The City of Shreveport Fire Department is known for squelching blazes. But there was one fire that it just couldn't put out.
Todd Dean, a white man who unsuccessfully applied for employment with the fire department, sued Shreveport in 2000, alleging the department's hiring practices were racist. The litigation heated up after eight other white men joined Dean's suit.
In question was an exam the city used to test applicants. Test takers' results were divided into categories based on race and sex. Regardless of who scored highest overall, the department only took the top scorers in each category. Dean alleged he scored higher than some of the African-American applicants but was denied employment because of the quota.
The U.S. Court of Appeals for the Fifth Circuit agreed with the plaintiffs. The court found that the city's practices violated Louisiana's constitution and Title VII of the Civil Rights Act.
Experts agree that the case is representative of the increased scrutiny courts apply to affirmative action programs. Companies with such programs need to make regular assessments of their progress or risk liabilities.
"With affirmative action programs, you have to monitor whatever you are doing constantly to see whether you've reached your desired result and whether there is still a need to continue with the program," says Jaime Ramon, a partner at Kirkpatrick & Lockhart Nicholson Graham in Dallas.
That is exactly what Shreveport failed to do for nearly 25 years.
The city's problems began in 1980 when it entered into a consent decree with the Department of Justice after the agency sued the city on allegations of discriminatory hiring practices against minorities and women. Although the decree didn't mandate any particular hiring practice, it did require the city to set long-term staffing goals.
The 5th Circuit has not yet ruled on the consent decree's constitutionality. Regardless, the court found that the way the city chose to comply with the decree was unconstitutional under the strict scrutiny standard, a standard not applied in 1980.
"In 1980, the standard for whether a consent decree was constitutional in the 5th Circuit was a rational basis test," says Pam Jones, the attorney for the plaintiffs. "But that changed when the U.S. Supreme Court came out several years later and said you have to use the strict scrutiny standard."
Similarly, the affirmative action program was not a violation of Title VII when Shreveport first implemented it because Title VII wasn't amended to make race-based hiring a violation until 1991. Yet throughout two decades, a shift in judicial scrutiny and amendments to the Civil Rights Act, the city continued its affirmative action program.
In its ruling, the court blasted the city for basically institutionalizing its affirmative action program when it should only have been a temporary remedy to past discriminatory practices. In addition, because the consent decree failed to narrowly define "qualified applicant," the city had no realistic way of benchmarking its progress as to whether it had met the goals laid out by the decree.
"One of the main mistakes in the consent decree was that they never really defined what the appropriate labor pool is so you never get to decide the issue of who is in the labor pool to define availability and underutilization," Ramon says.
With a narrowly tailored program, a system of continual evaluation and an eye on the ever-changing opinions of the courts, companies with affirmative action policies can avoid liability and thus a costly Title VII violation.
"All GCs should examine their company's policies on an occasional basis and ask themselves, 'How are we doing things, why are we doing them this way, and does it make sense?'" says Rogge Dunn, partner at Clouse Dunn Hirsch. "These programs are not designed to be permanent."