Employment Law

University and Community College System of Nevada v. Farmer

  • Re-read the University case, “University and Community College System of Nevada v. Farmer in your textbook.
  • Note the data under the case title: 113 Nev. 90, 930 P.2d 730 (Nev. Sup. Ct. 1997), cert. denied, 523 U.S. 1004 (March 9, 1998). What do these details signify?
  • Study the case questions in the text at the end of the case. In addition, look through other material provided in Lecture Notes and in the Preface.
  • Outline and submit the case, using the standard legal outline headings. (See “Sample Outline for Legal Cases” in Course Materials.) 

Background

Between 1989 and 1991, only one percent of the University

of Nevada’s full-time faculty were black, while eighty-seven

to eighty-nine percent of the full-time faculty were

white; twenty-five to twenty-seven percent of the full-time

faculty were women. In order to remedy this racial imbalance,

the University instituted the “minority bonus

policy,” an unwritten amendment to its affirmative action

policy that allowed a department to hire an additional faculty

member following the initial placement of a minority

candidate.

In 1990, the University advertised for an impending

vacancy in the sociology department. The announcement

of the position vacancy emphasized a need for proficiency

in social psychology and mentioned a salary range between

$28,000.00 and $34,000.00, dependent upon experience

and qualifications. The University’s hiring guidelines

require departments to conduct more than one interview;

however, this procedure may be waived in certain cases.

Yvette Farmer was one of the three finalists chosen by the

search committee for the position but the University

obtained a waiver to interview only one candidate, Johnson

Makoba, a black African male. The department chair

recalled that the search committee ranked Makoba first

among the three finalists. Because of a perceived shortage

of black Ph.D. candidates, coupled with Makoba’s strong

academic achievements, the search committee sought

approval to make a job offer to Makoba at a salary of

$35,000.00, with an increase to $40,000.00 upon completing

his Ph.D. This initial offer exceeded the advertised salary

range for the position; even though Makoba had not

accepted any competing offers, the University justified its

offer as a method of preempting any other institutions from

hiring Makoba. Makoba accepted the job offer. Farmer was

subsequently hired by the University the following year;

the position for which she was hired was created under

the “minority bonus policy.” Her salary was set at

$31,000.00 and a $2,000.00 raise after completion of her

dissertation.

Farmer sued the University and Community College

System of Nevada (“the University”) claiming violations

of Title VII of the Civil Rights Act, the Equal Pay Act

and for breach of an employment contract. Farmer alleged

that despite the fact that she was more qualified, the University

hired a black male (Makoba) as an assistant professor

of sociology instead of her because of the University’s

affirmative action plan. After a trial on her claims, the trial

court jury awarded her $40,000 in damages, and the University

appealed to the Supreme Court of Nevada. The

issue on appeal was the legality of the University’s affirmative

action plan under both Title VII and the U.S.

Constitution.

Steffen, Chief Justice

… Farmer claims that she was more qualified for the position

initially offered to Makoba. However, the curriculum

vitae for both candidates revealed comparable strengths

with respect to their educational backgrounds, publishing,

areas of specialization, and teaching experience. The search

committee concluded that despite some inequalities, their

strengths and weaknesses complemented each other; hence,

as a result of the additional position created by the minority

bonus policy, the department hired Farmer one year

later.…

The University contends that the district court made a

substantial error of law by failing to enter a proposed jury

instruction which would have apprised the jury that Title

VII does not proscribe race-based affirmative action

144 Part 2 » Equal Employment Opportunity

programs designed to remedy the effects of past discrimination

against traditionally disadvantaged classes. The University

asserts that the district court’s rejection of the proposed

instruction left the jury with the impression that all racebased

affirmative action programs are proscribed.…

Farmer … asserts that the University’s unwritten minority

bonus policy contravenes its published affirmative action plan.

Finally, Farmer alleges that all race-based affirmative action

plans are proscribed under Title VII of the Civil Rights Act

as amended in 1991; therefore, the University discriminated

against her as a female, a protected class under Title VII.

Tension exists between the goals of affirmative action

and Title VII’s proscription against employment practices

which are motivated by considerations of race, religion,

sex, or national origin, because Congress failed to provide

a statutory exception for affirmative action under Title VII.

Until recently, the Supreme Court’s failure to achieve a

majority opinion in affirmative action cases has produced

schizophrenic results.…

United Steelworkers of America v. Weber is the seminal

case defining permissible voluntary affirmative action plans

[under Title VII].… Under Weber, a permissible voluntary

affirmative action plan must: (1) further Title VII’s statutory

purpose by “break[ing] down old patterns of racial segregation

and hierarchy” in “occupations which have been

traditionally closed to them”; (2) not “unnecessarily trammel

the interests of white employees”; (3) be “a temporary

measure; it is not intended to maintain racial balance, but

simply to eliminate a manifest racial imbalance.” …

Most recently, in Adarand Constructors, Inc. v. Pena, the

Supreme Court revisited [the issue of the constitutionality

of] affirmative action in the context of a minority set-aside

program in federal highway construction. In the 5–4 opinion,

the Court held that a reviewing court must apply strict

scrutiny analysis for all race-based affirmative action programs,

whether enacted by a federal, state, or local

entity.… [T]he Court explicitly stated “that federal racial

classifications, like those of a State, must serve a compelling

governmental interest, and must be narrowly tailored to

further that interest.” …

Here, in addition to considerations of race, the University

based its employment decision on such criteria as educational

background, publishing, teaching experience, and

areas of specialization. This satisfies [the previous cases’]

commands that race must be only one of several factors

used in evaluating applicants. We also view the desirability

of a racially diverse faculty as sufficiently analogous to the

constitutionally permissible attainment of a racially diverse

student body.…

The University’s affirmative action plan conforms to

the Weber factors [under Title VII]. The University’s

attempts to diversify its faculty by opening up positions traditionally

closed to minorities satisfies the first factor under

Weber. Second, the plan does not “unnecessarily trammel the

interests of white employees.” The University’s 1992 Affirmative

Action Report revealed that whites held eighty-seven to

eighty-nine percent of the full-time faculty positions. Finally,

with blacks occupying only one percent of the faculty positions,

it is clear that through its minority bonus policy, the

University attempted to attain, as opposed to maintain, a racial

balance.

The University’s affirmative action plan … [also] passes

constitutional muster. The University demonstrated that it

has a compelling interest in fostering a culturally and ethnically

diverse faculty. A failure to attract minority faculty

perpetuates the University’s white enclave and further limits

student exposure to multicultural diversity. Moreover, the

minority bonus policy is narrowly tailored to accelerate

racial and gender diversity. Through its affirmative action

policies, the University achieved greater racial and gender

diversity by hiring Makoba and Farmer. Of note is the

fact that Farmer’s position is a direct result of the minority

bonus policy.

Although Farmer contends that she was more qualified

for Makoba’s position, the search committee determined

that Makoba’s qualifications slightly exceeded Farmer’s.

The record, however, reveals that both candidates were

equal in most respects. Therefore, given the aspect of

subjectivity involved in choosing between candidates,

the University must be given the latitude to make its

own employment decisions provided that they are not

discriminatory.

[The court then rejected Farmer’s claim that the 1991

amendments to Title VII prohibit affirmative action.]

… we conclude that the jury was not equipped to

understand the necessary legal basis upon which it could

reach its factual conclusions concerning the legality of the

University’s affirmative action plan. Moreover, the undisputed

facts of this case warranted judgment in favor of

the University as a matter of law. Therefore, even if the

jury had been properly instructed, the district court should

have granted the University’s motion for judgment notwithstanding

the [jury’s] verdict. Reversal of the jury’s verdict

on the Title VII claim is therefore in order.

The University … has adopted a lawful race-conscious

affirmative action policy in order to remedy the effects of a

manifest racial imbalance in a traditionally segregated job

category.…

Chapter 6 » Title VII of the Civil Rights Act and Race Discrimination 145

The affirmative action plan in the previous case was a voluntary plan; that is, it was not

imposed upon the employer by a court to remedy a finding of illegal discrimination. The

affirmative action plans in the Weber, Johnson, and Wygant cases were also voluntary

plans. Title VII specifically mentions affirmative action as a possible remedy available under

§706(g)(1). In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,

26 the Supreme Court held

that Title VII permits a court to require the adoption of an affirmative action program to

remedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld the

constitutionality of a judicially imposed affirmative action program to remedy race discrimination

in promotion decisions by the Alabama State Police.

ethical DILEMMA

You are the human resource manager for Wydget Corporation, a small manufacturing

company. Wydget’s assembly plant is located in an inner-city neighborhood,

and most of its production employees are African Americans and Hispanics, as well as

some Vietnamese and Laotians who live nearby. Wydget’s managers are white males

who sometimes have difficulty relating to the production workers. The board of directors

of Wydget is considering whether to establish a training program to groom production

workers for management positions, targeting women and minorities in particular. The

CEO has asked you to prepare a memo to guide the board of directors in its decision

about the training program. Should you establish such a program? How can you

encourage minority employees to enter the program without discouraging the white

employees? What criteria should be used for determining admission into the training

program? Address these issues in a short memo, explaining and supporting your

position.

The University has aggressively sought to achieve more

than employment neutrality by encouraging its departments

to hire qualified minorities, women, veterans, and handicapped

individuals. The minority bonus policy, albeit an

unwritten one, is merely a tool for achieving cultural diversity

and furthering the substantive goals of affirmative action.

For the reasons discussed above, the University’s affirmative

action policies pass constitutional muster. Farmer

has failed to raise any material facts or law which would

render the University’s affirmative action policy constitutionally

infirm.…

Young and Rose, JJ., concur.

Springer, J., dissenting [omitted]

Case Questions

1. Why did the University adopt its affirmative action

plan and the “minority bonus policy”?

2. How was Farmer injured or disadvantaged under the

University’s affirmative action plan?

3. How does the Court here apply the Weber test for

legality of affirmative action under Title VII to the

facts of this case? Explain your answer.

4. According to the Court here, how does the constitutional

“strict scrutiny” test apply to the facts of the

 

case here? Explain your answer.Background

 

Between 1989 and 1991, only one percent of the University

of Nevada’s full-time faculty were black, while eighty-seven

to eighty-nine percent of the full-time faculty were

white; twenty-five to twenty-seven percent of the full-time

faculty were women. In order to remedy this racial imbalance,

the University instituted the “minority bonus

policy,” an unwritten amendment to its affirmative action

policy that allowed a department to hire an additional faculty

member following the initial placement of a minority

candidate.

In 1990, the University advertised for an impending

vacancy in the sociology department. The announcement

of the position vacancy emphasized a need for proficiency

in social psychology and mentioned a salary range between

$28,000.00 and $34,000.00, dependent upon experience

and qualifications. The University’s hiring guidelines

require departments to conduct more than one interview;

however, this procedure may be waived in certain cases.

Yvette Farmer was one of the three finalists chosen by the

search committee for the position but the University

obtained a waiver to interview only one candidate, Johnson

Makoba, a black African male. The department chair

recalled that the search committee ranked Makoba first

among the three finalists. Because of a perceived shortage

of black Ph.D. candidates, coupled with Makoba’s strong

academic achievements, the search committee sought

approval to make a job offer to Makoba at a salary of

$35,000.00, with an increase to $40,000.00 upon completing

his Ph.D. This initial offer exceeded the advertised salary

range for the position; even though Makoba had not

accepted any competing offers, the University justified its

offer as a method of preempting any other institutions from

hiring Makoba. Makoba accepted the job offer. Farmer was

subsequently hired by the University the following year;

the position for which she was hired was created under

the “minority bonus policy.” Her salary was set at

$31,000.00 and a $2,000.00 raise after completion of her

dissertation.

Farmer sued the University and Community College

System of Nevada (“the University”) claiming violations

of Title VII of the Civil Rights Act, the Equal Pay Act

and for breach of an employment contract. Farmer alleged

that despite the fact that she was more qualified, the University

hired a black male (Makoba) as an assistant professor

of sociology instead of her because of the University’s

affirmative action plan. After a trial on her claims, the trial

court jury awarded her $40,000 in damages, and the University

appealed to the Supreme Court of Nevada. The

issue on appeal was the legality of the University’s affirmative

action plan under both Title VII and the U.S.

Constitution.

Steffen, Chief Justice

… Farmer claims that she was more qualified for the position

initially offered to Makoba. However, the curriculum

vitae for both candidates revealed comparable strengths

with respect to their educational backgrounds, publishing,

areas of specialization, and teaching experience. The search

committee concluded that despite some inequalities, their

strengths and weaknesses complemented each other; hence,

as a result of the additional position created by the minority

bonus policy, the department hired Farmer one year

later.…

The University contends that the district court made a

substantial error of law by failing to enter a proposed jury

instruction which would have apprised the jury that Title

VII does not proscribe race-based affirmative action

144 Part 2 » Equal Employment Opportunity

programs designed to remedy the effects of past discrimination

against traditionally disadvantaged classes. The University

asserts that the district court’s rejection of the proposed

instruction left the jury with the impression that all racebased

affirmative action programs are proscribed.…

Farmer … asserts that the University’s unwritten minority

bonus policy contravenes its published affirmative action plan.

Finally, Farmer alleges that all race-based affirmative action

plans are proscribed under Title VII of the Civil Rights Act

as amended in 1991; therefore, the University discriminated

against her as a female, a protected class under Title VII.

Tension exists between the goals of affirmative action

and Title VII’s proscription against employment practices

which are motivated by considerations of race, religion,

sex, or national origin, because Congress failed to provide

a statutory exception for affirmative action under Title VII.

Until recently, the Supreme Court’s failure to achieve a

majority opinion in affirmative action cases has produced

schizophrenic results.…

United Steelworkers of America v. Weber is the seminal

case defining permissible voluntary affirmative action plans

[under Title VII].… Under Weber, a permissible voluntary

affirmative action plan must: (1) further Title VII’s statutory

purpose by “break[ing] down old patterns of racial segregation

and hierarchy” in “occupations which have been

traditionally closed to them”; (2) not “unnecessarily trammel

the interests of white employees”; (3) be “a temporary

measure; it is not intended to maintain racial balance, but

simply to eliminate a manifest racial imbalance.” …

Most recently, in Adarand Constructors, Inc. v. Pena, the

Supreme Court revisited [the issue of the constitutionality

of] affirmative action in the context of a minority set-aside

program in federal highway construction. In the 5–4 opinion,

the Court held that a reviewing court must apply strict

scrutiny analysis for all race-based affirmative action programs,

whether enacted by a federal, state, or local

entity.… [T]he Court explicitly stated “that federal racial

classifications, like those of a State, must serve a compelling

governmental interest, and must be narrowly tailored to

further that interest.” …

Here, in addition to considerations of race, the University

based its employment decision on such criteria as educational

background, publishing, teaching experience, and

areas of specialization. This satisfies [the previous cases’]

commands that race must be only one of several factors

used in evaluating applicants. We also view the desirability

of a racially diverse faculty as sufficiently analogous to the

constitutionally permissible attainment of a racially diverse

student body.…

The University’s affirmative action plan conforms to

the Weber factors [under Title VII]. The University’s

attempts to diversify its faculty by opening up positions traditionally

closed to minorities satisfies the first factor under

Weber. Second, the plan does not “unnecessarily trammel the

interests of white employees.” The University’s 1992 Affirmative

Action Report revealed that whites held eighty-seven to

eighty-nine percent of the full-time faculty positions. Finally,

with blacks occupying only one percent of the faculty positions,

it is clear that through its minority bonus policy, the

University attempted to attain, as opposed to maintain, a racial

balance.

The University’s affirmative action plan … [also] passes

constitutional muster. The University demonstrated that it

has a compelling interest in fostering a culturally and ethnically

diverse faculty. A failure to attract minority faculty

perpetuates the University’s white enclave and further limits

student exposure to multicultural diversity. Moreover, the

minority bonus policy is narrowly tailored to accelerate

racial and gender diversity. Through its affirmative action

policies, the University achieved greater racial and gender

diversity by hiring Makoba and Farmer. Of note is the

fact that Farmer’s position is a direct result of the minority

bonus policy.

Although Farmer contends that she was more qualified

for Makoba’s position, the search committee determined

that Makoba’s qualifications slightly exceeded Farmer’s.

The record, however, reveals that both candidates were

equal in most respects. Therefore, given the aspect of

subjectivity involved in choosing between candidates,

the University must be given the latitude to make its

own employment decisions provided that they are not

discriminatory.

[The court then rejected Farmer’s claim that the 1991

amendments to Title VII prohibit affirmative action.]

… we conclude that the jury was not equipped to

understand the necessary legal basis upon which it could

reach its factual conclusions concerning the legality of the

University’s affirmative action plan. Moreover, the undisputed

facts of this case warranted judgment in favor of

the University as a matter of law. Therefore, even if the

jury had been properly instructed, the district court should

have granted the University’s motion for judgment notwithstanding

the [jury’s] verdict. Reversal of the jury’s verdict

on the Title VII claim is therefore in order.

The University … has adopted a lawful race-conscious

affirmative action policy in order to remedy the effects of a

manifest racial imbalance in a traditionally segregated job

category.…

Chapter 6 » Title VII of the Civil Rights Act and Race Discrimination 145

The affirmative action plan in the previous case was a voluntary plan; that is, it was not

imposed upon the employer by a court to remedy a finding of illegal discrimination. The

affirmative action plans in the Weber, Johnson, and Wygant cases were also voluntary

plans. Title VII specifically mentions affirmative action as a possible remedy available under

§706(g)(1). In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,

26 the Supreme Court held

that Title VII permits a court to require the adoption of an affirmative action program to

remedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld the

constitutionality of a judicially imposed affirmative action program to remedy race discrimination

in promotion decisions by the Alabama State Police.

ethical DILEMMA

You are the human resource manager for Wydget Corporation, a small manufacturing

company. Wydget’s assembly plant is located in an inner-city neighborhood,

and most of its production employees are African Americans and Hispanics, as well as

some Vietnamese and Laotians who live nearby. Wydget’s managers are white males

who sometimes have difficulty relating to the production workers. The board of directors

of Wydget is considering whether to establish a training program to groom production

workers for management positions, targeting women and minorities in particular. The

CEO has asked you to prepare a memo to guide the board of directors in its decision

about the training program. Should you establish such a program? How can you

encourage minority employees to enter the program without discouraging the white

employees? What criteria should be used for determining admission into the training

program? Address these issues in a short memo, explaining and supporting your

position.

The University has aggressively sought to achieve more

than employment neutrality by encouraging its departments

to hire qualified minorities, women, veterans, and handicapped

individuals. The minority bonus policy, albeit an

unwritten one, is merely a tool for achieving cultural diversity

and furthering the substantive goals of affirmative action.

For the reasons discussed above, the University’s affirmative

action policies pass constitutional muster. Farmer

has failed to raise any material facts or law which would

render the University’s affirmative action policy constitutionally

infirm.…

Young and Rose, JJ., concur.

Springer, J., dissenting [omitted]

Case Questions

1. Why did the University adopt its affirmative action

plan and the “minority bonus policy”?

2. How was Farmer injured or disadvantaged under the

University’s affirmative action plan?

3. How does the Court here apply the Weber test for

legality of affirmative action under Title VII to the

facts of this case? Explain your answer.

4. According to the Court here, how does the constitutional

“strict scrutiny” test apply to the facts of the

case here? Explain your answer.

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