When the Resorts International Hotel in Atlantic City needed a full-time light and sound technician, the choice appeared simple. The two top candidates were equally qualified but, knowing that the casino had an affirmative action plan, supervisors believed they had to hire the minority candidate.
New Jersey casino regulations set employment goals for specific jobs, require extensive paperwork on efforts to hire or promote women and minorities and can penalize casinos that don't make good-faith efforts to do so.
Resorts was slightly below the goal for minorities in the technician category, so hiring the black candidate seemed the logical move. But it wasn't the legal one. The white candidate sued and won.
Under limited circumstances, race-based employment decisions don't violate Title VII of the 1964 Civil Rights Act. "Affirmative action can coexist with the Act's anti-discrimination mandate," the court said, because Title VII is designed to eradicate both discrimination and its lingering effects.In this case, however, the hiring goals weren't about overcoming the historical effects of discrimination. Resorts' plan and the casino regulations weren't based on any evidence of past or current discrimination. (Schurr v. Resorts International Hotel Inc., No. 98-5356, 3d Cir., 1999)
Advice: Affirmative action plans present a host of problems for certain government contractors and heavily regulated industries. What was important in this decision was not so much whether state regulations required the employer to use race as a factor but the fact that the hiring director assumed that he had to do so.
Before carrying out affirmative action plans, fully document the past or present discrimination your plan is supposed to address.