Federal Court Interpretation of Title VII: Emphasizing Front-End Anticipation over Back-End Resolution
Developments in employment law signal heightened requirements for employers in the context of Title VII litigation and reflect an increased demand for anticipatory employer action. As a result, the effects of employment policies will need to be considered carefully, regardless of whether those policies affect individuals within a protected class. Recent decisions by federal courts have limited the avenues available to employers in mitigating against policies later determined to be biased against a protected group, which results in an uncomfortable decision for employers: allocate even more resources to anticipate discrimination claims, or forego such anticipation and face the likelihood of increased claims. While the courts' emphasis on avoiding discrimination claims may be sound in theory, the economic impacts of such a decision have yet to be seen.
Congress passed Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., to protect against workplace discrimination. Title VII prohibits employment discrimination against any individual on the basis of race, color, sex, religion, or national origin. As originally drafted, Title VII only prohibited intentional discrimination (known by labor & employment lawyers as "disparate treatment"). However, in a 1971 case, Griggs v. Duke Power Co.,the Supreme Court interpreted Title VII to also prohibit "practices that are fair in form, but discriminatory in operation" (known as "disparate impact"). Congress adopted the prohibition on disparate impact with its passage of the Civil Rights Act of 1991.
Title VII was always intended to protect employees who have been subject to workplace discrimination. And, it has proven to be fertile ground for litigants, as Title VII is one of the most heavily litigated federal acts in employment law. Yet, the expectations imposed on employers continue to shift with the development of interpretive case law.
The Court's most significant recent pronouncement on Title VII, Ricci v. DeStefano, 129 S. Ct. 2658 (2009), has heightened the burden on employers covered by Title VII. In Ricci, over 100 New Haven firefighters took examinations to qualify for promotion to either lieutenant or captain. Based in large part upon those examination results, certain qualifying firefighters would be promoted to openings, while others would not. After the results were determined, some members of New Haven society and certain individual firefighters argued that the examinations were biased against minorities and therefore discriminatory. The affected firefighters threatened a discrimination lawsuit against the City if it made promotions based solely on the results of the examinations. The City elected to throw out the results of the examination rather than face such suit.
Certain white and Hispanic firefighters who claimed that they would have been promoted based on their examination performance sued the City of New Haven and some of its officials, arguing that the City violated Title VII, among other laws. The district court granted summary judgment for the City in part on the basis that the City's "motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent" under Title VII.
The Supreme Court disagreed, elaborating a new standard that increases the already weighty burden on employers to anticipate possible discrimination claims. Reasoning that the City acted inappropriately by refusing to promote qualified firefighters, the Court announced that any race-based decisions made by employers – even when made to avert the possibility of discrimination claims – must be based on "a strong basis in evidence of disparate-impact liability." Here, the City had failed to consider adequately the possible effects of the firefighters' examinations, and therefore the City's actions ran afoul of Title VII. As such, the Court now emphasizes that employers must determine the possible discriminatory effect of their actions in advance, rather than address the possible discriminatory overtones after alleged discrimination has taken place. Although sound in theory, this action will place a heavy burden indeed on employers.
Federal circuit courts have begun to respond to the heightened employer restrictions heralded by Ricci. The latest example of the stricter standards applied to employers is found in Humphries v. Pulaski County Special School District, Nos. 08-2845, 08-2594, 2009 WL 2778309 (8th Cir. Sept. 3, 2009). In Humphries, the plaintiff, Donna Humphries, was employed as an elementary school counselor since 1989 by the Pulaski County Special School District. Beginning in 2001, Ms. Humphries had applied to virtually every available assistant principal position within the district but, as a white female, had never been selected. Instead, she claimed that black applicants were almost uniformly chosen. As such, similar to the Ricci plaintiffs, she brought suit alleging that she had been subject to reverse discrimination by the School District.
The Pulaski School District had long been involved in desegregation litigation, and in 1990 had initiated steps to address segregation through an affirmative action plan within the School District, which required hiring with an eye towards racial composition, as well as a settlement agreement with other Arkansas school districts. Several years later, the School District was also required to create an "Office of Desegregation Monitoring" to monitor its affirmative action plan. In 2000, the School District created a new plan, called "Plan 2000," which outlined the steps for obtaining a more racially diverse pool of employees. Essentially, Ms. Humphries claimed that the School District preferentially hired black applicants in a misguided attempt to comply with a desegregation plan that had been court-ordered since approximately 1985, which resulted in disparate treatment constituting reverse discrimination.
Although the School District obtained summary judgment from the district court, which had determined that Ms. Humphries was unable to provide any evidence of unlawful discrimination, the Eighth Circuit reversed the district court's decision and remanded for further proceedings. The Eighth Circuit found that, even if the School District's actions to address historical racial discrimination had to some extent been determined by its affirmative action plan, summary judgment was inappropriate where Ms. Humphries could perhaps demonstrate both 1) the actions taken by the School District did not further the intent of racial desegregation; and 2) the School District had acted pursuant to its flawed policies in denying Ms. Humphries the position for which she applied.
Taken together, Ricci and Humphries demonstrate that federal courts are casting a more jaundiced eye on actions taken by employers. The City of New Haven, by revoking the results of a civil examination, had hoped to prevent a possible discrimination lawsuit because of the examination's alleged bias. Similarly, the Pulaski School District, in seeking to hire racially diverse administrators, sought to address the long-standing effects of discrimination within the district. Yet, even where those actions were taken to address the type of discrimination prohibited by Title VII, federal courts have proven themselves willing to strike them down as instances of reverse discrimination. With decisions like Ricci and Humphries, employers must now show an even greater awareness of the possible discriminatory effects of their actions, rather than relying on their ability to address and to cure discrimination.