New Legal Test of Affirmative Action Arrives

WASHINGTON — Despite the controversial effort by civil rights leaders to head off a Supreme Court ruling on affirmative action, the justices should get another chance soon to rule on whether employers may use race as a hiring factor to promote diversity in the workplace.

Lawyers for a white sociologist who formerly worked for the University of Nevada say they will ask the high court next month to hear her antidiscrimination lawsuit. Her case had been put on hold pending the outcome in the closely watched Piscataway, N.J., case, which ended last week after black leaders contributed $308,500 of a $433,500 settlement that was paid to a white teacher to drop her anti-bias lawsuit.

Yvette Farmer, the sociologist, was interviewed for a teaching post at the Reno campus in 1990, but alleges she was passed over in favor of a black African sociologist who had recently emigrated from Uganda.

A year later, Farmer was hired, but soon discovered she was earning nearly $11,000 less a year than her male colleague. The university’s affirmative action plan included an unwritten “minority bonus” policy that authorized the pay disparity.

“When I asked the department chairman [for an explanation], he said, ‘He’s black and you’re not.’ He said he was just being honest, but I was shocked he would even say that,” Farmer said in an interview Tuesday.

She says she received the same blunt explanation from the dean for arts and sciences and a university vice president.

In 1993, she filed a discrimination suit against the university, and a jury awarded her $40,000 in damages. But earlier this year, the Nevada Supreme Court threw out the verdict. On a 3-2 vote, it ruled the university can give hiring preferences and higher salaries to minority faculty members.

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Farmer’s case squarely raises the question that now divides the lower courts: Can an employer with a mostly white work force but no documented history of past discrimination give hiring or promotion preferences to minorities?

The university “has a compelling interest in fostering a culturally and ethnically diverse faculty,” the state court said in ruling against Farmer. Only 1% of its faculty was black in 1990, and “a failure to attract minority faculty perpetuates the university’s white enclave and further limits student exposure to multicultural diversity,” wrote Chief Justice Thomas Steffen.

In dissent, Justice Charles Springer said the pursuit of diversity “simply cannot justify the university’s undisguised racial discrimination. This is not a case of remedial affirmative action. Even if it were, it is difficult to see how hiring a recent emigrant from Africa would be an appropriate remedy for prior discrimination against black Americans.”

Farmer’s lawyers had asked the Nevada court to not issue a final ruling in her case until the Supreme Court had ruled in the Piscataway case. But last Friday, just hours after the settlement was announced, the state court dismissed her final appeal.

Mark T. Gallagher, an attorney for the Pacific Legal Foundation in Sacramento, says his office will appeal Farmer’s case to the Supreme Court in two or three weeks.

“We have the [appeal] petition all ready to go. We were really waiting to see what would happen in Piscataway,” Gallagher said.

It will be several months before the justices announce whether they will hear the case.

Last week, civil rights lawyers were nearly unanimous in labeling the Piscataway dispute “a bad case.” To promote diversity, school officials in 1989 laid off Sharon Taxman, a white business teacher, while retaining an equally qualified black teacher.

The case loomed as a major test of affirmative test in a more conservative Supreme Court.

But civil rights lawyers said the case was too neat to match the real world. Rarely, if ever, are two employees exactly equal, they said. In addition, few employers would admit, as did Piscataway school leaders, that race was the deciding factor in an employment decision, they said.

Several civil rights lawyers who worked on the Piscataway case said they were unaware of the pending case from Nevada. Told of the facts, they said it looked to be a better test of the law.

“What jumps out at me are the statistics,” said Chris Hansen of the American Civil Liberties Union in New York. If only 1% of its faculty were black, that alone could justify affirmative-action hiring, he said.

But others said the case was still less than ideal because it did not consider whether the employer had discriminated in the past.

“The problem is you have litigation between a white plaintiff and a predominantly white institution,” said Richard T. Seymour of the Lawyers Committee for Civil Rights Under Law in Washington. The university is “not inclined to throw stones at itself” and admit a history of prior bias, he said.

For their part, University of Nevada officials readily admit race plays a key factor in their decisions.

Chancellor Richard Jarvis has defended the policy of aggressively recruiting minority professors.

“To be able to recruit the best minority candidates, you usually have to pay premium salaries,” he said. “That’s just the way it is.”

In an interview Tuesday, former university general counsel Donald Klasic said the lower annual salary given to Farmer did not violate the Equal Pay Act because it was not based on her gender. Farmer’s initial salary was $7,000 lower, but the pay gap rose to $10,838 because of bonuses for her minority colleague.

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“It was not a male-female thing. It was a black-white thing,” Klasic said. “Black doctorates are scarcer than hen’s teeth, so they command a higher salary. As for women doctorates in sociology, there are lots of them,” he said.

Farmer, 37, who left the university to take a job in the Seattle area, said she is still offended that she was paid less than the other professor.

“If people are equally qualified, they should be paid the same,” she said.

She adds that she does not blame Johnson Makoba, the professor who received the higher pay.

“He is a bright, intelligent individual who got the best deal he could. We were friends and neighbors,” she said. “This suit was not about him, but what the university did. I just wanted to be paid fairly.”