Omaha’s Affirmative Action Plan For Fire Department Ruled Discriminatory

In 1971, the City of Omaha, Nebraska instituted the first of a series of affirmative action plans for the Fire Department. The most recent plan, adopted in 2002, is consistent with the Office of Federal Contracting Compliance Program Guidelines on Affirmative Action Programs (Guidelines). The Guidelines, which are not binding on municipalities, specify that “availability” is defined as “an estimate of the number of qualified minorities available for employment in a given job group, expressed as a percentage of all qualified persons available for employment in the job group.”

The Guidelines require that the determination of availability in a given job group be based on at least two factors: (1) The percentage of minorities with requisite skills in the reasonable recruitment area; and (2) the percentage of minorities among those promotable, transferable and trainable within the organization. The City characterized these factors as the “external availability percentage” and the “internal availability percentage.” The City calculated the “internal availability” percentage for African-Americans to be 11.4 percent at the fire captain position and 5.8 percent at the battalion chief position. The actual percentages of African-Americans in those positions were 7.7 percent and 3.1 percent.

John Kohlbek passed the August 11, 2000 promotional exam for battalion chief. He was ranked eleventh on the eligibility list, and Anthony Curtis, an African-American, was ranked twentieth. When Curtis was selected for promotion, Kohlbek brought a federal court lawsuit, alleging that the City’s affirmative action plan unconstitutionally discriminated against him.

The federal Eighth Circuit Court of Appeals held that the City’s plan violated the constitutional rights of non-minority employees. The Court began with the proposition that any affirmative action plan must be “narrowly tailored” to further a “compelling interest.” Any racial qualifications used in an affirmative action plan must not be used more broadly than the asserted compelling interest requires.

The Court also noted that for any racial classifications to be justified, it is necessary that an employer establish a prima facie case of prior discrimination.

The Court found that the City’s plan failed these tests. To begin with, the Court held that establishing a prima facie case of discrimination “based simply on statistical evidence is difficult. We have recognized that a disparity between actual hiring levels and expected hiring levels does not necessarily demonstrate discrimination.”

The Court also observed that numerical differences must be “statistically significant” before one could begin to infer the existence of racial disparity caused by “some factor other than random chance.”

The Court faulted the City’s plan for not requiring a statistically significant showing of discrimination before the racial classifications in the plan were triggered. The Court found that Omaha’s plan “triggers racial classifications in more situations than if a test of statistical significance were used to determine whether racial qualification has occurred. Thus, Omaha, under the auspices of the 2002 plan, made racial classifications in its promotional decisions that went beyond its interest in remedying identifiable racial discrimination.”

The Court sent the case back down to the trial court for a decision on what remedy should apply.

Kohlbek v. City of Omaha, Nebraska, 2006 WL 1132355 (8th Cir. 2006).

This article appears in the December 2006 issue