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.