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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