In a recent case out of the Sixth Circuit, the court addressed the concept of “racial balance,” finding that an effort to achieve racial balance in disciplinary measures constitutes direct evidence of discrimination. While this is by no means the first case to deal with “racial balance” and discrimination, I am wondering: are all “racial balance” cases created equal?
In Ondricko v. MGM Grand, the plaintiff, a white woman, claimed reverse race discrimination (and sex discrimination) after she was fired from her job as a floor supervisor in the casino. Ondricko was ostensibly fired for participating in a “bad shuffle” at a blackjack table that she supervised. This type of incident is apparently not uncommon, and the court had at least six other similar incidents to compare involving white and black men and women who had engaged in similar conduct and whose discipline varied from several-day suspensions to terminations.
The “smoking gun” in this case is the interesting part. Four months before Ondricko’s incident, a black woman was terminated for her involvement in a similar incident involving unshuffled cards put into play. Around the time that supervisors were discussing the appropriate discipline for plaintiff, two managers had a conversation in which one noted that the black woman’s lawyers had called and wanted to know how the casino was going to handle Ondricko’s case (presumably because they viewed her as a similarly situated comparator). The other manager responded by saying, “do you think I wanted to fire [Ondricko], I didn’t want to fire [her], how could I keep the white girl?” The Sixth Circuit determined, based on this statement, that a reasonable jury could conclude that race was a motivating factor in the decision to terminate. “[I]t is certainly reasonable to conclude . . . that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.” In support of this proposition, the court cited another Sixth Circuit case involving a school board’s attempt to be racially balanced in the hiring of school employees. And that was essentially the end of the court’s analysis.
But Ondricko was not an affirmative action case nor was it a case about achieving racial balance in hiring. Instead, the case was about insuring racial balance in the employer’s discipline of its employees. The Sixth Circuit did not see a distinction between these two types of “racial balance” cases, but I think that is a flawed view. This case may not be the best example because the desire to mete out the same discipline across races was expressed in response to a call from a lawyer but what if that had not been the case? Although race is technically a motivating factor when an employer attempts to be “racially balanced” in its approach to disciplining employees, is that the type of case Title VII is intended to cover? Shouldn’t we, on some level, be encouraging employers to be mindful about race when meting out discipline and to insure that they are treating employees of all races the same? If they don’t, they risk disparate treatment claims for treating employees differently based on race. To call race a “motivating factor” in this type of case and not discuss the potentially legitimate reason for consideration of race seems to be a flawed or, at least, an incomplete analysis.
I think there is an analogy here to Ricci v. DeStefano, in which the Supreme Court recently concluded that an employer’s fear of disparate impact litigation is only a legitimate basis for intentional discrimination when the employer possesses a “strong basis in evidence” for believing that a valid disparate impact claim can be asserted. The Court in Ricci may have made my argument about Ondricko and racially balanced discipline more problematic, but I would be interested to hear others’ views on this issue.