University's Affirmative Action Plan Held No Barrier To Sex Discrimination Claims

Author:Mr Robert Crohan
Profession:Holland & Knight LLP

Affirmative action plans do not necessarily shield schools and colleges from

discrimination claims. In Hill v. Ross (7th Cir. 1999), a federal appeals court

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 even though the University acted in

accordance with its affirmative action plan.

In Hill, the psychology department voted to offer the professor a tenure

track position in clinical psychology, but the Dean of the College of Letters

and Sciences objected. The Dean wanted the department to hire a woman instead,

citing the targets set forth in the University's affirmative action plan. The

plan 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 vacant.

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 U.S. Constitution. The trial

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, giving three reasons.

First, the court 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. While gender and race may be a factor in a public entity's

employment decision, it can never be the dispositive factor at least not

unless the plan is designed to overcome the effects of past discrimination,

which was not the case at the University of Wisconsin.

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 discrimination."

Third, the court found that the University had not justified its gender

preference for the position. The court rejected the...

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