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Title VII of the Civil Rights Act is the federal law that prohibits employers from discriminating against their employees based on race, color, national origin, sex, and religion. These prohibitions apply to recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, measuring performance, and/or providing benefits. Under this statute, employers may not consider race, color, sex or any other protected group when making any type of employment decision.

The U.S. Supreme Court has recognized an exception to Title VII’s protections from discrimination in industries where employers can establish a historical imbalance or disparity in the workforce. In United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 US 193 (1979), the Supreme Court considered an affirmative action program that was implemented to increase the amount of black skilled craft workers. Half of the positions in the training program were reserved for black workers. Because this training scheme was intended to eliminate longstanding patterns of racial segregation and Title VII “did not inten[d] to prohibit the private sector from taking effective steps” to ensure the goal to prevent discrimination was implemented, the program was upheld. This same theory was applied to the underrepresentation of women in Johnson v. Transp. Agency, Santa Clara Cnty., Cal., 480 U.S. 616 (1987). A male worker had challenged the agency’s selection of a female worker over him. Here, the court upheld the Santa Clara County Transportation Agency’s plan to “achieve a statistically measurable yearly improvement in hiring and promoting minorities and women in job classification where they are underrepresented.” Where no specific number or quota was required but short-range goals were implemented and adjusted yearly, the agency could permissibly take sex into account as one factor in deciding whether to promote women.[4]

According to guidance issued by the Equal Employment Opportunity Commission (and based on the Weber decision), a voluntary affirmative action program stands on solid legal ground if 1) an analysis reveals that existing or contemplated employment practices are likely to cause an actual or potential adverse impact; 2) a comparison between the employer’s workforce and the appropriate labor pool reveals that it is necessary to correct the effects of previous discriminatory practices; and 3) a limited labor pool of qualified minorities and women for employment or promotional opportunities exists due to historical restrictions by employers, labor organizations, or others.[5]

Most private employers are unlikely to meet the standard for a voluntary affirmative action plan. But what about diversity efforts, which are aimed at avoiding present and future discrimination? In the context of university admissions, the U.S. Supreme Court has upheld the compelling interest of diversity subject to restrictions. Fisher v. University of Texas 136 S. Ct. 2198 (2016). The University of Texas used race as one of many factors it relied upon in deciding undergraduate admissions. UT’s goal was an “academic environment that offers a robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.’” Relying on a multi-tiered approach, race was one possible “special characteristic” that also looked at the applicant’s academic qualifications, essay scores, letters of recommendation, background, and socioeconomic factors. Finding the process legally acceptable, the Court remarked that it was because “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.” It was a “factor of a factor of a factor.”

Using the Fisher decision as a guide, perhaps employers would be permitted to use race, gender, or other protected characteristics as one factor of many in making employment decisions. However, there are risks. Take recent lawsuits against Google where two white men alleged that diversity efforts resulted in discrimination against them. James Damore brought his lawsuit after being fired for circulating an anti-diversity paper. He asserted that there are inherent intellectual differences in men and women. His lawsuit includes claims for discrimination based on his sex and his “Caucasian race.” A white recruiter has also filed a lawsuit against Google, claiming the company used discriminatory hiring practices that discouraged the hiring of whites and Asians. He claimed the company favored Hispanics, African-Americans, and women. In 2018, the Sixth Circuit Court of Appeals upheld the right of a white male employee to proceed in a discrimination claim. Palmer v. CSC Covansys Corp. (E.D. Mich. Sep. 25, 2018). CSC was accused of laying off Palmer, who was white and male, because the company favored Indian workers in both hiring and promotion programs. In allowing Palmer’s claim to proceed, the court ruled that Caucasian-Americans are protected like every other race.