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
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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