Employment Law

University and Community College System of Nevada v. FarmerRe-read the University case, “University and Community College System of Nevada v. Farmer in your textbook.Note the data under the case title: 113 Nev. 90, 930 P.2d 730 (Nev. Sup. Ct. 1997), cert. denied, 523 U.S. 1004 (March 9, 1998). What do these details signify?Study the case questions in the text at the end of the case. In addition, look through other material provided in Lecture Notes and in the Preface.Outline and submit the case, using the standard legal outline headings. (See “Sample Outline for Legal Cases” in Course Materials.)BackgroundBetween 1989 and 1991, only one percent of the Universityof Nevada’s full-time faculty were black, while eighty-sevento eighty-nine percent of the full-time faculty werewhite; twenty-five to twenty-seven percent of the full-timefaculty were women. In order to remedy this racial imbalance,the University instituted the “minority bonuspolicy,” an unwritten amendment to its affirmative actionpolicy that allowed a department to hire an additional facultymember following the initial placement of a minoritycandidate.In 1990, the University advertised for an impendingvacancy in the sociology department. The announcementof the position vacancy emphasized a need for proficiencyin social psychology and mentioned a salary range between$28,000.00 and $34,000.00, dependent upon experienceand qualifications. The University’s hiring guidelinesrequire departments to conduct more than one interview;however, this procedure may be waived in certain cases.Yvette Farmer was one of the three finalists chosen by thesearch committee for the position but the Universityobtained a waiver to interview only one candidate, JohnsonMakoba, a black African male. The department chairrecalled that the search committee ranked Makoba firstamong the three finalists. Because of a perceived shortageof black Ph.D. candidates, coupled with Makoba’s strongacademic achievements, the search committee soughtapproval to make a job offer to Makoba at a salary of$35,000.00, with an increase to $40,000.00 upon completinghis Ph.D. This initial offer exceeded the advertised salaryrange for the position; even though Makoba had notaccepted any competing offers, the University justified itsoffer as a method of preempting any other institutions fromhiring Makoba. Makoba accepted the job offer. Farmer wassubsequently hired by the University the following year;the position for which she was hired was created underthe “minority bonus policy.” Her salary was set at$31,000.00 and a $2,000.00 raise after completion of herdissertation.Farmer sued the University and Community CollegeSystem of Nevada (“the University”) claiming violationsof Title VII of the Civil Rights Act, the Equal Pay Actand for breach of an employment contract. Farmer allegedthat despite the fact that she was more qualified, the Universityhired a black male (Makoba) as an assistant professorof sociology instead of her because of the University’saffirmative action plan. After a trial on her claims, the trialcourt jury awarded her $40,000 in damages, and the Universityappealed to the Supreme Court of Nevada. Theissue on appeal was the legality of the University’s affirmativeaction plan under both Title VII and the U.S.Constitution.Steffen, Chief Justice… Farmer claims that she was more qualified for the positioninitially offered to Makoba. However, the curriculumvitae for both candidates revealed comparable strengthswith respect to their educational backgrounds, publishing,areas of specialization, and teaching experience. The searchcommittee concluded that despite some inequalities, theirstrengths and weaknesses complemented each other; hence,as a result of the additional position created by the minoritybonus policy, the department hired Farmer one yearlater.…The University contends that the district court made asubstantial error of law by failing to enter a proposed juryinstruction which would have apprised the jury that TitleVII does not proscribe race-based affirmative action144 Part 2 » Equal Employment Opportunityprograms designed to remedy the effects of past discriminationagainst traditionally disadvantaged classes. The Universityasserts that the district court’s rejection of the proposedinstruction left the jury with the impression that all racebasedaffirmative action programs are proscribed.…Farmer … asserts that the University’s unwritten minoritybonus policy contravenes its published affirmative action plan.Finally, Farmer alleges that all race-based affirmative actionplans are proscribed under Title VII of the Civil Rights Actas amended in 1991; therefore, the University discriminatedagainst her as a female, a protected class under Title VII.Tension exists between the goals of affirmative actionand Title VII’s proscription against employment practiceswhich are motivated by considerations of race, religion,sex, or national origin, because Congress failed to providea statutory exception for affirmative action under Title VII.Until recently, the Supreme Court’s failure to achieve amajority opinion in affirmative action cases has producedschizophrenic results.…United Steelworkers of America v. Weber is the seminalcase defining permissible voluntary affirmative action plans[under Title VII].… Under Weber, a permissible voluntaryaffirmative action plan must: (1) further Title VII’s statutorypurpose by “break[ing] down old patterns of racial segregationand hierarchy” in “occupations which have beentraditionally closed to them”; (2) not “unnecessarily trammelthe interests of white employees”; (3) be “a temporarymeasure; it is not intended to maintain racial balance, butsimply to eliminate a manifest racial imbalance.” …Most recently, in Adarand Constructors, Inc. v. Pena, theSupreme Court revisited [the issue of the constitutionalityof] affirmative action in the context of a minority set-asideprogram in federal highway construction. In the 5–4 opinion,the Court held that a reviewing court must apply strictscrutiny analysis for all race-based affirmative action programs,whether enacted by a federal, state, or localentity.… [T]he Court explicitly stated “that federal racialclassifications, like those of a State, must serve a compellinggovernmental interest, and must be narrowly tailored tofurther that interest.” …Here, in addition to considerations of race, the Universitybased its employment decision on such criteria as educationalbackground, publishing, teaching experience, andareas of specialization. This satisfies [the previous cases’]commands that race must be only one of several factorsused in evaluating applicants. We also view the desirabilityof a racially diverse faculty as sufficiently analogous to theconstitutionally permissible attainment of a racially diversestudent body.…The University’s affirmative action plan conforms tothe Weber factors [under Title VII]. The University’sattempts to diversify its faculty by opening up positions traditionallyclosed to minorities satisfies the first factor underWeber. Second, the plan does not “unnecessarily trammel theinterests of white employees.” The University’s 1992 AffirmativeAction Report revealed that whites held eighty-seven toeighty-nine percent of the full-time faculty positions. Finally,with blacks occupying only one percent of the faculty positions,it is clear that through its minority bonus policy, theUniversity attempted to attain, as opposed to maintain, a racialbalance.The University’s affirmative action plan … [also] passesconstitutional muster. The University demonstrated that ithas a compelling interest in fostering a culturally and ethnicallydiverse faculty. A failure to attract minority facultyperpetuates the University’s white enclave and further limitsstudent exposure to multicultural diversity. Moreover, theminority bonus policy is narrowly tailored to accelerateracial and gender diversity. Through its affirmative actionpolicies, the University achieved greater racial and genderdiversity by hiring Makoba and Farmer. Of note is thefact that Farmer’s position is a direct result of the minoritybonus policy.Although Farmer contends that she was more qualifiedfor Makoba’s position, the search committee determinedthat Makoba’s qualifications slightly exceeded Farmer’s.The record, however, reveals that both candidates wereequal in most respects. Therefore, given the aspect ofsubjectivity involved in choosing between candidates,the University must be given the latitude to make itsown employment decisions provided that they are notdiscriminatory.[The court then rejected Farmer’s claim that the 1991amendments to Title VII prohibit affirmative action.]… we conclude that the jury was not equipped tounderstand the necessary legal basis upon which it couldreach its factual conclusions concerning the legality of theUniversity’s affirmative action plan. Moreover, the undisputedfacts of this case warranted judgment in favor ofthe University as a matter of law. Therefore, even if thejury had been properly instructed, the district court shouldhave granted the University’s motion for judgment notwithstandingthe [jury’s] verdict. Reversal of the jury’s verdicton the Title VII claim is therefore in order.The University … has adopted a lawful race-consciousaffirmative action policy in order to remedy the effects of amanifest racial imbalance in a traditionally segregated jobcategory.…Chapter 6 » Title VII of the Civil Rights Act and Race Discrimination 145The affirmative action plan in the previous case was a voluntary plan; that is, it was notimposed upon the employer by a court to remedy a finding of illegal discrimination. Theaffirmative action plans in the Weber, Johnson, and Wygant cases were also voluntaryplans. Title VII specifically mentions affirmative action as a possible remedy available under§706(g)(1). In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,26 the Supreme Court heldthat Title VII permits a court to require the adoption of an affirmative action program toremedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld theconstitutionality of a judicially imposed affirmative action program to remedy race discriminationin promotion decisions by the Alabama State Police.ethical DILEMMAYou are the human resource manager for Wydget Corporation, a small manufacturingcompany. Wydget’s assembly plant is located in an inner-city neighborhood,and most of its production employees are African Americans and Hispanics, as well assome Vietnamese and Laotians who live nearby. Wydget’s managers are white maleswho sometimes have difficulty relating to the production workers. The board of directorsof Wydget is considering whether to establish a training program to groom productionworkers for management positions, targeting women and minorities in particular. TheCEO has asked you to prepare a memo to guide the board of directors in its decisionabout the training program. Should you establish such a program? How can youencourage minority employees to enter the program without discouraging the whiteemployees? What criteria should be used for determining admission into the trainingprogram? Address these issues in a short memo, explaining and supporting yourposition.The University has aggressively sought to achieve morethan employment neutrality by encouraging its departmentsto hire qualified minorities, women, veterans, and handicappedindividuals. The minority bonus policy, albeit anunwritten one, is merely a tool for achieving cultural diversityand furthering the substantive goals of affirmative action.For the reasons discussed above, the University’s affirmativeaction policies pass constitutional muster. Farmerhas failed to raise any material facts or law which wouldrender the University’s affirmative action policy constitutionallyinfirm.…Young and Rose, JJ., concur.Springer, J., dissenting [omitted]Case Questions1. Why did the University adopt its affirmative actionplan and the “minority bonus policy”?2. How was Farmer injured or disadvantaged under theUniversity’s affirmative action plan?3. How does the Court here apply the Weber test forlegality of affirmative action under Title VII to thefacts of this case? Explain your answer.4. According to the Court here, how does the constitutional“strict scrutiny” test apply to the facts of thecase here? Explain your answer.BackgroundBetween 1989 and 1991, only one percent of the Universityof Nevada’s full-time faculty were black, while eighty-sevento eighty-nine percent of the full-time faculty werewhite; twenty-five to twenty-seven percent of the full-timefaculty were women. In order to remedy this racial imbalance,the University instituted the “minority bonuspolicy,” an unwritten amendment to its affirmative actionpolicy that allowed a department to hire an additional facultymember following the initial placement of a minoritycandidate.In 1990, the University advertised for an impendingvacancy in the sociology department. The announcementof the position vacancy emphasized a need for proficiencyin social psychology and mentioned a salary range between$28,000.00 and $34,000.00, dependent upon experienceand qualifications. The University’s hiring guidelinesrequire departments to conduct more than one interview;however, this procedure may be waived in certain cases.Yvette Farmer was one of the three finalists chosen by thesearch committee for the position but the Universityobtained a waiver to interview only one candidate, JohnsonMakoba, a black African male. The department chairrecalled that the search committee ranked Makoba firstamong the three finalists. Because of a perceived shortageof black Ph.D. candidates, coupled with Makoba’s strongacademic achievements, the search committee soughtapproval to make a job offer to Makoba at a salary of$35,000.00, with an increase to $40,000.00 upon completinghis Ph.D. This initial offer exceeded the advertised salaryrange for the position; even though Makoba had notaccepted any competing offers, the University justified itsoffer as a method of preempting any other institutions fromhiring Makoba. Makoba accepted the job offer. Farmer wassubsequently hired by the University the following year;the position for which she was hired was created underthe “minority bonus policy.” Her salary was set at$31,000.00 and a $2,000.00 raise after completion of herdissertation.Farmer sued the University and Community CollegeSystem of Nevada (“the University”) claiming violationsof Title VII of the Civil Rights Act, the Equal Pay Actand for breach of an employment contract. Farmer allegedthat despite the fact that she was more qualified, the Universityhired a black male (Makoba) as an assistant professorof sociology instead of her because of the University’saffirmative action plan. After a trial on her claims, the trialcourt jury awarded her $40,000 in damages, and the Universityappealed to the Supreme Court of Nevada. Theissue on appeal was the legality of the University’s affirmativeaction plan under both Title VII and the U.S.Constitution.Steffen, Chief Justice… Farmer claims that she was more qualified for the positioninitially offered to Makoba. However, the curriculumvitae for both candidates revealed comparable strengthswith respect to their educational backgrounds, publishing,areas of specialization, and teaching experience. The searchcommittee concluded that despite some inequalities, theirstrengths and weaknesses complemented each other; hence,as a result of the additional position created by the minoritybonus policy, the department hired Farmer one yearlater.…The University contends that the district court made asubstantial error of law by failing to enter a proposed juryinstruction which would have apprised the jury that TitleVII does not proscribe race-based affirmative action144 Part 2 » Equal Employment Opportunityprograms designed to remedy the effects of past discriminationagainst traditionally disadvantaged classes. The Universityasserts that the district court’s rejection of the proposedinstruction left the jury with the impression that all racebasedaffirmative action programs are proscribed.…Farmer … asserts that the University’s unwritten minoritybonus policy contravenes its published affirmative action plan.Finally, Farmer alleges that all race-based affirmative actionplans are proscribed under Title VII of the Civil Rights Actas amended in 1991; therefore, the University discriminatedagainst her as a female, a protected class under Title VII.Tension exists between the goals of affirmative actionand Title VII’s proscription against employment practiceswhich are motivated by considerations of race, religion,sex, or national origin, because Congress failed to providea statutory exception for affirmative action under Title VII.Until recently, the Supreme Court’s failure to achieve amajority opinion in affirmative action cases has producedschizophrenic results.…United Steelworkers of America v. Weber is the seminalcase defining permissible voluntary affirmative action plans[under Title VII].… Under Weber, a permissible voluntaryaffirmative action plan must: (1) further Title VII’s statutorypurpose by “break[ing] down old patterns of racial segregationand hierarchy” in “occupations which have beentraditionally closed to them”; (2) not “unnecessarily trammelthe interests of white employees”; (3) be “a temporarymeasure; it is not intended to maintain racial balance, butsimply to eliminate a manifest racial imbalance.” …Most recently, in Adarand Constructors, Inc. v. Pena, theSupreme Court revisited [the issue of the constitutionalityof] affirmative action in the context of a minority set-asideprogram in federal highway construction. In the 5–4 opinion,the Court held that a reviewing court must apply strictscrutiny analysis for all race-based affirmative action programs,whether enacted by a federal, state, or localentity.… [T]he Court explicitly stated “that federal racialclassifications, like those of a State, must serve a compellinggovernmental interest, and must be narrowly tailored tofurther that interest.” …Here, in addition to considerations of race, the Universitybased its employment decision on such criteria as educationalbackground, publishing, teaching experience, andareas of specialization. This satisfies [the previous cases’]commands that race must be only one of several factorsused in evaluating applicants. We also view the desirabilityof a racially diverse faculty as sufficiently analogous to theconstitutionally permissible attainment of a racially diversestudent body.…The University’s affirmative action plan conforms tothe Weber factors [under Title VII]. The University’sattempts to diversify its faculty by opening up positions traditionallyclosed to minorities satisfies the first factor underWeber. Second, the plan does not “unnecessarily trammel theinterests of white employees.” The University’s 1992 AffirmativeAction Report revealed that whites held eighty-seven toeighty-nine percent of the full-time faculty positions. Finally,with blacks occupying only one percent of the faculty positions,it is clear that through its minority bonus policy, theUniversity attempted to attain, as opposed to maintain, a racialbalance.The University’s affirmative action plan … [also] passesconstitutional muster. The University demonstrated that ithas a compelling interest in fostering a culturally and ethnicallydiverse faculty. A failure to attract minority facultyperpetuates the University’s white enclave and further limitsstudent exposure to multicultural diversity. Moreover, theminority bonus policy is narrowly tailored to accelerateracial and gender diversity. Through its affirmative actionpolicies, the University achieved greater racial and genderdiversity by hiring Makoba and Farmer. Of note is thefact that Farmer’s position is a direct result of the minoritybonus policy.Although Farmer contends that she was more qualifiedfor Makoba’s position, the search committee determinedthat Makoba’s qualifications slightly exceeded Farmer’s.The record, however, reveals that both candidates wereequal in most respects. Therefore, given the aspect ofsubjectivity involved in choosing between candidates,the University must be given the latitude to make itsown employment decisions provided that they are notdiscriminatory.[The court then rejected Farmer’s claim that the 1991amendments to Title VII prohibit affirmative action.]… we conclude that the jury was not equipped tounderstand the necessary legal basis upon which it couldreach its factual conclusions concerning the legality of theUniversity’s affirmative action plan. Moreover, the undisputedfacts of this case warranted judgment in favor ofthe University as a matter of law. Therefore, even if thejury had been properly instructed, the district court shouldhave granted the University’s motion for judgment notwithstandingthe [jury’s] verdict. Reversal of the jury’s verdicton the Title VII claim is therefore in order.The University … has adopted a lawful race-consciousaffirmative action policy in order to remedy the effects of amanifest racial imbalance in a traditionally segregated jobcategory.…Chapter 6 » Title VII of the Civil Rights Act and Race Discrimination 145The affirmative action plan in the previous case was a voluntary plan; that is, it was notimposed upon the employer by a court to remedy a finding of illegal discrimination. Theaffirmative action plans in the Weber, Johnson, and Wygant cases were also voluntaryplans. Title VII specifically mentions affirmative action as a possible remedy available under§706(g)(1). In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,26 the Supreme Court heldthat Title VII permits a court to require the adoption of an affirmative action program toremedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld theconstitutionality of a judicially imposed affirmative action program to remedy race discriminationin promotion decisions by the Alabama State Police.ethical DILEMMAYou are the human resource manager for Wydget Corporation, a small manufacturingcompany. Wydget’s assembly plant is located in an inner-city neighborhood,and most of its production employees are African Americans and Hispanics, as well assome Vietnamese and Laotians who live nearby. Wydget’s managers are white maleswho sometimes have difficulty relating to the production workers. The board of directorsof Wydget is considering whether to establish a training program to groom productionworkers for management positions, targeting women and minorities in particular. TheCEO has asked you to prepare a memo to guide the board of directors in its decisionabout the training program. Should you establish such a program? How can youencourage minority employees to enter the program without discouraging the whiteemployees? What criteria should be used for determining admission into the trainingprogram? Address these issues in a short memo, explaining and supporting yourposition.The University has aggressively sought to achieve morethan employment neutrality by encouraging its departmentsto hire qualified minorities, women, veterans, and handicappedindividuals. The minority bonus policy, albeit anunwritten one, is merely a tool for achieving cultural diversityand furthering the substantive goals of affirmative action.For the reasons discussed above, the University’s affirmativeaction policies pass constitutional muster. Farmerhas failed to raise any material facts or law which wouldrender the University’s affirmative action policy constitutionallyinfirm.…Young and Rose, JJ., concur.Springer, J., dissenting [omitted]Case Questions1. Why did the University adopt its affirmative actionplan and the “minority bonus policy”?2. How was Farmer injured or disadvantaged under theUniversity’s affirmative action plan?3. How does the Court here apply the Weber test forlegality of affirmative action under Title VII to thefacts of this case? Explain your answer.4. According to the Court here, how does the constitutional“strict scrutiny” test apply to the facts of thecase here? Explain your answer.

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