Red and white life preserver with rope detailing aroundThis is Part IV, the final edition, of our Four-Part Series discussing the implications for employers of the SCOTUS’ case decision resolving the Harvard and UNC cases. If you missed our earlier Blogs leading up to today’s Blog, you may find them as follows:

The original Blog discussing the SCOTUS’ six Opinions in the Harvard/UNC case decision is here.

PART I discussing the “Pipeline Problem” and suggested “Life Preserver” Solutions is here.

PART II discussing ”Goals Are Not Unlawful Quotas” is here.

PART III discussing “Doing Right the Right Way: The Renewed Commitment To Hiring African Americans Is Not A “Greenlight” to Unlawfully Discriminate Against Other Protected Groups” is here.

Today’s Blog discusses “How to Lawfully Engage in Race-Based Employment Decisions If You Choose to Do So.”

PUNCHLINE: Let me start with the legal conclusion and then work backward to the underlying legal decisions which drive that conclusion and related conclusions:

An employer or federal government contractor may now undertake a preference in employment “because of” race (or national origin or sex) only to remedy unlawful employment discrimination the employer has committed and which discrimination is still within an applicable law’s statute of limitations period.

I believe this to be true for both public sector and private sector employees bound by the following various federal anti-discrimination laws:

  • Title VII of the Civil Rights Act of 1964 (which prohibits covered employers from making employment decisions “because of” “race, color, religion, sex and national origin”: 42 U.S.C. Section 2000e2(a)).
  • Title VI of the Civil Rights Act of 1964 (which prohibits covered employers receiving “Federal financial assistance” (i.e. federal “grants”) from making employment decisions “on the ground of race, color, or national origin”: 42 U.S.C. Section 2000d).
    • Editor’s Note: The omission of a reference to a protection for women is not an accident of the author. Congress did not extend the reach of Title VI to make a federal grant recipient’s discrimination on the ground of “sex” unlawful. There is a long and tortured history there.
  • the Fourteenth Amendment’s Equal Protection Clause (which granted citizenship to all persons “born or naturalized in the United States,” including formerly enslaved people) limits the discretion of state employers…meaning state agencies, and lesser state subdivisions (known by various names such as counties/parishes, cities, towns, villages, etc.) to “…deny to any person within its jurisdiction [meaning the State] the equal protection of the laws” [meaning the state could not treat Black citizens under color of state law any differently than Whites, for example].
  • the Fifth Amendment’s Equal Protection “Component,” impliedly embedded in its Due Process Clause, limits the discretion of federal agency employers (in the same way the Fourteenth Amendment’s Equal Protection Clause operates to prohibit state governments) from denying to any person within its jurisdiction [meaning the federal government’s jurisdiction] the equal protection of the laws.”

Note: The SCOTUS almost 70 years ago (1954) interpreted the Fifth Amendment’s Due Process Clause to be imbued with an implied “Equal Protection Component” and further held that the Fifth Amendment’s “Equal Protection “Component” limited the federal government in the same way the Fourteenth Amendment’s Equal Protection “Clause” limited state government action. See Bolling v. Sharpe, 347 U.S. 497 (1954).

The SCOTUS has handed down several major decisions outlining the circumstances under which government and private section employers may make employment decisions “because of” race (or national origin). We must divide the discussion into two parts, though:

  • One for public employers, and
  • one for private employers (since the U.S. Constitution places limitations on public employers not applicable to private employers. Rather, public employers must get over all the statutory “speed bumps” private employers face, but also must get over the constitutional “speed bumps” uniquely also applicable to them. There are just more “hurdles on the track” for public employers to get over to implement a lawful race-based employment program.

The conclusions of both lines of public and private sector case decisions arising under the Constitution and federal statutes are that an institution or an employer may take “self-help” to remedy that institution’s or that employer’s prior unlawful discrimination.

Public Employers and the Race-Based Remedies Preference Permission

Regents of The University of California v. Allan Bakke (1978) was the SCOTUS case decision that served as the genesis of the “race-based remedies preference” permission in the school admissions context. Earlier, in Brown v. Board of Education, 347 U.S. 483 (1954), the SCOTUS first approved in the school desegregation context of race-based remedies to cure unlawful discrimination. The Bakke case decision involved a failed medical school race-based admission quota, although the SCOTUS outlined what a school admission practice might look like that could pass Constitutional muster.

In fact, the SCOTUS’ Bakke case decision also began the SCOTUS’s tradition of striking down racial preferences as unlawful while thereby laying down guidance as to how the preference in question could have been lawfully implemented. You then saw this again in 1986 in the SCOTUS case decision Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (discussed briefly below).

This approach can be seen yet again in the SCOTUS’ 2003 Gratz v. Bollinger case decision involving the failed race-based undergraduate admission practices at the University of Michigan. You saw this approach recently in the SCOTUS’ 2023 Harvard/UNC case decision. But there was a twist: in striking down the race-based admission programs of both Harvard and UNC, the Court suggested only race-neutral alternatives to race-based admission practices.

But as to “race-based remedies,” a peculiar thing occurred in the Bakke case that shaped the SCOTUS’ thinking about race-based preferences. Supporters of the University of California’s race-based quota of “minority” candidates to be admitted to the Davis campus medical school argued that the race-based quota there was no different than “race-based remedies” for discrimination the SCOTUS had previously upheld. The cases the advocates cited to the Court were the SCOTUS’:

  1. line of case decisions ordering the public schools to be desegrated [i.e., Brown v. Board of Education, 347 U.S. 483 (1954)]; and
  2. the SCOTUS’ first Title VII remedies case Franks v. Bowman Transportation Co., Inc., 424 U.S. 747 (1976).

The Bakke court easily distinguished both lines of these prior case decisions as upholding “race-based remedies” repairing current active discrimination. However, now the mold was cast at the SCOTUS: “Race-based practices looking forward were bad,” but “race-based remedies looking backwards were good.” Note: The SCOTUS’ Grutter v. Bollinger, 539 U.S. 306 (2003) (University of Michigan Law School admission preference decision) and its Fisher v. University of Texas at Austin, 579 U.S. ___ (2016) [Fisher II] (University of Texas undergraduate admissions preference) case decisions strayed from this repair, or remedies, notion and created a 20-year aberration in the Court’s thinking…and that is exactly what the SCOTUS struck down in the Harvard/UNC case decision.

The “Stepping Stone” Decisions Which Led Us to The Current “Race-Based Remedies Are Permissible” ConclusionThe “Stepping Stone” Decisions Which Led Us to The Current “Race-Based Remedies Are Permissible” Conclusion

1986: Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) 

Here is a slice of text from Justice Marshall’s Dissenting Opinion in the subsequent City of Richmond, VA v. J. A. Croson Co., 488 U.S. 469 (1989) case decision describing a portion of the earlier thinking in the Wygant case decision:  

“The separate opinions issued in Wygant v. Jackson Bd. of Education, a case involving a school board’s race-conscious layoff provision, reflect this shared understanding. Justice Powell’s opinion for a plurality of four Justices stated that “the trial court must make a factual determination that the employer had a strong basis in evidence [emphasis added] for its conclusion that remedial action was necessary.” 476 U.S., at 277, 106 S.Ct., at 1849. Justice O’CONNOR’s separate concurrence required “a firm basis for concluding that remedial action was appropriate.” Id., at 293, 106 S.Ct., at 1857.

Remember that language from Justice Powell (the author of the Bakke Court Opinion): ”strong basis in evidence.” Private sector employers will see that language reappear, below, in the race and national origin-based remedies case decision applicable to them under Title VII of the 1964 Civil Rights Act.

1989: The SCOTUS’ case decision in City of Richmond, VA v. J. A. Croson Co., 488 U.S. 469 (1989) further cemented the Court’s notion that a “remedies preference” was the Constitutionally lawful use of race-based preferences. Specifically, the SCOTUS held that the Fourteenth Amendment’s “Equal Protection Clause” permitted a city government “to rectify the effects of identified discrimination within its jurisdiction.”  See Section V of the Court’s Opinion (written by Justice O’Connor).

Justice Scalia chimed in too, in his Concurring Opinion: “Nothing prevents Richmond from according a contracting preference to identified victims of discrimination.” 

And Justice Kennedy (usually the swing voter in those days at the SCOTUS in social issue cases) wrote: “We are left with an ordinance and a legislative record open to the fair charge that it is not a remedy but is itself a preference which will cause the same corrosive animosities that the Constitution forbids in the whole sphere of government and that our national policy condemns in the rest of society as well. This ordinance is invalid under the Fourteenth Amendment.”

Background: The J.A. Croson Company was a mechanical plumbing and heating contractor in Richmond, Virginia. Croson sued the City when in 1983 it adopted a “Minority Business Utilization Plan” that required prime construction contractors to which the city awarded contracts to subcontract at least 30% of the dollar amount of the prime contract to one or more “Minority Business Enterprises (MBE’s).” The SCOTUS struck down the Richmond ordinance as violative of the Fourteenth Amendment’s Equal Protection Clause because it both imposed a race-based “quota” and because the Minority Business Utilization Plan was not “narrowly tailored” to the problem the City sought to solve: i.e., it was not a “remedy” fashioned to cure construction contract discrimination against specific Black construction contractors. Nonetheless, the SCOTUS outlined how a public entity could undertake a lawful race-based preference program holding that it could stop all discrimination going forward and could remedy unlawful discrimination going backward in time.

The Lurking (buried from view) Statute of Limitations Sub-Issue

What the Court did not address is a still-open question as to whether a state entity’s remedy of a prior discriminatory action is limited to actions which occurred within the statute of limitations period allowing attack of the discriminatory action. Or is the remedy limited to the appropriate statute of limitations period, as Justice Stevens famously wrote (in a Title VII case dismissing the untimely Charge of a former United Airlines Flight Attendant who was discriminated against by United’s then illegal practice of not allowing married Flight Attendants to fly: astounding: back in the era of “Coffee, Tea or Me”?):

“But United was entitled to treat that past act as lawful after respondent [the former Flight Attendant terminated because she got married] failed to file a charge of discrimination within the 90 days then allowed by § 706(d) [of Title VII]. A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.” United Airlines v. Evans, 431 U.S. 553 (1977)

It seems very likely that the result of any future SCOTUS case decisions examining the question as to how far back in time the employer’s discrimination could be remedied now through a race-based preference would be during only the statute of limitations (“SOL”) period BECAUSE OF the United Airlines case decision. There is nothing to remedy if the bad act is outside the SOL…nothing to fix: bad acts outside the statute of limitations periods of any at-issue statutes have “no present current legal consequences.” See also Hazelwood School District v. United States, 433 U.S. 299, 309 (1977):

“The Court of Appeals totally disregarded the possibility that this prima        facie statistical proof in the record might at the trial court level be rebutted by statistics dealing with Hazelwood’s hiring after it became subject to Title VII. Racial discrimination by public employers was not made illegal under Title VII until March 24, 1972. A public employer who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white workforce by purposefully excluding Negroes.” [Footnote 15, omitted]

This result seems particularly likely too, it seems, from the now long line of SCOTUS case decisions (going back 50 years) repeatedly and firmly rejecting arguments that race-based remedies were “narrowly tailored” under the Fifth and Fourteenth Amendments if they were predicated on “societal discrimination.” See the Bakke, Wygant, Croson, and the recent Harvard/UNC case decisions just for a starter kit.

By the way, these very same issues of SOL issues and societal discrimination failing Equal Protection Clause review are the very same and very large legal impediment to state or federal government payments of reparations.

Private Employers and the Race-Based Remedies Preference Permission

Many defense lawyers representing employers used to think, and many still believe, that the SCOTUS had approved two permissions for private sector employers to base employment decisions on race. Both are forms of “self-help” remedies cases: 

1979: an employer’s “manifest (statistical) imbalance” between those who are available and those who are employed will permit a race-based preference in employment: Steelworkers v. Weber, 443 U.S. 193 (1979). The Kaiser mill in Gramercy, Louisiana had in this case entered voluntarily into a Collective Bargaining Agreement (“CBA”) with its Steelworker union to place one Black Craftworker into the craft training program for each White admitted to the craft training program (a 50% fill-rate, race-based quota). Brian Weber, White, challenged the agreement as violative of Title VII’s prohibition of discrimination based on “race.”

The SCOTUS upheld the Kaiser/Steelworker preference based on evidence in the trial record that the union and Kaiser had entered into the CBA because of the “manifest imbalance” of Black Craftworkers at the mill: 2% employed and almost 40% available: a 20x delta. (Gramercy is about only 100 miles from the Lousiana coast where the U.S. Navy commissioned contractors to build thousands of small boats during WWII under government contracts requiring them to hire “Negroes” (as recorded in the Navy contract and which served as a predecessor Order to Executive Order 11246)). 

More importantly, Gramercy is less than 50 miles from New Orleans where Higgins Industries built the famous “Higgins Boats,” the ubiquitous Landing Crafts that ferried Marines onto every beach in the Pacific WWII theater and led the way to land millions of U.S. troops and their heavy equipment on the beaches in Morocco, Sicily, Anzio, Normandy and St. Trope Bay (south of France). Almost half of Higgins’ WWII workforce was Black. There were, as a result, many tens of thousands of highly skilled and experienced Black welders, electricians, plumbers and steel workers in and near the Gramercy, Lousiana Kaiser mill.

2009: a “strong basis in evidence” to believe it has violated the law will permit an employer to undertake a race-based preference in employment:  Ricci v. DeStefano, 557 U.S. 557 (2009).

“We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence [emphasis added] that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII.&rdquo

In Ricci, the city of New Haven, Connecticut used a paper and pencil test (which the plaintiffs did not challenge and was assertedly “validated”) to identify the best qualified firefighter candidates for promotion, and the eligibility order of those candidates who passed the test. The test results, however, had a large statistical impact adverse both on Black and Hispanic pass rates and eligibility order for promotion:    

For Lieutenant: 8 vacant posts: 43 White test takers; 19 Blacks and 15 Hispanics

  • Test Results: 25 Whites passed; 6 Blacks and 3 Hispanics
  • Promotions made based on Test Scores: 10 Whites eligible for the 8 positions
  • No Black or Hispanic test passers eligible for promotion to Lieutenant

For Captain: 7 vacant positions: 25 White test takers; 8 Blacks and 8 Hispanics

  • Test Results: 16 Whites passed; 3 Blacks and 3 Hispanics
  • Promotions made based on Test Scores: 7 Whites and 2 Hispanics
  • No Black test passers eligible for promotion to Captain

The Mayor of New Haven and other local politicians convened a Town Hall meeting in response to public outcry about the test results and impending promotions. The Meeting “turned rancorous” in the words of the SCOTUS with threats of lawsuits by Black and Hispanic test takers who passed, but who did not score high enough to be ranked eligible for promotion based on their lower test scores. The City then refused to certify the test results and threw them out. 

The successful White and Hispanic test takers then filed suit to compel the City to certify the test results.

But without any evidence that the test was unlawful (the test was “validated” according to all test takers and it thus properly predicted who were the better qualified candidates), SCOTUS, of course, found that the City had no legal ability to force a race-based remedy.

Following the style the SCOTUS has set in these failed preference cases (see above), the SCOTUS explained in its decision that the City could have lawfully set the test results aside if it had at the time a “strong basis in evidence” to believe it had unlawfully discriminated in administering the test. The SCOTUS was thus endorsing the City’s ability to take “self-help” to correct its unlawfully discriminatory actions had it indeed discriminated. Since the City had no evidence of its illegal conduct, it was thus guilty of unlawful discrimination “because of race and national origin” in forcing a race-based “remedy” in the absence of a legal problem. The Courts thus ordered the City to certify the test results and promote the more qualified candidates, even though they were almost all White.

Is Weber Still Good Law Following Ricci and Harvard/UNC?

Ricci

The Ricci case decision likely sub silentio overruled Weber. Not only was the City of New Haven likely facing a “manifest imbalance” (although that term is not well defined in law) since nearly all of its firefighter officers were White, but the SCOTUS was clear the employer needed a “strong basis in evidence” to undertake a race or national origin-based employment decision. A “manifest imbalance” is not a “strong basis in evidence.” Rather, it is an affirmative defense to a direct evidence case that the employer based its decision-making on race and/or national origin. But, in a “manifest imbalance” case, there is no evidence of the employer’s unlawful employment decision-making.

Weber-based preferences are EXCEEDINGLY rare in business (I have only been asked to draft a “manifest imbalance” opinion twice in the last 40 years). Also, you can count the number of “manifest imbalance” case decisions on one hand. It is thus likely that we will not get case law on this fine point of law. Maybe that will change if more employers wishing to undertake lawful preferences want to undertake a Weber “manifest imbalance” analysis to see if they might qualify under that standard and then test their luck in the courts if challenged.

In the meantime, legal doubt surrounds the continued efficacy of a “manifest imbalance” supported race or national origin-based preference in employment.

Harvard/UNC

The Harvard/UNC case decision is also likely one that challengers to Weber “manifest imbalance” race and national origin-based preferences would cite against the preference. This is because the Harvard/UNC case decision is another in the long and growing line of SCOTUS case decisions reserving the use of race-based preferences in any legal context for “remedies.” That is why I took all that space above to trace that history of the SCOTUS’ now almost 70-year embrace of “race-based remedies” (starting with Brown v. Board of Education in the 1954 school desegregation case decision, even before the employment and school admission preference case decisions came along).

The Ricci case decision is another “race-based remedies” permission case. It falls right in line with the many other SCOTUS “race-based remedies” case decisions. And, the SCOTUS has made it clear on any number of legal fronts that its flirtation for the last thirty years with aberrational social-political case decisions is over. It has been signaling for over a decade now that the Court wants to interpret the Constitution and Congressional statutes narrowly, not stretch them, re-write them, or write them. The social trail-blazing days of prior Courts over the last 30-40 years appears to be over according to most Supreme Court watchers.

Bottom Line for Private Sector Employers

I think it is now only Ricci, Ricci and Ricci for those employers that wish to undertake lawful race or national origin-based employment decisions. I now need to change my “Employment Preferences in Legal Focus” Power Point training slides I have used for almost 40 years.

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.

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John C. Fox
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