EEO Compliance Dispatch

Jeff Vaughn was a veteran news anchor at two CBS affiliates in Los Angeles. When his contract was terminated and he was replaced with a Black news anchor, he alleged he was discriminated against because he was white.

In a detailed analysis of his claim, Judge Hernan D. Vera from the U.S. District Court for the Central District of California found that “there is no ‘there’ there to Plaintiff’s claims” and granted the employer’s motion for summary judgment.

Vaughn’s side of the story

Mr. Vaughn had 30 years of experience in broadcast journalism. When his employer ended his contract, he asserted claims for race discrimination in violation of Title VII of the Civil Rights Act and 42 U.S.C. Section 1981, another federal law that prohibits race discrimination.

In support of his claims, Mr. Vaughn highlighted various employment practices that he claimed demonstrated a discriminatory motive:

• A “diverse slate policy” that required the pool of candidates considered to include at least one woman and one person of color.
• Hiring, promotion, and attrition targets that aimed to increase diversity for senior vice president and vice president roles.
• The desire for anchors to better “reflect” the diverse community.

In addition, Mr. Vaughn alleged that a manager compared him with Ron Burgundy, the character played by Will Ferrell in the 2004 movie Anchorman: The Legend of Ron Burgundy. Mr. Vaughn asserted that this comparison

was an obvious reference to . . . me, as the white man standing in the way of their goal for increased diversity” because “[o]ne of the central plot themes of the film ‘Anchorman’ is that the character Ron Burgundy stands in the way of increased diversity in the fictional San Diego Newsroom.

Finally, Mr. Vaughn alleged that his replacement by a Black anchor further demonstrated that he was terminated because of his race.

The employer’s side of the story

The defendants countered Mr. Vaughn’s claims with criticism of his performance from management and audience alike. Mr. Vaughn allegedly

• Did not resonate with the audience.
• Was unable get through scripts without flubbing.
• Emphasized the wrong words in his delivery, which caused confusion.
• Came across as “stiff” on air.
• Ranked last in viewer recognition.
• Was a “weak link” and lacked “depth and authenticity.”
• Was unable to read the teleprompter and mispronounced words.

In sum, “no one knew who [he] was and no one particularly liked it when they saw him.”

The manager who compared Mr. Vaughn with Ron Burgundy explained that she was referencing Mr. Vaughn’s lack of authenticity:

There was a time that being a talking head was acceptable. It is no longer acceptable. There needs to be greater gravitas, greater understanding, grasp of the news and how we related to our audience. . . . [H]e did not fit the bill.

With respect to the successor, the Mr. Vaughn’s position was initially offered to another white male, who declined it. The employer’s second choice was also a white male, but he withdrew from consideration. Other serious candidates included a third white male and a Hispanic male. The Black male who was ultimately chosen had received praise for his on-air presence.

The court’s finale

Judge Vera concluded that years of documented poor performance showed that the defendants had a legitimate, non-discriminatory reason for terminating Mr. Vaughn’s contract that was not a pretext for discrimination:

Same-actor inference defeats claim. The people who terminated Mr. Vaughn’s contract also signed or extended his contract four times when there was no obligation to do so.

Replacement by Black anchor, in itself, is not enough. The “mere fact” that Mr. Vaughn’s replacement was Black did not support an inference that race was a motivating factor, especially considering that offers and overtures were made to white candidates.

Diversity initiatives were not unlawful. The mere existence of diversity initiatives, such as the diverse slate policy, was not enough to create an inference of discrimination. Judge Vera noted that the defendants had “no numerical goals, mandates, targets, or quotas applicable to the hiring, retention, or promotion of news anchors.” The diversity-related targets that applied to SVP and VP roles specifically did not apply to anchors. And the diverse slate policy “applied only to interviewing, not hiring decisions, and expressly required [the employer] to select the most qualified candidate.”

“Ron Burgundy” reference was not discriminatory. According to Judge Vera, “No reasonable juror (or at least one who has actually seen the movie Anchorman) could find that referring to Vaughn as Ron Burgundy was necessarily a reference to his race.” The court noted that the plot of Anchorman has been described as “an anchorman’s stint as San Diego’s top-rated newsreader is challenged when an ambitious newswoman becomes his co-anchor,” and both characters were white. (The female co-anchor was played by Christina Applegate.)

Diverse slate policies: Proceed with caution!

This case shows that an employer’s efforts to create and support a diverse workforce are typically not – by themselves – sufficient to prove discrimination.

That said, employers should still approach diverse slate policies with caution. It’s also important to note that Mr. Vaughn’s case involved alleged discrimination in termination, not hiring. Thus, the diverse slate policy was not directly implicated.

Title VII prohibits, among other things, employers from limiting, segregating, or classifying employees or applicants in any way which would deprive or tend to deprive them of employment opportunities or otherwise adversely affect their status as an employee, because of race, color, religion, sex, or national origin.

Depending on how it is implemented, a diverse slate policy could “segregate” or “classify” individuals base on race, and in the zero-sum outcome of hiring decisions, may adversely affect individuals because of race.

The U.S. Department of Justice has warned employers that it considers diverse slate policies in hiring to be unlawful, at least in the context of entities or programs that receive federal funds:

Unlawful use of protected characteristics occurs when a federally funded entity or program considers race, sex, or any other protected trait as a basis for selecting candidates for employment (e.g., hiring, promotions), contracts (e.g., vendor agreements), or program participation (e.g., internships, admissions, scholarships, training). This includes policies that explicitly mandate representation of specific groups in candidate pools or implicitly prioritize protected characteristics through selection criteria, such as "diverse slate" requirements, diversity decision-making panels, or diversity-focused evaluations. It also includes requirements that contracting entities utilize a specific level of working hours from individuals of certain protected characteristics to complete the contract. Such practices violate federal law by creating unequal treatment or disadvantaging otherwise qualified candidates, regardless of any intent to advance diversity goals.

Thus, employers should consult with counsel regarding the practical and legal implications involved with any diverse slate policy.

Stay classy, readers.

For assistance with these issues, please contact an attorney in Constangy’s EEO/Contractor Compliance, Reporting & Data Analytics Practice Group.