Sun, Sep 24, 2023 page9

• How to justify affirmative action in the modern workplace

  • By Stephen L. Carter / Bloomberg Opinion
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  Ever since the US Supreme Court’s decisions last spring about affirmative action in college admissions, advocates for workplace diversity have wondered about the implications for employment. The recent lawsuit challenging an apprenticeship program designed to expand opportunities for people of color is likely to provide more data. While many in the civil rights community are wary, there is a fair chance the program would survive the challenge. If it does not, it might end up becoming a peculiarly unpleasant chicken-and-egg problem.

  The lawsuit was filed against Meta Platforms Inc and two other defendants on behalf of James Harker, an experienced lighting technician who claims that he was denied work on a commercial because he is white. In particular, he alleges that the “Double the Line” (DTL) minority apprenticeship program violates his rights against employment discrimination. Under DTL, the producer of a commercial shoot agrees to select a person with a racial minority background for a short-term paid post learning alongside the crew member who already has a budget line; hence the name of the program.

  Is opposing employer diversity programs the logical extension of the Supreme Court’s decisions against affirmative action? Some people might find this skeptical.

  In the beginning, long before any decisions by the current court, it was illegal to discriminate against employees because they were white. About half a century ago, in a unanimous opinion authored by Justice Thurgood Marshall, the justices said that Title VII of the Civil Rights Act of 1964 imposed upon employers an “obligation not to discriminate against whites.”

  Lawsuits against employers for violating that obligation are neither new nor newsworthy, and have been around for decades. They have even been filed by the Equal Employment Opportunity Commission (EEOC). On its Web site, the EEOC touts its work on behalf of (among other examples) a white hotel employee who claimed she was fired after being told “you are the wrong color”; and its 2011 settlement with a retail clothing chain that allegedly refused to hire white sales staff.

  Some of these cases make headlines. In July, a federal court jury ordered Starbucks to pay US$25.6 million to a former regional manager who was found to have been fired in an effort by the company to “punish white employees.” Last month, the judge of this case awarded an extra US$2.7 million for additional lost wages and benefits.

  LAW

  True, the plaintiffs’ wins are rare instances. That is because the courts generally require that the claimant who is white to not simply show that the accused employer has an affirmative action program, but that in the absence of the program, the claimant would have been hired or promoted.

  Would the Supreme Court majority change that well-established body of law? At minimum, it could be suspected that the justices would soon direct the lower courts to thoroughly scrutinize the formal affirmative hiring process, and yet most hiring programs would possibly still survive.

  For one thing, unlike college admissions, where the justices have been openly skeptical for decades about the use of race, there is a lots of laws, including Supreme Court decisions, upholding voluntary affirmative action programs. For another, we are talking about an entirely different statute. For a third, businesses tend to like diversity programs. Perhaps most important, although some employment decisions fit the zero-sum model that troubled the court about college admissions, it is certainly not true of all, and in a tight labor market, it might not be true of most.

  Or maybe, as many fear, the justices would dump half a century of precedent into the trash can, and rule that companies cannot use race-conscious hiring as a tool for overcoming imbalances in their workforces. Even if was to happen, there should be some implements left in the diversity toolkit, such as apprenticeship and training programs.

  ‘DISCRIMINATORY’

  This brings the spotlight back to Harker’s lawsuit. He accused the supporters of the DTL initiative of “authorizing or encouraging the use of racially discriminatory hiring practices.”

  However, here is how the Association of Independent Commercial Producers, which promotes the DTL program, describes the goal on its Web site: “The idea is to pick one line that allows a candidate who has not previously had access to our business, but is qualified in the role, to have access to the production to learn the nuances around commercial production in a real, hands on way.”

  The program “extends beyond mentorship where someone is learning from the sidelines and provides actual access and apprenticeship.”

  DTL does not provide a full-time job. It offers a paid apprenticeship allowing a person to gain experience by working with a crew on a television commercial. Under the traditional understanding of employment law, a company violates no one’s rights when it administers an apprenticeship program “which affords women and minorities greater opportunities to obtain positions in a workforce that is dominated by white males.”

  That rule might change, but there is a good alternative argument. An apprenticeship program that does not lead to a guarantee of a full-time position clearly does not present the zero-sum problem the Supreme Court has perceived in race-conscious college admissions. Perhaps federal courts would take a harder look at affirmative action in hiring people. Hopefully those programs will survive.

  However, if they do not, it would be daylight madness to also eliminate the apprenticeship and training programs that help equip future non-white jobseekers with the skills they will need if all employment decisions are henceforth required to be race-neutral.

  If indeed the US has reached the point where it is considered reasonable to end the conscious search for racial diversity in the workforce, might not one reason be the decades of racially conscious admissions found at colleges and universities?

  Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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