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by Jennifer Brown Shaw and Carolyn G. Burnette | The Daily Recorder | Mar 26, 2008

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination based on a variety of protected criteria, including race. The law does not distinguish between races. Everyone is equally entitled to the law’s protection. At the same time, claims of race discrimination by white males are less common than by persons of other races. These claims are sometimes called “reverse discrimination” complaints. The California Court of Appeal recently examined one such case in Hicks v. KNTV Television, Inc. The decision should remind employers and employees that every employee is entitled to civil rights protections, not just those who belong to “minority” groups.

Are the Legal Standards Different for “Reverse Discrimination” Claims?

Hicks was decided under California legal standards. To prove race discrimination under the FEHA, an employee must show he or she was subjected to an adverse employment action because of his or her race. This standard applies regardless of the plaintiff’s race. The anti-discrimination provisions of the FEHA are similar under federal law. However, some federal courts impose an increased burden upon white plaintiffs. This burden generally requires a higher showing of “background circumstances” that support the suspicion of discriminatory intent.

As the D.C. Circuit Court of Appeals explained in Mastro v. Potomac Elec. Power Co., 371 U.S. App. D.C. 68 (D.C. Cir. 2006), two general categories of evidence constitute “background circumstances.” The first is evidence indicating the particular employer “has some reason or inclination to discriminate invidiously against whites.” The court gave as an example “political pressure to promote a particular minority because of his race, pressure to promote minorities in general, and proposed affirmative action plans.” The second category, the federal court explained, is evidence indicating that “there is something äóÖfishy’ about the facts of the case at hand that raises an inference of discrimination.” That could include evidence that a plaintiff was given “little or no consideration” for a promotion and that the supervisor never fully reviewed the qualifications of the minority promotee, and evidence that a minority applicant was promoted over four objectively better-qualified white applicants “in an unprecedented fashion.”

The court of appeal in Hicks acknowledged this requirement in a footnote. However, the court refused to adopt the D.C. Circuit’s (and other federal courts’) requirement of additional “background circumstances” for prima facie cases under the FEHA.

What Happened to Hicks?

Bradford Hicks, a white male, worked as a news anchor for KNTV. His contract expired, was not renewed and the station hired a black male to replace him. KNTV offered evidence that it did not renew Hicks’ contract because his on-air personality was too “aloof, distant, standoffish, unapproachable and anchor-like.” The station wanted someone who would come across as a “regular” person. Hicks claimed the station refused to renew his contract because it was under pressure to hire minorities, particularly a black news anchor. The trial court granted summary judgment in favor of KNTV, finding no triable issue of fact that the station had engaged in race discrimination. Hicks appealed.

Lessons from the California Court of Appeal

Reviewing the trial court’s decision, the court of appeal made many noteworthy observations. First, the Court pointed out that Hicks had mischaracterized the adverse action against him as a “termination.” Because Hicks’ contract had expired, the adverse action should have been characterized as a discriminatory refusal to hire. The analysis of each claim is different because the statute of limitations may begin to run at different times, and the elements of the prima facie case of discrimination vary depending on the type of adverse action alleged.

The Court next dismissed Hicks’ argument that he was more objectively qualified for the job than Holmes, the black male who replaced him. Hicks had 13 years of journalism experience, compared to Holmes’ two years of experience. Hicks had eight years of experience as a regular weeknight anchor, compared to Holmes, who had no regular anchor experience at all. Hicks had familiarity with the local news market, while Holmes did not. Finally, Hicks had received numerous journalism awards, compared to Holmes, who had none at all.

The Court found these facts to be irrelevant to determining whether race discrimination had occurred. Rather, the Court focused on whether KNTV’s proffered reason for refusing to renew Hicks’ contract was pretextual. The Court determined that the only thing that mattered was whether KNTV was being truthful when it said Hicks’ contract was not renewed because of his on-air personality. The Court noted that subjective criteria have become more “critical” to making employment decisions. The Court recognized that personality traits such as “common sense, good judgment, originality, loyalty, and tact,” while subjectively analyzed, are “essential to an individual’s success in a supervisory or professional position.”

To prove KNTV considered his race in reaching its decision, Hicks argued that every white anchor who left the station was replaced with a minority. The Court was not persuaded, however, and relied on the fact that the number of affected employees was too small to establish a pattern. The Court also noted that Hicks’ position would urge the Court to assume that simply failing to replace white employees with other white employees is evidence of discrimination äóñ a position the Court found to be “faulty.”

The Court next opined that the mere existence of an affirmative action program at KNTV was insufficient to support Hicks’ assertion that the station was bound to make hiring decisions based on race. The Court rejected the notion that the existence of the affirmative action program tended to prove there was “pressure” on KNTV to hire minorities.

The Court also noted that Hicks was unable to produce substantial evidence showing KNTV “lied” about their reasons for refusing to renegotiate Hicks’ contract. The station’s failure to document Hicks’ performance deficiencies did not raise an inference of pretext. The Court further commented that it was not “so strikingly unusual that a single supervisor might not document his dissatisfaction with a single individual, particularly when the individual is working under a contract that was about to expire anyway.”

The Court also discussed that a job recommendation KNTV provided for Hicks to another station did not establish that KNTV’s lack of satisfaction with Hicks’ performance was pretextual. The station’s recommendation had focused on Hicks’ skills as a reporter, not his skills as an anchor (the job Hicks was denied).

Finally, the Court determined that a disputed issue of fact existed as to whether Hicks had been verbally counseled about his performance on five separate occasions. Hicks argued that KNTV “lied” about these counselings, and that this also proved that the reason for refusing to renew his contract was a pretext for race discrimination. The Court rejected this argument as immaterial and not “reasonable” in light of all other evidence presented.

Applying Hicks to the Workplace

While Hicks will be helpful to litigants with respect to analyzing the legal strengths and weaknesses of their respective positions, the case also provides practical guidance for the workplace. First, as stated, all employees – regardless of race – are entitled to civil rights protections. In the absence of a government-required “affirmative action plan” or court order, employers must be careful not to give workplace preferences to any person based on race, and must always rely on legitimate business criteria when making employment decisions.

Second, employers must carefully consider and document their reasons for allowing employment contracts to expire. As with every employment decision, it is important to have a legitimate business reason for terminating the relationship and it cannot be based on concerns about any protected characteristic.

Employers should take to heart the Hicks Court’s endorsement of subjective criteria as legitimate factors for employment decisions. Some courts in the past have questioned subjective criteria as “suspicious” because they are so easily manipulated, and because one supervisor’s opinion may differ from another’s. There is no reason for any business to shy away from analyzing a job candidate’s “common sense, good judgment, originality, loyalty, and tact” when considering whether the candidate is qualified for a job. Nevertheless, subjective opinions may be influenced by conscious or unconscious bias. Therefore, exclusive reliance on such criteria may cause employees to question the accuracy of such evaluations. Multiple evaluators and averaging may help ameliorate such problems. Additionally, employers should ensure there are adequate means for employees to raise concerns with human resources or higher levels of management.