If you’re looking to remedy past discrimination by adopting employment policies that encourage minority hiring, watch out! You may be vulnerable to a reverse discrimination lawsuit.
That may be true even if your policies resulted from a court order to address discrimination. If they go beyond the scope of the order or what was reasonably necessary to fix past discrimination, you could wind up in court.
Recent case: Donna Humphries, who is white, worked as a teacher in a school district that was under a federal court order to desegregate and hire more minorities. She sued, alleging she was repeatedly passed over for promotions that went to black candidates instead.
The school district had been ordered to seek a racially diverse pool of applicants. To comply, it created a set of guidelines that required each hiring panel to be biracial. Humphries claimed the district had an informal policy of hiring a black administrator at each school that had a white administrator.
In court, she showed that black applicants were selected for 12 of the 14 positions she applied for. She also argued that the selection panels consistently rated black candidates higher than white candidates, presumably because they wanted to comply with the informal hiring policy favoring blacks.
All this, the court concluded, was direct evidence of discrimination. The court said the district had gone far beyond what it was required to do to comply with the court order. It ordered a trial. (Humphries v. Pulaski County Special School District, No. 08-2485, 8th Cir., 2009)
Final note: The district could have complied with the court order with less overtly discriminatory policies. For example, to obtain a more diverse pool of applicants, it simply could have recruited more heavily for qualified black applicants. That would have met the goal.
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