Affirmative action plan does not justify reverse discrimination
In Wheeler v. Missouri Highway & Transportation Comm’n., the Eighth Circuit affirmed a jury verdict in favor of a male employee alleging (reverse) sex discrimination in hiring.
The employer argued that the only evidence of discrimination was its affirmative action plan and that it cannot be held liable for discrimination where it acted pursuant to a valid affirmative-action plan.
The court rejected this argument. It found the following evidence sufficient to support the jury verdict: 1) testimony of one of the interviewers that the plaintiff’s qualifications were better than the selected female employee and normal interview procedures are not followed; 2) testimony of two of the three interviewers that they felt pressured to recommend the female because she was female; 3) testimony of a supervisor that he told the plaintiff that he would be lucky to get the job because it was widely known that “they were going to hire a lady”; 4) testimony that the selected female was especially sought out for the position; and 5) evidence the plaintiff was more experienced and skilled for the position than her.
Apparently (to the defendant’s peril) management at some level concluded that the affirmative action plan (”AAP”) required hiring less qualified females. The court drew the following important distinction:
“Evidence of illegal and discriminatory motive to hire on the basis of sex and not on the merits of the candidates is distinct from evidence of a valid AAP. The basis of [the plaintiff's] argument was not that [the employer] acted pursuant to the AAP, which he conceded was valid, but that there was pressure from upper management to hire females in violation of the AAP’s commitment to equal employment opportunity standards.”
There is tremendous confusion attached to the politically charged term “affirmative action.” The courts have not always helped clarify this. The Eighth Circuit appears to be sending a strong message here: whatever affirmative-action means, it does not provide a justification for reverse discrimination. A plan may call for hiring more females, but this does not justify rejecting qualified candidates because they are males. So to lawfully comply with such a plan, an employer must find equally or more qualified females.
Finally, it is interesting to note that in this case, the plaintiff was awarded no actual damages because the jury concluded that while the employer had a discriminatory motive, it would have made the same decision based on a nondiscriminatory reason, the manner in which the plaintiff became upset and agitated and raised his voice during his interview.
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