Vance D. Miller, Robert A. Kaiser, John A. Vering, III, and Joan Z. Cohen, Editors
Armstrong Teasdale LLP

Vol. 18, No. 5
July 2008

HIRING

Promoting diversity is no justification for employment decisions based on race

A Kansas City jury recently returned a $2.1 million verdict in favor of a white woman who claimed she was passed over for a position as a municipal judge because of her race. Read on to learn why the jurors rejected the defense that politicians promoting diversity are "above the law" and are therefore permitted to make employment decisions based on race.

Panel of finalists lacks diversity

This case began in September 2006, when a municipal judge in Kansas City retired from the bench and the city began accepting applications from candidates interested in filling the vacant position. Melissa Howard, a 46-year-old white woman who had been a municipal and county prosecutor for 18 years, was one of the people who applied. Of the 13 applicants, six were minorities.

All of the candidates submitted lengthy applications to a judicial nominating commission. The commission consisted of two attorneys, a judge, and two laypeople. Their job was to review the candidates' applications, interview each of them, and then recommend a panel of finalists to the city council. After the commission announced the finalists, the city council was expected to select one of them to serve as the new judge.

On October 30, 2006, the commission announced the three finalists. All three were white women. The day after the commission announced the finalists, the then-mayor of Kansas City was quoted in a local paperas saying that she was "very disappointed that we are receiving a panel without a minority woman as one of the three finalists."

Despite the mayor's disappointment, the three finalists were asked to appear at city hall on November 9 to interview with the city council. Howard claimed that when she arrived for her interview, instead of interviewing her, the city council voted to reject the entire panel of finalists. She believed the city council's justification for rejecting the finalists was that the panel "lacked racial diversity."

Over the next month, the city council held meetings and received comments from the public about whether it should select one of the three white finalists to fill the vacant judge position. Howard claimed that during those meetings, council members commented that although the women on the panel were qualified for the position, they weren't African-American. In considering whether to hire one of the white finalists, the city council discussed the city's desire for ethnic diversity in its judiciary system and pointed out that the three finalists didn't "reflect diversity."

'We all have to follow the law'

By mid-December, the city council was deadlocked. Rather than hiring one of the finalists, the council voted 7-6 to reject the entire panel. Debate over the issue continued even after the council's vote, however. While the city council considered the issue, the president of the local bar association wrote an e-mail to the city attorney suggesting that the council might have erred in asking for a new panel. He pointed out, "No one is against diversity, but we all have to follow the law." The nominating commission sent the same panel of finalists to the city council a second time, but the councilors again refused to pick a finalist from the all-white panel.

Eventually, the nominating commission submitted a new panel consisting of an African-American man, one of the white finalists from the original panel, and a man of Filipino descent. Meanwhile, Howard filed a lawsuit against the city for race discrimination in violation of state law.

Howard claimed that the city, through the members of the city council, refused to hire her or allow her to move forward in the judicial selection process because of her race. She also claimed that after she challenged the city's actions during the selection process, the city retaliated against her by refusing to hire her after the nominating commission submitted her name as a finalist for a second time.

The jury ultimately agreed that the council's decision to reject the panel because its members were white was a violation of state antidiscrimination law. The jury awarded Howard $633,333 in actual damages and $1.5 million in punitive damages. While the city plans to appeal the verdict, Howard's attorneys believe the verdict reflected the jurors' anger at city officials, who seemed to place themselves and their diversity goals "above the law."

Moral of the story

Achieving a diverse workforce is a commendable goal ― so long as you work to achieve it lawfully. Remember that in addition to prohibiting discrimination against minorities, the law prohibits discrimination in favor of minorities. If your company maintains a formal written diversity plan or an informal diversity policy that doesn't comply with federal and state antidiscrimination laws, it could be used as evidence of discriminatory intent. It's important to review your diversity policies with employees who make employment decisions to be sure they understand that achieving diversity isn't a justification for making decisions based on protected classifications like race or gender.

The author may be contacted at jfoster@armstrongteasdale.com .

Copyright 2008 M. Lee Smith Publishers LLC

MISSOURI EMPLOYMENT LAW LETTER is intended for general information purposes only and does not constitute legal advice. The reader should consult qualified legal counsel to determine how laws apply to specific situations.