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Direct Evidence of Unlawful Discrimination Found by Following Affirmative Action Plan

On September 3, 2009, the Eighth Circuit Court of Appeals ruled in Humphries v. Pulaski County Special School District in favor of a white elementary school counselor that alleged she was denied eight promotions to assistant principal positions during a seven-year period due to the district’s affirmative action plan.  In its ruling, the Court joined the Fourth, Fifth, Ninth, Tenth and Eleventh Circuits in holding: “[E]vidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination.”  The counselor claimed the implementation of the affirmative action plan resulted in racial discrimination in favor of black applicants. The affirmative action plan included, but may not have been limited to, policies, practices, procedures, and goals under a consent decree plan resulting from a long history of intentional racial discrimination by the school district.  

The decision reverses the trial court’s ruling which found that the counselor failed to set forth direct evidence of discrimination because she did not present any evidence that the affirmative action plan played any part in the district’s decisions not to promote her, and she failed to establish that the plan was invalid. The Eighth Circuit found that a factual issue existed concerning whether there was a specific link between the school district’s decisions not to promote the counselor and the district’s affirmative action plan. The Court then explained that the counselor also had to show that the district’s affirmative action plan was invalid under Title VII and the Equal Protection Clause. The school district could not rely on the consent decree to show that its plan was valid because the plan may have involved actions that went beyond the requirements of the consent decree or any other court orders. Moreover, the counselor established a factual issue as to whether the district’s plan addressed a manifest racial imbalance in the workforce and whether the plan was aimed at attaining a balance in the workforce.


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