In a fascinating case, Frank v. Xerox (Sept. 30, Dec. 15, 2003) the Fifth Circuit ruled that Xerox Corp.’s “Balanced Work Initiative” (BWF) consituted “direct evidence of a form or practice of discrimination.” (Additional opinions in this case can be found here and here.)
What is unusual about this case is that the plaintiffs complaining about this diversity program were black. As the court stated,
Xerox candidly identified explicit racial goals for each job and grade level. The reports also stated that blacks were over-represented and whites were under-represented in almost every job and grade level at the Houston office. Senior staff notes and evaluations also indicate that managers were evaluated on how well they complied with the BWF objectives. 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.
As Peter Kirsanow of the Civil Rights Commission points out in National Review Online, “[m]any employers like to trumpet their voluntary workforce-diversity plans,” but cases like Frank suggest that if they believe Grutter has given them a license to “diversify” at will they may be just, well, whistlin’ Dixie.
Let me get this straight: Blacks were OVER-represented and whites were UNDER-represented in Houston, and THAT?? is evidence that employment opportunities for blacks are limited???
Something’s rather strange here, or else there’s a heck of a lot more to this story than is quoted here.
Claire, this actually does make sense (once you accept the commitment to racial balance). Blacks are “over-represented” in the Houston office; managers are thus under the gun to hire/promote more non-blacks; thus the plaintiff black applicants have a plausible claim to being discriminated against because of their race.
Weird but true.