Columbia, S.C.
7.3.04

A federal appellate court has recently ruled that an employer’s racial and gender goals were direct evidence of discrimination. The case is Frank v. Xerox Corp. from the U.S. Court of Appeals for the Fifth Circuit, which handles federal appeals from Texas, Mississippi, and Louisiana. The court’s decision is alarming, but it contains some good lessons for federal contractors who don’t want their goals to be used against them in a discrimination lawsuit.

Xerox Corporation designed a "Balanced Workforce Initiative" (BWF) to ensure "that all racial and gender groups were proportionately represented at all levels of the company." Although the BWF was not an affirmative action plan, it did include "targets" for racial and gender categories based on government labor data. "The reports set specific racial goals for each job and grade level and indicated whether there were any disproportionate representations." The BWF for the Houston office said that African-Americans were over-represented and whites under-represented in most jobs.

Five African-American employees of the Houston office sued Xerox, alleging race discrimination and harassment. Xerox won dismissal, but the plaintiffs appealed. Among other things, the plaintiffs contended that the BWF was evidence of race discrimination because it showed that Xerox took race into account when making employment decisions. The appeals court agreed with the plaintiffs, and sent the case back for trial.

The ultimate outcome of this case remains to be seen; however, we recommend that federal contractors take the following precautions:

  • An AAP should never state that females or minorities are over-represented. Let the statistics speak for themselves. You don’t want to create the impression that you are trying to decrease your female or minority representation. The reverse is not necessarily true – if your AAP shows under-representation of females and minorities, it is still advisable to state in your AAP that you will exercise good-faith efforts to attract qualified female and minority candidates. However, the AAP should always emphasize that all personnel decisions will be made without regard to race or gender.
  • Treat your AAP as confidential. Although all employees should be informed of the existence of their employer’s AAP, the numerical and statistical portions of it should be treated as confidential. Generally, only the employees responsible for hiring and promotion decisions need to be apprised of the goals.
  • Take care in evaluating managers for their "compliance" with an AAP. The managers in Xerox’s Houston office were "evaluated on how well they complied with the BWF objectives." Normally, it is acceptable -- and recommended -- to judge managers and supervisors regarding their commitment to affirmative action and their good-faith attention to achieving goals set in an AAP. We do not recommend, however, that evaluations be based on hiring statistics. The job of a manager is still to select the most qualified candidate, regardless of race or gender.

This lesson is supported by another recent case. In Wheeler v. Missouri Highway & Transportation Commission, the United States Court of Appeals for the Eighth Circuit found that pressure on managers to hire a female, regardless of relative qualifications, supported the jury’s verdict of discrimination against a male candidate. In the Wheeler case, the existence of an AAP was not the issue; it was the "pressure from upper management to hire females in violation of the AAP’s commitment to equal employment opportunity standards." (The Eighth Circuit handles federal appeals from the states of Arkansas, Iowa, Minnesota, Nebraska, North Dakota, and South Dakota.)

Even though we often set goals for females and minorities in our AAPs, it is essential to remember that all personnel decisions must be based on race- and gender-neutral factors, and that our policies and practices must reflect the commitment to equal opportunity for everyone.

Please contact attorneys or AAP specialists in our Affirmative Action Practice for assistance. Phone numbers are listed below. In Atlanta, Georgia, Rosemary Lumpkins (Co-Chair) or AAP Specialists, Sylvia Smith or Denise Ellyson; Birmingham, Alabama, Shannon Miller or AAP Specialist, Megan Hensarling; Columbia, South Carolina, Cara Crotty (Co-Chair); Kansas City, Missouri, Kathy Perkins or AAP Specialist, Lisa Schwarzkopf; Macon, Georgia, Kristie Smith or AAP Specialist, Louise Davies; Tampa, Florida, Angelique Lyons; or Winston-Salem, North Carolina, Robin Shea, Kristine Howard, or AAP Specialist, Anne Roediger. --January 2004

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