Opinion
Case No. 99 C 2597
August 28, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Dix, who filed this lawsuit pro se, claims that defendant United Air Lines, Inc. discriminated against him on the basis of his race (Caucasian) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ( l), and 42 U.S.C. § 1981 in connection with Dix's application to become a flight attendant. Specifically, Dix says that United required Caucasian applicants to be bilingual but did not impose the same requirement on African-American applicants; he alleges that he was subjected to different terms and conditions of employment based on his race. Though Dix does not specifically allege in his complaint that he was not hired as a result of differential treatment, it is a fair inference that that is what he claims.
United has moved for summary judgment, arguing that the different requirements for Caucasian and African-American applicants had nothing to do with why Dix was not hired, and that even assuming it did, the policy was entirely legal. Dix has likewise moved for summary judgment, arguing that he was denied employment due to an illegally discriminatory hiring practice.
Facts
United periodically conducts "open interview" sessions for prospective flight attendants. During some periods, United seeks to hire flight attendants who are conversant in a second language besides English. During these periods, otherwise qualified applicants who are not conversant in a second language are advised that their applications will be kept on file for a year and will be considered when United is not seeking applicants with foreign language skills.
Since 1995, during periods when it is seeking bilingual flight attendants, United has excused African-Americans from the second-language requirement, in an effort to increase its minority hiring. Overall, however, a large number of non-bilingual applicants are selected to participate in United's training program for flight attendants. In 1997, 66% of the non-bilingual applicants selected (1303 of 1969) were white; in 1998, the figure was 65% (1175 of 1811).
In July 1998, Dix saw a newspaper advertisement placed by United seeking "bilingual flight attendants." The ad gave the time and place for several open interview sessions in Rosemont, Illinois. Dix, though not bilingual, attended one of the sessions. He says that at the outset of the session, a United representative stated to those present that "everybody here has to be conversant in another language unless you are African-American" and that "if you don't meet these requirements, you should leave." Dix was not bilingual or conversant in a second language, but he did not leave.
Dix and the forty or so other applicants who stayed were taken to another room where each was given a "Personal Information Sheet" and a "Flight Attendant Application Registration Form" to complete. On the form, Dix checked off that he was conversant in an "other" language, but did not say what language it was. (The form listed only foreign languages, not English; presumably Dix was indicating that English was the "other" language in which he was conversant.)
Following administration of a written test, the applicants were each asked to give an oral presentation on why he or she would be a good flight attendant. In his interview, Dix received poor scores, below the minimum acceptable for "professional image" and "oral communication skills." It is undisputed that it never came up that Dix was not conversant in any language other than English. After the presentations, United's representative announced that three people were being chosen to continue with the interview process; Dix was not one of the three, nor were any African-Americans.
In 1973, the Equal Employment Opportunity Commission sued United, alleging that it had engaged in a pattern and practice of discrimination on the basis of race in employment in a number of positions, including that of flight attendant. EEOC v. United Air Lines, Inc., No. 73 C 972 (N.D. Ill.). In 1976, United entered into a consent decree requiring it to take affirmative measures to recruit African-American flight attendants and setting short-term and long-term goals for the representation of African-Americans in flight attendant positions. At that time, 10.3% of United's flight attendants were from minority groups; it is unclear what percentage of its flight attendants were African-American. The decree included a "long term" goal, which the parties hoped United would be able to meet within five years, that 17% of United's flight attendants would be members of minority groups.
United still maintains an affirmative action program with respect to the hiring of African-American flight attendants. As of January 1, 1998, 8.66% of its flight attendants were African-American, as compared with 15% in the qualified labor pool.
Discussion
We will deal with United's summary judgment motion first. In addressing that motion, we construe the facts in the light most favorable to Dix, the non-moving party, and draw reasonable inferences in his favor. Celotex Corp. v. Catrett, 417 U.S. 317, 322 (1986).
Assuming for purposes of discussion that United in fact had an unlawfully discriminatory policy, Dix must have evidence from which a reasonable fact finder could conclude that he was injured as a result of that policy. See Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 668 (7th Cir. 1995). He has none. Dix noted on the Personal Information Sheet that he was conversant in another language. Even though this was untrue, it is undisputed that Dix was not asked about this in his interview. In short, there is no evidence that his inability to speak a language other than English had anything to do with the fact that he was not hired. Indeed, there is no evidence that United's representatives had any idea that he lacked the ability to speak another language. Dix's alleged injury (the non-hiring) thus was not the result of the allegedly discriminatory policy. See, e.g., Carpenter v. Board of Regents of University of Wisconsin, 728 F.3d 911, 915 (7th Cir. 1984) (disparate impact case; plaintiff must show he was injured by challenged policy); Coe v. Yellow Freight System, Inc., 646 F.2d 444, 451 (7th Cir. 1981) (same). Rather, the evidence is undisputed that Dix was rejected because he performed poorly in his interview.
Dix's fallback position is that he was hampered in his interview because he was distressed by the fact that United's representative had started the session by announcing what Dix felt was a discriminatory policy. It is conceivable that a Title VII or § 1981 plaintiff could, in appropriate circumstances, sustain a claim on such a theory. To illustrate, imagine that United's representative had started the meeting by saying that black people don't have what it takes to be a flight attendant, or that any man who applies to be a flight attendant must be gay. A plaintiff who could show that he or she was chilled from proceeding, or that his performance at the ensuing job interview was affected, by such discriminatory statements might well be able to make out a claim under Title VII. But even if this is a viable theory in the abstract, a plaintiff making such a claim would have to show, at a minimum, that the employer's statements reflected unlawfully discriminatory attitudes or beliefs; otherwise an employer would be subject to suit for announcing a perfectly legal affirmative action plan. We turn, therefore, to United's justification for its differential treatment of Caucasians and African-Americans at the interview session.
United maintains that excusing the two-language requirement for African-Americans was part of a legal affirmative action plan. As noted earlier, United entered into a consent decree with the EEOC in 1976 requiring it to take affirmative steps to increase the percentage of African-American flight attendants. It maintains that its differential treatment of African-American and other applicants at the Rosemont interview session was one aspect of its continued pursuit of this policy. An affirmative action plan is valid under Title VII if it is adopted and designed to correct manifest racial imbalances in traditionally segregated job categories and does not unnecessarily trammel the interests of white employees. Johnson v. Transportation Agency, 480 U.S. 616, 628 (1987).
United's representatives indicated when deposed that they were unaware of any written embodiment of its affirmative action policy, but that does not make the policy illegal. Dix does not dispute that the policy of excusing African-Americans from the two-language requirement exists; indeed the existence of the policy forms the very basis for his lawsuit.
United has offered some evidence of a historical imbalance among African-Americans in flight attendant positions. As of January 1998, 8.66% of United's flight attendants were African-American; the general population is 15% African-American. Dix objects that the comparison is not relevant, as United hires only persons with a high school education as flight attendants; he says that United should have to demonstrate an imbalance between its work force and the percentage of African-Americans with a high school education. But Johnson makes clear that a perfect comparative fit of the type Dix seeks is not required when an employer is attempting to justify an affirmative action plan as a defense to a discrimination suit; the Supreme Court in Johnson noted that in Steelworkers v. Weber, 443 U.S. 193, 198-99 (1979), it had approved a comparison quite similar to the one that United has used here. Johnson, 480 U.S. at 633, nn. 10 11.
United's evidence is somewhat thin on the question of whether the imbalance is "historic." It claims that the 1976 consent decree "recognized" a historic imbalance; however, it cites no particular provision of the decree to support this claim, and we see no such finding in the decree itself. But the attachments to the decree reflect that as of 1976, 10.3% of United's flight attendants were members of minority groups (a classification considerably broader than African-Americans), as compared with 17% in the population at large; the percentage of minorities in the general population was not materially lower in 1976 than in 1998. So United has succeeded, though by the skin of its teeth, in showing that a historic imbalance exists.
To determine whether an affirmative action plan unnecessarily trammels the interests of white employees, a court must consider whether the plan absolutely bars whites from employment, whether white workers are discharged because of the plan, and whether the plan is intended to last only until the company can achieve racial balance. See Weber, 443 U.S. at 208. United's plan certainly qualifies on the first two aspects of this test. The plan does not bar whites, not even non-bilingual whites, from employment as flight attendants. United has offered evidence, uncontradicted by Dix, that in 1997-98, fully two-thirds of the non-bilingual applicants selected by United were Caucasians. Moreover, the plan relates only to hiring, not to discharge; there is no indication that white workers are discharged because of the plan.
Though United has offered no evidence concerning the anticipated duration of the plan, this is not critical in this case, for three reasons. First, it appears that United is still operating pursuant to the 1976 consent decree, which means that its affirmative action program is subject to court supervision. Second, the burden of any uncertainty falls upon Dix, not United; when an employer articulates an affirmative action plan as the basis for the challenged employment decision or action, the burden lies with the plaintiff to show that the plan is invalid or that the employer's reliance on it is a pretext for discrimination. Johnson, 480 U.S. at 626; Janowiak v. Corporate City of South Bend, 836 F.2d 1034, 1036 (7th Cir. 1987). Dix has done neither. Finally, United's plan takes a gradual approach with a minimal intrusion on the legitimate expectations of other applicants; non-bilingual Caucasians like Dix still have ample opportunities for employment as United flight attendants. Under these circumstances, the longer duration of the plan is less significant. See Johnson, 480 U.S. at 640.
In sum, Dix has offered no evidence from which a fact finder could conclude that United's affirmative action plan is invalid. He therefore cannot defeat United's motion for summary judgment.
Conclusion
For the foregoing reasons, United's motion for summary judgment [Docket Item 27-1] is granted, and Dix's motion to deny United's motion [Item 42-1] is denied. Dix's motion for summary judgment [Items 23-1 39-1], in which he claimed that he was denied employment due to United's differential treatment of Caucasians and African-Americans, is denied for the same reasons stated above. Dix's motion for sanctions [Item 21-1], in which he claimed that United had falsely denied that it had subjected him to unlawful discrimination and that it required all non-African-American applicants to speak a language other than English, is also denied. The Clerk is directed to enter judgment in favor of United.