March 1998 PISCATAWAY TOWNSHIP BOARD OF EDUCATION v. TAXMAN --: A WARNING FLAG FOR POLITICALLY CORRECT DIVERSITY PROGRAMS Mark F. Sullivan Assistant General Counsel - Litigation GTE Network Services Legal Department One GTE Place Thousand Oaks, California 91362-3811 (805) 372-6505 DILEMMA: Most Employers Want To Be Good Corporate Citizens And Are Highly Motivated To Have An Equal Employment Opportunity Program That They Can Be Open And Honest About.
Many Employers Also Understand That, With A Diverse Customer Base, It Is Simply Good Business To Hire, Employ And Promote A Diverse Workforce That Is More Likely To Know And Meet The Needs Of That Customer Base. How Does Such An Employer Increase The Diversity Of Its Workforce Without Subverting The Integrity Of A True Equal Opportunity Policy, Let Alone Incurring Liability Under Fair Employment Laws? If It ever was the answer to this dilemma, a politically correct system of preferences disingenuously labeled as goals can no longer be that answer in the legal environment of 1998. I. OVERVIEW OF THE TAXMAN CASE AND THE PENDING FARMER CASE A. The Settlement That Settled Nothing. On Monday, January 19, 1998, the Wall Street Journal in its daily Rule of Law column (page A15) highlighted the apparent futility of the short-lived peace that a consortium of civil rights groups had gained when they settled Board of Education of the Township of Piscataway v. Taxman, No. 96-679, virtually on the eve of the scheduled January 14, 1998 oral argument before the Supreme Court. In an article entitled Nevada Offers Supreme Court Another Piscataway, Roger Clegg, general counsel of the Center for Equal Opportunity, a Washington, D.C.-based think tank, pointed out that a similar or even better case was right behind Taxman with the December 30, 1997, filing by the Pacific Legal Foundation of a Petition For Writ Of Certiorari to the Nevada Supreme Court in University and Community College System of Nevada v. Farmer, 930 P.2d 730 (Nevada, 1997). In this newest filing with the Court, the issue is whether, for the sake of diversity, an employer with no adjudged history of discrimination could prefer a black male immigrant over a white female with equal credentials (and pay the black male significantly more.) Mr. Clegg summarizes this newest offering of a reverse discrimination issue to the Supreme Court with the following provocative observation: How plausible is it that the university is making up for the wrongs suffered by victims of American slavery by hiring a sociologist from Uganda? As Mr. Clegg observed, The groups [that settled Taxman] were afraid that the Supreme Court would rule against the school board, establishing a precedent that
would damage the cause of racial preferences. However, with the Nevada Farmer case, the court will not only have opportunity to decide the reverse discrimination issue which had been raised in Taxman, but will have that issue presented in the context of a diversity program that has every appearance of being founded on political correctness rather than on any effort to remedy past discrimination. B. The Department of Justice s Positions in the Piscataway Township Board of Education v. Taxman Case -- All Four Of Them! The Taxman case was remarkable not only because of the unprecedented 11th hour settlement, but also because it was a case in which the United States government engaged in a virtual tour de force in flip-flopping. This was soundly criticized in an amicus curiae brief filed with the Supreme Court on behalf of a group of eight Republican Senators who stated that, since the Executive Branch had filed a brief as an amicus, the Court should hear from the Legislative Branch as well: Excerpt From Amicus Brief Of Senators Lott, Thurmond, Nickles, Mack, Craig, Coverdell, McConnell And Gordon.: The Department of Justice has taken four different positions in this case--some of them consistent with the language and intent of the Civil Rights Act and some of them lamentably lacking that consistency. n2 n2 The Department of Justice filed suit against the Piscataway Board of Education on January 28, 1992. Seventeen months later (and five months after President Clinton had taken office), the Department still believed that the Board had unlawfully discriminated against Mrs. Taxman. On June 28, 1993, the Department of Justice filed a reply memorandum in which it argued that the Board's "use of a race-conscious affirmative action policy to terminate the employment of Sharon Taxman on the basis of her race was unlawful" because "it was not intended to remedy the effects of past discrimination or to eliminate any manifest racial imbalance in [the Board's] teacher workforce." The Department also argued that the Board's "use of a race-conscious affirmative action policy created an absolute bar to the selection of Sharon Taxman on the basis of her race and unnecessarily trammeled her employment interests." Mem. of Plaintiff United States in Opp. to Defendant's Motion for Summ. Judgment and in Response to Defendant's Reply Brief Opposing
Plaintiff's Motion for Partial Summ. Judgment, United States v. Bd. of Ed. of the Twnshp of Piscataway (D.N.J.) (Civ. Action No. 92-340 (MTB)) at page i. In its amicus brief to the Third Circuit, the Department reversed itself on both points and asked that the case it had won in the district court be reversed. Brief for the United States as Amicus Curiae, United States v. Bd. of Ed. of the Twnshp of Piscataway (3rd Cir.) (Nos. 94-5090, 94-5112) at pages i, 11 et seq. (Sept. 1994). In this court, the Department first argued that the "court of appeals incorrectly decided an issue of broad national significance" but that the petition for certiorari should be denied. Brief for the United States as Amicus Curiae, On Pet. for a Writ of Cert. to the U.S. Ct. of Apps. for the 3rd Circ., United States v. Bd. of Ed. of the Twnshp of Piscataway (U.S. No. 96-679) at 8 (June 1997). The Department seemed to fear that, if the petition were granted, this Court might actually decide for Mrs. Taxman ("The unusual facts of this case... also create a significant possibility that the Court could conclude that the layoff decision in this particular case was unjustified"). Id. In its brief on the merits, the Department of Justice continues to maintain that the court of appeals erred but asks that the Third Circuit's judgment be affirmed on the grounds that Mrs. Taxman's interests were "unnecessarily trammeled." Brief for the United States as Amicus Curiae Supporting Affirmance at 7 (Aug. 1997). While the Department's brief on the merits has returned part way to the correct position from which it started in 1992 and 1993, the Department still cannot bring itself to file a brief "for the Respondent" but has filed a brief "supporting affirmance," but on narrow grounds. The United States won this case in the district court (in 1993) but then attempted to switch sides (in 1994). What the Department had once seen as unlawful racial discrimination became in 1994 acceptable race-based social engineering. n3 When the court of appeals refused to allow the Department to change sides, the Department withdrew from the case and left Mrs. Taxman to continue her fight alone. The Department took a third position in its brief on the petition for certiorari, and it now takes a fourth position in its amicus brief on the merits. That brief is, of course, styled as the "Brief for the United States," but the rightful position of the United States must be found in the text of the Civil Rights Act of 1964 and not in the Department's brief. n3 In an article lamenting that the "civil rights movement
has turned away from its original principled campaign for equal justice under law to engage in an open contest for social and economic benefits conferred on the basis of race," Morris B. Abram, who was one of the early leaders of the civil rights movement, contrasts "social engineers" with "fair shakers." "Fair shakers" are those who, like Mr. Abram himself, believe in the "original vision of the civil rights movement," namely "equality of opportunity and a fair shake for individuals." M. Abram, "Affirmative Action: Fair Shakers and Social Engineers," 99 HARV. L. REV. 1312-13 (1986). As Members of the Congress of the United States, Amici Senators have strong and abiding interests in a proper construction of the statute and in the institutional powers and prerogatives of Congress. These interests have not been represented adequately in the "Brief for the United States" or in other briefs. C. The Statutory And Legislative History Supporting The Challenges To Discrimination In The Name Of Diversity Many of the amici supporting Ms. Taxman posed philosophical arguments that any alleged interest in diversity itself is too vague to have any standards to determine what is or is not enough diversity or too much diversity. However, Ms. Taxman and most of the amici supporting her rested on two strong bases: clear statutory language and an even clearer legislative history: Excerpt From Brief Of Respondent Taxman A. Statutory Language We begin with the language of @ 703 of Title VII. Section 703(a) provides: (a) It shall be an unlawful employment practice for an employer -- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, religion, sex, or national origin. 42 U.S.C. @ 2000e-2 (emphasis supplied). When Congress amended Title VII in 1972 to include governments within the covered class of employers, it made no change in "the substantive standards governing employer conduct." Johnson, [Johnson v. Transportation Agency, 480 U.S. 616 (1987)] 480 U.S. at 627-28 n.6. Section 703's prohibition against race-based discrimination is categorical, on its face admitting of no exceptions. Congress pointedly excluded race from the types of classifications in @ 703(e) that might constitute "a bona fide occupational qualification reasonably necessary to the normal operation of [the] particular business or enterprise...." 42 U.S.C. @ 2000e-2(e). (See pp. 30-31, infra). The protections of @ 703(a) clearly extend to nonminorities, like Taxman, complaining of discrimination because of their race. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976) (Title VII "prohibits all racial discrimination in employment, without exception for any group of particular employees") (emphasis in original); also Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) ("discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed"); Furnco Construction Corp. v. Waters, 438 U.S. 567, 579 (1978) ("the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the work force") (emphasis in original). This Court in Weber [United Steelworkers v. Weber, 443 U.S. 193 (1979)] adopted a nonliteral reading of @ 703(a) -- departing from the plain meaning of the statute as confirmed by the legislative history --but it did so solely in order to afford some allowance for employers to use racial preferences in the remedial context. The Court reasoned that, in light of the failure expressly to provide that Title VII does not "permit racially preferential integration efforts" 443 U.S. at 205 (emphasis in original) and the strong emphasis Congress placed on encouraging voluntary
compliance, Title VII would not be interpreted as "the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy." Id. at 204 (emphasis supplied). Without defining the outer limits of affirmative action for remedial purposes, the Weber Court held that the purposes of the plan in that case did "mirror those of the statute," in that they were "designed to break down old patterns of racial segregation and hierarchy," id. at 208. The plan sought to increase the number of qualified black craft workers available to the employer and thus redress the persisting effects of widespread "exclusion from crafts on racial grounds... [judicial findings of which were] so numerous as to make such exclusion a proper subject for judicial notice," id. at 198 n.1 (emphasis supplied). Johnson [Johnson v. Transportation Agency, 480 U.S. 616 (1987)] extended the approach in Weber by permitting race-based measures to redress "a 'conspicuous... imbalance in traditionally segregated job categories.'" "480 U.S. at 630 (quoting Justice Blackmun's concurrence in Weber, 443 U.S. at 209) (emphasis supplied). Justice Brennan noted for the Court, however, that "the requirement that the 'manifest imbalance' relate to a 'traditionally segregated job category' provides assurance both that sex or race will be taken into account in a manner consistent with Title VII's purpose of eliminating the effects of employment discrimination, and that the interests of those employees not benefiting from the plan will not be unduly infringed." 480 U.S. at 632 (emphasis supplied). n14 n14 In her opinion concurring in the judgment, Justice O'Connor insisted that "an affirmative action program... that can be equated with a permanent plan of 'proportionate representation by race and sex,' would violate Title VII." 480 U.S. at 656. On the facts of the case before the Court, Justice O'Connor was satisfied that "respondents had a firm basis for adopting an affirmative action program." Id. She noted that "at the time the plan was adopted, there were no women in its skilled craft positions," even though it was conceded that "women constituted approximately 5% of the local labor pool of skilled craft workers in 1970.... Thus, when compared to the percentage of women in the qualified work force, the statistical disparity would have been sufficient for a prima facie Title VII case brought by unsuccessful women job applicants." Id. (Emphasis in
original). B. Legislative History The limitations placed by the Court on its holdings in both Weber and Johnson reflect the Court's awareness that the exceptions from race neutrality it was prepared to recognize cut against the grain of the shared understanding of Title VII's Congressional supporters and opponents alike. An examination of the legislative history of Title VII confirms that Congress meant what it said in @ 703, and left little room, if any, for employers to discriminate on account of an individual's race for nonremedial, operational purposes. n15 n15 We note that -- aside from a variety of policy arguments to the effect that covered employers might find it useful to use racial preferences for hiring and assigning workers, whether as a means of "preventing future violations of Title VII" (Br. for Petitioner 23) or promoting "the understanding and tolerance that derive from educating children in a racially and culturally diverse environment" (id. at 28) -- Petitioner points to no specific Title VII legislative history in support of its "nonremedial" interpretation. As the Court noted in Weber, Title VII's opponents raised "two related arguments against the bill. First, they argued that the Act would be interpreted to require employers with racially imbalanced work forces to grant preferential treatment to racial minorities in order to integrate. Second, they argued that employers with racially imbalanced work forces would grant preferential treatment to racial minorities, even if not required to do so by the Act." 443 U.S. at 205 (emphasis in original). Weber found that Congress clearly addressed the first objection by enacting @703(j), 42 U.S.C. @ 2000e-2(j). n16 No change was needed, however, to respond to the second objection raised by opponents -- that employers would react to Title VII's directive by engaging in race-based hiring and promotion decisions -- because, as Title VII's supporters repeatedly emphasized, Title VII itself would prohibit such discrimination. n16 Section 703(j) provides in relevant part that: "nothing contained in [Title VII] shall be interpreted to require any employer... to grant preferential treatment to any individual... because of the race... of such
individual" merely because of a statistical imbalance between utilization and availability of individuals of that race. As Senator Humphrey explained during the debates over Title VII, @ 703(j) was added to make clear that Title VII did not require an employer "to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group.... This subsection does not represent any change in the substance of the title. It does state clearly and accurately what we have maintained all along about the bill's intent and meaning." 110 Cong. Rec. 12723 (1964) (emphasis supplied). Early in the House's consideration of H.R. 7152 -- the bill that would become the Civil Rights Act of 1964 -- Representative Celler, chair of the Judiciary Committee and the individual responsible for introducing the legislation in that chamber, emphasized that "the bill would do no more than prevent... employers [from] discriminating against or in favor of workers because of their race, religion, or national origin." 110 Cong. Rec. 1518 (1964) (emphasis supplied). In the extensive debate over the bill in the Senate, H.R. 7152's supporters returned again and again to the theme that Title VII required race neutrality in employment decisions. Senator Humphrey, the majority whip and perhaps the bill's prime moving force in the Senate, responded to a political advertisement's charge that the word "discrimination" in the bill would come to mean requirements of racial balance: [Title VII] does not limit the employer's freedom to hire, fire, promote or demote for any reasons -- or no reasons -- so long as his action is not based on race.... The meaning of racial or religious discrimination is perfectly clear.... It means a distinction in treatment given to different individuals because of their different race, religion, or national origin.... 110 Cong. Rec. 5423 (1964). When the formal Senate debate on H.R. 7152 began on March 30, 1964, supporters of the bill selected Senator Humphrey and Senator Kuchel, the minority whip, as bipartisan managers for the entire civil rights bill. Senators Clark and Case were the bipartisan captains responsible for Title VII. n17 n17 See Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L. Rev. 431, 444-45 (1966). In his opening remarks at the start of the formal Senate debate, Senator Humphrey addressed Title VII's opponents,
stating unequivocally that the legislation would not permit discrimination in favor of any racial group: Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or any court to require hiring, firing or promotion of employees in order to... achieve a certain racial balance. That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as the basis for hiring and firing. 110 Cong. Rec. 6549 (1964) (emphasis supplied). It is claimed that the bill would require racial quotas for all hiring, when in fact it provides that race shall not be a basis for making personnel decisions. Id. at 6553. Senator Kuchel pressed the same view in his first major speech on the bill: Employers and labor organizations could not discriminate in favor of or against a person because of his race, his religion, or his national origin. In such matters... the bill now before us... is color blind. Id. at 6564 (emphasis supplied). A few days later, Senators Clark and Case jointly submitted their interpretative memorandum: It has been suggested that the concept of discrimination is vague. In fact it is clear and simple and has no hidden meanings. To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by [@ 703] are those which are based on any five [sic] of the forbidden criteria: race, color, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title. There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial
balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual. Id. at 7213 (emphasis supplied). n18 n18 See also Senator Williams' response to the view that employers would be coerced into granting racial preferences to minorities: Those opposed to H.R. 7152 should realize that to hire a Negro solely because he is a Negro is racial discrimination, just as much as a "white only" employment policy. Both forms of discrimination are prohibited by title VII of this bill. Some people charge that H.R. 7152 favors the Negro, at the expense of the white majority. But how can the language of equality favor one race or one religion over another? Equality can have only one meaning, and that meaning is self-evident to reasonable men. Those who say that equality means favoritism do violence to common sense. 110 Cong. Rec. 8921 (1964) (emphasis supplied). On May 25, Senator Humphrey took the floor again to address the issue of preferential treatment: The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and any person, whether or not a member of any minority group, would be permitted to file a complaint of discriminatory employment practices. Id. at 11848 (emphasis suppled). Ultimately, a bipartisan coalition was formed, resulting in the substitution of the so-called Dirksen-Mansfield amendment for the House-passed bill. The substitute bill was introduced on May 26. It contained a number of clarifying amendments, including @ 703(j), but left untouched the basic prohibitory language of @ 703(a).
II. THE EMPLOYER S DILEMMA: CONDUCTING A DIVERSITY PROGRAM CONSISTENT WITH THE PROBABLE OUTCOME OF THE INEVITABLE, NEXT TAXMAN CASE WITHOUT GIVING AWAY THE STORE TO THE PLAINTIFFS BAR. A. The Risk In Attempting To Quantify Historic Under- Representation Of Minorities Or Of Women - - The Assault On The Well-Intentioned Employer s Self Critical Analysis Privilege. Since there is a clear warning in Taxman and its inevitable progeny that it might well be actionable to grant employment preferences based on factors prohibited by Title VI unless such preference can be demonstrated to be a remedy for a real past wrong affecting the employee group in question, a well-intentioned employer might be tempted to analyze its own historic workforce to determine if, and to what extent, it has underutilized women and minorities (to use an OFCCP term of art.) Such a well-intentioned employer might quickly learn the true meaning of the adage that no good deed goes unpunished. In the 1980s, a body of principally Eastern state federal trial court and appellate court opinions and Eastern state law school law review commentaries had begun creating the comforting impression of a groundswell of support for a new privilege that would allow a well-intentioned employer to engage in this type of analysis without fear that a plaintiff s lawyer would use this work as a major weapon against the employer -- a smoking gun admission of discrimination. See Webb v. Westinghouse Electric Corp., 81 F.R.D. 431, 433 (E.D. Pa. 1978); O Connor v. Chrysler Corp., 86 F.R.D. 211, 217 (D.Mass. 1980); Coates v. Hohnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985); Jamison v. Storer Broadcasting Co., 511 F.Supp. 1286, 1296 (E.D. Mich. 1981), aff d in part and rev d in part 830 F.2d 194 (6th Cir. 1987); Flanagan, Rejecting A General Privilege For Self-Critical Analysis, 51 Ge. Wash. Law Rev. 551 (1983); Comment, Stimulating Corporate Self-Regulation -- The Corporate Self-Evaluation Privilege: Paradigmatic Preferentialism or Pragmatic Panacea, 87 Nw. U. Law Rev. 597 (1993); Note, The Privilege of Self-Critical Analysis, 96 Harv. L. Rev. 1083 (1983).
This comfort has now all but evaporated, particularly in the Western states within the federal Ninth Circuit. See Gonzales v. Police Dept. of San Jose, California, 901 F.2d 758, 759 (9th Cir. 1990) holding that there is no selfcritical analysis privilege in the Ninth Circuit. See also Griffith v. Davis, 161 F.R.D. 687, 701, fn. 17 (C.D.Cal. 1995) [no Ninth Circuit case recognizes the privilege]; T.W.A.R. v. Pacific Bell, 145 F.R.D. 105, 108 (N.D.Cal. 1992) [same]; Pagano v. Oroville Hosp., (E.D.Cal. 1993) 145 F.R.D. 983, 690 (E.D.Cal. 1993) [no such privilege in hospital peer review context]. A similar result is likely in the Eastern states as well after the United States Supreme Court rejected a similar privilege claim for university tenure peer reviews in University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). The final blow to this emerging new privilege was delivered by Cloud v. Superior Court, 50 Cal.App.4th 1552, 1556-59. In this case, a California intermediate appellate court rejected any new privilege unless it was based on an express statute. B. Reasonable Critical Analysis Under the OFCCP s Guidance The Office of Federal Contract Compliance Programs (OFCCP) has issued guidance to Federal contractors on the allegedly ideal approach to establishing an affirmative action plan. See BNA Labor Relations Reporter, Vol. 8A, Fair Employment Practices Manual, Tab 443 Approaches To Affirmative Action. With no comment on the absence of any privilege protecting that plan (including the absence of any privilege against an adverse action by the OFCCP itself), the OFCCP s guidance states: The objective [of a self-analysis ] is to determine whether employment practices tend to exclude, disadvantage, restrict, or result in adverse impact or disparate treatment of certain groups, or leave uncorrected the effects of prior discrimination, and, if so, to attempt to determine why. If the reasonable self-analysis shows that one or more employment practices tend to have an adverse impact on the employment opportunities of a specific group, leave uncorrected the effects of prior discrimination, or result in disparate treatment of a specific group, the
employer has a reasonable basis for concluding that affirmative action is appropriate... Care should be taken to make sure a voluntary affirmative action program is limited in time and scope to do no more than correct the results of past discrimination. [Emphasis added.] C. The OFCCP s Required Report The principal report required of a Federal contractor by the OFCCP is an EMPLOYER INFORMATION REPORT, EQUAL EMPLOYMENT OPPORTUNITY, FORM EEO-1". In addition to basic address and identification information, this report requires employers to list, by total number, the employees in Nine (9) Categories defined using job codes taken from the last decennial census: Official and Managers Professionals Technicians Sales Workers Office and Clerical Craft Workers (Skilled) Operatives (Semi-Skilled) Laborers (Unskilled) Service Workers The employer then must show the numbers of Male (1) Whites (Not Of Hispanic Origin), (2) Blacks (Not Of Hispanic Origin), (3) Hispanics, (4) Asian or Pacific Islanders, and (5) American Indians Or Alaskan Natives, followed by the numbers of Female (1) Whites (Not Of Hispanic Origin), (2) Blacks (Not Of Hispanic Origin), (3) Hispanics, (4) Asian or Pacific Islanders, and (5) American Indians Or Alaskan Natives. D. Under-Utilization Of Any Minority Category As Shown On An EEO-1 Is Not Actionable Per Se. In Hazelwood School Dist. v. United States, 433 U.S. 299, 308, and again in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650, the Supreme Court has stated that a Title Vii violation is not supported by a simple disparity between the
percentage of a minority group in a relevant local population and the percentage of that same minority in an employment group: The proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified... population in the relevant labor market. Wards Cove, quoting Hazelwood. Recent federal appellate opinions re-affirm the legal insignificance of a simple difference between EEO-1 types of numbers and percentages and the numbers and percentages of minority groups in the general population. See Middleton v. City of Flint, Michigan, 92 F.3d 396, 406 (6th Cir. 1996), cert. den. U.S., 117 S.Ct. 1552 (1997); Carter v. Ball, 33 F.3d 450, 456-57 (4th Cir. 1994), [zero percentage of black employees in upper management proves nothing without evidence as to percentage of blacks in qualified applicant pool]. E. The Most Meaningful Statistic Is Applicant Flow And Increasing It Is An Unassailable Basis For Increasing Diversity In all of the above cases dealing with the correct use of statistics in employment discrimination scenarios, the common denominator is a comparison of the employer s workforce to the relevant labor pool. But just what is that relevant labor pool of qualified individuals A number of federal courts have stated that actual applicant flow figures are the best and most reliable data since they show persons who are interested in a position and who, presumably, have a reasonable basis for believing they are at least minimally qualified. See Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1286-87 (5th Cir. 1994), cert. den. 513 U.S. 1149 (1995). Thus, a program increasing the numbers of a desired or targeted minority group applying for a given position should, logically, increase the number who will actually become employed by the employer and that increase will be in line with and entirely consistent with the prevailing cases. F. Eliminating Barriers To Diversity
In Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir. 1996), cert. den. U.S., 117 S.Ct. 1425 (1997), a federal appellate court invalidated a county fire department s affirmative action program, finding it to be an unconstitutional system of preferences. However, in making this holding, the federal appellate court observed that the employer had other less obvious (and less invidious) means to increase the diversity of its workforce lawfully. In the case of the Prince George s County Fire Department, its white male composition was, in part, due to a voluntary policy of giving hiring preferences to volunteer firemen who were predominantly white males. The court observed that it was impossible to characterize the unlawful affirmative action program as essential, when the department was voluntarily creating part of its problem. Every employer undoubtedly can identify one or more of its own innocent (i.e., not adopted out of any discriminatory motive) hiring traditions or practices that have a similar result. These should be a first target for correction.