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The U.S. Department of Justice recently agreed to pay $11.5 million to settle allegations of reverse discrimination brought on behalf of as many as 550 white male applicants who were denied positions as immigration judges in 1994 and 1995. Affirmative action experts assert that the settlement has a political message. In part, they say, the government’s paying out money damages to white males is a warning to other agencies that they should not engage in race-based hiring. “There are probably memos running through the e-mails of every cabinet secretary that the diversification of the work force is dangerous and can lead to money damages,” said Professor George Clark of Boston’s Suffolk University Law School. The settlement arose from an Equal Employment Opportunity Commission complaint filed in 1996 by El Paso, Texas, lawyer Lawrence Durnford after he was denied an appointment to the immigration bench. Durnford v. Ashcroft, No. 100-2000-07059X. Lawyers from the Washington and Austin, Texas, offices of Kator, Parks & Weiser took the case in 2002 when it was certified as a class action. They alleged that the DOJ hired a record number of immigration judges from 1994 to 1995, but that an affirmative action bias in the Clinton administration illegally led to discrimination against white males. “We felt that the evidence would probably be sufficient to show a violation of Title VII [of the 1964 Civil Rights Act] on a classwide basis,” said David Weiser of Kator Parks. “Both sides had good reasons to view this settlement as a reasonable outcome.” The DOJ denies any wrongdoing or liability, according to the settlement report. The DOJ’s lead lawyer, Henry A. Azar, did not return calls. Greg Gagne, a spokesperson for the DOJ’s Executive Office of Immigration Review, said the agency would not comment while the agreement is still under review by Administrative Judge Richard Schneider, following a fairness hearing held on Nov. 5. A total of $3.9 million from the settlement is for attorney fees. The plaintiffs’ lawyers assert that they had built a strong case against the DOJ, including statistical evidence that white males made up a disproportionately low number of the nearly 100 judges hired. They also had statements from top officials, including Michael Creppy, the chief immigration judge, that allegedly revealed an emphasis on race and gender, according to a lawyer involved in the case. A VERY FINE LINE Actively recruiting candidates of race and gender is allowed, noted Professor Mary Cheh of George Washington University Law School, but, in general, hiring because of those factors is not. “The court has never endorsed a ‘good effects’ doctrine outside of higher education,” Cheh said. So hiring women and minorities because of the “good effect” it might have on diversifying the bench would clearly cross the court’s line, she noted. The court will allow remedial affirmative action, but it must be narrowly tailored to correct specific past wrongs, Cheh said. The case most relevant to the settlement is the U.S. Supreme Court’s 2001 decision in Adarand Constructors Inc. v. Mineta, No. 00-730, which created a strict-scrutiny test for federal affirmative action programs. In Adarand, the Court said that a Department of Transportation program to assist “socially and economically” disadvantaged individuals in bidding for federal subcontracts was unconstitutional. Adarand Construction filed the suit after it lost out to a so-called disadvantaged business, despite being the lowest bid. “ Adarand is the relevant case,” Clark said. The Court’s later decisions involving university admissions do not apply because they are specific to education, he asserted. “Universities have an interest in diversifying their classes, but the Court has never said that the analogous thinking exists for the workplace,” Clark said. Experts say private and federal employers alike need to be wary of social engineering in the workplace. A good rule of thumb for those seeking to avoid a discrimination suit is that a candidate should not be given extra points for being a particular race or gender, they say. One of the key pieces of evidence for plaintiffs in the Durnford suit were records that showed the decision-makers were keeping track of the race and gender of the applicants and of the existing immigration judges in each city, according to lawyers close to the case.

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