The state of California has passed Proposition 209, which prohibits the state from using racial or gender preferences in public employment, public education, or public contracting. The legality of this proposition was tested in the ninth circuit court of appeals by The Coalition for Economic Equity in 1997. The lawsuit was dismissed in 1998 and the court held that Proposition 209 did not violate the Equal Protection Clause of the United States Constitution and is not prohibited by Title VII. (Champagne 1)
The Legal Debate: Title VII Lawsuits
Generally when one hears “Title VII” and “lawsuit” in the same sentence the thought of discrimination against a protected class comes to mind. This is not so much the case anymore. As of 1996, reverse discrimination in federal employment comprised 20% of the Equal Employment Opportunity Commission’s caseload. (Discrimination at the Opportunity Commission, 1)
The EEOC. The most ironic of cases deals with the EEOC itself. Joseph Ray Terry, a civil rights attorney employed by the Commission won a lawsuit against them in 1996 for unlawful employment discrimination with respect to promotions. Terry claimed that he had been passed over for various promotions over an eight-year time period due to his race and gender (white, male). He was a graduate of the EEOC’s candidate development program that was designed to provide the necessary skills for upper-management positions and was well qualified for all of the positions that he had sought to be promoted. However, these positions repeatedly had been filled by less qualified minorities. The Judge ordered the EEOC to pay Mr. Terry $150,000 in damages, and over $8,000 for stress. The amount ordered in back pay was not disclosed. The EEOC was also ordered to promote him to the position of deputy general counsel for which he had been applying. (Reverse Discrimination Case Against EEOC, 2)
According the EEOC’s own 1995 annual report, almost 50% of white-collar jobs within the organization are held by African-Americans, even though they comprise less than 10% of the civilian work force. Additionally, the percentage of Hispanics employed at the EEOC was 200% of the percentage of Hispanics in the civilian work force. “If the EEOC were a private employer, the racial makeup of its workforce would set off alarm bells,” says Clint Bolick, an attorney who worked on the staff of an EEOC commissioner during the eighties and heads the Institute for Justice, a Washington public-interest legal group. (Berleau, 36)
The GAO (General Accounting Office). The U.S. General Accounting Office is the audit and investigative arm of Congress. It employs over 2,000 evaluators and its annual budget is close to $400 million. “It is one of the most powerful agencies in the federal government. Its personnel policies serve as the de facto model for the entire federal government.” (Judge Orders Trial for Diersen’s Reverse and Age Discrimination Claims After Evidence of GAO’s Continuing Retaliation is Presented, 1)
During the 80’s there had been pressure placed on the agency to give preferential treatment to its minority and female evaluators which led to personnel systems known as broadbanding (BB) and more flexibility in the compensation structure through pay-for-performance (PFP). The flexibility in BB allowed less qualified protected class members more latitude in the GS levels, therefore promotions were granted easier. The trend in downsizing federal government agencies aided in the preferential treatment. The older (white, male) employees who had previously complained of the discrimination were forced out through early-outs, buyouts, and selected office closings rather than using seniority-based reduction-in-force procedures, which was the accepted practice. (Judge Orders Trial for Diersen’s Reverse and Age Discrimination Claims After Evidence of GAO’s Continuing Retaliation is Presented, 4)
These issues (plus many others) led Dave Diersen to file an individual and a class action lawsuit for reverse discrimination and age discrimination against the agency, Diersen v. Hinchman, (Case No. 98-1887) on July 30,1998. Diersen had previously filed complaints of these natures using the agency’s in-house grievance procedures, but all were denied. The Judge has ruled that the case should go to trial, but seems to be held up in the courts.
The Burden of Proof
In 1973, McDonnell Douglas Corp. v. Green, 411 U.S. 792, the court stated that the plaintiff must “carry the initial burden of establishing a prima facie (on first look) case of racial discrimination…by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” The courts have since then attempted to apply this standard to instances of reverse discrimination, coupling it with the decision handed down by the Supreme Court three years later in McDonald v. Santa Fe Trail stating that Title VII “proscribes racial discrimination in employment against whites in the same terms as nonwhites.”
The D.C. Circuit Court in Harding v. Gray later expanded on this test to add “background evidence” which can be generally divided into two categories: (1) evidence indicting that the particular employer at issue has some reason or inclination to discriminate invidiously against whites,…and (2) evidence indicating that there is something’fishy’ about the facts of the case at hand that raises an inference of discrimination.” This places the burden on the plaintiff (employee) to establish that the defendant (employer) is a ‘unique employer that discriminates against the majority’. (Gianni, 3)
The U.S.3rd Circuit Court of Appeals in September 1999 rejected this line of reasoning in Iadimarco v. Runyon. Judge Theodore McKee wrote an opinion for a three-judge panel stating that the “background circumstances” requirement raises the bar higher for white male plaintiffs than for minority/female plaintiffs and the concept is “irremediably vague and ill-defined.” Judge McKee wrote “All that should be required to establish a prima facie case in the context of ‘reverse discrimination’ is for the plaintiff to present sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII.” This ruling therefore shifts the burden onto the defendant to refute the discrimination given the ‘totality of the circumstances’ rather than forcing the plaintiff to initially have to present proof that would only become relevant in order to rebut the employer’s explanation of the challenged conduct. (Ginanni, 3)
Conclusion
Victims of discrimination, regardless of skin color or gender, feel the same effects: a brick wall placed between them and their constitutional right of prosperity and equality. Over the last hundred years our societal values (in employment) have swung from an anything goes mentality to the other end of the spectrum, the era of “political correctness” where you are damned if you do and damned if you don’t. Uncertainty prevails. It is apparent, though, that the proverbial “pendulum” is in an evening-out process and trying to find middle ground.
Discrimination is discrimination regardless of what type of form it takes. There is truly only one kind if discrimination and that is where an individual’s rights are infringed upon due to traits in which they have no power to control. Each and every one of us deserves to have the right to freedom and equality given to us by our forefather’s.