So here is the scenario…

You are a 50 year old white single parent of 4 children. You are working for ABC Corp. since you were 20. ABC Corp. has provided you with a nice salary, health insurance and a 401(k) plan for your retirement. For the past 30 years, ABC Corp. has stayed under the radar, and hasn’t gotten involved in hot button political issues.

Suddenly, in 2020, they found themselves with more time on their hands, and decided to come up with an elaborate Social Corporate Responsibility (SCR) policy that they will use as a basis of company decisions going forward.

The SCR policies include a push to ensure that 50% of their staff is African American in order to promote diversity. They publish this on their online SCR policy section.

It is now 2021. ABC Corp. is still reeling from the losses in 2020. ABC Corp. decides that a layoff is best. You are selected as part of their group being laid off. As you look to the list of layoffs, you notice that all of the employees laid off are white. You look to the list of retained employees, and find employees who are your junior and less profitable than you. You also notice they are all African American. You try to object to the selection, and defend yourself, but you are struck down and send home. You realize that your unemployment will not make up for all the money you are losing. You are furious that you spent the last 30 years of your life with ABC Corp., worked hard and were incredibly profitable, and you suffered the “death penalty” of the employment world.

You certainly could argue that this is defacto race discrimination. In any action under Title VII, Title VII prohibits private employers from engaging in racial discrimination against white persons as well as against nonwhites. However, there is something different about these sorts of policies—they argue that they are looking to correct an “injustice” or “inequity” between groups.

Could this be an affirmative action plan? An “affirmative action” plan is a plan that seeks to respond to a manifest imbalance in the workforce. As it concerns, Private employers, such as ABC Corp., a private employers’ affirmative action plan (1) must respond to a manifest imbalance in the work force; (2) must [L-Pi1] not unnecessarily trammel the rights of members of the non-preferred class or create an absolute bar to their advancement; and (3) must do no more than is necessary to attain a balance.

However, the employer must show what this “manifest imbalance” is. Note that when assessing the validity of affirmative action plans, the Court will defer to the judgment and expertise of the relevant decisionmakers. Courts want to try to preserve, to the maximum extent possible, the freedom and discretion traditionally afforded to private businesses.

So this is where it is interesting.. how do you determine if the judgment of the decisionmakers are proper? While there is a standard for government based decisions known as Strict Scrutiny, there is no such absolute framework applied to private employers. The employers however will enjoy an assumption of permissibility if a company retained an expert third party service to perhaps audit the company and prepare the policy, or maybe retained some other expert to assist, the affirmative action plan may pass muster.

There are certain programs that have been outright rejected by Courts. “Quotas” are generally one of them.

Properly understood, a “quota” is a program in which a certain fixed number or proportion of opportunities are “reserved exclusively for certain minority groups.” Quotas “‘impose a fixed number or percentage which must be attained, or which cannot be exceeded,” and “insulate the individual from comparison with all other candidates for the available seats.” In contrast, “a permissible goal . . . requires only a good-faith effort . . . to come within a range demarcated by the goal itself,” and permits consideration of race as a “plus” factor in any given case while still ensuring that each candidate “competes with all other qualified applicants[L-Pi2] ,” as in Johnson v. Transportation Agency.

Numbers for the sake of numbers are not permissible. While a quota in of itself is not permissible, what is permissible is (1) the party appropriately took into account as one protected category factor of the employee in determining that he or she should have been promoted to a position; (2) the decision to do so was made pursuant to an affirmative action plan that represented a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of the protected category in the work force; and (3) such a plan was fully consistent with Title VII, for it embodied the contribution that voluntary employer action could make in eliminating the vestiges of discrimination in the workplace.

It seems like whether or not a policy meets these 3 elements will be determined on a case by case basis, however needless to say at the end of the day, the ultimate burden remains with the employees to demonstrate the unconstitutionality of an affirmative-action program. Policies designed to “correct” the imbalance of one race over another as a result of historical inequities is a permissible reason—the real question in time is going to be how far do we look back at “historical” and at what point have we restored it? The popular culture has changed overtime and we certainly do not see race as it was seen decades ago. This notion of seeking a “balance” in races as opposed to advancing a business as much as possible irrespective of race certainly in itself contains inequities and preserves this negative concept of race, holding that certain races need a “plus 1” in civil society.

Certainly, non-white categories have continuously done well in this country. In a recent Census pool, about 20% of all business are minority owned. This number has increased in almost every single year it was tracked. This will eventually flatten out over time, but I can certainly tell you it won’t be because of affirmative action policies. It will be because the person studies excessively, makes smart decisions and works hard in their lives.

Regardless, while I have seen case law (and it is very limited), for white people to win on a race discrimination claim, it is surely a difficult task. Your proof has to be on point, the margin of error going to be very slim, and you have to be fearless.

Suffice it to say.. you certainly need to be unusually motivated.

Yours in love, lifts and law