Tuesday, June 15, 2021

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V. Remedying Race Plus Sex Discrimination

A. The Role of Courts: Recognition and Application of Race Plus Sex Theory of Discrimination

In Vogler v. McCarty, Inc., the Fifth Circuit, in framing a remedy in a Title VII suit, acknowledged that courts “must be free to deal equitably with conflicting interests of . . . employees in order to shape remedies that will most effectively protect and redress the rights of the . . . victims of discrimination.” The failure of courts to recognize and analyze cases on the basis of race plus sex deprives African-American males of an opportunity to pursue and prove claims of discrimination. Courts should follow the Fifth Circuit in focusing on protecting and redressing the rights of those discriminated against. Such a focus would allow courts to recognize that employment discrimination against African-American males, and other sub-classes, may be unique and different from other protected groups; thus, new remedies and theories of discrimination are mandated.

1. Protected Sub-Classes

In interpreting Title VII, the courts should recognize that African-American males are a protected sub-group under Title VII. The legislative history of Title VII supports the assertion that Congress intended to eliminate all vestiges of workplace discrimination precipitated by an individual's race, color, sex, religion and national origin. Where these factors merge to create new sub-classes of discrimination, the courts should recognize that individuals within these sub-classes are protected by Title VII. These sub-classes can be created by merging multiple prohibited forms of discrimination such as age, disability and sexual orientation. Indeed, such sub-classes could include not only African-American males, they could include, among others, white females (race plus sex), white males (race plus sex), disabled African-Americans (disability plus race), white males over 40 (race, sex and age), Asian females (national origin plus sex), a black male Jamaican (race plus national origin) and a 40 year old female (age and sex).

The reluctance on the part of courts to adopt the race plus sex theory arises from the fear that it may unleash even more claims of discrimination. Courts would prefer to analyze discrimination as if the Title VII factors were separate, discrete categories, ignoring the obvious reality that individuals embody several, if not all, of the Title VII factors. This was evident in Judge v. Marsh, where the plaintiff alleged that the employer's selection and performance evaluation systems disfavored African-American females when an African-American male and a white female were promoted instead. The court accepted the conclusion reached in Jeffries, that African-American females are protected as a subgroup under Title VII, yet at the same time attempted to limit its application. The Court stated:

The difficulty with this position is that it turns employment discrimination into a many-headed Hydra, impossible to contain within Title VII's prohibition. Following the Jeffries rationale to its extreme, protected subgroups would exist for every possible combination of race, color, sex, national origin and religion. It is questionable whether any employer could make an employment decision under such a regime without incurring a volley of discrimination charges. For this reason, the Jeffries analysis is appropriately limited to employment decisions based on one protected, immutable trait or fundamental right, which are directed against individuals sharing a second protected, immutable characteristic. The benefits of Title VII thus will not be splintered beyond use and recognition; nor, will they be constricted and unable to reach discrimination based on the existing unlawful criteria.

The court, in Judge, shuddered at the possibility that the diverse nature of discrimination forces the court to consider all possible combinations of Title VII discriminations. The court failed to explain how an individual can share two of the Title VII factors and suffer discrimination due to both without a combination of the factors occurring.

Courts which have rejected the race plus sex theory of discrimination are correct that Title VII clearly delineates five individual bases of discrimination; such a conclusion is clearly within the formal letter of the law. The legislative history, however, does not support placing any such limitations on the courts' authority to combine the five bases into subsets. Indeed, the intent of Congress that Title VII be used as a vehicle to eradicate discrimination in the workplace requires protection of individuals who are discriminated against because of a combination of the five Title VII bases, such as race plus sex. While race plus sex discrimination may not be within the strict letter of Title VII, it is clearly within the generous spirit of Congress' prohibition against workplace segregation. Congress equipped the courts to battle the many-headed Hydra through Title VII's prohibition against employment discrimination, not by multiplying litigation. Generous application of the race plus or “interactive discrimination” theory should not be blamed for creating the monster of employment discrimination; the many-headed beast clearly existed prior to the enactment of Title VII's attempt to exterminate it. The Judge court's reasoning flies in the face of social reality.

Ironically, what such courts fear is actually an understandable development in the continuing struggle against discrimination. Courts should look for ways to channel the race plus theory rather than attempt to limit it. Payne v. Travenol Laboratories provides a counter example to the Judge court's rejection of the race plus theory. Payne involved a class action which included both African-American males and African-American females challenging their employer's practice of excluding African-Americans and females from the more highly paid positions. The trial court refused to allow Payne, an African-American female, to represent the interests of both African-American males and African-American females, thereby excluding African-American males from the class. The district court stated:

[T]here is too much conflict between the males and the females in this situation for them to represent a class which would involve black males, or males of either race. There is a controversy in this case with reference to whether or not females should be permitted to be employed in the position of material handler in the plant, because they have always been assigned to and employed in the assembly part of the plant, and in that category which carries . . . a lower rate of pay. If these black female plaintiffs are going to get into a controversy with males, either white or black, then I don't think they can represent the male population of the plant so far as males or [sic] concerned, or for that matter any males who may have an interest in retaining their jobs as material handlers.

In upholding the district court's decision, the circuit court acknowledged that the African-American female plaintiffs' claim of discrimination in job assignments would be in conflict with the interest of African-American males. “Black males are entitled to a class representative who is free from a desire to prove a claim that will impair their interests.” The circuit court did, however, state that “[i]f a black female plaintiff argues that the employer favors white males to the detriment of both females and blacks, there is no inherent obstacle to the representation of both groups.” Even though the rights of the African-American males in Payne were diminished when they were excluded from the class, the court clearly supported the principle that individuals can claim a combination of bases for discrimination which creates subsets of individualswho are protected under Title VII. The Payne courts were clearly able to deal effectively with the many-headed Hydra the Judge court found so terrifying.

2. Prima Facie Case of Discrimination

To ensure that the borderline policies of Title VII are met, courts must recognize that African-American males can establish a prima facie case of discrimination even if African-American females (race) and white males (sex) are represented in the workforce or are similarly situated. In Delesstine v. Fort Wayne State Hospital and Training Center, the Seventh Circuit rejected defendants-appellants' argument that the plaintiff-appellee, an African-American male, could not establish a prima facie case if he was “permanently replaced by a member of a protected class (a female).” According to the court, appellants' “reasoning would foreclose a plaintiff from proving a prima facie case unless an employer discriminated not only against the plaintiff but also against every so-called ‘non-protected’ person to fill the position. Appellants' argument defies the logic, purpose and language of Title VII.”

Further support for recognizing that African-American males can establish a prima facie case, even if another protected class individual is selected or maintained, can be found in the Supreme Court's decision in Furnco Construction Corp. v. Waters. The Court stated: “It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race [African-American], without regard to whether members of the applicant's race [sex] are already proportionately represented in the work force.” Indeed, the traditional notions of who is a protected class individual have since given way to a modern thought that all individuals are protected under Title VII; thus, the first step of the prima facie case should automatically be met once plaintiff identifies which immutable characteristic she or he has (i.e., African-American and male). The McDonnell Douglas Corp. test for establishing a prima facie case “was never intended to be rigid, mechanized, or ritualistic.” Nevertheless, courts opt for a mechanized analysis of race or sex even when plaintiff alleges race and sex to establish a prima facie case of discrimination.

3. Judicial Notice

The employment status and stereotypical biases against African-American males are so widely known and internalized by the general public that courts could legitimately take judicial notice of these facts. The lingering present effect of stereotypical biases on the employment of African-American males is evident. As a defined group, African-American males have suffered from a pattern of discrimination. Federal labor statistics and other validated studies on African-American males are readily available and can be tested for accuracy. Many of these findings unequivocally support the proposition that African-American males are subjected to employment discrimination as a result of their race and gender.

Employment barriers, such as educational requirements, training and employment discrimination, which prohibit full employment opportunities for most African-American males, have a long history of negatively impacting the employability of African-American males.

Courts have previously considered the “educational and cultural forces” present in society to determine whether individuals have been victims of discrimination. Courts have taken judicial notice of such history. Courts have also taken judicial notice in other areas where there has been a long history of racial discrimination directed at African-Americans.

The Supreme Court in United Steelworkers of America v. Weber took judicial notice of the fact that employment discrimination against African-American males in filling craft positions existed. The Court stated that the long history of excluding African-Americans from craft unions prevented them from having the required credentials to be hired as craftworkers. The kind of studies cited in Weber and relied on by the Court to take judicial notice are similar to other studies cited in this article.

Today, courts could take similar judicial notice of the fact that African-American males are impacted by the “glass ceiling” in corporate America, that negative stereotypical biases of African-American males is pervasive and that African-American males can present a case of employment discrimination on the basis of their race and gender, even if African-American females and white males have not been treated adversely.

4. Determine That “Testers” Have Standing to Bring Employment Discrimination Claims

The use of testers is a process whereby individuals pose as applicants who have similar physical characteristics, demeanor, education, and experience, except for their immutable characteristics (e.g., race and sex), and are sent to apply for jobs with a particular employer. The testers have no intentions of accepting an offer of employment. The primary purpose of the process is to determine whether individuals of different races or gender, particularly African-Americans, are treated less favorably in the selection process. The use of testers to determine whether discrimination exists is not a new technique. Indeed, it has been used quite successfully for more than ten years to uncover discrimination in the housing industry. More recently, testers have been used to uncover discrimination in hiring practices, mortgage lending and in the retail car industry.

In Havens Realty Corp. v. Coleman, the Supreme Court held that the testers had standing to sue under the Fair Housing Act of 1968 for housingdiscrimination. Havens Realty argued that the respondents were not injured; thus, they lacked standing to sue in their capacity as testers. The use of testers to discover the extent of employment discrimination in Chicago, Washington, and Denver has concluded that minorities, particularly African-American males, are treated less favorably in the hiring process than white applicants.

The first court case to challenge the use of testers in the employment area was filed in 1991 in Fair Employment Counsel of Greater Washington v. BMC Marketing. The employer alleged that the testers lacked standing to file suit under federal civil rights laws which prohibit race discrimination.

In BMC Marketing, two African-American males and the Fair Employment Council of Greater Washington, Inc. brought a discrimination action against BMC Marketing Corporation, an employment agency owned by Snelling and Snelling, when the two African-American male applicants were not referred to employers for employment consideration and white males with similar qualifications who applied after the African-American males were referred.

The employment discrimination experienced by the two African-American testers is not unusual. The Civil Rights Act of 1964 was passed to prohibit such conduct. Moreover, the Civil Rights Act of 1991 was passed to further eliminate such discriminatory hiring practices and to correct the failings of the Civil Rights Act of 1964 and the Supreme Court's failure to eradicate employment discrimination.

In an effort to uncover and eradicate discriminatory hiring practices in the greater Washington, D.C. area, the Fair Employment Council of Greater Washington (FEC) “designed and implemented a program of systematic employment testing using professional social science methodology” to determine whether qualified African-American applicants were being afforded the same opportunities as white applicants seeking referrals to employers. The FEC employed two African-American males and two white students as testers, matching the two African-American males and white testers who had similar academic credentials, demeanors, age and verbal skills.

Thereafter, they were trained how to interview and how to record and observe their experiences when contacting the employment agency for referrals. According to the complaint, on December 10, 1990, one of the African-American testers entered the premises of BMC Marketing and sought information regarding employment opportunities. The African-American male tester completed an application, which included a grammar and spelling test and a release for defendant to investigate his background. He also completed a typing test. After waiting for approximately thirty minutes, he was interviewed by a white employment counselor. During the interview which lasted five to ten minutes, the counselor directed him to consider positions other than the ones listed with her office. The African-American male tester was never contacted, nor were his references, even though he was qualified for at least one position that defendant knew was available.

The complaint further alleged that ten minutes after the African-American male tester completed the employment application and interview with defendant, a white male tester from FEC entered the same office and completed the same application and tests. The white male tester provided information on his qualifications that were comparable to those provided by the African-American male tester. Even before the white male took the typing test, he was asked whether he would be interested in a switchboard position. Later that same morning, he was referred by defendant to an interview for a switchboard position. The white tester was coached by defendant on interviewing techniques, and his references were contacted during the time he was taking the typing test. The white tester was subsequently offered the job at the prospective employer but refused the offer. The African-American male tester was not contacted by defendant, even though the position remained open.

On December 11, 1990, FEC sent the second pair of testers to BMC Marketing. The facts are somewhat different from the first scenario, but the results were the same. On this occasion, the African-American male was not given an application and was told the company was a secretarial referral firm. The white male tester, however, was provided with an application and the grammar and spelling test. The testers' qualifications were comparable. The white male tester was not required to take the typing test. Again, the white male was given a referral, coached on interviewing, was subsequently offered the job but refused the offer. Neither of the African-American male testers were contacted or referred for the switchboard position.

Citing the Supreme Court's decision in Havens, the district court in BMC Marketing held that even though the plaintiffs had no intention of accepting any job defendant referred them to, they were nevertheless injured when they did not receive “truthful information” concerning employment opportunity because of their race; thus, they had standing to pursue a civil action under Title VII. The district court correctly reached this decision by focusing its analysis on the similarities between the Fair Housing Act and Title VII of the Civil Rights Act. In upholding the use of testers in housing discrimination cases under the Fair Housing Act, the Supreme Court had relied on s 3604(d) of the Act which makes it unlawful to represent to any person because of race, color, religion, sex or national origin that any dwelling is not available for inspection, sale or rental when such dwelling is in fact available. The Supreme Court concluded that Congress clearly intended that testers have standing to sue under the statute. “A tester who has been the object of a misrepresentation made unlawful [under the statute] has suffered injury in precisely the form the statute was intended to guard against, and therefore, has standing to maintain a claim for damages under the [[[ statute].”

Relying on the Havens analysis, the court in BMC Marketing recognized that the Title VII prohibition against discrimination has virtually the identical language as s 3604(e) of the Fair Housing Act. Section 2000e-2(b) of Title VII states:

It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis his race, color, religion, sex, or national origin.

Based on the similarities of the two statutes, the court concluded: “Just as the statute in Havens, by its terms, established an enforceable right to truthful information concerning the availability of housing; so s 2000e-2(b) by its terms establishes an enforceable right to nondiscriminatory referrals from employment agencies.”

On appeal to the United States Court of Appeals for the District of Columbia Circuit, the court reversed the district court's decision and held that the individual testers lacked standing to seek damages under Title VII and did not state a cause of action under s 1981. However, the court did find that the council, as an organization, could “proceed with [a] Title VII claim, but it has a cause of action only to the extent that the effects of BMC's discrimination have perceptibly impaired its programs.” This decision will make it more difficult to proceed with tester cases under s 1981, but not necessarily Title VII.

B. The Role of the Federal Government: Enforcement of Civil Rights Laws

Like the courts, federal civil rights enforcement agencies have failed to educate and inform employers and federal contractors as to how stereotypical biases used to intentionally or unintentionally exclude African-American males from the workplace on the basis of their race and sex violate Title VII and other federal statutes.

The U.S. Equal Employment Opportunity Commission (EEOC) has primary responsibility to interpret and enforce Title VII. Moreover, the EEOC has the authority to issue policy statements, guidelines, bring class action suits in pattern and practice cases, intervene as a plaintiff in employment discrimination cases and process administrative complaints prior to litigation. The EEOC has not issued or proposed any policies or guidelines to alert employers that African-American males and other subgroups can be discriminated against based upon a combination of race and sex. The EEOC recently approved a National Enforcement Plan “identifying priority issues and setting out a plan for administrative enforcement and litigation of the laws within its jurisdiction.” One of the priorities listed in the plan were claims based on the intersection of two or more prohibited bases of discrimination; for example, discrimination against females of color, older females or minority persons with disabilities.

The Office of Federal Contracts Compliance Program (OFCCP), U.S. Department of Labor, has primary responsibility to enforce Executive Order 11246. The OFCCP has also failed to take the initiative to fully explain to federal contractors their responsibility to ensure that African-American males are not discriminated against on the basis of their race plus sex. The OFCCP should monitor and evaluate personnel practices and policies of federal contractors to determine the existence of disparate impact against African-American males. This would be included during compliance reviews. Federal contractors could also be required to establish goals and timetables specifically on the employment of African-American males.

Federal civil rights agencies can also take the following initiatives to discourage the exclusion of, and employment discrimination against, African-American males in the workplace.

1. Accept and Process Charges of Discrimination by “Testers”

The EEOC took a major step toward supporting the use of testers by issuing a policy that charges of discrimination filed by testers would be accepted and processed by the agency. This was the first time that the EEOC took an aggressive stand on the use of testers to uncover employment discrimination. It has been suggested that the EEOC not only accept charges of discrimination brought by testers but also litigate such cases.

There is support as well as organized resistance to the use of testers in the employment area. As a result of the EEOC policy on testers, the National Association for the Advancement of Colored People (NAACP) filed a class action with the EEOC against Lord & Taylor department stores in Miami, Florida. The NAACP used several job testers to support its suspicion that the department stores discriminated against African-American applicants for employment. The use of testers can be used effectively to uncover subtle acts of employment discrimination against African-American males. It has also been recommended that a nationwide audit using testers be conducted to determine the extent of racial discrimination in employment practices.

2. Recognize and Analyze Discrimination Charges on the Basis of Race Plus Sex

It should be recognized at the administrative level that African-American males can be discriminated against on the basis of being an “African-American male,” not just because of their race or sex, but a combination of both. In applying the standard formulated in McDonnell Douglas Corp. for a plaintiff to establish a prima facie case of employment discrimination, the EEOC has, in a number of administrative decisions, held that race and sex protected a “black female,” thus meeting the prima facie case. However, once the burden of production shifts to the respondent to “articulate a legitimate non-discriminatory” reason for its action, there has been no legal analysis as to whether the subgroup was excluded because of a combination of discriminatory bases. For example, in EEOC Decision No. 85-1, an African-American female alleged discrimination on the basis of race and sex when she was denied a position with respondent. After the charging party established her prima facie case of discrimination, the employer's legitimate reason for denying the charging party the position was that all the selectees had prior experience. In a footnote, the decision mentioned that the four available positions were filled by an “[African-American] male, a [w]hite female, and two [w]hite males.” The EEOC held that there was “no reasonable cause to believe” that the charging party had been discriminated against on the basis of race or sex. There was no analysis or mention that since an African-American female was not selected that discrimination may have occurred on the basis of a combination of race and sex. In an earlier case filed with the EEOC on the basis of race and sex, an African-American male alleged that his employer discharged him and removed other African-American males from supervisory positions. The EEOC determined that the employer violated Title VII.

If an African-American male charging party or the EEOC fail to recognize that race plus sex could be the basis for the discrimination, and only the race claim is pursued, the plaintiff may be prohibited from pursuing the sex claim once the case is brought to court. The charging party must have filed the charge and the basis for the allegation of discrimination with the EEOC prior to pursuing litigation. A failure to file a race plus sex claim of discrimination with the EEOC prior to litigation may result in a dismissal of the additional basis included in a complaint in federal court.

3. Issue Policy Statements

As with other forms of discrimination, the EEOC should also issue policy guidelines on “discrimination against subclasses.” Such guidelines would define and identify various subclasses, including the legal framework for establishing a prima facie case of race plus sex based discrimination, as well as other forms of “interactive discrimination.”

These guidelines and policies on employment discrimination against African-American males would be issued to explain how stereotypical biases against African-American males can result in a violation of Title VII. In addition to the EEOC, the OFCCP should issue a policy statement or guidelines to federal contractors on how subgroups of individuals are protected by Title VII when multiple bases of discrimination are present. Litigation of such claims should be vigorously pursued, and the agencies' methods of collecting data on the various subgroups affected should be improved.

4. Glass Ceiling Initiative for African-American Males

The U.S. Department of Labor defines the “glass ceiling” as “those artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing upward in their organization into management level positions.” In 1989, the Department of Labor began an initiative to investigate corporate America to determine why females and minorities were disproportionately excluded from executive positions. In 1992, the Department of Labor released a report on steps corporate America can and is taking to improve the advancement of minorities and females into the executive suites. The U.S. Department of Labor insists that the glass ceiling initiative is to identify barriers which preclude both minorities and females from the executive suite. In reality, however, the glass ceiling initiatives are directed primarily at white females. In practice, minority females are a “politically correct” tag-a-long in the dialogue on the “glass ceiling.” African-American males are considered as an afterthought, if at all.

The U.S. Department of Labor should conduct a more comprehensive study of African-American male employees to determine what has inhibited them from upward mobility in organizations. The glass ceiling has clearly prohibited their upward mobility to senior level positions. Indeed, African-American males are inhibited more by “steel beams” than simply glass ceiling, and are excluded, except for the usual token African-American male, who normally holds an “invisible” high-level management position. African-American males are excluded from high level policy making positions, in part because of the stereotypical images that white male managers and executives have of African-American men. African-American males are likewise missing from the ranks of “feeder” positions from which they can move up the corporate ladder. This occurs for a variety of reasons. African-American men are hired into either the lowest entry-level position, traditional staff positions such as personnel or community relations, or quasi-middle management positions without the benefit of a mentor.

A review of statistical data of African-American male employees in major private sector industries supports the view that they have failed to shatter the glass ceiling. African-American males compose only 2.6 percent of executive, administrative and managerial occupations, whereas white males compose 49 percent of those occupations. More disheartening is that African-American males who have the same level of education or even more than whites are not guaranteed success in breaking the glass ceiling.

The exclusion of African-American males from executive positions is a direct result of organizational barriers and attitudinal biases that are unique to them because of their race and sex. Most studies which have analyzed the “glass ceiling” have focused on females, particularly white females and minorities, especially African-American females and to a lesser extent African-American males. Additional studies are warranted to determine what specific factors and barriers prohibit the upward mobility of African-American males in public and private institutions. Such studies should not marginalize discrimination directed at other particular groups. Rather, they should acknowledge that African-American males experience similar, as well as different, forms of employment discrimination based upon their race and sex. It is clearly such a combination of biases that form a barrier to their breaking the “glass ceiling,” or melting down the steel beams barring their entry into the executive suite.

5. Conduct Empirical Studies

The federal government has conducted a number of studies on race discrimination and gender discrimination. However, the correlation between stereotypical biases against African-American males and the decline of their employment status has been almost totally ignored by the federal government. In 1986, however, the U.S. Commission on Civil Rights issued a major study on the economic status of African-American males. This study detailed the disparities between white and African-American males in wages and employment. Except for this study, the federal government has not taken any comprehensive initiatives to determine why the disparity between white and African-American males has continued to worsen, particularly during the past two decades.

On the other hand, a few states have recently conducted preliminary research on the plight of African-American males in their respective states. These studies have also concluded that stereotypical biases against African-American males are rampant. Clearly, if the nation is to effectively address the employment status of African-American males, the federal government must take the lead in identifying the causes and solutions to this national tragedy.

C. The Role of Employers: Affirmative Action Plans/Programs

To a certain extent, employers and federal contractors take a compliance perspective and not a proactive approach to equal employment opportunity and Affirmative Action. For employers and federal contractors to maintain and to regain in some industries, competitiveness in the global market demands a constant evaluation of their present and future workforce. Indeed, Workforce 2000 also demands immediate attention of this subject.

A proactive, aggressive equal employment module and an Affirmative Action plan will be a requirement for employers to find qualified and qualifiable candidates in the workplace. This includes African-American males. Specifically, an employer's Affirmative Action plan must not only meet the legal requirement but also the spirit in which President Johnson mandated such plans more than 30 years ago. Even though race-based Affirmative Action plans have been attacked in court as unconstitutional and voluntary Affirmative Action plans challenged under Title VII, a well drafted Affirmative Action plan can withstand legal challenges. As a result of the U.S. Supreme Court's decision in Adarand Constructors, Inc. v. Pena, many employers are reluctant to develop and implement a proactive Affirmative Action program. The Supreme Court placed stringent restrictions on affirmation action plans with race conscious provisions. Race conscious provisions in Affirmative Action programs, even to address the most egregious history of discrimination, will be challenged. Further, Affirmative Action programs are being attacked because many Americans feel that discrimination in employment no longer exists. In Adarand, the Supreme Court held that all governmental Affirmative Action programs which included a race-based classification must meet the strict scrutiny standard of review. The Adarand decision did not outlaw all race-based remedies to eliminate racial discrimination; however, it requires that such plans are narrowly tailored and meet a compelling governmental interest.

The Supreme Court cited an earlier decision, United States v. Paradise, as an example where a governmental race-based Affirmative Action program met the strict scrutiny test. In Paradise, the district court concluded that the Alabama Department of Public Safety “had systematically excluded [African-Americans] from employment” as state troopers “in violation of the Fourteenth Amendment.” To correct a long history of discriminatory promotional practices by the employer, the district court ordered “the promotion of one black trooper for each white trooper . . . as long as qualified black candidates were available, until the department implemented an acceptable promotion procedure.”

In upholding the lower court's order, the Supreme Court held that the “[g] overnment unquestionably has a compelling interest in remedying past and present discrimination by a state actor.” In Paradise, the facts revealed that the employer had excluded African-Americans for nearly four decades. Moreover, conduct on the part of the employer was “pervasive, systematic, and obstinate discriminatory conduct” which justified a race-conscious relief. The Supreme Court also determined that the race-conscious remedy was narrowly tailored, flexible and was a temporary remedy for correcting the past and present effect of discrimination. Paradise illustrates that evidence which clearly demonstrates a pattern of exclusion of African-American males from employment and promotional opportunities by a governmental entity can support the implementation of race-conscious provisions in the employer's Affirmative Action plan to remedy the race plus sex form of discrimination.

In the private sector, the Supreme Court's decision in United Steelworkers of America v. Weber outlined the elements of a permissible voluntary Affirmative Action plan with a race-classification provision. In Weber, the employer and union agreed to eliminate racial imbalances in the craftwork positions by reserving 50 percent of the openings in the training program for African-Americans until the percentage of African-Americans in the craft positions represented the percentage of African-Americans in the labor force. In upholding the program, the Supreme Court stated that Title VII did not limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious Affirmative Action programs.

The Weber court also outlined the specific guidelines for private sector employers to follow when implementing race-conscious Affirmative Action programs. Weber requires race-conscious Affirmative Action programs to not “unnecessarily trammel the interest of white employees,” (i.e., not to discharge white employees to hire African-American employees; not to create a plan that absolutely bars the advancement of white employees; and to have only temporary plans).

Clearly, private employers have more flexibility than public sector employers to correct past and present practices of denying African-American males' employment opportunities. This is not to suggest that every Affirmative Action plan needs a race-conscious provision; indeed, most Affirmative Action plans lack such a provision. Only where past practices of exclusion are deeply rooted and where qualified or qualifiable African-American males are available would an employer consider such a remedy.

The public has been misled with regard to the use of race-conscious provisions in Affirmative Action programs, outreach Affirmative Action programs and reverse discrimination. Race-conscious Affirmative Action programs represent a small percentage of all Affirmative Action programs. Most plans include strategies for recruitment and retention, community outreach, and provisions for ensuring equal opportunities within organizations. Only when employment discrimination exists does the employer include a race-conscious provision in their Affirmative Action program. Where evidence supports that intentional forms of discrimination have been institutionalized, a temporary race-conscious provision in an Affirmative Action plan is warranted. This would include African-American males who have indeed been intentionally excluded.

African-American males make up 12 percent of the United States population. However, a major portion of African-Americans of working age have been voluntarily or involuntarily removed from the employment market. In part, this is because of a lack of meaningful employment opportunities and employment discrimination because of who they are. Employers and federal contractors have, if not a social responsibility, a legal obligation to recruit, hire, train and promote African-American males. For an employer to just say that they are “an equal employment opportunity employer” is a waste of print. To be successful at this endeavor, employers must recognize and take positive actions to eliminate discriminatory barriers and attitudes which exclude African-American males. These barriers and attitudes are laced with stereotypical biases surrounding their race and sex that are particular to just African-American males. Consequently, employers and federal contractors should take the following initiatives to identify how the race and sex of African-American males are considered when employment decisions are made.

1. Goals and Timetables

Employers should establish goals and timetables for the employability of African-American males in all job categories where they are underemployed. The number of African-American males employed should be considered separately from the number of African-American females employed. For example, in Peightal v. Metropolitan Dade County, the fire department's Affirmative Action plan set hiring goals to “include 15 black males, 29 Hispanic males, 8 black females, 8 Hispanic females, and 7 white females.” The Fire Department was successful in hiring 18 black males, 24 Hispanic males, 5 black females, 4 Hispanic females, 12 white females and 23 white males. However, in American Federation of Government Employees Local 1923, the employer rejected the union proposal to establish goals for employing African-American males in administrative and clerical positions. The employer argued that the proposal would “directly and excessively interfere with the Agency's right to hire and assign employees because the proposals ‘would mandate the selection of a set number of employees in particular job categories, irrespective of the Agency's need to have any positions filled.”’ The union argued that the proposals stated a “numerical objective” as opposed to quota.

2. Recruitment and Retention

Employers must design recruitment plans that are directed specifically at recruiting African-American males. A recruitment plan should contain strategies to include areas of the community and institutions where African-American males are disproportionately represented. Clearly, African-American male parolees, those at homeless shelters and at recreation centers are excellent sources for recruitment, especially for entry level or trainee positions. A number of studies have suggested that employers actually do quite the opposite, intentionally directing their recruitment efforts away from sources where they would be ensured of finding qualified and qualifiable African-American males. In the survey conducted by Kathryn M. Neckerman and Joleen Kirschenman, some responders describe African-American males in this manner: “black men have a chip on their shoulder; [[[they] resent being told what to do”; “black men were more likely to falsify their [ employment] applications”; “black men were not willing to ‘play the game’ and to ‘follow the rules.”’

These stereotypical biases regarding African-American males result in the exclusion of African-American males from being recruited and, ultimately, employed or promoted. Once employed, the employer should design plans for African-American males to be retained and promoted within the organization.

3. Diversity Training

It is projected that by the year 2000 the demographics of the American workforce will have changed substantially from a workforce dominated by white males to a diverse workforce of females and a sundry of minority groups. Among this diverse working group will be African-American males. To reduce conflicts within this new workforce, employers should develop and require all employees to participate in a diversity training program. Included in this program should be an orientation on identifying and preventing negative stereotypical biases directed at African-American male employees and applicants.

The transformation of the American workforce from a purely homogeneous culture to a diverse mixture of cultures and ethnicities will dictate employers' development of a systematic initiative to sensitize and educate managers on how to manage employees within the framework of the law. Similarly, co-workers, customers, clients and contractors of employerswill also require orientation on working with a diverse work-force.

The shift from Affirmative Action to diversity is the next natural progression to ensure equal employment opportunities for all employees. The implementation of diversity programs will empower employees to effectively work as a team, and to recognize and celebrate differences among the various racial groups. Cultural diversity training, however, should not be limited to white males; it should be required of all employees including females, all minority groups and African-American males too.

Because of the infinite number of stereotypical biases directed at African-American males, specifically with regards to employment, African-American males will be disproportionately excluded from being hired and promoted. The exclusion of African-American males will be based upon stereotypical biases regarding their race and gender (African-American and male). An orientation for employees to recognize their biases and how to avoid such conduct is a prerequisite for preventing race and sex claims of discrimination.

Where litigation has already proceeded, courts have permitted the parties to include diversity training as part of a consent decree to resolve the case. For example, in Aburime v. Northwest Airlines, Inc., the court approved a consent decree which included a provision on diversity and sensitivity training.

Judges and court personnel would also benefit from instituting a diversity training program to become aware of how their stereotypical biases of African-American males affect their employment decisions, as well as the administration of justice.

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