Jottings By An Employer's Lawyer

Tuesday, September 30, 2003

According to 5th Cir. Plan To "Balance Workforce" Can Create Adverse Impact Claim and Be Direct Evidence of Discrimination As Well

Learning that in the 1990's a major American employer had drafted a plan setting annual targets based on government workforce data for the purpose of insuring that all racial and gender groups were proportionately represented at all levels of the company, one would have said nothing more than this was another government contractor dutifully complying with Executive Order 11246. However, when the data showed that minority groups were over-represented and the employer allegedly moved forward to bring the workplace in balance, one has a formula for a potential disaster. Although delayed originally by a district court's summary judgment, it exploded today in the 5th's Circuit decision in Frank v. Xerox Corp. (5th Cir. 9/30/03) [pdf]. While affirming some claims as time barred and holding that the existence of such a plan alone was insufficient to establish a hostile work environment, with little discussion, the Court found that the statistics presented by the plaintiffs showing the reduction of minorities in the workforce, allegedly in accordance with the Balanced Workforce Plan, was sufficient to establish a fact question under an adverse impact theory. Apparently, the Balanced Work Force plan was the neutral business practice which may have adversely impacted minority employees.

Even more amazing, for the disparate treatment claims which were not time barred, the Court reversed the district court, finding it had improperly applied the burden shifting analysis of McDonnell Douglas. In what is the money quote, perhaps literally, to the pockets of the plaintiffs, the Court found:
We find that the existence of the [Balanced Work Force] program is sufficient to constitute direct evidence of a form or practice of discrimination. See Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1110 (11th Cir. 2001). "The existence of an affirmative action plan," the Eleventh Circuit has written, "when combined with evidence that the plan was followed in an employment decision is sufficient to constitute direct evidence of the unlawful discrimination." Id. at 1111. Here, in the BWF summary reports, Xerox candidly identified explicit racial goals for each job and grade level. The reports also stated that blacks were overrepresented and whites were under-represented in almost every job and grade level at the Houston office. Senior staff notes and evaluations also indicate that managers were evaluated on how well they complied with the BWF objectives. A jury looking at these facts could find that Xerox considered race in fashioning its employment policies and that because Plaintiffs were black, their employment opportunities had been limited. (Emphasis added)

Although there is always more to the story than a simple recitation of facts in an opinion can purvey, one has to feel even more sympathetically for the employer when you look at the details of the claims of the individuals bringing the suit.

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