August 8, 2014

Bringing sanity back to Title VII

By Joshua P. Thompson Senior Attorney

This morning PLF filed this Reply Brief in Shea v. Kerrya case where we are representing Foreign Service officer William Shea in his fight against the US Department of State.  When William Shea was hired by the State Department in the early 1990s, they had a program that placed minority individuals in advanced  positions by virtue of their skin color.  As a result, Shea has been receiving less pay and benefits than he would have received had he been from a different race.  So Shea brought suit, represented himself pro se and fought for his right to non-discrimination for 13 years.  After the district court dismissed his suit last year, PLF decided to take up his case.

As I discussed on this blog previously, Shea is seeking vindication for the State Department’s discriminatory treatment of him, but his case raises very important legal issues that could radically improve our nation’s anti-discrimination laws.  As a result of some earlier decisions by the Supreme Court, Title VII is currently interpreted to presume that discrimination against white males is justified.  But the text of Title VII makes no distinction between races, and more recent Supreme Court decisions make clear that laws that treat individuals differently on the basis of race — any racial classification whatsoever — are presumed unconstitutional.  So, if the Equal Protection Clause prohibits race-based decisionmaking, how can the nation’s hallmark anti-discrimination measure be interpreted in a manner that treats individuals differently on the basis of race?

Fortunately, in 2009, the Supreme Court signaled to the lower courts that Title VII should not be read in a manner that presumes some forms of racial discrimination constitutional.  Yet, unfortunately, government continues to engage in employment discrimination.  William Shea’s case is hoping to restore commonsense back into Title VII, by requiring courts to presume that any race-based employment decision is illegal.  PLF is asking the Circuit Court of Appeals for the District of Columbia to hold that the Department of State discriminated against William Shea in violation of Title VII.  And we are prepared to take his case to the Supreme Court if we must.

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