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D.C. Circuit rules short-lived affirmative action hiring plan for U.S. Foreign Service officers met Title VII standards; Ricci decision inapplicable

September 3rd, 2015  |  Cynthia L. Hackerott

As we await the U.S. Supreme Court’s second ruling in a case addressing the constitutionally of race-conscious action in public university admissions, the federal appeals court for the District of Columbia Circuit has upheld a federal government employer’s affirmative action plan under Title VII standards. Affirmative action expert John C. Fox notes in a recent blog post that this ruling is “the only major case decision to uphold an employment preference pursuant to Title VII of the 1964 Civil Rights Act in the last 25 years.”

Last month, in an opinion authored by Judge Sri Srinivasan*, a D.C. Circuit panel ruled that a white Foreign Service Officer’s challenge to a long since defunct, and short-lived, State Department affirmative action hiring plan, which was aimed at increasing racial diversity among the officer corps in the U.S. Foreign Service, was properly dismissed by a federal district court. Rejecting the plaintiff’s argument that the Supreme Court’s 2009 decision in Ricci v DeStefano [92 EPD ¶43,602] controlled it’s analysis of the case, the appeals court found that the challenged plan was valid and that the plaintiff failed to establish that the Department’s justifications for the plan were pretextual (Shea v Kerry, August 7, 2015, 99 EPD ¶45,366).

Hiring plan. In 1985, based on its perception that there was an underrepresentation of minorities among Foreign Service Officers, Congressional enacted legislation directing the Department to develop a plan designed to significantly increase the numbers of minorities groups in the Foreign Service, with a particular emphasis on achieving significant increases in the numbers of minority group members in the mid-levels of the Foreign Service,” the FS-02 and -03 levels. Two years later, concluding that the State Department had been unsuccessful in its efforts to recruit and retain members of minority groups, Congress instructed the Department to substantially increase its efforts, specifically directing the Department to ensure that those efforts effectively addressed the need to promote increased numbers of qualified minorities into the senior levels of the Foreign Service. A 1989 General Accounting Office (GAO) report buttressed these concerns, and a House subcommittee held hearings focusing on the GAO report. Moreover, the EEOC repeatedly warned at that time that the State Department lacked an effective plan or program for overcoming the underrepresentation of minorities in the Foreign Service.

Responding to these concerns, the Department undertook various measures, including the affirmative action plan at issue in the present case. The plan consisted of a special hiring path for minorities into the Foreign Service’s mid- and upper-level ranks.

Although the challenged plan ceased to exist over twenty years ago, the plaintiff joined the Foreign Service during the two years the plan was in effect. When he applied for an entry-level Foreign Service Officer position in 1990, the Foreign Service career ladder consisted of six pay grades, ranging from FS-06 (entry level) to FS-01 (upper level), with the Senior Foreign Service (SFS) a step above FS-01. The Department generally filled vacancies at more senior ranks through internal promotions rather than external hires. Therefore, applicants from outside the agency usually entered the Officer corps only at the junior levels (FS-04, -05 and -06 levels). In May 1992, the plaintiff was hired into the Foreign Service at the FS-05 level.

At that time, the State Department operated two distinct programs that allowed applicants to bypass the Department’s usual preference for internal promotions and allowed the direct hiring of outside applicants into mid- and upper-level (FS-01, -02 and -03) positions. Under the one program, the Career Candidate Program (CCP), which was race-neutral, the Department accepted certain applications from outside candidates for FS-01, -02, and -03 positions. But the Department, in accordance with its general preference for filling vacancies through internal promotions, could hire an otherwise viable outside applicant through the CCP only if the Department issued a “certificate of need” attesting that no internal candidates could fill that vacancy. It would then consider the outside applicant consistent with its typical hiring procedures. In the absence of a certificate of need, no outside candidate could receive an offer of employment through the CCP.

The other program, the 1990-92 Affirmative Action Plan (1990-92 Plan), targeted minority applicants. Pursuant to this plan, the Department provided a special path for minorities seeking direct placement as outside hires into the FS-01, -02, and -03 ranks. The sole advantage to minority applicants under this plan was an automatic waiver of the CCP’s certificate-of-need requirement for American Indians, Alaska Natives, Asians and Pacific Islanders, Blacks, and Hispanics. Aside from the certificate-of-need waiver at the threshold stage, the 1990-92 Plan granted no benefits to minorities in the course of the hiring process.

In 2001, the plaintiff filed an administrative grievance with the State Department, asserting that he started at a lower pay grade by virtue of the 1990-92 Plan’s preferential treatment of minority applicants, infringing his rights under Title VII as well as the equal protection component of the Due Process Clause of the Fifth Amendment. Following the administrative dismissal of his grievance, he filed suit in federal court, alleging that, because of the plan, he entered the Foreign Service at a lower level than would have been the case had he been a minority applicant.

District court ruling. After his case traveled back and forth between the district court and the DC Circuit on the issues of whether his Title VII and equal protection claims had been timely filed, the district court, in light of the Lilly Ledbetter Fair Pay Act of 2009, ultimately found that the plaintiff’s Title VII claims were timely under the Ledbetter Act but that his equal protection claims were untimely. Addressing the merits of the Title VII claim, the district court determined that his claim was controlled by the Supreme Court’s decisions in Johnson v Transportation Agency, Santa Clara County, California (480 U.S. 616 (1987)), and United Steelworkers of America, AFL-CIO-CLC v Weber (20 EPD ¶30,026 (1979).

Those decisions, which upheld employers’ affirmative action plans against Title VII challenges, called for application of the three-step burden-shifting framework set forth by the High Court in McDonnell Douglas Corp v Green (3 EPD ¶8607). Applying this framework, the district court found that: (1) the plaintiff established a prima facie case, (2) the Department had presented evidence that, if accepted as true, permitted the conclusion that the Department had acted pursuant to a lawful affirmative action plan, and (3) the plaintiff’s lay statistical evidence presented in an attempt to show the program was unlawful failed to raise any genuine factual issue concerning the validity of the affirmative action plan. Therefore, the court granted summary judgment in favor of the Department.

Standing. As an initial matter, the DC Circuit ruled that the plaintiff had standing. He alleged that the 1990-92 Plan denied him the opportunity to compete on an equal basis by extending a preference to minority candidates that was unavailable to him—the ability to gain consideration for entry to a mid-level position without any certificate of need. Although he could have sought direct mid-level placement through the race-neutral CCP program, he instead applied only for an entry-level FS-05 position. Nevertheless, relying on the Supreme Court’s 2003 decision in Gratz v Bollinger (84 EPD ¶41,416), the DC Circuit found that the plaintiff here suffered an actual or imminent injury as a result of the 1990-92 Plan. Like one of the plaintiffs in Gratz, the plaintiff here refused to apply through a race-conscious program unless and until that program’s use of race-conscious preferences ceased, but he stood able and ready to apply to the mid-levels should the State Department cease to use race as a factor in mid-level hiring. Because of his stated intent to apply if the policy had been changed, he had standing to challenge the Department’s affirmative action plan even though he did not apply for a mid-level position through the CCP program.

Controlling case law. The plaintiff argued the standards articulated in Johnson and Weber had been displaced by Ricci. In Johnson and Weber, the Court upheld employers’ affirmative action programs because they were designed to eliminate a conspicuous (i.e. manifest) racial (Weber) or gender (Johnson) imbalance in traditionally segregated job categories. Adopting a new standard that underscored the tension between Title VII disparate treatment and disparate impact liability, the High Court in Ricci held that before an employer can engage in intentional discrimination to avoid or remedy an unintentional disparate impact, the employer must have a “strong basis in evidence” to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action.

Citing Ricci, the plaintiff argued that the court must eschew the framework of Johnson and Weber, and instead examine whether the State Department can show a strong basis in evidence that, had it not instituted an affirmative action plan, it would have been liable for discrimination under Title VII. Disagreeing with the plaintiff, the DC Circuit determined that Ricci did not upend Johnson and Weber such that those earlier decisions no longer guided the analysis of the claims at issue here.

Johnson and Weber were directly applicable to this case at hand, and there was simply no reason to conclude that Ricci, by implication, overruled those decisions. Noting that Ricci did not mention or even cite, much less discuss Johnson and Weber, the court pointed out that Ricci addressed a particular situation not in issue here. In Ricci, a group of white, and one Hispanic, firefighters sued the City of New Haven, Connecticut and its officials, challenging the city’s decision to toss the results of firefighter promotion exams on the premise that certifying the exam results would lead to disparate impact litigation by nonwhites. Unlike the city employer in Ricci, the employers in Johnson and Weber did not modify the outcomes of personnel processes for the asserted purpose of avoiding disparate-impact liability under Title VII. Likewise, the State Department did not do so here. Rather, the Department acted to expand job opportunities for minorities and to eliminate traditional patterns of racial segregation. Thus, Ricci was inapplicable, and Weber and Johnson still controlled. The DC Circuit noted that the Second Circuit reached the same conclusion in its 2011 decision in United States v Brennan (650 F.3d 65).

Prima facie case. Applying the McDonnell Douglas framework, (as required by Johnson and Weber) and noting that throughout, the plaintiff retained the burden of proving the invalidity of the Department’s 1990-92 Plan, the court first ruled that the State Department waived its only argument challenging the plaintiff’s prima facie case. For the very first time in the lengthy history of the case, the Department, on this appeal, argued that the plaintiff suffered no adverse employment action from his hiring at an entry-level (rather than mid-level) position because he never applied for direct mid-level placement, either through the 1990-92 Plan or through the race-neutral CCP. However, this argument was forfeited by the Department because it failed to raise it until this late stage of the litigation.

Valid affirmative action plan. Next, the court found the affirmative action plan at issue was valid under Title VII because it worked to target manifest imbalances in senior-level positions in the Foreign Service Officer corps, and that those imbalances resulted from past discrimination and because the plan refrained from unnecessarily trammeling the rights of non-minority candidates.

The State Department, citing the 1989 GAO Report demonstrated the existence of statistical disparities between the racial makeup of the employer’s workforce and that of a comparator population, in this case, those in the labor force who possessed the relevant qualifications. When it adopted the 1990-92 Plan, the Department relied upon the 1989 GAO Report, and the Department’s own formal analysis. The cited these two statistical studies as its principal evidence of a manifest imbalance between minority representation in the Foreign Service and the comparator population. After a detailed review of this evidence, the court concluded that the evidence cited by the Department demonstrated that there had been a past practice of discrimination with continuing effects through the early 1990s. Accordingly, the Department made an adequate evidentiary proffer that the 1990-92 Plan served to remedy the lingering effects of its past discrimination.

Finding that the 1990-92 Plan did not unnecessarily trammel the rights of white applicants, the court first noted affirmative action in hiring generally poses less of a concern than affirmative action in layoffs because hiring decisions upset settled expectations to a lesser degree and they affect a more diffuse group (all potential applicants) than do layoffs, which target specific employees. In addition, the Department’s 1990-92 Plan provided for the hiring only of qualified candidates because minority applicants underwent the same rigorous application path as did white candidates considered through the race-neutral CCP, with the only difference coming in the form of the certificate-of-need waiver at the threshold. Further, the plan was limited in duration as it ceased to operate in 1993 and has not been replaced. Also, the plan was not an absolute bar to the advancement of non-minorities in the Foreign Service ranks. Non-minority candidates from outside the agency could apply directly to the mid-level ranks through the race-neutral CCP, and internal white candidates could—and did—gain promotion to mid-level positions from the Foreign Service entry-level ranks, the court pointed out.

On top of all this, only sixteen minority candidates were hired into the midlevels through the 1990-92 Plan over the three calendar years of its operation. “With such a modest effect on the hiring process, the 1990-92 Plan was necessarily limited in the extent to which it could ‘trammel’ on the plaintiff’s rights, ‘unnecessarily’ or otherwise,” the court observed. Finally, the appellate court agreed with the district court’s assessment that the Department’s evidence showed that it turned to the 1990-92 Plan’s race-conscious measures only after race-neutral efforts were unsuccessful.

Pretext. Finally, the court turned its attention to whether the plaintiff proved that the Department’s justification for the plan was pretextual. Before the district court, the plaintiff introduced his own lay statistical evidence in an attempt to show that the Department’s identified manifest imbalances did not exist, but the district court rejected every piece of the plaintiff’s statistical evidence as inadmissible. The plaintiff did not appeal those rulings, and he did not raise any other arguments to show that the plan was invalid. As such, the appeals court ruled that he failed to carry his burden as to the third step of the McDonnell Douglas analysis.

Concurrence. Senior Circuit Judge Williams filed a concurrence. He explained that he wrote separately “to note that this area of the law continues to be rather amorphous,” pointing out that there was uncertainty in the case law as to the precise meaning of “manifest imbalance.” In addition, he called attention to what he viewed as a statistical problem disclosed by the record but not raised by the plaintiff on appeal. The description in the record of the State Department’s study did not state what statistical test or standard of statistical significance the authors used, or indeed whether they used any statistical method at all, he pointed out.

“Certainly they do not suggest that they made an adjustment in the standard for statistical significance to account for the multiplicity of subgroups, as would be necessary if we assume that State was seeking to identify only ‘imbalances’ not attributable to random chance,” he observed. Furthermore, the value of the analysis was impaired by the fact that many of the subsets utilized “are so small as to indicate a complete lack of intelligible criteria for State’s assertions of ‘manifest imbalance,’ a term the report often uses but never explains.”

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* Judge Srinivasan and I are both alumni of Lawrence High School in Lawrence, Kansas, where he graduated one year prior to me.

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