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Notes -
Employers May Not Take Adverse Employment Actions Based on Race or Gender to Implement DEI Targets
So says a unanimous panel from the 4^th Circuit in a fairly egregious case of a white executive fired to make room for female/URM candidates to advance into his role.
The interesting part here is that the plaintiff presented to the jury the defendant firms' own written DEI goals to "close identified gaps". It also includes the truly Orwellian phrasing here:
I don't think any commentary here is needed but if there's any doubt the court finds that
So yeah, your bonus as a leader is tied to meeting your
quotatarget.My take (not the court's, also IANAL)
These are very bad facts for the DEI folks and (as the saying goal) it makes bad law for them (or good for the opponents of DEI). In particular, in the Fourth Circuit the standard is that the employer is liable if race is a motivating factor in the challenged employment practice. That's an easier standard to meet.
The other bad fact is that extensive use of the firm's own DEI output as evidence. The jury here could draw a straight line between the stated goal of having more female/URM folks in senior leadership and the firing, which would have otherwise been quite a bit harder to prove.
Maybe our resident lawyers can explain if I'm overly optimistic here.
Affirmative Action/DEI has always had a bit of a mushy existence in the context of discrimination law. The origins of the concept are pretty easy to understand — in the 1960s, blacks typically made up a smaller percentage of the semi-skilled and skilled workforce than their total numbers would suggest. It was pretty obvious that even if companies weren't actively discriminating now, there was certainly a time when they were, and it was a given that as a black guy there was only so far you could go. A lot of people on here will point to HBD and blah blah blah but keep in mind that this was a time when the workforce was largely industrial. If you work in a steel mill, you don't get hired based on your skills and education for specific positions; everybody starts in the labor pool and bids on higher-paying jobs as they become available, and most of these jobs don't require much additional skill. There are skilled jobs, but union dynamics require in-house hirings — if you need an electrician, you don't put an ad in the paper and hope that someone from the IBEW applies from the job; you run your own apprentice program for USW guys already working labor and production jobs so that they can learn the necessary skills, and replace them with new hires. The problem was that, in an environment where these promotions are often based on social and interpersonal dynamics, black employees often found themselves relegated to the lower rungs of the ladder.
The idea behind affirmative action was that companies would take a long, hard, look at how they were making these decisions, and put policies in place to ensure that a diligent black employee would, for example, have a chance to get into that electrician apprenticeship rather than be destined to a career of cutting grass and cleaning up. But Title VII still existed, so blatant discrimination was still prohibited. This has been roundly affirmed by the Supreme Court on multiple occasions. And more aggressive forms of affirmative action in general have a lot of under the hood requirements to demonstrate that it's necessary, and these are all things a court may look at in an inevitable lawsuit. So the result is that affirmative action plans tend to be a bit goofy. To the extent they take any real action, it usually focuses on training and recruitment rather than specific requirements. Make sure the black guys in the labor pool are aware of the opportunities and let them know that they have enough seniority to get the promotion if they apply for it. That sort of thing. It's also why DEI isn't just a euphemism; affirmative action is a legal concept that's complicated. DEI is just a fancy way of saying you're making an effort to comply with the law and make sure that there isn't any illegal discrimination in your company.
The problem is that Novant Health crossed a line. It may have actually been permissible if it were part of an affirmative action plan, but Novant never made that argument and tried to claim that the firing was entirely unrelated to race. They had to do this, of course, because there was no affirmative action plan, and even if there were, it's doubtful whether such a blatant act would be permissible under those circumstances. So it's really no surprise. The actual law isn't any different than it was in 1987.
I feel like when I've seen DEI it's coincided with implicit but fairly obvious pushes to just hire more women and black people. It's claimed that implicit bias and structural racism and such are just being corrected for, but mechanically, what's happening is that on the margin 'racial and gender minorities' who have less experience or seem less skilled are hired instead of white people, because intentional antiblack discrimination is rare nowadays but achievement gaps persist. Novant crossed a line, but many other companies are doing the same thing and just being less obvious about it.
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