As further proof that no good deed goes unpunished, one Ohio appellate court has held that an employer’s affirmative action plan (AAP) may be used against it to prove discrimination. Strange as it may seem, the court’s decision highlights the risks associated with invalid AAPs and gives employers everywhere reason to reevaluate their efforts on this front.

In a reverse race and gender discrimination case, the Montgomery County Court of Appeals held that a public employer’s affirmative action plan could amount to direct evidence of employment discrimination at trial if the plan is found invalid under Title VII of the Civil Rights Act and the Equal Protection Clause of the Constitution. Mitchell v. Lemie 2007-Ohio-5757.

In Mitchell, plaintiff, a white male employee of the City of Dayton, attempted to rely on the city’s AAP as direct evidence of discriminatory intent in his challenge to the decision to promote an African American female instead of him. The trial court, however, refused to admit the AAP into evidence. The court of appeals reversed the trial court’s decision, finding that the trial court should have considered the AAP before granting a directed verdict to defendants. 

In its reversal of the trial court, the appellate court found that the city’s AAP was in effect when the alleged discrimination occurred and that, despite defendants’ denials, defendants acted pursuant to the plan in making the challenged promotion decision. 

Citing federal court precedent, the appellate court held that, if the city’s plan was invalid under Title VII and (because the city was a public employer) the Equal Protection Clause, it “amounts to nothing more than a formal policy of unlawful discrimination.” The court further stated that, when a public employer acts pursuant to an invalid plan, then, regardless of its good intentions, that employer “commits unlawful discrimination when it takes race into account in an employment decision . . . .”

The court of appeals went on to find that the city’s AAP was invalid because it failed to recognize that an underrepresentation of females or minorities in its work force does not, in itself, justify consideration of race or sex in its employment decisions. Furthermore, with respect to skilled positions – such as the one that was at issue in the case – the city also failed to demonstrate that women and minorities were underrepresented when compared with the availability of skilled workers in the labor market.

The Mitchell decision requires employers to take a long, hard look at their diversity initiatives and voluntary AAPs to ensure that the underlying justifications and methods of implementation do not serve as the basis for a reverse discrimination claim. Generally, voluntary plans will be lawful if they: 1) are designed to eliminate manifest imbalances in traditionally segregated job categories; 2) do not unnecessarily impede the interests of non-minority workers or create an absolute bar to their advancement; and 3) are not intended to maintain racial balance, but, rather, operate only to eliminate manifest racial imbalances. In the absence of this difficult-to-make showing, employers will be vulnerable to reverse discrimination allegations.