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University and Community College System of Nevada v. Farmer
Background
Between 1989 and 1991, only one percent of the University
of Nevada’s full-time faculty were black, while eighty-seven
to eighty-nine percent of the full-time faculty were
white; twenty-five to twenty-seven percent of the full-time
faculty were women. In order to remedy this racial imbalance,
the University instituted the “minority bonus
policy,” an unwritten amendment to its affirmative action
policy that allowed a department to hire an additional faculty
member following the initial placement of a minority
candidate.
In 1990, the University advertised for an impending
vacancy in the sociology department. The announcement
of the position vacancy emphasized a need for proficiency
in social psychology and mentioned a salary range between
$28,000.00 and $34,000.00, dependent upon experience
and qualifications. The University’s hiring guidelines
require 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 the
search committee for the position but the University
obtained a waiver to interview only one candidate, Johnson
Makoba, a black African male. The department chair
recalled that the search committee ranked Makoba first
among the three finalists. Because of a perceived shortage
of black Ph.D. candidates, coupled with Makoba’s strong
academic achievements, the search committee sought
approval to make a job offer to Makoba at a salary of
$35,000.00, with an increase to $40,000.00 upon completing
his Ph.D. This initial offer exceeded the advertised salary
range for the position; even though Makoba had not
accepted any competing offers, the University justified its
offer as a method of preempting any other institutions from
hiring Makoba. Makoba accepted the job offer. Farmer was
subsequently hired by the University the following year;
the position for which she was hired was created under
the “minority bonus policy.” Her salary was set at
$31,000.00 and a $2,000.00 raise after completion of her
dissertation.
Farmer sued the University and Community College
System of Nevada (“the University”) claiming violations
of Title VII of the Civil Rights Act, the Equal Pay Act
and for breach of an employment contract. Farmer alleged
that despite the fact that she was more qualified, the University
hired a black male (Makoba) as an assistant professor
of sociology instead of her because of the University’s
affirmative action plan. After a trial on her claims, the trial
court jury awarded her $40,000 in damages, and the University
appealed to the Supreme Court of Nevada. The
issue on appeal was the legality of the University’s affirmative
action plan under both Title VII and the U.S.
Constitution.
Steffen, Chief Justice
… Farmer claims that she was more qualified for the position
initially offered to Makoba. However, the curriculum
vitae for both candidates revealed comparable strengths
with respect to their educational backgrounds, publishing,
areas of specialization, and teaching experience. The search
committee concluded that despite some inequalities, their
strengths and weaknesses complemented each other; hence,
as a result of the additional position created by the minority
bonus policy, the department hired Farmer one year
later.…
The University contends that the district court made a
substantial error of law by failing to enter a proposed jury
instruction which would have apprised the jury that Title
VII does not proscribe race-based affirmative action
144 Part 2 » Equal Employment Opportunity
programs designed to remedy the effects of past discrimination
against traditionally disadvantaged classes. The University
asserts that the district court’s rejection of the proposed
instruction left the jury with the impression that all racebased
affirmative action programs are proscribed.…
Farmer … asserts that the University’s unwritten minority
bonus policy contravenes its published affirmative action plan.
Finally, Farmer alleges that all race-based affirmative action
plans are proscribed under Title VII of the Civil Rights Act
as amended in 1991; therefore, the University discriminated
against her as a female, a protected class under Title VII.
Tension exists between the goals of affirmative action
and Title VII’s proscription against employment practices
which are motivated by considerations of race, religion,
sex, or national origin, because Congress failed to provide
a statutory exception for affirmative action under Title VII.
Until recently, the Supreme Court’s failure to achieve a
majority opinion in affirmative action cases has produced
schizophrenic results.…
United Steelworkers of America v. Weber is the seminal
case defining permissible voluntary affirmative action plans
[under Title VII].… Under Weber, a permissible voluntary
affirmative action plan must: (1) further Title VII’s statutory
purpose by “break[ing] down old patterns of racial segregation
and hierarchy” in “occupations which have been
traditionally closed to them”; (2) not “unnecessarily trammel
the interests of white employees”; (3) be “a temporary
measure; it is not intended to maintain racial balance, but
simply to eliminate a manifest racial imbalance.” …
Most recently, in Adarand Constructors, Inc. v. Pena, the
Supreme Court revisited [the issue of the constitutionality
of] affirmative action in the context of a minority set-aside
program in federal highway construction. In the 5–4 opinion,
the Court held that a reviewing court must apply strict
scrutiny analysis for all race-based affirmative action programs,
whether enacted by a federal, state, or local
entity.… [T]he Court explicitly stated “that federal racial
classifications, like those of a State, must serve a compelling
governmental interest, and must be narrowly tailored to
further that interest.” …
Here, in addition to considerations of race, the University
based its employment decision on such criteria as educational
background, publishing, teaching experience, and
areas of specialization. This satisfies [the previous cases’]
commands that race must be only one of several factors
used in evaluating applicants. We also view the desirability
of a racially diverse faculty as sufficiently analogous to the
constitutionally permissible attainment of a racially diverse
student body.…
The University’s affirmative action plan conforms to
the Weber factors [under Title VII]. The University’s
attempts to diversify its faculty by opening up positions traditionally
closed to minorities satisfies the first factor under
Weber. Second, the plan does not “unnecessarily trammel the
interests of white employees.” The University’s 1992 Affirmative
Action Report revealed that whites held eighty-seven to
eighty-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, the
University attempted to attain, as opposed to maintain, a racial
balance.
The University’s affirmative action plan … [also] passes
constitutional muster. The University demonstrated that it
has a compelling interest in fostering a culturally and ethnically
diverse faculty. A failure to attract minority faculty
perpetuates the University’s white enclave and further limits
student exposure to multicultural diversity. Moreover, the
minority bonus policy is narrowly tailored to accelerate
racial and gender diversity. Through its affirmative action
policies, the University achieved greater racial and gender
diversity by hiring Makoba and Farmer. Of note is the
fact that Farmer’s position is a direct result of the minority
bonus policy.
Although Farmer contends that she was more qualified
for Makoba’s position, the search committee determined
that Makoba’s qualifications slightly exceeded Farmer’s.
The record, however, reveals that both candidates were
equal in most respects. Therefore, given the aspect of
subjectivity involved in choosing between candidates,
the University must be given the latitude to make its
own employment decisions provided that they are not
discriminatory.
[The court then rejected Farmer’s claim that the 1991
amendments to Title VII prohibit affirmative action.]
… we conclude that the jury was not equipped to
understand the necessary legal basis upon which it could
reach its factual conclusions concerning the legality of the
University’s affirmative action plan. Moreover, the undisputed
facts of this case warranted judgment in favor of
the University as a matter of law. Therefore, even if the
jury had been properly instructed, the district court should
have granted the University’s motion for judgment notwithstanding
the [jury’s] verdict. Reversal of the jury’s verdict
on the Title VII claim is therefore in order.
The University … has adopted a lawful race-conscious
affirmative action policy in order to remedy the effects of a
manifest racial imbalance in a traditionally segregated job
category.…
Chapter 6 » Title VII of the Civil Rights Act and Race Discrimination 145
The affirmative action plan in the previous case was a voluntary plan; that is, it was not
imposed upon the employer by a court to remedy a finding of illegal discrimination. The
affirmative action plans in the Weber, Johnson, and Wygant cases were also voluntary
plans. 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 held
that Title VII permits a court to require the adoption of an affirmative action program to
remedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld the
constitutionality of a judicially imposed affirmative action program to remedy race discrimination
in promotion decisions by the Alabama State Police.
ethical DILEMMA
You are the human resource manager for Wydget Corporation, a small manufacturing
company. Wydget’s assembly plant is located in an inner-city neighborhood,
and most of its production employees are African Americans and Hispanics, as well as
some Vietnamese and Laotians who live nearby. Wydget’s managers are white males
who sometimes have difficulty relating to the production workers. The board of directors
of Wydget is considering whether to establish a training program to groom production
workers for management positions, targeting women and minorities in particular. The
CEO has asked you to prepare a memo to guide the board of directors in its decision
about the training program. Should you establish such a program? How can you
encourage minority employees to enter the program without discouraging the white
employees? What criteria should be used for determining admission into the training
program? Address these issues in a short memo, explaining and supporting your
position.
The University has aggressively sought to achieve more
than employment neutrality by encouraging its departments
to hire qualified minorities, women, veterans, and handicapped
individuals. The minority bonus policy, albeit an
unwritten one, is merely a tool for achieving cultural diversity
and furthering the substantive goals of affirmative action.
For the reasons discussed above, the University’s affirmative
action policies pass constitutional muster. Farmer
has failed to raise any material facts or law which would
render the University’s affirmative action policy constitutionally
infirm.…
Young and Rose, JJ., concur.
Springer, J., dissenting [omitted]
Case Questions
1. Why did the University adopt its affirmative action
plan and the “minority bonus policy”?
2. How was Farmer injured or disadvantaged under the
University’s affirmative action plan?
3. How does the Court here apply the Weber test for
legality of affirmative action under Title VII to the
facts of this case? Explain your answer.
4. According to the Court here, how does the constitutional
“strict scrutiny” test apply to the facts of the
case here? Explain your answer.Background
Between 1989 and 1991, only one percent of the University
of Nevada’s full-time faculty were black, while eighty-seven
to eighty-nine percent of the full-time faculty were
white; twenty-five to twenty-seven percent of the full-time
faculty were women. In order to remedy this racial imbalance,
the University instituted the “minority bonus
policy,” an unwritten amendment to its affirmative action
policy that allowed a department to hire an additional faculty
member following the initial placement of a minority
candidate.
In 1990, the University advertised for an impending
vacancy in the sociology department. The announcement
of the position vacancy emphasized a need for proficiency
in social psychology and mentioned a salary range between
$28,000.00 and $34,000.00, dependent upon experience
and qualifications. The University’s hiring guidelines
require 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 the
search committee for the position but the University
obtained a waiver to interview only one candidate, Johnson
Makoba, a black African male. The department chair
recalled that the search committee ranked Makoba first
among the three finalists. Because of a perceived shortage
of black Ph.D. candidates, coupled with Makoba’s strong
academic achievements, the search committee sought
approval to make a job offer to Makoba at a salary of
$35,000.00, with an increase to $40,000.00 upon completing
his Ph.D. This initial offer exceeded the advertised salary
range for the position; even though Makoba had not
accepted any competing offers, the University justified its
offer as a method of preempting any other institutions from
hiring Makoba. Makoba accepted the job offer. Farmer was
subsequently hired by the University the following year;
the position for which she was hired was created under
the “minority bonus policy.” Her salary was set at
$31,000.00 and a $2,000.00 raise after completion of her
dissertation.
Farmer sued the University and Community College
System of Nevada (“the University”) claiming violations
of Title VII of the Civil Rights Act, the Equal Pay Act
and for breach of an employment contract. Farmer alleged
that despite the fact that she was more qualified, the University
hired a black male (Makoba) as an assistant professor
of sociology instead of her because of the University’s
affirmative action plan. After a trial on her claims, the trial
court jury awarded her $40,000 in damages, and the University
appealed to the Supreme Court of Nevada. The
issue on appeal was the legality of the University’s affirmative
action plan under both Title VII and the U.S.
Constitution.
Steffen, Chief Justice
… Farmer claims that she was more qualified for the position
initially offered to Makoba. However, the curriculum
vitae for both candidates revealed comparable strengths
with respect to their educational backgrounds, publishing,
areas of specialization, and teaching experience. The search
committee concluded that despite some inequalities, their
strengths and weaknesses complemented each other; hence,
as a result of the additional position created by the minority
bonus policy, the department hired Farmer one year
later.…
The University contends that the district court made a
substantial error of law by failing to enter a proposed jury
instruction which would have apprised the jury that Title
VII does not proscribe race-based affirmative action
144 Part 2 » Equal Employment Opportunity
programs designed to remedy the effects of past discrimination
against traditionally disadvantaged classes. The University
asserts that the district court’s rejection of the proposed
instruction left the jury with the impression that all racebased
affirmative action programs are proscribed.…
Farmer … asserts that the University’s unwritten minority
bonus policy contravenes its published affirmative action plan.
Finally, Farmer alleges that all race-based affirmative action
plans are proscribed under Title VII of the Civil Rights Act
as amended in 1991; therefore, the University discriminated
against her as a female, a protected class under Title VII.
Tension exists between the goals of affirmative action
and Title VII’s proscription against employment practices
which are motivated by considerations of race, religion,
sex, or national origin, because Congress failed to provide
a statutory exception for affirmative action under Title VII.
Until recently, the Supreme Court’s failure to achieve a
majority opinion in affirmative action cases has produced
schizophrenic results.…
United Steelworkers of America v. Weber is the seminal
case defining permissible voluntary affirmative action plans
[under Title VII].… Under Weber, a permissible voluntary
affirmative action plan must: (1) further Title VII’s statutory
purpose by “break[ing] down old patterns of racial segregation
and hierarchy” in “occupations which have been
traditionally closed to them”; (2) not “unnecessarily trammel
the interests of white employees”; (3) be “a temporary
measure; it is not intended to maintain racial balance, but
simply to eliminate a manifest racial imbalance.” …
Most recently, in Adarand Constructors, Inc. v. Pena, the
Supreme Court revisited [the issue of the constitutionality
of] affirmative action in the context of a minority set-aside
program in federal highway construction. In the 5–4 opinion,
the Court held that a reviewing court must apply strict
scrutiny analysis for all race-based affirmative action programs,
whether enacted by a federal, state, or local
entity.… [T]he Court explicitly stated “that federal racial
classifications, like those of a State, must serve a compelling
governmental interest, and must be narrowly tailored to
further that interest.” …
Here, in addition to considerations of race, the University
based its employment decision on such criteria as educational
background, publishing, teaching experience, and
areas of specialization. This satisfies [the previous cases’]
commands that race must be only one of several factors
used in evaluating applicants. We also view the desirability
of a racially diverse faculty as sufficiently analogous to the
constitutionally permissible attainment of a racially diverse
student body.…
The University’s affirmative action plan conforms to
the Weber factors [under Title VII]. The University’s
attempts to diversify its faculty by opening up positions traditionally
closed to minorities satisfies the first factor under
Weber. Second, the plan does not “unnecessarily trammel the
interests of white employees.” The University’s 1992 Affirmative
Action Report revealed that whites held eighty-seven to
eighty-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, the
University attempted to attain, as opposed to maintain, a racial
balance.
The University’s affirmative action plan … [also] passes
constitutional muster. The University demonstrated that it
has a compelling interest in fostering a culturally and ethnically
diverse faculty. A failure to attract minority faculty
perpetuates the University’s white enclave and further limits
student exposure to multicultural diversity. Moreover, the
minority bonus policy is narrowly tailored to accelerate
racial and gender diversity. Through its affirmative action
policies, the University achieved greater racial and gender
diversity by hiring Makoba and Farmer. Of note is the
fact that Farmer’s position is a direct result of the minority
bonus policy.
Although Farmer contends that she was more qualified
for Makoba’s position, the search committee determined
that Makoba’s qualifications slightly exceeded Farmer’s.
The record, however, reveals that both candidates were
equal in most respects. Therefore, given the aspect of
subjectivity involved in choosing between candidates,
the University must be given the latitude to make its
own employment decisions provided that they are not
discriminatory.
[The court then rejected Farmer’s claim that the 1991
amendments to Title VII prohibit affirmative action.]
… we conclude that the jury was not equipped to
understand the necessary legal basis upon which it could
reach its factual conclusions concerning the legality of the
University’s affirmative action plan. Moreover, the undisputed
facts of this case warranted judgment in favor of
the University as a matter of law. Therefore, even if the
jury had been properly instructed, the district court should
have granted the University’s motion for judgment notwithstanding
the [jury’s] verdict. Reversal of the jury’s verdict
on the Title VII claim is therefore in order.
The University … has adopted a lawful race-conscious
affirmative action policy in order to remedy the effects of a
manifest racial imbalance in a traditionally segregated job
category.…
Chapter 6 » Title VII of the Civil Rights Act and Race Discrimination 145
The affirmative action plan in the previous case was a voluntary plan; that is, it was not
imposed upon the employer by a court to remedy a finding of illegal discrimination. The
affirmative action plans in the Weber, Johnson, and Wygant cases were also voluntary
plans. 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 held
that Title VII permits a court to require the adoption of an affirmative action program to
remedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld the
constitutionality of a judicially imposed affirmative action program to remedy race discrimination
in promotion decisions by the Alabama State Police.
ethical DILEMMA
You are the human resource manager for Wydget Corporation, a small manufacturing
company. Wydget’s assembly plant is located in an inner-city neighborhood,
and most of its production employees are African Americans and Hispanics, as well as
some Vietnamese and Laotians who live nearby. Wydget’s managers are white males
who sometimes have difficulty relating to the production workers. The board of directors
of Wydget is considering whether to establish a training program to groom production
workers for management positions, targeting women and minorities in particular. The
CEO has asked you to prepare a memo to guide the board of directors in its decision
about the training program. Should you establish such a program? How can you
encourage minority employees to enter the program without discouraging the white
employees? What criteria should be used for determining admission into the training
program? Address these issues in a short memo, explaining and supporting your
position.
The University has aggressively sought to achieve more
than employment neutrality by encouraging its departments
to hire qualified minorities, women, veterans, and handicapped
individuals. The minority bonus policy, albeit an
unwritten one, is merely a tool for achieving cultural diversity
and furthering the substantive goals of affirmative action.
For the reasons discussed above, the University’s affirmative
action policies pass constitutional muster. Farmer
has failed to raise any material facts or law which would
render the University’s affirmative action policy constitutionally
infirm.…
Young and Rose, JJ., concur.
Springer, J., dissenting [omitted]
Case Questions
1. Why did the University adopt its affirmative action
plan and the “minority bonus policy”?
2. How was Farmer injured or disadvantaged under the
University’s affirmative action plan?
3. How does the Court here apply the Weber test for
legality of affirmative action under Title VII to the
facts of this case? Explain your answer.
4. According to the Court here, how does the constitutional
“strict scrutiny” test apply to the facts of the
case here? Explain your answer.
The writer is very fast, professional and responded to the review request fast also. Thank you.
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