The Danger of Diversity

For reasons moral, economic and cultural, a number of waste company owners in urban areas are seeking diversity in their workforce, particularly in administrative and sales positions.

To achieve this goal, these owners are adopting and implementing companywide “diversity” programs. For the most part, state and federal equal employment opportunity agencies laud these programs, while civil rights organizations view these initiatives as responsible corporate citizenship.

What's going on here is voluntary affirmative action to increase the number of qualified women and minorities in key management roles. The purpose is to create a workforce that resembles the community, market or customers that the waste company serves. Diversity initiatives, however, have a serious downside: they tend to attract charges of reverse discrimination.

Under Title VII of the federal Civil Rights Act of 1964, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual [on account of] race, color, religion, sex or national origin.” Over the years, the law, which was aimed at protecting women and minorities, has been expanded to include discrimination against whites and males — referred to as “reverse discrimination.”

Typically, a non-minority worker must prove that he or she is a member of a “protected class” and has suffered an adverse employment action in which discrimination can be arguably inferred. An employer can rebut the plaintiff's claims by showing legitimate, non-discriminatory reasons for how it acted. The plaintiff must then establish that the employer's explanation was a mere pretext for discrimination.

Depending on where a case is filed, a white plaintiff can face a huge hurdle in establishing that he or she is a member of a protected class. For example, the D.C. Circuit and federal appeals courts in the Midwest and the mountain states have ratcheted up the burden of proof by insisting that white plaintiffs show special “background circumstances” evidencing discrimination. Such proof can include “something ‘fishy’ about the facts of the case at hand that raises an inference of discrimination” [Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993)]. However, other appeals courts with jurisdiction over states along the East Coast as well as Michigan, Ohio, Kentucky and Tennessee have refused to impose a higher burden. In effect, they say, Title VII is colorblind; being white is enough to establish membership in a protected class.

Some employers have attempted to pre-empt reverse discrimination suits by conducting a self-analysis that shows a reasonable basis for adopting a voluntary affirmative action plan. Case law is skimpy and conflicting in this area. In particular, affirmative action plans that merely promote diversity rather than remedy past discrimination may be on shaky grounds.

Smart employers who want to achieve diversity goals should consult with legal experts who specialize in this volatile and confusing area. These experts are likely to recommend, among other things, expanded recruitment efforts, on-the-job diversity training and mentoring programs.

The U.S. Supreme Court has not ruled on whether diversity goals alone may justify an affirmative action plan. However, based on the high court's current composition, such a plan most likely would have to seek to rectify past discrimination to pass Supreme Court muster.

Barry Shanoff Legal Editor Rockville, Md.