Affirmative Action Plan No Defense to Sex Discrimination

Author:Mr Robert Crohan
Profession:Holland & Knight LLP

In a case illustrating that affirmative action plans do not necessarily act

as a shield to discrimination claims, a federal appeals court has ruled that a

male professor at the University of Wisconsin who was denied a tenure track

position because of his gender can proceed with his Title VII and Constitutional

equal protection claims. Hill v. Ross (7th Cir. 1999).

In Hill, the Dean of the College of Letters and Sciences objected after the

Psychology Department at the University of Wisconsin voted to offer Hill a

tenure track position in clinical psychology. The Dean wanted the Department to

hire a woman instead, citing the targets set forth in the university's

affirmative action plan, which indicated that the Psychology Department needed

to hire 3.23 women to reach its target. When the Psychology Department stood by

its choice of Hill, the Dean blocked the recommendation and the position stood


Hill sued the university claiming that it had unlawfully discriminated

against him on the basis of his gender in violation of Title VII of the Civil

Rights Act and the equal protection clause of the United States Constitution.

The district court entered summary judgment for the university, ruling that its

decision was supported by a valid affirmative action plan. On appeal, the

Seventh Circuit reversed, citing three reasons.

First, the Seventh Circuit found that a jury could have concluded that the

Dean used Hill's sex not as one factor among many, but as the sole basis for

his decision. The court explained that while gender and race may be considered

as factors in a public entity's employment decision, it can never be the

dispositive factor - unless the affirmative action plan relied upon as a

justification is designed to overcome the effects of past discrimination. The

court noted that the university had not sought to justify the Dean's decision

on the basis that its affirmative action plan was designed to remedy past


Second, the court noted that the university's affirmative action plan did

not require the Dean's actions. The university had argued that the plan

required three names to be submitted to the Dean for consideration to fill any

vacancy, and in this case only the name of the plaintiff had been submitted. The

court noted that nothing in the written plan required the submission of three

names, and further recognized that a multiple-name requirement could be found to

be "a smokescreen for...

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