What Rights Follow "Protected Status?"

Consider the following fact situations and decide if the employer acted legally.

• An employer announces publicly that it will promote the hiring of a diverse workforce. Based upon this policy, a hiring committee decides to use ethnicity as a "plus" factor in its selection process and - between two equally qualified applicants - selects a minority candidate over a Caucasian candidate. The committee chairman believes this is permissible because the minority candidate is a member of a "protected group."
  
  
• An employer's affirmative action plan, which is submitted each year to the Federal government, reveals that females are "underutilized" in its maintenance and operations department as compared with the percentage of females in the workforce. Based upon this data, the director announces that he will fill the next available position with a female.
  
  
• Because an employer wishes to hire a diverse workforce, it advertises all vacant positions in newspapers targeting minority groups and recruits each year at colleges enrolling large minority populations. The employer hopes these practices will encourage qualified minority candidates to apply for vacant positions.

Only one of these situations (the advertising and recruiting example) complies with State and Federal law. Although most people understand the law prohibits a hiring preference for say, white males, some people believe the law condones hiring preferences based upon inclusion in a "protected group" such as a racial or ethnic minority group. Although the United States Supreme Court recently held that educational institutions may use race or ethnicity as one factor in college admissions, this decision does not apply to employment actions, including hiring.

Under Title VII of the Civil Right Act of 1964, an individual establishes an unlawful employment practice when direct or circumstantial evidence demonstrates that "race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m).

This means an employer may not base a hiring or other employment decision on a factor such as race or ethnicity, even if that is only one of several factors considered in making the decision. Regardless of a candidate's inclusion in a "protected group" employers must hire the most qualified candidate to fill a position.

The Maricopa County Community College District (MCCCD) seeks to promote diversity in its workforce. MCCCD complies with Title VII by actively recruiting minority candidates to apply for vacant positions and advertising vacant positions in publications targeted at minority populations. These practices will result in an increase in the number of qualified minority candidates who apply for MCCCD positions and will ultimately result in a more diverse workforce.

If you have any questions regarding the legality of an employment practice, call the Legal Department. We will help you reach MCCCD's goals within the requirements of Title VII.

Published in the Winter 2004 Edition of In Brief