Part III: Four Implications Impacting Federal Government Contractors & Employers Following the SCOTUS Decision in the Harvard & UNC Cases + “Life Preserver” Practical Next Step Suggestions

This is Part III of a Four-Part Series discussing the implications for employers of the SCOTUS’ case decision resolving the Harvard and UNC cases. The fourth and Final Part of this 4-part Blog series will appear in next week’s Week In Review publication. If you missed them, you may find Part I here discussing the “Pipeline Problem” and suggested Solutions, and Part II here.

If you missed the Harvard/UNC case decision and need a baseline to understand the current state of discrimination law, here is my discussion of the SCOTUS’ decision.

Today’s topic is Doing Right the Right Way: The Renewed Commitment To Hiring African Americans Is Not A “Greenlight” to Unlawfully Discriminate Against Other Protected Groups.

I will describe next week “How to Engage in Race-Based Preferences in employment decisions if that is your choice to do so. But you cannot do “Right” the “wrong way.”

Soon after the murder of George Floyd, I began to receive telephone calls and e-mail inquiries from defense employment law attorneys around the country wondering what I was doing to restrain overzealous corporate clients from unlawfully discriminating against Whites, Asians, and Hispanics in a mad-dash effort to hire African Americans because they were Black.  Those contacts continue to this day.

By the time they get to me, the writers and callers had already concluded that their corporate clients had engaged in unlawful hiring discrimination:

“Hire the next five Blacks who apply,” one CEO was reported to have told attendees of his weekly senior staff meeting. “Just hire them.”

“Hire every African American who applies until we employ Blacks about equal to their 11% national workplace population percentage” another caller reported that her client’s HR Manager had ordered the company’s recruiters to do.

One CEO reportedly shouted in exasperation at his senior staff that “We WILL hire an Hispanic to head our South America Group, I don’t care what the lawyers say. What part of “We WILL hire” does anyone here not understand?”

These corporate leaders may think they are doing the “right thing,” but they are doing it the wrong way. These are simply unlawful discriminatory company practices and employment decisions waiting to be found given that these three decisions to hire were “because of” the race or national origin of the Applicant.

Flip the race and National Origin (and gender) around and see how it sounds:

“Hire the next five Whites who apply.”

“Hire every White who applies until we get to their 63% of the workforce percentage.”

“We WILL hire a White (or male) to head our Group in the U.S.”

Hiring Employees “Because Of” Their Race, National Origin or Gender is “Direct Evidence of Discrimination.”

I did not say it is unlawful yet. It is just discriminatory. That leaves room for the employer to go forward with evidence and the burden of persuasion to prove up an “Affirmative Defense” to make its discrimination “lawful.”  (That is next week’s Blog discussion as to the circumstances that hiring because of a Protected Status may be lawful). Remember: Discrimination lawyers do not care whether a company discriminated against an Applicant or employee. Rather, concern arises only if the employer’s at-issue employment decision was unlawfully discriminatory.

In legal terms, making a decision to hire based on race or National Origin (or gender) is “direct evidence” of unlawful employment discrimination…ABSENT what lawyers call an “Affirmative Defense” that would make the otherwise bad act lawful.

In law, there are two primary kinds of evidence: “direct evidence” and “circumstantial evidence.” (“Circumstantial” evidence then breaks down into subset types of inferential evidence, such as “comparative” and “statistical” evidence). “Direct Evidence” takes the guesswork out of the fact trying to be established (what the intent (motive) was; what the act was; who the actor was; where the act occurred; when the act occurred, etc.: “It was me, Mr. Green in the Library with the Candlestick at high Midnight.”)

Confessions are a form of “Direct Evidence.”  Direct Evidence supports the truth of the assertion without the need for any inferences or interpretation.

I saw my first piece of “direct evidence” of unlawful employment discrimination as a first-year defense lawyer two weeks into my first legal job. I was reviewing applications in a class action “failure-to-hire” women discrimination case brought against a major glass maker my law firm represented. The recruiter’s margin notes, handwritten on the border of an application as was the routine or habit of the day back before computerized Applicant Tracking Systems (and even before personal computers had been invented) said: “Pregnant.” The “No Hire” box to the left of the note was checked. The woman was not hired. I put a paperclip on that application (this was still four years before Post-It Pad Notes).

As I thumbed through the next 20 or so applications from the company’s eight recruiters, I came upon another one of that same recruiter’s rejection applications: the margin note on this one said: “Has kids.” I put a paperclip on that application, too. ( I had by that time reviewed many other applications which noted that men had kids and had been offered a job nonetheless).

The next of this recruiter’s “Reject” applications of women I happened upon had the “No Hire” box again checked but with this hand-written margin note: “Married.” That was the moment it occurred to me that I had better walk next door to the Partner who was in charge of the client and the case and report that this case might be a candidate for settlement and some recruiter training.

Indeed, two months later after I wrote a detailed report analyzing this particular recruiter’s treatment of female Applicants, the company took action. (I eventually learned from the recruiter’s co-workers that this recruiter only extended offers for entry-level labor positions to women if they were (a) single; (b) had a “stocky” figure, and (c) were daughters of farmers).

I then saw the power of “direct evidence” firsthand. Our client’s VP HR asked me to fly halfway across the country to his HQ offices (co-located with its major manufacturing plant where the recruiter worked) for a meeting.

My assignment was to sit and watch as this very experienced HR Manager brought the recruiter in question into his office for an interview. As the recruiter sat down in front of the VP HR’s massive desk, the VP tossed s stack of papers across his desk with a paper tab placed along the right edge of each document. I immediately recognized the documents as company applications. I quickly realized the tabs the VP HR had attached were the locations on the applications of this recruiter’s offending margin notes.

After looking at three or four of the applications in the stack, the recruiter paused, put the stack of applications in his lap, and then asked: “Well, I guess the reason I am here with you and Mr. Fox is because I’m fired, right?” The VP HR simply nodded without saying anything. He then reached across his desk motioning to retrieve the applications (it was clear to me that the VP HR did not want to talk to the recruiter, but rather wanted to show his disdain for him) and said very quietly: “Security will take you to the front gate. We will ship your personal belongings to your house in the coming days. Good day.”

The VP HR was not there to argue the matter: the applications told the story. The Recruiter did not plead his case: the smoking gun evidence was sitting in his lap. Not much needed to be said except how the recruiter would recover his personal possessions from his work desk.

“Direct evidence” is the most powerful kind of evidence of unlawful employment discrimination because it leaves no doubt about a critical fact that the direct evidence proves in and of itself. This is why plaintiffs’ lawyers LOVE “direct evidence” cases.  Some other more generalized examples:

1. Shakespeare’s famous quote which has wrongly become an anti-lawyer joke (Shakespeare actually wrote it in praise of lawyers—but that is a longer Blog) is direct evidence of bad intent, even if not proof of the bad act itself:

“The first thing we do is, let’s kill all the lawyers.”

The quote leaves no doubt about Dick the Butcher’s intent in Act IV, Scene II of Shakespeare’s famous historical play Henry VI (Part II). (But alas, no lawyers were harmed, by the way, in the telling of Henry VI’s life story.)

2. Here is an example of a murder confession which vividly explains why prosecutors LOVE “Direct Evidence:” it creates an “open and shut case” even a first-year lawyer could win at trial. In this case, a notorious serial killer and prostitute operating in north Florida in 1989 and 1990 shot and killed 6 of her customers at point-blank range with her pistol. She then created this chilling piece of “direct evidence” when discussing her subsequent conviction and death penalty:

“I want the world to know I killed these men, as cold as ice. I’ve hated humans for a long time. I am a serial killer.” — Aileen Wuornos

In legal terms, making a decision to hire based on race or National Origin (or gender) is “direct evidence” of unlawful employment discrimination…ABSENT what lawyers call an “Affirmative Defense” that would make the otherwise bad act lawful.

Clouds Are Gathering Over Concerns That Some Companies in the U.S. Have Gone Too Far in Their Zeal to Either Right Past Social Wrongs Against African Americans or to Pander to Customers Who Condition Their Purchases on the Social Profile of the Company

When blood is in the water, sharks swarm.

Employment defense lawyers are reporting an uptick in so-called “reverse discrimination law claims:”

July 5, 2023: Workplace Reverse-Discrimination Claims Likely to Surge in Wake of Supreme Court Ruling

April 7, 2023: Lawsuits Challenge Corporate Diversity Pledges After Floyd

And now, U.S. Senator Tom Cotton (R-AK) has poured gasoline on the fire by sending a widely publicized letter, even as I have been writing this Blog, to the managing partners of 51 large law firms in the United States with employment law departments warning them:

“I write regarding your firm’s employment law practice. In recent years, many major corporations have adopted race-based hiring quotas and benchmarks as part of their “Diversity, Equity & Inclusion” (“DEI”) initiatives. This is often driven by investment firms like BlackRock that pressure companies to implement DEI hiring policies to satisfy their “Environmental, Social, and Governance” mandates. These initiatives are both unpopular and unlawful. Your firm has a duty to fully inform clients of the risks they incur by making employment decisions based on race.”

Senator Cotton concluded his letter with a demand for essentially a “Litigation Hold” on all law firm documents concerning advice to the law firm’s clients, or the actions at their law firms, to promote race-based preferential DE&I employment programs:

“Federal law has long prohibited treating employees differently because of their race. Employers should take to heart the Supreme Court’s recent declaration that “eliminating racial discrimination means eliminating all of it.” Congress will increasingly use its oversight powers—and private individuals and organizations will increasingly use the courts—to scrutinize the proliferation of race-based employment practices. To the extent that your firm continues to advise clients regarding DEI programs or operate one of your own, both you and those clients should take care to preserve relevant documents in anticipation of investigations and litigation.”

The Practical Advice:

If it is happening, stop it (unless your company is ready to go forward with the needed “Affirmative Defense” we will discuss next week). If it has not happened, don’t let it start.

So, When Is It That an Employer May Lawfully Make Employment Decisions “Because of” Race (National Origin/Gender)?

That is the very subject of my fourth and Final Blog scheduled for publication next Monday. There, we will find that federal law governing workplace discrimination has approved of only two reasons employers Title VII of the 1964 Civil Rights Act covers may take race into account in employment decisions (hiring/promotions/competitive transfers/ involuntary terminations/compensation, etc.). These reasons are known as “Affirmative Defenses,” as I fleetingly noted above in this Blog.

While I describe in the coming Blog the proof an employer must put forward in support of any race-based decision-making which it undertakes, I also write that it is likely the SCOTUS has already eliminated one of the two permissions it had previously provided to employers.

That shrinkage of permissions from two to one, however, was not driven by the SCOTUS’ Harvard and UNC case decision. No. The SCOTUS may have already reduced the number of Affirmative Defenses to employers to undertake lawful race-based employment preferences to one permission 14  years ago as I will discuss in detail next week in Part IV of this four-part post Harvard/UNC Blog series.

In the meantime, be (lawfully) Affirmative out there!

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.