Monday, July 18, 2016

Does the refusal to hire an African American man to infiltrate the KKK violate Title VII?

The case of Ritchie v. Napolitano, No. 13-cv-953 (TSC) (D.D.C. July 11, 2016), raises the interesting question of whether an employer is permitted to hire someone of a particular race to engage in undercover operations. Scott Ritchie, a 43-year-old white man, alleged that he was not selected for a transfer to a White House undercover law enforcement unit because of his race. The evidence showed that, in the view of the Secret Service, the unit already had too many white men, and it was necessary for the unit's officers to "be physically and ethnically diverse as they must assimilate into the environment surrounding the White House Complex."

Denying the Secret Service's motion for summary judgment, Judge Tanya Chutkan rejected the Service's diversity defense to race discrimination:

The Service argues that in the unique case of undercover law enforcement hiring and assigning, there is a compelling interest in using "diversity-conscious" criteria, and that the use of such criteria is permissible so long as it is narrowly tailored to meet that compelling interest. But the overwhelming majority of the cases that the Service cites for this proposition are Equal Protection Clause cases, all of which are inapplicable here because Ritchie has not brought an Equal Protection claim . . . . The Service cites only two non-Equal Protection Clause cases for the proposition that, in ruling on a motion to dismiss, courts can use an Equal Protection-like analysis in assessing race-conscious employment decisions under Title VII. But these cases are also inapposite here, as they are clearly limited to situations involving remedial affirmative action plans.
I share Judge Chutkan's skepticism. As I discussed in a prior post about Fisher v. University of Texas, which upheld race-conscious university admissions programs designed to promote racial diversity, it seems doubtful that Title VII permits an employer to make race-based selection decisions to promote diversity.

But regardless of the soundness of the defendant's diversity argument, it is clear that Ritchie's case is not so much about an employer's interest in a diverse workforce per se as it is about an employer's interest in using race as a qualification standard. If a law enforcement agency wants to infiltrate the KKK, it doesn't need a diverse workforce, but a uniformly white workforce. Similarly, the Secret Service's interest in a diverse White House undercover unit merely reflects the diverse population in which the undercover agents are required to assimilate.

In the 1980 decision in Miller v. Texas Board of Barber Examiners, 615 F.2d 650 (5th Cir. 1980), an African American man alleged that the defendant assigned him based on his race to perform undercover inspections of black barber shops. The court did not reach the merits of this claim, but it nevertheless included a lengthy discussion in dicta. As the court noted, Title VII's bona fide occupational qualification (BFOQ) exception can be a defense to discrimination based on sex, religion, or national origin, but not race. The court suggested, however, that the judge-made business necessity defense might apply to a claim of intentional race discrimination, not merely disparate impact:

Miller was assigned for years as an undercover investigator of black barber shops because he is black. None of the white investigators were assigned these duties for reasons easily understood; it is difficult to imagine a caucasian successfully disguised as a shoeshine boy in or as a patron of an all black barber shop. A business necessity exception may also be appropriate in the selection of actors to play certain roles. For example, it is likely that a black actor could not appropriately portray George Wallace, and a white actor could not appropriately portray Martin Luther King, Jr. 
In enacting the Civil Rights Act of 1991, Congress subsequently amended Title VII to explicitly state that the business necessity defense does not apply to claims of intentional discrimination. Therefore, both the BFOQ and business necessity defenses seem to be off the table.

But assuming there is a potential defense, that still doesn't necessarily mean it will apply in a given case, even in the undercover context. To be sure, if a law enforcement agency needs to infiltrate a racially homogeneous group, like the KKK, then the inability to rely on race could significantly impede its ability to hire qualified employees. By contrast, in Ritchie, the target population was racially diverse, so it is not clear that the racial makeup of the undercover unit really needed to mirror the target population.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.