Employment Lawsuits for Thee, But Not for Me

The New York Times loves legislation that restricts employment-at-will, and it loves to increase penalties for employers who don’t hire and promote in ways favored by federal and state regulators (such as advocating legislation that imposes unlimited emotional-distress and punitive damages for alleged discrimination). But it itself appears to flout those very same federal employment laws. 

For example, it uses racial quotas in hiring and promotions, even though it already has more minority representation than there is in the national qualified labor pool, judging from a recent Washington Post report.

New York Times Chief Executive Mark Thompson defied this tradition yesterday in a presentation before a gathering of managers on the business and news sides of the newspaper. He identified three areas toward which diversity efforts must be channeled: recruitment, hiring and promotion. Supervisors who fail to meet upper management’s requirements in recruiting and hiring minority candidates or who fail to seek out minority candidates for promotions face some stern consequences: They’ll be either encouraged to leave or be fired.

These numerical requirements are illegal under Title VII of the Civil Rights Act, according the Third Circuit Court of Appeals, which ruled that Title VII forbids the non-remedial use of race, even when it doesn’t involve a quota. See Taxman v. Board of Education (1996), which overturned the use of a race as a tie-breaker in firing a school employee during layoffs. Supreme Court Title VII precedent does let a private employer use race in hiring, but only if it has a “manifest racial imbalance.” But the Times doesn’t have such an imbalance, much less a “manifest” one. For example, racial minorities are 19 percent of its newsroom, compared to 13 percent in newsrooms nationally (the most relevant comparison, given the Times’ national stature), and less than that at many nearby newspapers (it’s 13 percent at the Philadelphia Inquirer). They also are illegal under 42 U.S.C. § 1981, which the Supreme Court interpreted as restricting the use of race to promote diversity in footnote 23 of its 2003 Gratz v. Bollinger decision, which invalidated numerical racial preferences used by the University of Michigan in undergraduate admissions.

The New York Times also hypocritically uses some of the very arbitration provisions it seeks to have banned for businesses nationally.