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Click here for the full text of this decision The existence of the Balanced Workforce Initiative program is sufficient to constitute direct evidence of a form or practice of discrimination. FACTS:Six black employees of a Xerox subsidiary challenged two diversity programs used at the company. One program was the Balanced Workforce Initiative, which was aimed at ensuring that all racial and gender groups were proportionately represented at all levels of the company. The program was based on annual reports listing actual and desired compositions. When Houston’s office demonstrated an over-representation of black workers, the office manager set its own internal program to reach its desired goals. All six plaintiffs said they suffered some form of discriminatory and harassing conduct during their employment, from being passed over for promotions to being denied pay raises. They filed suit against Xerox under Title VII and 42 U.S.C. �1981, alleging discrimination and a hostile work environment. The district court granted Xerox’s motion for summary judgment and denied the plaintiffs’ motions for reconsideration. HOLDING:Reversed and remanded in part; affirmed in part. Five of the six plaintiffs asserted disparate impact claims: that the policies implemented by Xerox were facially neutral but had a disparate impact on black employees. The court rules that evidence of the BWI policy being implemented in Houston to reduce the percentage of black employees created a material issue of fact as to disparity and reversed the summary judgment for Xerox. The court also reverses the summary judgment on five plaintiffs’ claims of salary disparity because the district court did not even address these claims. Five plaintiffs claimed the suffered from adverse employment actions during the 1990s. The court notes that a complaint must be filed with the Equal Employment Opportunity Commission within 300 days of the challenged discrimination and that the only way for the three plaintiffs who did not file an EEOC to take advantage of this filing date was to piggy back onto a timely claim filed by the remaining two plaintiffs. Based on the dates of filing the EEOC, as well as the applicable statute of limitations for discrimination claims, the court agrees with the district court that any of those claims that occurred prior to June 29, 1998, would be time-barred. Furthermore, the continuing violation doctrine did not apply to cover earlier occurrences because the doctrine does not apply to discreet actions such as the ones alleged here. The court reverses summary judgment on the remaining adverse employment action claims. The court determines that the existence of the BWI program constituted direct evidence of a form or practice of discrimination. “A jury looking at these facts could find that Xerox considered race in fashioning its employment policies and that because Plaintiffs were black, their employment opportunities had been limited.” Finally, the court affirms summary judgment on the hostile work environment claim. The plaintiffs claim that the BWI target goals were so intimidating, severe and pervasive that it was objectively reasonable for them and other black employees to believe that they were in a racially hostile work environment, but the court finds to precedent to support their argument, which is basically that an affirmative action plan equates to a hostile work environment. Nor was there any evidence of any other evidence of severe or pervasive harassment. OPINION:Feldman, District Judge, sitting by designation; Jones, Clement and Feldman, JJ.

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