Bradd N. Siegel, Fred G. Pressley, Jr., Editors
Porter Wright Morris & Arthur LLP

Vol. 19, No. 1
January 2008

AFFIRMATIVE ACTION

Affirmative action plans and reverse discrimination

Jeffrey J. Weber

Most employers are well acquainted with the legal and ethical prohibitions barring discrimination against employees on the basis of race, gender, national origin, and other protected classifications. Sensitivity to discrimination is high, and many proactive employers have instituted regular training programs to familiarize managers and employees with the laws governing bias in the workplace. Some employers also have instituted affirmative action or diversity programs to help ensure that unlawful discrimination doesn't occur.

Actions intended to prohibit traditional forms of discrimination should be carefully monitored, however, to ensure that they don't result in "reverse" discrimination against employees who aren't members of a protected class. In one recent case, a city's written affirmative action plan was deemed relevant to a white employee's claim that he wasn't granted a promotion because of his race.

Facts

Larry Mitchell was employed by the city of Dayton in its Department of Public Works, Waste Collection Division, from 1980 until March 2001. In 1994, he was promoted to route supervisor, and his performance in that position led to him being "plus-rated" to the position of acting superintendent in 1997. He then applied for the superintendent's position when it became available in spring 1998.

Mitchell and the other candidate were each given a three-month trial period to demonstrate how well they could perform in the position. At the conclusion of the trial period, the department director, a white male, and the deputy director, a black female, both agreed that Mitchell had done a better job. They recommended to the city manager, a black female, that Mitchell be promoted to the position of superintendent. According to the evidence introduced at trial, the tradition in the city was that if a director made a recommendation, it would be upheld by the city manager and the candidate would be appointed to the office.

The city manager, who was sued individually in the case, rejected the recommendation but didn't provide any reason for her decision. She later conducted a series of national searches for a new superintendent, using a search firm that sponsored an organization, the National Forum for Black Public Administrators (NFBPA), whose stated mission included a "commitment to strengthen the position of blacks within the field of public administration."

The city manager, herself a member of the NFBPA, stated that she supported its goals and objectives. The search eventually ended in August 2000 with the hiring of a black female for the superintendent position. The city either lost or destroyed most of the records pertaining to its search. Mitchell retired in March 2001 and filed his lawsuit alleging race discrimination in December that same year.

During the entire period, the city had an affirmative action plan stating, among other things, that by January 1, 2000, it would employ a workforce that reflected the demographic composition of the population. It also stated that while applicants should never be accepted or rejected based "solely" on race or gender, race and gender were "legitimate factors to be considered in selecting employees to positions where certain demographic categories are underutilized from a group of candidates with nearly equal qualifications."

Court's decision

At trial, the court refused to allow Mitchell to introduce evidence about the city's affirmative action plan. It similarly refused to consider any evidence relating to the NFBPA, including dues paid to the organization by the city. The court also refused to draw any adverse inferences against the city for its loss and/or destruction of the records relating to its search. At the conclusion of the case, the court granted a directed verdict to the city, and Mitchell appealed.

The court of appeals held that the trial court was in error to exclude evidence of the city's affirmative action plan despite the city manager's claim that she didn't consider the plan when making her decisions. The appellate court cited various evidence, including the city's involvement with the NFBPA, that would allow a reasonable fact-finder to conclude that the city manager did consider the plan despite her denials to the contrary.

The court also found, after conducting an intensive analysis, that the city's affirmative action plan was invalid under Title VII of the Civil Rights Act of 1964 and the Ohio Civil Rights Act. It noted that there was no evidence of a "manifest imbalance" in the city's workforce reflecting underrepresentation of women and minorities. The plan didn't contain a proper statistical analysis of the workforce as compared to qualified individuals within the community. Instead, it looked at the composition of the community as a whole as it pertained to race and gender without regard to qualifications.

The court concluded that because the plan unlawfully dictated "mere hiring by the numbers," it constituted direct evidence of discrimination because it went directly to the motive of the hiring authority. The jury should have been allowed to weigh that additional evidence and would be entitled to do so at retrial. It would also be allowed to consider the importance of the missing records from the job search as well as the city's support for the NFBPA. Mitchell v. Lemmie (2nd App. Dist. 2007), 2007 Ohio 5757.

Comments

With some limited exceptions, federal and state law generally bar not only discrimination against minorities but also discrimination in favor of minorities. Because affirmative action plans that don't comply with the requirements of state or federal law can be considered direct evidence of discriminatory intent, employers that have such plans should ensure that they are reviewed periodically to determine compliance with those legal standards.

For employers that don't have affirmative action plans but have less formal "diversity" policies, such policies also should be reviewed to ensure they don't mislead managers and supervisors into making employment decisions based on race, gender, or other protected classifications. Diversity can be a laudable goal, but that goal can't lawfully be achieved by making employment decisions based on impermissible factors.

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Copyright 2008 M. Lee Smith Publishers LLC

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