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A N 8 D 8 B 18 AR SINCE Web address: http://www.nylj.com VOLUME 236—NO. 45 MONDAY, OCTOBER 2, 2006 EMPLOYMENT LAW

BY JEFFREY S. KLEIN AND NICHOLAS J. PAPPAS Legality of Voluntary Affirmative Action Plans

any nongovernmental employers affirmative action. Rather, the Court stated that are placing greater emphasis on a permissible voluntary affirmative action plan increasing the racial or gender must: (1) further Title VII’s statutory purpose M diversity of their workforces. by “break[ing] down old patterns of racial Employers have multiple objectives for pursuing segregation and hierarchy” in “occupations diversity. Some employers do so in connection which have been traditionally closed to them”; with their obligations as government contractors (2) not “unnecessarily trammel the interests of to pursue hiring goals. 1 Other employers do so white employees”; (3) be “a temporary measure voluntarily to enhance equal employment [that]…is not intended to maintain racial opportunities for members of historically Jeffrey S. Klein Nicholas J. Pappas balance, but simply to eliminate a manifest disadvantaged groups. racial imbalance.” 443 US at 208. Employers voluntarily pursuing the goal of The Court recognized that Title VII shall not increased diversity in the workplace frequently “be interpreted to require any employer…to adopt written plans providing for specific benefits ‘Weber’ and ‘Johnson’ grant preferential treatment to any individual for females and minorities. These plans are referred Title VII prohibits employment discrimination or…group…on account of an imbalance which to generically as “voluntary affirmative action on the basis of race, color, religion, sex or national may exist.” 42 USC §2000e-2(j). Nevertheless, plans.” Such plans take varied forms and may origin. 42 USC §§2000e-2(a) & 2(d). The Supreme the Court noted that this provision did not use include programs addressing various employment Court construed this fundamental prohibition to the phrase “require or permit,” and, therefore, practices, including hiring, training, retention recognize claims by members of both the majority “Congress did not intend to limit traditional and promotion. and nonmajority groups for violations of Title VII. business freedom to such a degree as to prohibit While employers promulgate voluntary McDonald v. Santa Fe Trail Transp. Co., 427 US all voluntary, race-conscious affirmative affirmative action plans for what they firmly believe 273, 280 (1976). action.” Id. at 207. to be laudable and legitimate business reasons, In United Steelworkers of America v. Weber, The Supreme Court further clarified its employees in majority groups have occasionally 443 US 193 (1979), a collective bargaining holding in Weber almost a decade later in challenged such actions as violating the federal agreement required that the employer reserve Johnson v. Transp. Agency, Santa Clara County, antidiscrimination mandates of Title VII of the 50 percent of the openings in a training Cal., 480 US 616 (1987). In that case, a Civil Rights Act of 1964, 42 USC §§2000e- program for African-American employees transportation agency promulgated a voluntary 2000e-17. In these instances, employees in until the percentage of African-American craft affirmative action plan “intended to achieve a majority groups assert that they are denied specific workers in the plant was commensurate with statistically measurable yearly improvement in benefits or opportunities based on their own race the percentage of African-Americans in the hiring, training and promotion of women and or sex, and that Title VII specifically prohibits local labor force. Weber , 443 US 193. When minorities…in all major job classifications where such discrimination. Courts and commentators Brian Weber, a white applicant for admission they were underrepresented.” The plan allowed have sometimes referred to such claims as into a company’s training program, was denied the consideration of the sex of an applicant as “reverse discrimination.” admission into the program, Mr. Weber claimed a factor for hiring and promoting, noting that In this article, we analyze the legal standards that had the voluntary affirmative action plan women were represented in numbers far less courts have applied in determining whether not been in place, he would have been admitted than their proportion of the county labor force voluntary affirmative action plans comply with to the training program because his seniority was both in the agency as a whole and in several Title VII. We also identify the critical issues greater than the seniority of African-American job categories. Johnson , 480 US at 620-21. A nongovernmental employers should consider to employees who were admitted. He claimed that male employee claimed that this affirmative ensure that their voluntary affirmative action plans this application of the collective bargaining action plan violated Title VII when a female comply with Title VII and applicable case law. agreement to him violated Title VII’s prohibition employee was promoted although she had of race discrimination. received a lower ranking than two males in The Supreme Court rejected Mr. Weber’s the interview process.2 Jeffrey S. Klein and Nicholas J. Pappas claim of race discrimination and ruled that First, the Court reaffirmed that “an employer are partners at Weil, Gotshal & Manges, where they Title VII permits some, but not all, voluntary seeking to justify the adoption of a [voluntary practice labor and employment law. Amanda G. race-conscious affirmative action. The Court affirmative action] plan need not point to its own Trivax, an associate at the firm, assisted in the declined to define the “line of demarcation” prior discriminatory practices, nor even evidence preparation of this article. between permissible and impermissible of an ‘arguable violation’ on its part.” Id. at 630. NEW YORK LAW JOURNAL MONDAY, OCTOBER 2, 2006

Rather, it need point only to a “‘conspicuous… statutes. Finding that the affirmative action plan. Because the university’s plan conformed to imbalance in traditionally segregated job plan “[was] not based on any finding of historical the Weber factors, the court held that it did not categories.”’ Id. Second, it established that “a or then-current discrimination in the casino violate Title VII. Id. at 735-36. comparison of the percentage of minorities industry, …[nor was it] put in place as a result or women in the employer’s work force with of any manifest imbalance or in response to a Practice Pointers the percentage in the area labor market or finding any relevant job category was or ever general population is appropriate in analyzing had been affected by segregation,” the court As demonstrated by the Schurr case, jobs that require no special expertise….” Id. at held that the plan relied on by Resorts violated nongovernmental employers who pursue diversity 631-632. In contrast, where jobs require special Title VII. Id. at 497-98. 3 initiatives pursuant to voluntary affirmative training, the proper “comparison should be action plans should ensure compliance with with those in the labor force who possess the xxxxxxxxxxxxxx the Supreme Court’s mandates in Weber and relevant qualifications.” Id. at 632. Applying Some courts also have applied Johnson .4 In particular, employers may wish this newly detailed framework, the Johnson Title VII to reject claims of to ask the following questions regarding their Court determined that the plan satisfied the voluntary affirmative action plans: Weber criteria. reverse discrimination based • Is the plan intended to break down old While the Supreme Court has not had occasion on supported affirmative patterns of segregation and hierarchy in to revisit the issue of voluntary affirmative action action plans, as the Supreme occupations which have been traditionally closed to women or minorities? plans in the 19 years since Johnson , lower courts Court did in ‘Johnson.’ have had numerous opportunities to apply the • Is the plan premised on an understanding Weber and Johnson standards. Although the For example, in ‘Farmer,’ a of what the Supreme Court meant by Supreme Court rejected the claims of reverse university had a voluntary “traditionally segregated job categories”? discrimination and upheld the affirmative action affirmative action plan • Does the plan avoid unnecessarily plans in both Weber and Johnson, a number of trammeling the interests of white or male courts have rejected employers’ reliance on where a department hiring employees by ensuring the opportunities affirmative action plans where the employer was a minority candidate for the continue to be available to them? not able to meet the standards set forth by the faculty got permission from • Does the plan envision an end point at which Supreme Court. the university to hire an time the plan will no longer be necessary, so that it is viewed as a temporary measure that ‘Schurr’ additional faculty member. is not intended to maintain racial or gender xxxxxxxxxxxxxx balance, but simply to eliminate a manifest For example, in Schurr v. Resorts International racial or gender imbalance? Hotel, Inc., 196 F3d 486 (3rd Cir. 1999), the ‘Farmer’ U.S. Court of Appeals for the Third Circuit • Is the plan based upon statistics reversed a district court’s decision to uphold an By contrast to Schurr , in appropriate demonstrating a manifest imbalance between affirmative action plan that was mandated by circumstances courts also have applied Title the number of women or minorities in the state law on the ground that the plan violated VII to reject claims of reverse discrimination relevant labor market who are qualified for Title VII. The Casino Control Act, established based on appropriately supported affirmative the positions and the number of women and by the Casino Control Commission, required action plans, as the Supreme Court did in both minorities in the workforce? that casino licensees take “affirmative steps” Weber and Johnson . For example, in University • Is the plan predicated on a sufficient level to ensure that women and other minorities and Community College System of Nevada v. of disparity to constitute a manifest imbalance “are recruited and employed at all levels of Farmer, 930 P2d 730 (Nev. 1997), a university worthy of a remedy by affirmative action? the operation’s work force….” Schurr , 196 F3d established a voluntary affirmative action plan Given the complexity of the law governing the at 488-89 (citing NJAC 19:53-4.3(a)). The where a department hiring a minority candidate above issues, employers certainly should consult statute specifically required casino licensees for a faculty position received permission from with counsel in promulgating or revising voluntary to “improve the representation ‘of women the university to hire an additional faculty affirmative action plans. and minorities in job titles within EEOC member. Farmer , 930 P2d at 732. Plaintiff ••••••••••••••••••••••••••••• 1. Exec. Order No. 11,246, 3 CFR 339 (1964-1965), reprinted job categories in which the casino licensee Yvette Farmer, a white female, applied for a as amended in 42 USCA §2000e (2003). is below the applicable employment goals faculty position in the sociology department of 2. “Where the issue is properly raised, public employers must established by the [Code].’” Id. at 489 (citing the university. Although the search committee justify the adoption and implementation of a voluntary affirmative action plan under the Equal Protection Clause,” but because neither NJAC 19:53-4.3(b)(2)). Plaintiff Karl Schurr, included Ms. Farmer as one of three finalists, party raised constitutional issues, the Johnson Court decided “only a white male, sought employment with Resorts. the position ultimately went to a black the prohibitory scope of Title VII.” Id. at 620, n2. Resorts narrowed the pool of applicants “under African male emigrant. The department hired 3. See also United States v. New York City Board of Education, 2006 WL 2591394 (EDNY Sept. 11, 2006) (where an affirmative consideration to [Mr.] Schurr and…a black Ms. Farmer one year later as a result of the action plan granted preferential seniority as to layoffs, these sections male…[who were viewed as] equally qualified.” additional position created by the policy, but failed Title VII’s unnecessary-trammeling test). 4. In addition to compliance with the standards set forth by Id. at 490. Where the percentage of minorities Ms. Farmer nonetheless brought suit, claiming Weber and Johnson , employers also should consider the applicability employed by Resorts for the job category at that the affirmative action plan violated Title of EEOC regulations specifying guidelines for affirmative action issue was below the goal established by the VII. Id. at 733. The university’s Affirmative plans that the EEOC will view as satisfying the requirements of Casino Control Act, Resorts believed it “was Action Report revealed that only one percent Title VII. See 29 CFR §§1608.4 & 1608.10 (2006). obligated to hire the minority candidate if one of Nevada’s faculty were African-American, of the two qualified applicants for a position and 87 to 89 percent of the full-time faculty This article is reprinted with permission from the was a minority….” Id. were white; accordingly, the plan was instituted October 2, 2006 edition of the NEW YORK LAW Following the hiring decision, Mr. Schurr to “rectify the racial imbalance.” JOURNAL. © 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is sued Resorts and the Casino Control The court held that the university attempted to prohibited. For information, contact ALM Reprint Commission, alleging that the affirmative attain—and not maintain—a racial balance in its Department at 800-888-8300 x6111 or visit action plan violated Title VII, among other faculty by use of its voluntary affirmative action almreprints.com. #070-10-06-0006