Published on:

Employers’ Affirmative Action Policies and Race Discrimination in New Jersey

A collective bargaining agreement between teachers and a school district in Minnesota has made waves inside and outside the Land of 10,000 Lakes. The part of the agreement receiving the most scrutiny is the one establishing affirmative action in layoffs. While the Minnesota agreement will affect no New Jersey workers, it still makes for a useful opportunity to remind New Jersey workers that the law has limits on what employers can do in efforts to remediate historical and/or systemic racism. Some programs, however well intended, may cross the line into the realm of illegal race discrimination, giving those harmed the opportunity, with the aid of a skilled New Jersey race discrimination lawyer, the opportunity to pursue – and win – a civil lawsuit.

The Minnesota agreement, which was between the Minneapolis Public Schools and the teachers’ union, said that teachers who were members of “underrepresented populations” were exempt from the general rule for layoffs, which was one of “last hired, first fired.” In other words, in the event of layoffs, the school district would potentially bypass a teacher of color with less seniority and instead select a white teacher with more seniority for that layoff.

Supporters of the policy hailed it as a necessary step to make up for past discrimination against people of color and the underrepresentation of communities of color among the schools’ faculties, helping schools’ faculties to look would more closely like the students they’re teaching. Opponents decried the rule as a blatant instance of race discrimination against white teachers.

Here in New Jersey, the federal courts have already confronted a case with some similar facts. The case occurred in Piscataway, where the public school system needed to lay off a business teacher at Piscataway High School. The two newest teachers – S.T. and D.W. – had started with the Piscataway schools on the same day nine years earlier. D.W. was the only Black teacher in the business department. Needing a tiebreaker (as the two teachers had identical seniority and were deemed to have “equal ability” and “equal qualifications,”) the school board invoked its affirmative action policy and elected to retain D.W., which meant terminating S.T.

The white teacher sued under federal law (Title VII) and state law (New Jersey Law Against Discrimination,) and she won. The trial court found in her favor and awarded her more than $144,000 in damages (which is more than $275,000 in 2022 dollars).

The Policy Must Be Intended to “Remedy Past Discrimination” or “Manifest Imbalance”

The Third Circuit Court of Appeals affirmed that ruling. The appeals court said that, while the law generally barred discrimination based on race, it recognized that employers could deviate from that mandate if such action was designed to remediate past discrimination. In the Piscataway case, the employee succeeded because there was no evidence that the employer enacted its affirmative action policy toward a goal of remediating past discrimination. The trial court pointed out that the school board did “not even attempt to show that its affirmative action plan was adopted to remedy past discrimination or as the result of a manifest imbalance in the employment of minorities.”

Additionally, the court in the Piscataway case noted that an affirmative action policy could not be compliant with Title VII if the policy “unnecessarily trammels” the interests of non-minority workers. In the teacher’s case, the court decided that “the harm imposed upon a nonminority employee by the loss of his or her job is so substantial and the cost so severe that the Board’s goal of racial diversity, even if legitimate under Title VII, may not be pursued in this particular fashion. This is especially true where, as here, the nonminority employee is tenured.”

There are two primary ways that an employer’s affirmative action policy can run afoul of the LAD. In one instance, the employer creates an unlawful affirmative action protocol, such as when there’s no demonstrated history of discrimination (as was the case in the Piscataway case.) Another potential violation arises when an employer establishes a lawful affirmative action policy, but then applies it in an inconsistent way.

Affirmative action policies serve essential functions in reducing the harmful impacts of past race discrimination. Sometimes, though, affirmative action policies are defective and can themselves constitute race discrimination. Whatever your race, if you’ve been harmed at work due to discrimination because of your race, get in touch with the knowledgeable New Jersey race discrimination attorneys at Phillips & Associates. Our attorneys have been helping New Jersey workers for many years to successful protect their rights to be free from discrimination. Contact us online or at (833) 529-3476 today to set up a free and confidential consultation.

Contact Information