Worth v. Jackson

The Center for Individual Rights filed a class action lawsuit in federal court in the District of Columbia, challenging employment goals and preferences for women and racial minorities at the U.S. Department of Housing and Urban Development (HUD). The suit, Worth v. Jackson (formerly Worth v. Martinez), charged HUD and the Equal Employment Opportunity Commission (EEOC) — which encouraged, evaluated, and approved HUD’s “affirmative employment plan” (AEP) — with intentional race and sex discrimination in violation of the equal protection guarantee of the United States Constitution. The suit asked for a permanent injunction against HUD’s use of the plan and the preferential treatment of women and minorities required therein.

HUD claimed it used hiring and promotion goals to remedy instances of a “manifest imbalance” or “conspicuous absence” of women or minorities in any sector of its workforce. But the truth is that HUD mechanically used goals and preferences to remedy even slight statistical disparities in minority and female representation, without any evidence that such disparities are the result of discrimination. Moreover, it turns out that HUD held supervisors to these “goals” long after any conceivable “imbalance” or “absence” has been remedied, and often where women and minority employees were manifestly overrepresented.

Bureaucratic Race Counting Runs Amok

No stone was left unturned in HUD’s zeal to discover instances of minority and female underrepresentation. Although 89% of the Department’s employees in the “technical” job category were women and 62% were minorities, HUD’s AEP identified “manifest imbalances” and “conspicuous absences” in that category for six “EEO groups” — Black males, White females, Hispanic males, American Indian / Alaskan Native males, and Asians / Pacific Islanders of both sexes. HUD then set goals accordingly.

NO STONE WAS LEFT UNTURNED IN HUD’S ZEAL TO DISCOVER INSTANCES OF MINORITY AND FEMALE UNDER-REPRESENTATION.

One reason HUD was so good at finding minority and female underrepresentation in its workforce is that it categorized even minor numerical disparities as “manifest imbalances.” For example, in 2001, HUD officials calculated that Asian males represented only 3.4% of the Department’s workforce in the professional job category, whereas the figure for the comparative civilian labor force was 3.5%. This tiny difference — a tenth of a percent — was deemed by HUD to be a “manifest imbalance.” HUD’s remedy was to set preferential hiring and promotion goals for Asian males.

THOUGH WHITE MALES COMPRISE 36% OF THE TECHNICAL CIVILIAN LABOR FORCE, THEY MAKE UP ONLY 5% OF THE TECHNICAL EMPLOYEES AT HUD. THIS 31% DISCREPANCY . . . WAS OF NO CONCERN TO HUD.

In contrast, HUD overlooks much greater underrepresentation of white males. Though white males comprised 36% of the technical civilian labor force, they made up only 5% of the technical employees at HUD. This 31% discrepancy was 155 times larger than the discrepancy of Asian males in the professional job category, yet it was of no concern to HUD.

The Road to Discrimination

HUD’s female and minority hiring goals were encouraged by the EEOC’s policies and practices. In particular, EEOC Management Directive 714, promulgated in 1987, required that executive departments and independent agencies in the federal government produce an “affirmative employment plan for minorities and women” and hold their managers responsible for achieving the plan’s objectives.

According to HUD’s AEP and related documents, all managers were instructed to “refer to the AEP Plan goals and objectives before initiating [employment] actions.” The managers were “held accountable for utilizing every hiring, promotion, reassignment and employee development opportunity for meeting the Department’s [race and gender-based] goals.” Any HUD manager who failed “to take the necessary actions to ensure that [these] goals and objectives are achieved” received an unacceptable rating in his performance appraisal, which could result in reassignment, grade reduction, or removal.

HUD managers were authorized to use “creative internal and/or external methods” to meet the goals. In response, managers developed a variety of methods for giving preference to female and minority candidates, while circumventing the merit staffing process required by law. Even the special training programs and temporary assignments designed to groom HUD employees for promotions were used primarily to “assist on-board minorities and women in their career advancement.”

HUD’s Preferences are Beyond the Pale

Michael Rosman, CIR’s General Counsel, elaborated on the legal basis for the lawsuit: “HUD’s policy of using preferences to eliminate any instance of female and minority underrepresentation, regardless of its cause or magnitude, and no matter how contrived, simply does not meet constitutional standards.” Quoting the Department’s AEP, Mr. Rosman explained that “the Constitution does not permit the use of preferences merely to achieve HUD’s desire for ‘a diversified workforce that is reflective of the Nation’s population,’ however desirable that goal may seem.

“CIR HAS DISCOVERED THAT HUD OFTEN SETS PREFERENTIAL HIRING AND PROMOTION GOALS FOR WOMEN AND MINORITIES WHERE THEY ARE ALREADY OVERREPRESENTED.”

CIR’S CURT LEVEY

“HUD’s misuse of racial and gender preferences goes beyond even its flawed policy of proportionality,” added Curt Levey, CIR’s Director of Legal & Public Affairs. “For one thing, CIR has discovered that HUD often sets preferential hiring and promotion goals for women and minorities where they are already overrepresented.” As an example, HUD’s AEP states — without providing specific numbers — that there is a “manifest imbalance” of Black females among the Department’s construction analysts. Accordingly, goals for Black females are established for that job type. Never mind that the percentage of Black females in the total HUD workforce is nearly five times their proportion in the comparative civilian labor force, by HUD’s own calculation. Even in the Administrative job category — of which construction analysts are a part — the percentage of Black females is four times their proportion in the labor pool.

More generally, a table broken down by major job category and EEO group shows minority overrepresentation in more than three-quarters of the cells. Yet HUD set preferential hiring goals in two-thirds of the cells where minorities were overrepresented. This seeming inconsistency was made possible by HUD’s manipulation of its data to create ever-finer subdivisions among job categories, until pockets of statistical underrepresentation are found for certain EEO groups. The underrepresentation of one or more groups is mathematically inevitable within each subcategory, unless the HUD workforce within that classification mirrored the labor pool’s racial and gender composition in exact proportion (remember, one tenth of a percent disparity is not exact enough). As an example, the percentage of Black males holding clerical jobs at HUD was nearly twice their percentage in the comparative labor pool. But HUD dug deeper until it found that, in 2001, there was a “conspicuous absence” of Black Males in the “Series 1101” clerical subcategory. Remedial hiring goals followed.

HUD’s Policy is Not Evenhanded

“Even if the Constitution permitted HUD’s obsession with remedying pockets of underrepresentation,” Curt Levey explained, “HUD’s employment policies would still be unlawful, because the Department fails to apply its proportionality standard in an evenhanded manner. Instead, HUD seeks to correct any underrepresentation of women and minorities that it finds in its various job classifications, but fails to correct or even identify the frequent underrepresentation of white men.”

As an inevitable result, white males were substantially underrepresented — by HUD’s own reckoning — in all major job categories, when compared to the civilian labor force. But in no category or subcategory was the underrepresentation of white men remedied by HUD or even classified as a “manifest imbalance” or “conspicuous absence.” In fact, HUD’s AEP specifically stated that the identification of underrepresentation “exclud[es] white males.”

“DISCRIMINATORY PREFERENCES ARE THE NORM AT HUD. MERIT-BASED HIRING — WHICH THE FEDERAL CIVIL SERVICE LAWS REQUIRE — HAS TAKEN A BACK SEAT TO RACIAL AND GENDER PROPORTIONALITY.”

CIR GENERAL COUNSEL MICHAEL ROSMAN

Michael Rosman noted that “CIR’s lawsuit does not challenge the underrepresentation of white males nor the overrepresentation of any other group. It challenges only the way in which HUD makes its employment decisions.” “It wouldn’t matter what the racial and gender percentages were in HUD’s workforce,” Rosman explained, “if the Department’s personnel decisions were free of discrimination. Unfortunately, just the opposite is true. Discriminatory preferences are the norm at HUD. Merit-based hiring — which the federal civil service laws require — has taken a back seat to racial and gender proportionality.”

Career Advancement Hits a Roadblock

Dennis Worth, the named plaintiff in this class action lawsuit, witnessed HUD’s increasing reliance on discriminatory preferences during his 24 years in the Department’s St. Louis office. Dennis was a Project Manager who has received “outstanding” and “highly successful” ratings for his job performance year after year. However, since the mid-1990’s, when the institutional pressure for preferences reached its height at HUD, Dennis was turned down for every promotion he sought. He applied for approximately a dozen jobs and was rejected each time, despite always making the “best qualified” short list of finalists. With one exception, each of those positions went to a female or minority candidate.

In fact, of the sixteen people hired or promoted in the last five years in the St. Louis office’s multi-family housing division — where Dennis worked — fifteen were women or minorities. At the time of the lawsuit, Dennis was one of only three white males remaining among the twenty employees in the division. But, said Dennis, “I don’t want to dwell on the past. All I’m asking for is an end to the discrimination.”

Dennis Turns to CIR and the Federal Courts

Dennis tried for several years to resolve his complaints internally at HUD, but eventually realized that nothing would change without external pressure on the Department and the EEOC. So Dennis turned to CIR and the federal courts. On August 8, 2002, CIR filed suit in the U.S. District Court for the District of Columbia on behalf of Dennis and the class he sought to represent. The class consisted of similarly situated, current and prospective employees of HUD and other federal agencies with affirmative action plans subject to EEOC approval.

The lawsuit charged HUD and the EEOC with violations of the Constitution’s equal protection guarantee. The suit asked the court to enjoin the discriminatory preferences at HUD, as well as the EEOC’s encouragement and approval of such preferences throughout the federal bureaucracy. The plaintiffs did not seek compensation for past discrimination, nor did they ask to have past employment decisions reversed.

The Defendants are Violating the Constitution

The Constitution’s equal protection guarantee prohibits discrimination, such that any governmental use of racial goals and preferences must meet “strict scrutiny”, which requires a “compelling state interest” and a “narrowly tailored” means of meeting that interest. For gender preferences, the Constitution requires an “exceedingly persuasive justification.” For a number of reasons, the HUD AEP failed to meet this constitutional standard.

HUD’S GOAL — CREATING “A DIVERSIFIED WORKFORCE THAT IS REFLECTIVE OF THE NATION’S POPULATION” — IS ONE THAT THE COURTS HAVE SAID CANNOT JUSTIFY PREFERENCES.

For one, Supreme Court precedent allows a government employer to use preferences to remedy underrepresentation only where it results from the employer’s past discrimination (and other requirements are met as well). However, HUD’s AEP encouraged the use of race and gender preferences to — at the very least — correct all instances of underrepresentation of women and minorities. The AEP contained no requirement that the disparities be the result of past discrimination. HUD, which was created in 1965 and had always had a diverse workforce, did not even identify any past discrimination within the Department. In fact, the stated goal of HUD’s AEP did not include remedying discrimination at all. Whatever its virtues, HUD’s goal — creating “a diversified workforce that is reflective of the Nation’s population” — was one that the courts have said cannot justify preferences.

Moreover, this goal was blind to the underrepresentation of white males. Because of this lack of evenhandedness, HUD’s AEP ran afoul of Supreme Court precedent holding that the Constitution’s equal protection guarantee applies with the same force to all groups.

HUD’s AEP is also unlawful because it failed to distinguish between a gross under-representation on the one hand, which can be lawfully remedied under certain circumstances, and a minor statistical disparity on the other hand. Instead, HUD labeled every instance of minority and female under-representation — no matter how small — as a “manifest imbalance” or “conspicuous absence” requiring correction.

HUD’s Preferences are Not Narrowly Tailored

Even if HUD could justify the limited use of racial and gender preferences, its AEP would still fail the constitutional test, because HUD’s preferences were not “narrowly tailored.” That is, they were not designed to avoid unnecessarily burdening the rights of non-favored groups. For example, even in job categories where women and minorities were overrepresented, HUD set hiring goals that disadvantage white men.

“PROPONENTS OF RACIAL AND GENDER PREFERENCES DESCRIBE THEM AS A TEMPORARY REMEDY FOR PAST DISCRIMINATION. BUT . . . PREFERENCES HAVE BECOME A PERMANENT FIXTURE AT HUD.”

CIR’S CURT LEVEY

Furthermore, HUD set preferential goals even after racial or gender parity has been achieved in a given job classification. This practice violates Supreme Court precedent limiting the use of preferences to, at most, the attainment of racial and gender parity (in order to eliminate the vestiges of past discrimination). That precedent specifically prohibits the use of preferences to maintain parity. But HUD ignored that prohibition by setting goals for a given EEO group and job classification as soon as any underrepresentation appeared, even if there was no disparity in the previous year. Curt Levey commented that “proponents of racial and gender preferences describe them as a temporary remedy for past discrimination. But HUD’s practice of using preferences after underrepresentation has already been remedied — and even where minorities and women are overrepresented — demonstrates that preferences have become a permanent fixture at HUD.”

The Case Against HUD is a Strong One

Mr. Levey concluded that “this case is a particularly strong one because of the numerous ways in which HUD’s ‘diversity’ policy violates the law.” Levey added that “CIR has challenged some pretty egregious racial and gender preferences in a number of high-profile cases, but even we were surprised by HUD’s flagrant disregard for the law.” Among CIR’s best known challenges to preferences are a pair of ongoing lawsuits against the University of Michigan and a victory in Hopwood v. Texas — each case involving race-based admissions — as well as a successful challenge to the FCC’s gender-based licensing preferences in Lamprecht v. Federal Communications Commission.

HUD is Just the Tip of the Iceberg

Unfortunately, the constitutional violations identified at HUD were the rule, rather than the exception, across the federal government. The United States Office of Personnel Management (OPM) reported that minorities were overrepresented — compared to the relevant civilian labor force — in every executive department and independent agency it monitored. The percentage of minority employees in the various departments and agencies averaged about twice their proportion in the labor pool. Nonetheless, the EEOC required each of these agencies to implement affirmative action plans aimed at minorities and women.

One of the worst offenders was the EEOC itself, which considered it a “noteworthy accomplishment” that minorities and women were overrepresented by a huge margin in the Commission’s workforce. According to the OPM, the percentage of minorities at the Commission was more than four times their proportion in the relevant labor force (61% vs. 14%). By comparison, minorities made up 46% of HUD’s workforce and 15% of the relevant labor pool. Said Michael Rosman, “HUD is not alone in needing a reminder that neither EEOC directives nor repetition of the diversity mantra can exempt federal bureaucrats from compliance with the U.S. Constitution.”

CIR Responds to Attack by Former Head of Federal Affirmative Action Office

Shirley Wilcher, former head of the Office of Federal Contract Compliance, questioned “why such a lawsuit would be brought” when “minorities held 30 percent of all federal jobs” but make up a much smaller fraction of the federal government’s Senior Executive Service (SES). CIR’s Curt Levey responded, noting that Wilcher’s assertion was true “only because minorities are substantially overrepresented in the overall federal work force.” Specifically, “minorities hold more than 30 percent of federal jobs, despite making up only 14 percent to 19 percent of the comparative civilian labor force.” Had Ms. Wilcher looked at the relevant civilian labor pool, Levey notes, she would have found that minority representation in the SES is within the expected 14 to19 percent range. Although Wilcher did not address the specific statistics for HUD, it is worth noting that minorities make up over 37% of the SES at HUD, despite accounting for only 15% of the relevant labor pool.