Affirmative Action Plan No Defense to Sex Discrimination
 
May 1, 2000
 

In a case illustrating that affirmative action plans do not necessarily act as a shield to discrimination claims, a federal appeals court has 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. Hill v. Ross (7th Cir. 1999).

In Hill, the Dean of the College of Letters and Sciences objected after the Psychology Department at the University of Wisconsin voted to offer Hill a tenure track position in clinical psychology. The Dean wanted the Department to hire a woman instead, citing the targets set forth in the university’s affirmative action plan, which 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 United States Constitution. The district 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, citing three reasons.

First, the Seventh Circuit 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. The court explained that while gender and race may be considered as factors in a public entity’s employment decision, it can never be the dispositive factor – unless the affirmative action plan relied upon as a justification is designed to overcome the effects of past discrimination. The court noted that the university had not sought to justify the Dean’s decision on the basis that its affirmative action plan was designed to remedy past discrimination.

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 instructed that "[e]mployers may not shed their responsibilities under Title VII and the Constitution by intoning ‘affirmative action.’"

The Hill decision illustrates that, while an affirmative action plan may justify employment decisions that would otherwise violate Title VII or the Constitution, any employment decision sought to be justified by reference to an affirmative action plan must conform to the plan’s dictates. Moreover, the plan itself must be justified and must be carefully tailored in order to survive judicial scrutiny.

For more information please contact Robert J. Crohan at 1-888-688-8500 or at rcrohan@hklaw.com.

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