Strictly Speaking Equal Employment Opportunity Means Neutrality

September 17, 2007

Certainly the Congressional policy underlying Title VII encourages efforts to improve employment conditions for minorities and women.  However, sometimes employers lose sight of the fact that the discrimination laws are written to prohibit employment decisions based on factors such as race, gender, age, religion, disability, etc.  Instead of being a neutral factor, these protected classifications can end up playing a role in employment decisions under the auspices of voluntary affirmative action plans, diversity programs, or even "risk management".   The result can be a claim for "reverse discrimination".

There are legal restrictions on preferences that take into account race, sex and national origin under employment policies like voluntary affirmative action and diversity programs. EEOC regulations outline the circumstances under which an employer may undertake a voluntary affirmative action program. Courts typically apply a three-part test to evaluate voluntary affirmative action plans under Title VII. First, there must be a manifest imbalance in the relevant workforce. Second, the plan must be temporary, seeking to eradicate traditional patterns of segregation. Finally, the plan cannot “unnecessarily trammel the rights” of non-beneficiaries. See, e.g., Johnson v. Transportation Agency, Santa Clara County.  Recently, in Decorte v. Jordan,  a federal appeals court ruled that a cultural-diversity report constituted  a voluntary affirmative action plan which was evidence of reverse discrimination because the plan had a ‘focus on race in employment decisions and an intent to achieve a desired racial balance."

Favoring a protected class under notions of "risk management" is reverse discrimination.  It is true that reverse discrimination cases constitute only a small fraction of total discrimination complaints received by the EEOC, but that doesn’t make this practice legal. I am surprised by how many companies will select non-minority employees for layoff in a reduction in force or discipline believing that they have eliminated potential discrimination claims.  See, e.g., McDonald v. Santa Fe Trail Transp. Co.   Likewise, hiring only employees in a protected class doesn’t avoid discrimination litigation.  For example, the EEOC sued L.A. Weight Loss Centers alleging that the company engaged in a pattern or practice of disparate treatment against men in its recruiting, hiring, and assignment of employees. In its suit, the EEOC also charged that LAWL disciplined and ultimately terminated an employee, a trainer with the company, in retaliation for attempting to hire male applicants and for her complaints that LAWL failed to hire qualified male applicants because of their gender.

There are even a small number of cases where outright discrimination is alleged. Two recent cases involve white employees successful discrimination claims based on a demotion and racially motivated verbal harassment.