January 23, 2015

Oral argument held in Shea v. Kerry

By Joshua P. Thompson Senior Attorney

On Tuesday of this week I was in Washington, D.C. arguing Shea v. Kerry before the D.C. Circuit Court of Appeals.  This case involves a challenge to the State Department’s discriminatory affirmative action program for Foreign Service officers.  The facts of the case are, unfortunately, fairly common.  The Foreign Service was giving preferential treatment to individuals from certain racial groups, which allowed those individuals to be hired directly into mid-level positions.  However, if you were a white male, you were not permitted to apply for mid-level placement through the affirmative action program. 

While the facts of the case are not extraordinary, PLF was using this case to establish an important Title VII precedent. In two 30-year old cases, Johnson and Weber, the Supreme Court interpreted Title VII contrary to its explicit text.  Although Title VII makes no distinction between races — it prohibits all racial discrimination — Johnson and Weber permit employers to discriminate so long as it is done pursuant to a “lawful affirmative action program.”

There are two main problems with the holding from those cases.  First, as noted above, it is contrary to the explicit text of Title VII.  If Congress wants to amend Title VII to allow for some affirmative action-based racial discrimination, then Congress could do so.  It is not for the Courts to rewrite the explicit text of the statute. Second, five yeas ago, the Supreme Court decided Ricci v. DeStefano, which held Title VII is violated any time an employer discriminates on the basis of race without a “strong-basis-in-evidence” that race-conscious conduct was necessary.  Ricci, therefore, is in direct conflict with Johnson and Weber.  On the one hand, Johnson and Weber presume that certain race-conscious conduct is lawful. On the other hand, Ricci presumes that all race-conscious conduct is unlawful and must be extraordinarily justified.

The D.C. Circuit asked a lot of questions at oral argument.  While I was originally only given twenty minutes to present my argument, the Court allowed me to go for almost 45 minutes. The entire hearing lasted well over an hour.  You can listen to the oral argument here.

The Court had a lot of questions about standing.  It was concerned that Shea had never indicated a desire to apply for a mid-level position. We had never included those documents in the joint appendix, and truthfully, I did not know they existed, because the Department had never questioned our client’s standing.  Regardless, yesterday we filed a letter with the Court indicating that Shea had testified in the lower to court as to his desire to apply for a mid-level position had he known about it.

On the merits, the Court seemed very skeptical of the government’s evidence that purported to show a “manifest imbalance” of minorities in the mid-levels when Shea was hired. If the Court finds that the State Department lacked the requisite evidence, it may never get to the Ricc issue that we think is so important.  While a win for client on the lack of evidence in the record would be satisfying, a win on the applicable standard of review would have far greater effects on Title VII going forward.

At this point, all we can do is wait.  The case is in the Court’s hands.  But PLF is in this fight for the long-haul.  If necessary, we plan on taking this case to the Supreme Court.  It’s time to return Title VII to its true purpose — that racial discrimination in employment is prohibited regardless of the skin color of the individual being discriminated against.

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