University's Affirmative Action Plan Held No Barrier To Sex Discrimination Claims
April 1, 2000
Affirmative action plans do not necessarily shield schools and colleges from
discrimination claims. In Hill v. Ross (7th Cir. 1999), a federal appeals court
ruled that a male professor at the University of Wisconsin, who was denied a
tenure track position because of his gender, can proceed with his Title VII and
Constitutional equal protection claims even though the University acted in
accordance with its affirmative action plan.
In Hill, the psychology department voted to offer the professor a tenure
track position in clinical psychology, but the Dean of the College of Letters
and Sciences objected. The Dean wanted the department to hire a woman instead,
citing the targets set forth in the University’s affirmative action plan. The
plan indicated that the psychology department needed to hire 3.23 women to reach
its target. When the psychology department stood by its choice of Hill, the Dean
blocked the recommendation and the position stood vacant.
Hill sued the University claiming that it had unlawfully discriminated
against him on the basis of his gender in violation of Title VII of the Civil
Rights Act and the equal protection clause of the U.S. Constitution. The trial
court entered summary judgment for the University, ruling that its decision was
supported by a valid affirmative action plan. On appeal, the Seventh Circuit
reversed, giving three reasons.
First, the court found that a jury could have concluded that the Dean used
Hill’s sex, not as one factor among many, but as the sole basis for his
decision. While gender and race may be a factor in a public entity’s
employment decision, it can never be the dispositive factor — at least not
unless the plan is designed to overcome the effects of past discrimination,
which was not the case at the University of Wisconsin.
Second, the court noted that the University’s affirmative action plan did
not require the Dean’s actions. The University had argued that the plan
required three names to be submitted to the Dean for consideration to fill any
vacancy, and in this case only the name of the plaintiff had been submitted. The
court noted that nothing in the written plan required the submission of three
names, and further recognized that a multiple-name requirement could be found to
be "a smokescreen for discrimination."
Third, the court found that the University had not justified its gender
preference for the position. The court rejected the University’s argument that
its affirmative action plan was justification enough for its decision, noting
that an "exceedingly persuasive" justification was required because
the plan was not implemented to remedy past discrimination. The court warned
that "[e]mployers may not shed their responsibilities under Title VII and
the Constitution by intoning ‘affirmative action.’"
The Hill decision teaches that while an affirmative action plan may justify
employment decisions that would otherwise violate Title VII or the Constitution,
such employment decisions must conform strictly to the plan’s dictates.
Moreover, where the affirmative action plan is not necessary to remedy past
discrimination, the plan must have some other similarly persuasive justification
and be carefully tailored to survive judicial scrutiny. Gender and race may be
considered in a public employment decision, but they cannot be the deciding
factors.
For more information, contact Robert Crohan at 1-888-688-8500 or rcrohan@hklaw.com
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