On January 14, the U.S. Department of Justice initiated an enforcement action against the State of Minnesota alleging that the State violated Title VII of the Civil Rights Act when it directed state agencies to “engage in employment practices that balance the sex and race composition of its workforce with the civilian labor force.” To be clear this complaint focuses on the State’s alleged efforts to diversify its employee population. It does not address the affirmative action obligations of state contractors or private employers located in Minnesota. Nonetheless, all employers should take the time to review this complaint, particularly the discussion of “manifest underutilization” (also referred to as “manifest imbalance” in other cases).
The overall allegation is that Minnesota’s statewide affirmative action program mandates goals and specific actions to increase representation of certain protected groups to the disadvantage of others. The alleged diversity initiatives at the center of this case include, among others:
- A policy requiring hiring managers to provide an explanation for selecting a “non-affirmative action candidate” over a member of a protected group.
- A practice of changing minimum qualifications for a position in order to recruit more diverse applicants.
- Granting agencies certain benefits for making “measurable” progress toward the goals.
- Requiring agencies to offer interviews to at least three underrepresented applicants regardless of qualifications.
- Requiring agencies to track “underutilization” and take steps to increase representation where necessary.
- Annually auditing state agencies to determine compliance with affirmative action requirements. Agencies failing to meet any of requirements for two consecutive years are reported to the Governor.
The DOJ alleges these actions, among others, indicate that “Minnesota regularly and purposefully limits, segregates, and classifies employees and prospective employees” based on their race, color, national origin, and sex” in violation of Title VII. The complaint likens these efforts to those initially sanctioned by the Supreme Court to remedy a “manifest imbalance” in the workforce in violation of Title VII. United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979); Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987).
The term “manifest underutilization” or “manifest imbalance” received renewed attention in 2020 in response to the DEI movement. Some read Weber and Johnson as providing a safe harbor for employers to make race, ethnicity, and gender-based employment decisions in an effort to achieve a more diverse workforce. However, these decisions date back to a period of time shortly after the passage of the Civil Rights Act, a time when many workplaces remained segregated. Weber and Johnson provided employers, who acknowledged that they discriminated, with some latitude to make race- and gender-based decisions necessary to desegregate their workforces and come into compliance with Title VII.
The DOJ points to the Supreme Court’s 2020 decision, Bostock v. Clayton County, to support its contention that voluntary affirmative action efforts or unlawful DEI strategies, such as those allegedly undertaken by the State of Minnesota, and those previously sanctioned by Weber/ Johnson violate Title VII because they require employers to take race or gender into account when making employment decisions.
Given the allegations in the Complaint, this matter is one employers in both the private and public sectors should keep track of. Any employers, who relied on Weber/Johnson to support certain DEI initiatives, should review those DEI efforts with counsel.
The complaint is available HERE.
