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This article by Michele Alperin was prepared for the June 16, 2004 edition of U.S. 1 Newspaper. All rights reserved.
On Trial: Affirmative Action Plans
In the somber wood-lined courtroom of the Federal District Court in Newark, Chief Judge John W. Bissell listens intently to the arguments in the case of Michael C. Ryan v. Norman Y. Mineta, Secretary, U.S. Department of Transportation (DOT). Ryan, 53, is claiming reverse discrimination and is challenging the Federal Aviation Administration’s (FAA) approach to affirmative action over the last decade.
Ryan, who lives in Toms River and works at the FAA’s William J. Hughes Technical Center in Atlantic City, alleges that the FAA has repeatedly passed over him for promotion because he is white and male, in violation of the equal rights guaranteed him by the Fifth Amendment to the U.S. Constitution and Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, and national origin. His attorney is Hanan M. Isaacs, of Princeton Professional Park on Ewing Street.
When Ryan’s case went to mediation last year, he was offered what most people would consider an excellent settlement — a promotion, back pay, attorney’s fees, and a “pain and suffering” payment. But Ryan turned the settlement down. Missing from the settlement was the one thing he wanted — a change in the FAA’s policy. “He was prepared to lose everything,” says Isaacs, who quotes his client as saying, “If I take this sweet offer, I will have to toe the management line on the illegal management policy in the FAA.”
The case went to trial on April 28 and is expected to continue through the middle of July. After a jury had been chosen, when two weeks had passed, Judge Bissell elected to decide the case himself and dismissed the jury.
If Judge Bissell decides for the defendant, Ryan will get nothing and Isaac’s counsel fee of more than $400,000 will not get paid. If the judge decides that the FAA’s affirmative action program is illegal under Title VII, Ryan will get his promotion and back pay amounting to more than $100,000, Isaacs will get his fee, and the judge will enter an injunction that might change how the federal government has to do its business. It might also be easier for employees anywhere to challenge any situation where they observe what appears to be disproportionate promotion.
Affirmative action has been around since the 1960s, but since 1988 every federal agency has been required by the law to evaluate its workforce population for equal employment opportunity, to analyze under-representation of minorities and women, and then to make a determination about whether an affirmative action plan is required to remedy actual discrimination.
What constituted a legal affirmative action program, however, remained somewhat hazy until the finding by the U.S. Supreme Court in the 1995 case, Adarand Constructors Inc. v. Pena. This ruling gave the courts a role in making decisions. A memorandum issued by the U.S. Department of Justice on June 28, 1995, said that “federal affirmative action programs that use racial and ethnic criteria as a basis for decision making are subject to strict judicial scrutiny.”
According to the Clinton administration memo, the two requirements of strict scrutiny are that “the governmental interest underlying an affirmative action measure must be ‘compelling’ and the measure must be ‘narrowly tailored’ to serve that interest.” Isaacs adds that such a measure “can last only as long as necessary to cure the problem you’re seeking to mitigate.”
The bottom line is that an agency must have proof that the onboard strengths (the percentages of minorities and women who are actually on the job) are under represented when compared to the onboard strengths of a comparable group of relevant civilian labor force. For instance, if a Veteran’s Administration hospital has 10 surgeons, two of them women, the VA should compare that percentage (20 percent) with surgeons nationally. If the percentage of women with those qualifications is 10 percent, nationally, then the VA is considered to be over represented in that minority.
In 1988 the FAA created a plan for affirmative action that has been in use for 16 years. On its face, the plan was not defective, but in 1995, in the wake of the Adarand case, the rules were supposed to change and did not.
During a two-year window at about the time of the Adarand ruling, Ryan applied for a number of jobs, all of which he claims he was qualified for, but he was passed over for promotion by minorities and women in seven of them. According to Isaacs, Ryan kept hearing from different sources that their promotions were connected to an affirmative action plan, an agency commitment to promote minorities and women.
Ryan himself had been an early supporter of affirmative recruitment, bringing in minorities and women and getting them the training they needed to succeed. But when he saw people going past him for promotions who were actually less qualified, people whom he had trained, he took legal action.
Isaacs describes the heady atmosphere at the FAA of this time, infused with the ideal of affirmative action. People in senior management in the FAA, he says, “were so zealously committed to affirmative action, as they considered it, that,” they did everything they could to infuse management ranks with “true believers.” To accomplish this, they did experiential training, confronting white males with their bigotry and sexism and urging them to change how they see their world and act in it.
During Ryan’s interviews, he was repeatedly asked, “If you are promoted and you are in a position to influence the people behind you, what are you going to do to increase the percentage of women and minorities in your branch?” These demands, says Isaacs, were made with no regard to whether onboard strengths in the target jobs were significantly different from the percentages of qualified employees in the target labor force.
In one particular interview Ryan was given the hypothetical situation of a candidate pool with one white male and five minority females, and he was asked to say which he would pick? His answer was to question the question, saying “One of those candidates would be the ‘best’ qualified.” Later he was admonished by his peers for not giving the answer that the promotions committee wanted to hear.
Ryan is a man of principle, says Isaacs: “My client learned at an early age the meaning of integrity and endurance.” Born in Vicksburg, Mississippi, Ryan grew up in Jackson, where his father was chief of the review staff for the Internal Revenue Service for the state. He majored in mathematics at Mississippi State University, Class of 1973.
An 18 year veteran of the FAA, Ryan worked four years as an air traffic controller and in the 1980s went to the computer science center in Atlantic City. In 1986 he was promoted to a manager’s job that held the rank of GS-14, and says he supported affirmative action. At one point he was an affirmative action trainer.
Isaacs claims that from 1992 to 1997 his client was the top candidate for seven jobs that would involve a promotion to the level of GS-15. He took his complaint to the FAA, and then to the Equal Employment Opportunity Commission (EEOC), acting as his own attorney for the first several years. Isaacs is his third attorney. The first worked on an EEOC hearing, and the second, based in Pennsylvania, filed the case in federal district court in 1999 but reportedly did not do adequate preparation for the trial. Ryan called Isaacs in on the case in 2001 at the last minute, one week before the final pretrial conference.
At that point Isaacs was successfully settling a gender discrimination case, representing a Robbinsville resident, Mary Lou Tilton, against the United States Department of Agriculture. One of Isaac’s contacts for this case in Washington recommended him to the Ryan case.
A Rutgers graduate, Class of 1975, with a master’s degree in legal history, Isaacs has been both a visionary and rabble-rouser in his field ever since he earned his law degree from the University of North Carolina. He grew up in Fair Lawn, where his father was a CPA.
In 1982, Isaacs and his then-partner Robert Felmeister challenged the New Jersey Supreme Court’s ruling that severely limited attorney advertising and prohibited television broadcasts. “We were these two legal eagles who wanted to go on the airwaves and test the new marketing techniques,” he told U.S. 1 in 1995. “We had a choice of going to court versus just doing it and saying you can’t stop us. Commercial speech is at the bottom of the First Amendment barrel but it is still in the barrel.”
The two attorneys were accused of breaching the rules regarding attorneys’ ethics and were nearly disciplined by the court. But the United States Supreme Court intervened: a decision on a similar case came in at that time, which supported Felmeister and Isaacs’ position. Within a couple of years of fighting, the present rule was established, which allows the legal community to advise the public about the availability of legal services with few limits.
More recently Isaacs has embraced the concept of mediation and is past president of the New Jersey Association of Professional Mediators. About one-third of his law practice is doing mediation, and he says that the Ryan case has consumed one-third of his time, or about 2,500 hours, for the past three years.
Civil rights attorneys Jessica Allen and Pamela Perron, of the U.S. Justice Department, are defending the FAA officials. The FAA, a division of the Department of Transportation, has 48,557 employees nationally. In New Jersey, it has 205 air traffic employees and 383 people that work in information technology, most of them at the FAA’s national IT center in Atlantic City. The IT salaries range from $43,737 to $140,068. Allen and Perron declined to comment on a trial in progress.
Isaacs is mounting a number of challenges against the FAA. First he is attacking the FAA’s data analysis in its yearly workforce reviews and updates. “We say that the FAA constructed wrong data and found an under representation of minorities and women across the board that didn’t exist.” The problem, he says, is that the FAA was comparing the demographics of each job title to the percentages of the same EEOC groups in the general population. Isaacs suggests that while this may have been acceptable before Adarand, the requirement of strict scrutiny demands more specialized tools to assess under representation.
“When dealing with promotions of highly skilled employees, particularly ones who require a degree or license to do their job, the government may not compare the onboard percentages of minorities and women to a generalized civilian labor force,” says Isaacs.
Eventually the FAA focused slightly more narrowly and used PATCOB (Professional, Administrative, Technical, Clerical, Other, and Blue Collar) occupational categories established by the EEOC, but Isaacs holds that even this group is not sufficiently comparable. “You want the narrowest band that’s fair to compare the promotions data. Within the FAA, to figure out the percentage of skilled labor who could qualify for the job would be to look at the onboard percentages of GS14s and GS13s.” The FAA, however, claims that because some people were applying from outside the agency, the fair population for comparison is the national civilian labor force.
Instead of the careful analysis required by Adarand, says Isaac, from 1995 until today the FAA has “declared itself guilty of past discrimination across the board and said, ‘We will do everything we can to remedy the effects of past discrimination by express consideration of race, gender, national origin, and disability.’”
Although the agency denies having a stated numeric goal, Isaacs claims that there was an unstated and unlawful 50/50 policy, in which 50 percent of new hires were expected to be minorities or women. The FAA effected this policy, says Isaacs, through an organizational cultural initiative that included diversity awareness programs, making the hiring of minority and women a condition of performance appraisal.
At the trial, one exhibit was a flow chart of the alleged process that managers should follow if they select a nonminority, nonwoman candidate for a promotion. First, they must justify why they selected the candidate and then justify why any woman or minority on the list was not selected.
Isaacs has also been concerned that many of the promotion records — records that the federal government is required by three federal laws and internal FAA policy to preserve — have been destroyed. “They claim that Mr. Ryan was never qualified and was passed over for promotion by people who were better qualified, yet more than 90 percent of the documents that the federal government was required to preserve, they have destroyed. In terms of reconstructing the promotion process, the only records we have are my client’s records, and even those are spotty.”
Isaacs has presented three witnesses in support of Ryan. Lester Sitzes, a white male in the same unit as Ryan, had filed a grievance that he had been passed over repeatedly by less qualified minorities and women. “He got a call from one of the selecting officials,” says Isaacs, “who in so many words urged him to drop the grievance and he would be reconsidered more favorably in another application.” He did so and was then promoted.
A second witness, George Williams, was an FAA manager who had had to follow the agency’s informal 50-50 rule and was not happy about it. Williams actually got an affirmative action award, but now, as a result of his participation in this case, is getting harassed professionally.
The third witness was John Larsen, an FAA researcher in its southern region and a former marine and air traffic controller with a master’s from the Kennedy School of Government at Harvard, whose job is to research and troubleshoot policy directives as they affect his region. He has been researching and writing about the affirmative action issue since 1992. After he provided Isaacs with information following a Freedom of Information Act request, the agency tried to fire him, but a lawyer was able to step in and prevent that from happening, says Isaacs.
Larsen serves as the expert witness for the plaintiff, and Fanny Rivera, assistant administrator for civil rights for the Federal Aviation Administration (FAA), is the expert witness for the DOT. As defined in her agency biography, Rivera is “the principal advisor to the Administrator on agency civil rights, equal employment opportunity, managing diversity and affirmative action matters [and] as the FAA Diversity Advocate [who] leads the agency’s efforts to create a positive environment that supports and encourages the contribution of all employees and mirrors the Nation’s diversity.”
In her previous testimony, Rivera had promised the court that the FAA would be undergoing reform, that the FAA was committed to curing problems from the past. Isaacs tried to prove that statement wrong on Wednesday, June 2. His opening sally referred to the agenda for the two-day meeting of the National Employees Forum, a lobbying group for minorities within the FAA, which Rivera co-chairs.
Rivera sat primly in the witness stand, hands in her lap. Approached for cross-examination by Isaacs, Rivera appeared tense, responding to questions quietly, leaning a bit away from her questioner. Referring to various documents and offering them as exhibits in the case, Isaacs tried to elicit what actions Rivera had taken in her role as civil rights administrator.
Isaacs produced the agenda for the National Employees Forum conference that was purported to cover all the major civil rights and affirmative action initiatives for the FAA. The conference was being held on the same day as Rivera’s court appearance, June 2, and the new FAA administrator was to give the keynote.
Isaacs asked Rivera whether she had notified the members of the Forum about MD715, the most recent management directive from the EEOC. MD715 provides “policy guidance and standards for establishing and maintaining effective affirmative programs of equal employment opportunity and effective affirmative action programs.” Rivera’s response was a quiet “No.” Isaacs then noted that MD715 was not even listed on the conference agenda.
“In my final argument,” says Isaacs, “I will strongly urge the court to disbelieve the DOT when it says ‘we know what we have to do now.’ For years they ignored a presidential directive and a U.S. Supreme Court decision. Not one word on the agenda mentioned the management directive issued by the EEOC a month before. So how seriously can you take the chief civil rights officer, when she promises that the agency will reform? Don’t look at how they say, but how they act.”
Philip Harvey, associate professor of law and economics at Rutgers School of Law in Camden, refutes the idea that Ryan vs FAA is a groundbreaker. “The case may inspire interest because it is a white plaintiff charging reverse discrimination, but none of the facts in the case are particularly unusual or significant in terms of creating new law. A decision either way is not going to establish a precedent that will have a significant effect on the way that other cases are handled, but a victory for the plaintiff could encourage others to bring suit.” Harvey graduated from Yale in 1968, earned his PhD in economics from the New School for Social Research, and taught economics before returning to Yale for his law degree. He came to Rutgers in 1995 and teaches employment and labor law.
Harvey thinks the case will be decided on the technical issue of what statistics should be used in deciding whether there is a pattern of under representation in the relevant labor force. He notes that whether there is an imbalance in the work force is not an easy thing to determine, and that it is hard to figure out what the appropriate things to measure are. “Not knowing the details of the case, I cannot predict how those issues will be decided,” he says. But this case, like other reverse discrimination cases, raises the general question of whether or not affirmative action is appropriate.” He thinks it is.
“The rules in U.S. law relating to when affirmative action is OK and when it is not are incoherent — and probably inconsistent with what would make sense to most people. As a victim of former discrimination, blacks and women are treated less favorably under anti-discrimination law than the elderly and the disabled,” says Harvey. Affirmative action is required by the Americans with Disabilities Act, permitted by the Age Discrimination in Employment Act (ADEA) and arguably prohibited only by Title VII. “If they thought about it, most people would say that does not make sense.”
Under the Americans with Disabilities Act, he explains, employers are, in fact, required to discriminate in favor of the disabled by evaluating their qualifications based on how well they would perform if their disabilities were accommodated, rather than on how well they would perform without special help. Under the age discrimination act, employers are permitted to discriminate in favor of older workers, which means they are permitted to discriminate against younger workers. “Title VII is the only major American statute for which the argument is made, and accepted by many people, that not only are you not permitted to discriminate those the law was designed to help (minorities and women), but you are also prohibited from discriminating in their favor,” says Harvey.
Court interpretations of Title VII have limited affirmative action, but court interpretations of the ADEA have permitted affirmative action. Why? “Because Congress in 1964 did not, and still does not, want to touch with a 10 foot pole the problem of defining who is a member of a disadvantaged minority group,” says Harvey. “To do that would smack of all the Jim Crow laws in the south, based on how much black blood someone had. What Congress really wanted to do was to say ‘Of course it is OK to favor blacks.’ But they wrote a law prohibiting discrimination on account of race, instead of prohibiting discrimination against blacks so as not to have to define who was black.” In contrast, in an age discrimination case, it is easy to determine whether the person is older or younger.
Harvey says there is another federal “law” — the human rights treaty ratified by the United States in 1994 called the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) — that clearly permits affirmative action in favor of disadvantaged racial minorities.
“The CERD says it is OK to adopt temporary measures to discriminate in favor of groups that have suffered racial discrimination, whereas courts have interpreted Title VII to prohibit reverse discrimination,” says Harvey. “The treaty says, in effect, that reverse discrimination is needed, if only temporarily, to achieve the treaty’s goal of eliminating all forms of racial discrimination and its effects.”
An attorney cannot bring suit on the basis of the CERD, even though under the Constitution it is part of the “supreme law of the land.” But, says Harvey, an attorney — in this case the DOT attorney — could argue that Title VII should be interpreted in a manner consistent with the treaty obligations that the U.S. has accepted when it ratified the CERD. “Isaacs is arguing that his client has a Title VII claim because he is a victim of reverse discrimination,” says Harvey. “I believe in anti discrimination law,” says Harvey, “but I think employers should be free to try to remedy discrimination that occurred in the past without worrying about being sued for it.”Isaacs points out that this case is not about recruiting. “If you want to historically shift your numbers, do recruiting. Go to historically black colleges, and get your trainees. My client did that, and his trainee was promoted over him.”
For Isaacs, this case is not a matter of discrimination against persons of color or other nationalities. “I believe in equal justice, protection, and opportunity,” he says. “And I believe in legal affirmative action. But I don’t believe in creating preferences where there is no proof to support them and unlawfully promoting people who are less qualified over people who are more qualified in the light of some idea. That’s not good social policy. And when dealing with air traffic safety, not only is it wrong; it’s dangerous.”
— Michele Alperin
“If Title VIII were interpreted in a manner consistent with the CERD, his case would be dismissed unless he could show that non-white minorities no longer need special treatment to overcome the effects of the discrimination they have suffered.
The measures of discrimination may not be obvious. “You ought to take into consideration the differences in the advantages you have had compared to the other group throughout your life, and not just the differences in paper credentials today.”
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