Read the case study “George or Adriana?”

The basis of a reverse discrimination claim is disparate treatment, with the claimant (plaintiff) alleging that the employer had an affirmative action plan (AAP), considered the applicants’ protected class characteristics in an employment-related decision such as a promotion, and chose a female or person of color over the claimant, usually a white male. In these cases, employers contend that it is acceptable to consider protected class characteristics as one factor among many factors in their employment decision (preferential treatment) because their AAPs permit it. The result of preferential treatment is that these employers consider the protected class characteristics of applicants in making the employment decisions, which may have been different had the characteristics not been a factor in the decisions.

A private employer with no federal contracts has a quality control line of progression; the top job is the master tester position, and the tester is just below it. One must be a tester for at least three years to be eligible for promotion to one of the 20 master tester jobs. Suppose two applicants, George (white male) and Adriana (African American female), are vying for a promotion to the master tester position. Both employees have been in the tester position for five years, have earned “excellent” performance ratings as testers, and have associate degrees in applied science. Their knowledge and skill sets are comparable. However, George has had more extensive quality control training for the master tester position, which Adriana is scheduled to undergo in about three weeks. It is not a requirement for this training to be completed prior to promotion to the master tester position.

The two applicants have completed an extensive battery of 50 tests, ranging from the application form to paper-and-pencil tests to simulations and interviews. Each test score for an applicant translates into a point score, and an applicant’s point scores added together comprise the total or composite score. The goal of this approach is to create an overall view of each applicant’s potential to be a successful performer in the master tester position. The maximum possible score is 1500 points; a person is qualified to fill the master tester vacancy with a score of at least 1390 points. George’s total score is 1475 points; Adriana’s total score is 1470 points.

The employer has a written, voluntary affirmative action plan that has been reviewed and approved by the EEOC. The plan is designed to (1) address conspicuous race and sex imbalances through hiring, training, and promoting, and (2) remedy the effects of past discrimination (underutilization) on the minority group or women throughout the hierarchy by allowing race and/or sex to be a factor in promotion or selection decisions. The master tester position was one of the positions in the AAP that could consider race and/or sex in promotions. To date, no woman has been promoted to the master tester position, but 2 of the 20 master testers are African American males. Regarding positions that require special training, e.g., the tester and master tester positions, the long-term goal is to attain a workforce that more closely mirrors the employer’s relevant labor market. The plan has no definitive end date, nor does it set aside a set number of positions for preferential treatment; instead, it uses a case-by-case approach based on goals that are adjusted annually so that the company will have a more realistic idea of whether race or sex should be a potential factor in filling a position.

United Steelworkers v. Weber (1979) was the landmark decision involving the legality of voluntary affirmative action plans. In Johnson v. Transportation Agency, Santa Clara County(1987), the Court reinforced the Weber criteria to a promotion decision under a voluntary affirmative action plan. These decisions said that preferential selection or promotion involving a majority class (e.g., white males) and a protected class (e.g., a minority group or female) applicant under a voluntary affirmative action program is permitted if

1. The affirmative action plan is remedial (opening up opportunities to jobs that had been traditionally closed to women and minorities) and the effects of past discrimination (underutilization) are still present in the organization or job(s) in question (Johnson v. Transportation Agency, Santa Clara County, 1987).

2. The protected class and the majority class candidates are both qualified, and there is only a slight difference in the overall qualifications between the majority class and the protected class candidate (Johnson v. Transportation Agency, Santa Clara County, 1987).

3. Promotion of the protected class applicant would further the goals of the affirmative action plan (United Steelworkers of America v. Weber, 1979).

4. “[T]he plan does not unnecessarily trammel the rights of the white employees” (United Steelworkers of America v. Weber, 1979, p. 208). This means you don’t terminate white employees so that you can replace them with women or minorities. The plan also does not “create an absolute bar to the advancement of white employees” such (United Steelworkers of America v. Weber, 1979, p. 208). This means that white employees can still be promoted to the position in question.

Apply the four-step test above and determine which of these two applicants should be promoted. Make sure that you explain your rationale in each step of the test.