Fighting to restore Title VII — Shea v. Kerry

March 11, 2014 | By JOSHUA THOMPSON

Title VII of the Civil Rights Act of 1964 was an historic piece of legislation.  The statute  prohibits racial discrimination in employment:  The text of Title VII is explicit:

[It shall be unlawful] to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Despite this explicit prohibition on racial discrimination of any kind, both government and private employers routinely engage in discrimination through race-based affirmative action programs.  So, you may ask, how do these discriminatory programs not violate Title VII?

The answer stems from two Supreme Court cases: United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193 (1979) and Johnson v. Santa Clara Transportation Agency, 480 U.S. 616 (1987).  Read together, Weber and Johnson completely re-wrote Title VII’s prohibition on racial discrimination.  According to those cases, an employer may discriminate against non-minorities, so long as that discrimination is premised on the “existence of an affirmative action plan.”

Weber and Johnson are notorious decisions that should be overruled.  As noted above, they are contrary to the explicit text of Title VII.  Further, when such race-based discrimination is undertaken by government employers, it raises serious concerns under the Equal Protection Clause.  For years, however, little could be done about it.

Four years ago that changed.  In Ricci v. DeStefano, 557 U.S. 557 (2009), the Supreme Court held that a fire department could not engage in race-conscious action in order to avoid the the threat of a lawsuit under Title VII’s disparate impact provisions.  While Ricci did not explicitly address Weber and Johnson, it called into question the continuing validity of those precedents.  For if an employer is prohibited from engaging in race-conscious action unless it will be liable under Title VII’s disparate impact provisions, why should it be permitted to engage in race-conscious action when there is no fear of a disparate lawsuit at all?

PLF is asking that question this brief we filed today before the D.C. Circuit Court of Appeals. In the case, Shea v. Kerry, PLF is representing Foreign Service officer, William Shea.  Shea was hired to be a Foreign Service officer by the Department of State back in 1992.  When State hired William Shea, it was operating a race-based affirmative action program that discriminated against individuals because of the color of their skin.  State does not deny that it discriminated against Shea; instead, it argues that it was permitted to discriminate against him under Johnson and Weber.

But PLF believes that Ricci changed the standard of review.  No longer may the mere “existence of an affirmative action plan” relieve State of its burden to show the legality of its race-conscious action.

William Shea should not have been discriminated against on the basis of his race.  Title VII was designed to prevent precisely that type of action.  Yet he, and millions of Americans suffer under the decades-long misunderstanding of Title VII.  PLF is asking the D.C. Circuit to return Title VII to its original meaning in accord with the Supreme Court’s decision in Ricci.  And if that Court isn’t prepared to do so, we are going to ask the Supreme Court.