Here’s a problem that isn’t going away anytime soon: Courts often look at the available labor pool when figuring out whether an employer’s hiring practices have a disparate impact on a protected class.
For example, if the local labor market has a ready pool of qualified black people available, courts might reasonably expect an employer to hire black applicants in proportion to their representation in the labor pool.
On the other hand, if the employer is caught filling informal quotas to create a balanced workforce, members of other protected classes may sue for discrimination.
Recent case: Several white firefighters sued their employer when they weren’t promoted, alleging race discrimination in favor of black firefighters. They based their claims on a supervisor’s admission that he used an assessment of the local population’s race, sex and ethnicity to pick from a pool of qualified promotion applicants, selecting blacks for promotions to “balance” the workforce.
The court ordered a trial, concluding that such specific selection based on race is race discrimination. (Ham, et al., v. City of Atlanta, No. 09-14807, 11th Cir., 2010)
Final note: The mistake made in this case was that the department first created a list of qualified applicants from which to select employees. But rather than ranking qualified applicants in some sort of order based on criteria other than race, the department selected them based on race. A better move would have been to promote from the top of the list, regardless of race.