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affirmative actionRelated terms: exempt employee; Fair Labor Standards Act; minimumwage; overtime; pay docking; professional employee.affirmative actionPractices that are intended to promote opportunity for membersof historically disadvantaged classes are referred to as affirmativeaction. Although most often associated with promoting opportunitiesfor candidates of color and women, affirmative action may assistany disadvantaged group. For example, some affirmative actionprograms benefit people with disabilities or military veterans.Affirmative action is most common in employment, governmentcontracts, education, and business. In the employment field, thefederal, state, or local government might implement affirmativeaction measures, either when the government acts as an employer orwhen the government contracts with, or provides grants to, privatebusiness. Private employers may also adopt their own affirmativeaction programs.Affirmative action measures run the gamut from steps to makesure that candidates from historically disadvantaged groups havean equal opportunity to contend for jobs and promotions (such asposting jobs in areas with high numbers of minority job seekers,developing outreach efforts to find qualified female candidates,and supporting training programs for candidates or employees inprotected categories) to giving members of historically disadvantagedclasses an edge in employment decisions by taking gender, race,or another protected characteristic into account as a factor in theselection process.The controversy over affirmative action. As noted above, someaffirmative action measures don’t take race, gender, or other protectedcharacteristics into account in the selection process, but seek only towiden the field of qualified applicants through outreach and searchefforts. When the employer in this type of program reaches the pointof actually selecting candidates, the process is color- and gender-blind.These measures have not met with much legal or social resistance.5A

affirmative actionAHowever, measures that give an edge to particular applicantsbased on race, gender, or another protected characteristic havehistorically been more controversial. These measures might include: using race as a “plus” factor in hiring (so that an AfricanAmerican applicant would be preferred over a white applicantwith the same qualifications) using lower cutoffs for test scores for minority or femalecandidates, or setting hiring goals or quotas (that 30% of the workforce in atraditionally male profession be female by 2020, say).Measures like these provide a benefit to members of one groupthat comes at the expense of members of another. Proponents ofaffirmative action argue that this is fair and appropriate, given ourcountry’s long history of discrimination, and is the only way tocreate truly equal opportunity for groups that are disadvantaged.Opponents argue that discrimination is unfair, no matter who ithelps or hurts, and that (primarily) white men should not have topay the price for historical discrimination.Affirmative action for federal contractors. Executive Order 11246requires certain federal contractors to adopt affirmative actionprograms. Among other things, contractors must analyze theirworkforce, target any areas where members of protected groupsare underrepresented, and come up with specific goals to helpaddress the problem. Contractors must make good faith efforts toachieve these goals, which might include outreach and recruitmentprograms, training, and other strategies to expand the pool ofqualified candidates. Executive Order 11246 is administered andenforced by the Office of Federal Contract Compliance Programs(OFCCP), www.dol.gov/ofccp.Affirmative action in other government settings. When a govern ment uses affirmative action as an employer, it is subject to the EqualProtection Clause of the 14th Amendment to the U.S. Constitution.When governments make distinctions based on race, the EqualProtection Clause requires them to have a compelling interest that6

affirmative action“Reverse Discrimination” in the Supreme CourtThe U.S. Supreme Court has decided a number of affirmative action casesin the last 40 years. Typically, these cases have been “reverse discrimination”claims, brought by potential students or employees who believe they weredenied opportunities because a school’s or an employer’s affirmative actionprogram favored minority or female candidates. Here are a few of the mostwidely publicized cases: Regents of the University of California v. Bakke, 438 U.S. 265 (1978),in which the Supreme Court held (by 5-4 vote) that the admissionsprogram of the medical school at the University of California atDavis was unconstitutional because it excluded applicants on thebasis of race. Martin v. Wilks, 490 U.S. 755 (1989), in which a group of whitefirefighters sued the city of Birmingham, Alabama, claiming thata consent decree the city entered into with African Americanfirefighters resulted in discrimination in promotions. The SupremeCourt decided that the white firefighters could challenge theconsent decree even though they knew about the earlier lawsuitand could have gotten involved then. Grutter v. Bollinger, 539 U.S. 306 (2003), in which the SupremeCourt ruled that the University of Michigan could consider race indeciding which applicants to accept, as long as it did not use quotasand the program was narrowly tailored to further the school’scompelling interest in providing students with the educationalbenefits of diversity; the Court also noted that affirmative actionmeasures should be temporary. Ricci v. DeStefano 129 S.Ct. 2658 (2009), in which the Court held thatthe city of New Haven, Connecticut, could not ignore promotiontest results, even though white applicants generally scored so muchhigher on the test than African American and Hispanic applicantsthat the city feared it would be sued for race discrimination if itused the results. The Court found that the city could refuse tocertify the test scores only if it had a “strong basis in evidence” tobelieve that they were discriminatory.7A

affirmative actionAis served by the distinction, and the means chosen must be narrowlytailored to further that interest.The U.S. Supreme Court has held that a desire to remedy theeffects of societal discrimination is not a sufficient justificationfor race-based classifications, nor is a desire to provide nonwhiterole models. Instead, a government entity that seeks to implementaffirmative action must show that it has a history of past discrimina tion or perhaps that it has been a passive participant in societaldiscrimination, which the affirmative action program seeks toremedy.Even if a government entity has a sufficient factual basis to adoptan affirmative action plan, the plan might still be illegal unless itis narrowly tailored to meet those goals. For example, a plan thatlasts longer than necessary, confers benefits on people outside of thegroup that has been discriminated against (for example, benefits allminorities when there is proof of discrimination only against AfricanAmericans), or sets goals that go beyond the proven discriminationmight be struck down.Affirmative action by private employers. Private employers are notsubject to the Equal Protection Clause, but their affirmative actionplans must meet the requirements of Title VII. The Supreme Courthas developed a three-part test to evaluate the legality of privateaffirmative action:1. There must be a factual basis (of discrimination) for the plan.The employer doesn’t have to admit that it discriminated inthe past to adopt an affirmative action plan (although suchan admission would meet this requirement). For privateplans, statistical evidence might also be sufficient, if it showsa “manifest imbalance” in traditionally segregated fieldsor it would be sufficient to allow the group that would bebenefited by the plan to bring a discrimination lawsuit.2. The plan must not “unnecessarily trammel” the interests ofemployees who don’t benefit directly from it. For example,a plan by which the employer would lay off workers to8

after-acquired evidencemake room for a more diverse workforce would be moredetrimental to the laid off workers than a plan that addressedrecruitment or hiring.3. The plan must be temporary. Affirmative action measuresmay last only as long as necessary to undo the effects of pastdiscrimination.Related terms: Civil Rights Act of 1991; discrimination; disparateimpact; disparate treatment; protected class; Title VII.after-acquired evidenceAfter-acquired evidence refers to information an employer learnsafter firing an employee that would have justified firing theemployee in the first place. After-acquired evidence may be used bythe employer in a wrongful termination lawsuit to limit the damagesavailable to an employee who was wrongfully fired.You can be fired after you’re fired? Here’s how it works. Let’ssay an employer fires its chief financial officer (CFO) because itwants to hire someone younger for the job. The employee files anage discrimination lawsuit. During the discovery phrase of trialpreparations, when the parties gather and exchange informationand documents, the employer learns that the employee falsifiedher resume, which said that she graduated from Yale Universityand received an MBA from Harvard Business School. In fact, theemployee dropped out of Yale after two years, never completed herundergraduate degree, and never attended business school. Thecompany required all applicants for the CFO position to have acollege degree and an MBA, and would not have hired the employeehad it known that her credentials were false. Even if the employee hasa slam-dunk age discrimination case, her damages will be limited towhat she would have earned between when she was wrongfully fired(because of her age) and when the employer discovered the evidencefor which it could have fired her legally (résumé fraud).9A

after-acquired evidenceACopying Confidential Documents Leads to Limited DamagesThe U.S. Supreme Court first recognized the after-acquired evidencetheory in McKennon v. Nashville Banner Publishing Company, 513 U.S.352 (1995), an age discrimination case. Christine McKennon, a 30-yearemployee grew concerned that she might be fired because of herage. She photocopied several confidential documents relating to thecompany’s financial condition, brought them home, and showed themto her husband as “insurance” and “protection” against losing her job.The company terminated her employment, claiming that it was part ofa reduction in force plan to cut costs; McKennon believed it was agediscrimination and filed a lawsuit.During her pretrial deposition, McKennon revealed that she hadtaken the financial documents. The company filed a motion forsummary judgment, claiming that even if it had been motivated by agediscrimination when it discharged McKennon, her misconduct gavethe company good cause to fire her. Therefore, the company argued,McKennon wasn’t entitled to win her age discrimination claim. Thecompany won its motion, and McKennon appealed all the way to theSupreme Court.The Supreme Court first found that after-acquired evidence doesn’taffect the employer’s liability for discrimination. If the employer haddiscriminatory motives for firing the employee, later evidence ofthe employee’s misconduct doesn’t change that fact. However, theCourt also found that after-acquired evidence should be consideredin determining damages. Back pay, for example, should be measuredfrom the date of the discriminatory firing until the date the employerdiscovered the after-acquired evidence. Beyond that date, theemployer had a legitimate reason to fire the employee, so it shouldn’tbe liable for her continuing lost wages.10

age discriminationAn employer who wants to rely on the after-acquired evidencedefense must be able to show that it would have fired or neverhired the employee if it had known about the employee’s fraud ormisconduct sooner. If, for example, the company’s past two CFOsdidn’t have MBAs or college degrees either, the company mighthave a harder time proving that it wouldn’t have hired the CFOif it knew her credentials were false. If, on the other hand, thecompany’s employee handbook states that résumé fraud is groundsfor termination, and the company has fired other employees when itlearned that they had falsified their credentials, the company wouldmore likely be entitled to rely on this defense.Related terms: age discrimination; wrongful termination.age discriminationAn employer commits age discrimination when it treats an employeeor applicant differently because of the person’s age. The federalAge Discrimination in Employment Act (ADEA) prohibits agediscrimination against those who are at least 40 years old. Moststates also have laws prohibiting age discrimination, and some don’tapply this 40-year-old age limit. A few states protect employees onlyuntil their 70th birthday.Age discrimination can happen at any stage of the employmentprocess, from hiring to promotions, benefits, compensation, andlayoffs. Often, age discrimination cases include evidence of agerelated stereotypes or comments that indicate a lack of respect forolder workers, such as statements about “senior moments” or olddogs who can’t learn new tricks; comments about wanting to bringin younger (or more “energetic” or “youthful”) employees; andassumptions about older workers’ knowledge or skills (for example,that they aren’t tech-savvy or up-to-date on the latest trends).Related terms: Age Discrimination in Employment Act; OlderWorkers Benefit Protection Act.11A

age discriminationA54 Is the New “Old Fuddy-Duddy”:Google Sued for Age DiscriminationThe California Supreme Court reinstated a fired manager’s age discrimination lawsuit against the search-engine giant Google, finding that the trialcourt shouldn’t have thrown the case out before a jury heard the facts.Brian Reid, who was fired at the grand old age of 54, claimed that he wasdemoted into a dead-end position and later fired because of his age. Age-related comments. He was referred to as an “old man,” an“old guy,” and an “old fuddy-duddy,” told he was “slow,” “fuzzy,”“sluggish,” and “lethargic,” and told that his ideas were “obsolete”and “too old to matter.” He was also told that he should replacethe CD jewel case that served as his office placard with an LP.(Apparently, when only 2% of a company’s workforce has celebrateda 41st birthday, as was true of Google at the time, those in their 50sstart looking like visitors from the Stone Age.) Email messages suggesting that Google’s managers were tryingto get their stories straight. One message said that the company’sdecision to give Reid no bonus might not be “consistent with allsimilarly situated performers”; if that wasn’t clear enough, themessage also suggested giving Reid a bonus and severance package“to avoid a judge concluding we acted harshly.” A company vicepresident asked for guidance on what to say if Reid asked for aposition in another department, asking that the HR Director “makesure I am completely prepped” and “get me clear on this” beforeshe had to talk to Reid. After much back and forth, the HR Directorconcluded, “We’ll all agree on the job elimination angle.” Statistical evidence. As a company that’s perhaps best known foran algorithm, Google will need an answer for the claims of Reid’sexpert witness, a statistician who reported a statistically significantnegative correlation between age and performance rating, as wellas age and bonus amount, at Google. For every ten-year increase inage, the statistician found a corresponding decrease in performancerating and a 29% decrease in bonus.Reid v. Google, 113 Cal. Rptr. 3d 327 (Cal. Supreme Court 2010).12

Age Discrimination in Employment ActAge Discrimination in Employment ActThe federal Age Discrimination in Employment Act (ADEA) waspassed in 1967 to address the difficulties older employees facein the workplace, including mandatory retirement cutoffs anddiscrimination in hiring. The ADEA prohibits discrimination inevery aspect of employment against employees and applicants whoare at least 40 years old, with a few limited exceptions to recognizethat advanced age may, in some circumstances, affect our ability toperform certain jobs effectively.Congress amended the ADEA in 1990 when it passed the OlderWorkers Benefit Protection Act (OWBPA), which added detailedprovisions on employment benefits (some of which may becomemore costly for employers to provide as employees age) and waivers.That law is covered in a separate entry.Who the ADEA covers. The ADEA applies to federal and localgovernments, as well as private employers that have at least 20employees. State government employees are also protected by thelaw, but they don’t have the right to sue their employers to enforcethose rights; only the Equal Employment Opportunity Commissionmay sue a state to protect state employees from age discrimination.Discrimination prohibited by the ADEA. The ADEA protectse mployees who are at least 40 years old from harassment or discrimination based on their age. If an employee or applicant is denied abenefit (such as a job, promotion, or job-related perk) because of hisor her age, it doesn’t matter if the employee who received the benefitis also at least 40 years old.Example: A company decides to promote a 45-year-old employeerather than a 65-year-old employee, based on age. Under theADEA, that’s age discrimination, even though the youngeremployee is old enough to be protected by the ADEA.Employees may not claim “reverse” age discrimination evenif they are 40 or older. For example, a 45-year-old employee maynot claim age discrimination because older workers received better13A

Age Discrimination in Employment ActAbenefits. If the older worker is treated better, the ADEA has notbeen violated.Actually, you really are too old. Employers may use age as a basisfor employment decisions in a few limited circumstances. If anemployer who relies on one of these exceptions is sued for agediscrimination, it will bear the burden of proving that its actions fellwithin the exception: Bona fide seniority system. An emp

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