”
“Craft Workers (Skilled)”
“Operatives (Semi-Skilled)”
“Laborers (Unskilled)”
“ Service Workers”
The employer then must show the numbers of Male (1) Whites (Not Of
Hispanic Origin), (2) Blacks (Not Of Hispanic Origin), (3) Hispanics,
(4) Asian or Pacific Islanders, and (5) American Indians Or Alaskan
Natives, followed by the numbers of Female (1) Whites (Not Of Hispanic
Origin), (2) Blacks (Not Of Hispanic Origin), (3) Hispanics, (4) Asian
or Pacific Islanders, and (5) American Indians Or Alaskan Natives.
D.
Not
“Under-Utilization” Of Any Minority Category As Shown On An EEO-1 Is
Actionable Per Se.
In Hazelwood School Dist. v. United States, 433 U.S. 299, 308, and again
in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650, the Supreme
Court has stated that a Title Vii violation is not supported by a simple
disparity between the percentage of a minority group in a relevant local
population and the percentage of that same minority in an employment
group:
“The ‘proper comparison [is] between the racial composition of
[the at-issue jobs] and the racial composition of the qualified .
. . population in the relevant labor market.’ ”
Wards Cove,
quoting Hazelwood.
Recent federal appellate opinions re-affirm the legal insignificance of
a simple difference between EEO-1 types of numbers and percentages and
the numbers and percentages of minority groups in the general
population. See Middleton v. City of Flint, Michigan, 92 F.3d 396, 406
(6th Cir. 1996), cert. den. ___ U.S. ___, 117 S.Ct. 1552 (1997); Carter
v. Ball, 33 F.3d 450, 456-57 (4th Cir. 1994), [zero percentage of black
employees in upper management proves nothing without evidence as to
percentage of blacks in qualified applicant pool].
E.
The Most Meaningful Statistic Is “Applicant Flow” And Increasing It
Is An
Unassailable Basis For Increasing Diversity
In all of the above cases dealing with the correct use of statistics in
employment discrimination scenarios, the common denominator is a
comparison of the employer’s workforce to the “relevant labor pool”.
But just what is that relevant labor pool of qualified individuals A
number of federal courts have stated that actual applicant flow figures
are the best and most reliable data since they show persons who are
interested in a position and who, presumably, have a reasonable basis
for believing they are at least minimally qualified. See Anderson v.
Douglas & Lomason Co., Inc., 26 F.3d 1277, 1286-87 (5th Cir. 1994),
cert. den. 513 U.S. 1149 (1995).
Thus, a program increasing the numbers of a desired or targeted minority
group applying for a given position should, logically, increase the
number who will actually become employed by the employer and that
increase will be “in line” with and entirely consistent with the
prevailing cases.
F.
Eliminating Barriers To Diversity
In Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir. 1996), cert. den. ___
U.S. ___, 117 S.Ct. 1425 (1997), a federal appellate court invalidated a
county fire department’s affirmative action program, finding it to be
an unconstitutional system of preferences. However, in making this
holding, the federal appellate court observed that the employer had
other less obvious (and less invidious) means to increase the diversity
of its workforce lawfully. In the case of the Prince George’s County
Fire Department, its white male composition was, in part, due to a
voluntary policy of giving hiring preferences to volunteer firemen who
were predominantly white males. The court observed that it was
impossible to characterize the unlawful affirmative action program as
essential, when the department was voluntarily creating part of its
problem.
Every employer undoubtedly can identify one or more of its own
“innocent” (i.e., not adopted out of any discriminatory motive) hiring
“traditions” or practices that have a similar result. These should be
a first target for correction.