In a ruling issued September 3, 2009, the U.S. Court of Appeals for the Eighth Circuit held that an employer that follows an affirmative action plan in making an employment decision can be guilty of unlawful race discrimination.    The Court’s decision in Humphries v. Pulaski County Special School District is the first in the Eighth Circuit to address the hot button issue of reverse discrimination since the U.S. Supreme Court’s ruling on the subject in Ricci v. DeStefano last June (See post here for discussion of the Ricci case).

The plaintiff in Humphries was a white female with a doctorate degree in elementary education.  She worked as a school counselor in the Pulaski County (Arkansas) School District for nearly twenty years.  Starting in 2001, Ms. Humphries applied for virtually every assistant principal position that came open in the District, but was never selected.   She claimed she was passed over for the positions because of her race; specifically, she alleged the District had a policy of ensuring that at least one assistant principal in each school is a different race than the school’s principal.   The plaintiff also argued she was not hired as an assistant principal because the School District’s affirmative action plan unlawfully favored black candidates. 

The trial court granted summary judgment to the School District, finding that the plaintiff failed to present direct evidence of race discrimination.  The Court of Appeals reversed the trial court, holding that, an employer’s adherence to an affirmative action policy may constitute evidence of unlawful race discrimination.   If the employer defends a hiring decision on the basis that it followed an affirmative action plan, then the question becomes whether the affirmative action plan is valid in the first place under Title VII and the Equal Protection Clause.   

The Humphries decision is an important reminder that employers should periodically revisit their affirmative action and diversity policies to ensure the policies comply with the requirements of Title VII.  Even if  plan was valid when it was put into place, does not mean it remains so today.   Some important factors to consider include the following:

1) A lawful affirmative action plan must be both remedial in purpose and narrowly tailored to meet the remedial goal.  Remedial purpose means that its purpose is  to cure a racial imbalance that exists in the organization because of past discrimination.    A "narrowly tailored" plan is one that purports to accomplish the remedial purpose without unnecessarily trammeling the rights of non-minorities. 

2) Practices the employer has implemented to comply with an affirmative action plan should actually relate to the goals of the plan.  For example, if the plan calls for the employer to take steps to attain a racially diverse applicant pool, a practice that sets hiring goals or requires certain racial balance among the workforce may not be consistent with the plan.

3) Many organizations do not have a a formal affirmative action plan, but do have policies concerning diversity in the workplace.   An employer should evaluate whether the diversity goals are merely aspirational, or are actually relied upon in making employment decisions.   If achieving or maintaining diversity in the workforce is a reason for a particular employment decision, it may constitute evidence of race discrimination.