Preferences in Hiring and Promotion: Courts Impose Heightened Scrutiny
Sauls, John Gales, The FBI Law Enforcement Bulletin
On May 6, 1993, the Fourth Circuit Court of Appeals issued its decision in Maryland Troopers Ass'n, Inc. v. Evans,(1) holding that the Maryland State Police had discriminated against non-blacks by complying with the terms of a court-approved consent decree entered into with the Coalition of Black Maryland State Troopers, in violation of the Equal Protection Clause of the 14th amendment and Title VII of the Civil Rights Act of 1964 (Title VII). This and other similar cases(2) are indicative of a significant shift in the judicial treatment of claims of so-called "reverse discrimination." These cases strongly suggest that employers who give preferential treatment in employment opportunities based on race, color, national origin, and/or sex to remedy apparent past discrimination and diversify their work forces should review those employment decisions to ensure compliance with the law.
This article discusses the legal standards courts now are using to assess the legality of "affirmative action" plans that extend preference in hiring and promotion. It also examines the challenges facing employers called on to defend legally such preferences.
Title VII Prohibitions
Title VII makes it unlawful for an employer "1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or 2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin."(3) The U.S. Supreme Court described this prohibition in 1989 as "...the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees."(4) Put another way, Title VII prohibits employers from taking race, color, national origin, religion, or sex into consideration when making decisions on employment actions, regardless of their motives, unless an exception to the statute, such as preference to remedy past discrimination (affirmative action) or the Bona Fide Occupational Qualification (BFOQ) exception, permitting such consideration is applicable.(5)
Congress emphasized the impermissibility of considering these factors, other than in accordance with an affirmative action plan or as a BFOQ, in its 1991 amendment to Title VII. which provided that a violation is shown when an employee demonstrates that "race, color, religion, sex, or national origin was a motivating factor,"(6) in an employment action. Thus, the previously available defense that the employer would have made the same decision absent consideration of the forbidden factor has been eliminated.(7)
New Remedies for Intentional Discrimination
Employers who give preference in employment actions based on race, color, national origin, religion, or sex are using the forbidden factors intentionally. Congress, in its 1991 amendment to Title VII, raised the financial stakes for employers accused of intentional discrimination, thereby increasing the importance of ensuring that any preference extended is lawful.
Before passage of the Civil Rights Act of 1991, Title VII's remedies were limited to employment matters. Its design placed the burden on employers to put the victims of illegal discrimination in the employment position they would have occupied absent the discrimination. Available remedies for victims of illegal discrimination included reinstatement, back pay, and other measures, as well as injunctive relief to prevent further discrimination by the employer.
The amended statute retains these remedies and adds limited compensatory (and for defendants who are private employers, punitive) damages to remedy the effects of the emotional distress associated with employment discrimination. …