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Due to the increasing need for diversity in today’s business world, many private employers have adopted and implemented companywide “diversity” programs. Overall, these programs have met with general approval and encouragement from government equal employment opportunity agencies and are cited frequently by the public, including civil rights organizations, as exemplars of responsible corporate citizenship. Diversity programs typically include voluntary affirmative action plans that have as their objective measurable increases in the number of women and minorities in skilled and management positions. In most cases, the voluntary affirmative action plan is justified by a broad “diversity” goal-such as, for example, the need to ensure that the employer’s work force reflects the demographics of a community, a labor force, a market or a customer base. Other justifications include the historical underrepresentation of women and minorities in certain fields and the business benefits of having a diverse work force. While it is laudable for companies to recognize that diversity programs are inherently worthwhile, private employers need to be cautious in carrying out diversity initiatives. Any diversity plan must be carefully crafted and monitored for lawfulness in order for employers to avoid the pitfalls of reverse discrimination claims. This article will provide an overview of the legal scheme for reverse discrimination claims, followed by a discussion of practical steps and best practices for private employers in identifying potential liability in implementing diversity initiatives. Title VII of the Civil Rights Act of 1964, as amended, contains a broad provision prohibiting discrimination in employment. In pertinent part, Title VII provides: “It shall be an unlawful employment practice for an employer . . . 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.” 42 U.S.C. 2000e-2(a)(1). Although originally implemented to protect minorities and women from discrimination, Title VII has been expanded to include discrimination against whites and males, typically described as “majority” or “reverse discrimination.” See McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273 (1976) (holding that Title VII applies equally to whites). A nonminority worker alleging that he or she was adversely affected because of race as a result of a company attempting to achieve diversity goals likely would bring a reverse discrimination claim under Title VII. In order to establish a prima facie case of discrimination, a plaintiff must show that he or she is a member of a protected class; that he or she suffered an adverse employment action; and that the unfavorable action gives rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). An employer can rebut a plaintiff’s prima facie case by establishing that it had legitimate, nondiscriminatory reasons for its actions. The burden then shifts back to the plaintiff to establish that the employer’s proffered reasons were a pretext for discrimination. Heightened burden of proof Although courts agree that the McDonnell Douglas burden-shifting analysis should be applied in reverse discrimination cases, there are competing views on the plaintiff’s burden of proof in reverse discrimination cases. Frederick v. City of Portland, No. 95-35389, 1996 WL 583641 (9th Cir. Oct. 10, 1996) (recognizing split in circuits over prima facie case of reverse discrimination). Specifically, there is dispute as to how a white plaintiff can establish that he or she “is a member of protected class.” Accordingly, a number of circuits have imposed a heightened burden of proof in reverse discrimination cases because majority groups typically are not discriminated against. In the landmark case Parker v. B&O Railroad Co., 652 F.2d 1012 (D.C. Cir. 1983), a white railroad employee brought a suit against his employer alleging reverse discrimination in violation of Title VII. In deciding the case, the court concluded that the McDonnell Douglas standard needed to be modified in reverse discrimination cases so that plaintiffs making such a claim would have to present additional evidence beyond the normal prima facie case to demonstrate that a defendant employer is the type of “unusual employer who discriminates against the majority.” Id. at 1017. From the Parker decision, a standard evolved that requires reverse discrimination plaintiffs to show special “background circumstances” evidencing discrimination in order to establish the first prong of the McDonnell Douglas test. In Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993), the U.S. Circuit Court of Appeals for the District of Columbia explained that “background circumstances” sufficient to establish that a defendant is the “unusual employer that discriminates against the majority” can include: “1) evidence indicating that the particular employer at issue has some reason or inclination to discriminate invidiously against whites; . . . and 2) evidence indicating that there is something ‘fishy’ about the facts of the case at hand that raises an inference of discrimination.” Id. (citing Daye v. Harris, 655 F.2d 258, 261 (D.C. Cir. 1981) (minority nurses overrepresented among promotees)); Bishopp v. District of Columbia, 788 F.2d 781, 786-87 (D.C. Cir. 1986) (among other factors, minority supervisors and proposed affirmative action plan); Lanphear v. Prokop, 703 F.2d 1311, 1315 (D.C. Cir. 1983) (pressure on hiring authority to hire minorities and proposed affirmative action plan). A number of other circuits have adopted and applied Parker‘s “background circumstances” standard in reverse discrimination cases. See, e.g., Phelan v. Chicago, 347 F.3d 679, 685 (7th Cir. 2003) (white plaintiff failed to establish prima facie case of reverse discrimination because he could not establish “background circumstances” that would demonstrate that his employer discriminated against white men); Notari v. Denver Water Dep’t, 971 F.2d 585, 589 (10th Cir. 1992). On the other hand, other circuits have refused to impose a higher burden of proof on reverse discrimination plaintiffs and have concluded that being white is sufficient for a plaintiff to establish that he or she is in a protected class under Title VII. See Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999) (“a plaintiff who brings a ‘reverse discrimination’ suit under Title VII should be able to establish a prima facie case in the absence of direct evidence of discrimination by presenting sufficient evidence to allow a reasonable fact finder to conclude . . . that the defendant treated plaintiff ‘less favorably than others because of [his] race, color, religion, sex, or national origin.’ “); Wilson v. Bailey, 934 F.2d 301, 304 (11th Cir. 1991) (reverse discrimination plaintiff only needs to show that he or she “belongs to a class”); Lucas v. Dole, 835 F.2d 532, 533-34 (4th Cir. 1987). See also Zambetti v. Cuyahoga Comm. College, 314 F.3d 249, 256-57 (6th Cir. 2002) (expressing doubt about the propriety of requiring reverse discrimination plaintiffs to meet a higher burden of proof). EEOC guidelines Regardless of the prima facie case utilized in reverse discrimination cases, some employers have a unique defense to reverse discrimination claims: a valid affirmative action plan. The Equal Employment Opportunity Commission (EEOC) has established guidelines for employers to implement voluntary affirmative action plans. Significantly, when an employer undertakes an affirmative action plan in good-faith reliance on the EEOC’s guidelines, it can be relieved of liability for reverse discrimination under Title VII. 42 U.S.C. 2000e-12(b). In order for a voluntary affirmative action plan to be a valid defense to a reverse discrimination claim, an employer must conduct a reasonable self-analysis prior to the implementation of the affirmative action plan. Also, the self-analysis must demonstrate that the employer has a reasonable basis for implementing an affirmative action plan, and the affirmative action plan must be a reasonable response to the problems disclosed during the employer’s self-analysis. 29 C.F.R. 1608.4. Reliance upon the guidelines must be demonstrated by written self-analysis and evidence establishing that the analysis was the basis for development of the affirmative action plan. Whether employers can rely on the “affirmative action plan” defense when a plan is implemented as part of a diversity initiative is an unsettled area of law. The U.S. Supreme Court has not definitively ruled on whether diversity concerns can justify the implementation of a voluntary affirmative action plan, and there is only a smattering of case law in this area. For instance, in Taxman v. Board of Educ. Of the Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996), cert granted, 117 S. Ct. 2506, cert dismissed, 118 S. Ct. 595 (1997), the plaintiff brought a suit challenging her former employer’s affirmative action plan, which preferred minority teachers over nonminority teachers in layoff decisions. In that case, the school board adopted an affirmative action plan to promote diversity within its faculty. The 3d Circuit ruled that nonremedial affirmative action plans are prohibited by Title VII; that the defendant’s affirmative action plan violated Title VII, since it was adopted for the purpose of promoting racial diversity, rather than to remedy discrimination or the effects of past discrimination; and that the plan unnecessarily trammeled nonminority interests, in that it was governed by the school board’s discretion, was unlimited in duration and imposed job loss on nonminority employees. The plaintiff ultimately established that her former employer’s affirmative action plan violated Title VII. On the other hand, in University of Community College Sys. of Nevada v. Farmer, 930 P.2d 730 (Nev. 1997), cert. denied, 118 S. Ct. 1186 (1998), a white female plaintiff sued the university, alleging that her employer’s affirmative action plan violated Title VII and the Equal Pay Act. Specifically, pursuant to an affirmative action plan designed to promote racial and gender diversity, the university hired a black male at a higher salary than the plaintiff. The court rejected the plaintiff’s discrimination claim because the defendant’s valid affirmative action plan precluded the imposition of liability under Title VII. What to consider Due to the uncertainty of the law in this area and the exposure to reverse discrimination claims, employers should consult carefully with counsel and examine their diversity programs and any affirmative action component to ensure that they take the following considerations into account. First, employers should include a remedial action in the diversity program, particularly if diversity goals are rooted in business or cultural rationales. Second, they should base diversity programs on statistics that demonstrate a “manifest imbalance” between the number of women or minorities who are qualified for the positions to which a diversity plan might apply and the number of women and minorities in those positions. Counsel should be involved in the collection of such statistics and the formulation of the plan itself to provide attorney-client privilege as may be available. A diversity program containing management incentives, such as financial rewards, for adhering to diversity goals should be carefully assessed to ensure that the incentives do not create an environment in which “meeting the numbers” is the sole or primary objective of management action. The diversity program should carefully avoid characterizing its objective as maintaining any sort of racial or gender balance in the work force. Additionally, the program should envision some termination point once goals have been achieved. A diversity program should focus on attaining diversity on a broad basis, rather than on the basis of race or ethnicity alone. According to the courts, diversity involves the incorporation of people with different backgrounds and ideas, not simply people of different races or ethnicities. A program focused on achieving diversity based solely on ethnicity or race risks being labeled facial diversity as opposed to genuine diversity. Finally, a diversity program should emphasize expanding the pool of applicants to include more minorities in order to obtain diversity, rather than imposing numerical quotas in hiring to do so. By focusing recruiting efforts on minorities, the pool of qualified minority applicants will increase, enabling employers to hire accordingly and foster their interest in diversity. Best practices There are also some best practices that an employer can adopt to achieve its diversity goals: broadening recruitment efforts; providing diversity and awareness education to employees; developing flexible work arrangements; developing mentoring programs and “brown bag” lunches with employees for roundtable discussions; and supporting minority organizations. Both the legal steps and best practices should be continuously monitored to ensure equal opportunity. Employers should be mindful, however, that the considerations suggested above are only temporary, in that at some point in the future the Supreme Court will find an appropriate vehicle to set forth its position on voluntary affirmative action plans and diversity in the employment context. Given the direction of the court, employers should expect a standard that requires them to tie tightly the goals of their diversity programs to past discrimination. Companies should continuously monitor their diversity programs for legal compliance. Additionally, with the assistance of specialized counsel, companies should conduct corporate diversity audits to ensure that there is no disconnect among any diversity program, EEOC policies and employment practices. Good-faith monitoring will demonstrate a company’s commitment to fair and equal employment opportunities. Darlene H. Smith is a partner in the employment, labor and benefits practice in the Washington office of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

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