By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
Gehan hates the term "reverse discrimination": When white men lose jobs because of their race, he says, that's just plain old discrimination. And legally, he's right. In general, courts have acknowledged that affirmative action calls for treating people differently based on factors such as race, gender, or disability--in other words, that it is a form of bias.
They have also held--most notably in high-profile U.S. Supreme Court cases such as University of California Regents v. Bakke and Richmond v. Croson--that sometimes "subtle preferences" are the only way to redress a history of injustice. Exactly what the limits of those preferences should be is still being hashed out in courts throughout the nation. But a few basic principles have emerged.
The first is that affirmative-action programs such as expanded certification can be used only when members of a particular minority group are underrepresented in a given field or job category. "In other words, if you want to take race into account, you have to show me you have a compelling reason," explains Michael Jordan, who teaches employment law at William Mitchell College of Law in St. Paul.
Gehan argues that Minneapolis failed the first test in terms of raw numbers: When expanded certification was introduced into the promotions system, he says, blacks were not underrepresented in the rank of sergeant at the MPD compared to their overall employment on the force. Gehan wouldn't produce numbers to prove his point, but the personnel data obtained by City Pages indicate that in November, the department had 17 black sergeants, including the 4 promoted through expanded certification. That put the share of African Americans in the sergeant rank at 7 percent, compared to 6.23 percent in the department as a whole.
City officials refused to discuss Gehan's argument, or anything else about the lawsuit. But the Civil Service Commission's rule on expanded certification says the number of minorities in a given job category should reflect their share of the overall labor market. By those numbers, African Americans--who make up 13.25 of Minneapolis's population, according to city documents--would qualify as underrepresented both in the MPD and in the sergeant's rank.
But that argument, even if a judge accepts it, may not get the city off the hook. The second test the courts have usually applied to affirmative-action programs is whether the lack of minorities in a particular job is a result of past discrimination. Some courts have gone even further, ruling that the bias must have been intentional. Minneapolis's civil-service rules state that discrimination can be a result of past practices "elsewhere in society," not just in the city bureaucracy.
But that expansive view, says Gehan, is inappropriate: "The remedy has to fix the existing injustice rather than the historic injustice," he insists. "There's simply nothing we can do to make reparations for prior discrimination."
If all of this seems confusing, that's because it is. Law professor Michael Jordan says current affirmative-action rules set up a dilemma for employers: If bosses want to increase opportunities for disadvantaged groups, they must first prove that they have not eliminated discrimination so far. Add the reams of paperwork and statistical analysis involved, and some employers simply throw up their hands in disgust.
It doesn't have to be that way, Jordan hastens to add. "[The law] creates whatever incentive you want it to create. If you're not really committed to the ideals of affirmative action and you've created a program out of political expediency, it creates a legal disincentive. If you are committed, it creates an incentive to do your homework."
Which of those two propositions applies to Minneapolis is hard to tell: City officials, critics point out, have staked out firm positions on both sides of the affirmative-action argument. Jim Michaels, a labor attorney who represents the police federation as well as a number of other public-sector unions, cites a recent case involving the Minneapolis Department of Public Works. The way Michaels tells it, several years ago women engineers complained that they were discriminated against in the promotions system. They sued, and the city--pointing to its existing affirmative-action plan--maintained that they weren't victims of bias. In 1995 the city settled with the women, paying out $1.2 million but admitting no liability.
The issue popped back up last year when there were openings for two engineers to be promoted. The list prepared using the Rule of Three had no women on it, so the city notified the engineers' union that it planned to use expanded certification. The union, Michaels says, asked for statistics to justify the move, but never got them. "Rather than go ahead and risk suit," he explains, "the director of [Personnel] went to Civil Service and asked them to find that there was a past history of intentional discrimination."
When he learned about the request, he says, he told the commission that the city seemed to be speaking out of both sides of its mouth. "If you make a finding now, in 1999, [of something] that you maintained in 1995 was not the case, does that mean you're making a material misrepresentation of the facts in a federal court?"
The system forces employers to contradict themselves on a regular basis, he adds: "Affirmative Action is the only area I've ever seen that runs on the theory that two wrongs make a right"--that discrimination against one class of people can be fixed by discriminating against another.