Is United’s set-aside program for minority and female pilots legal?

Last night I wrote about United Airlines’ plan during this decade to train 5,000 pilots for jobs with United, and to have half of the 5,000 be women and “people of color.” I suggested that, unless United can show that this regime is necessary to make up for past discrimination based on race and gender, the company’s plan might lead to unlawful results.

Today, a friend pointed out that in 1976, United Airlines entered into a consent decree with the EEOC after that agency sued the company for discriminating against women and minority group members in the hiring of employees in various jobs, including pilot. United agreed to award back pay to victims of the discrimination alleged by the EEOC and to award retroactive seniority to black pilots and mechanics who earlier had been rejected for employment.

In addition, according to the New York Times’ report on the agreement:

A “substantial number” of jobs are expected to go to members of minorities and women under the terms of the decree. About 800 are expected to be in management. The agreement sets hiring goals and; ratios for both members of minorities and women in management positions, pilot, mechanic and higher‐paying agent positions.

The article doesn’t say what percentage of jobs would go to minority group members and women.

Seventeen years later, the EEOC dragged United back to court. It alleged that the airline violated the 1976 consent decree.

The parties apparently settled the matter a year later (in 1994). Reportedly, United agreed to more backpay, and to offer pilot jobs to 83 previously rejected minority and/or female applicants (the mix is unclear from this report).

A United official told AP that many of the problems that led to the EEOC suit had already been remedied. “We think we have done some good things in this area and attracted a lot of pilots who are minorities and also who are female, and we have a very good record in this,″ the official said. (Emphasis added)

To me, this background suggests that (1) decades ago, United probably did discriminate against women and minorities, including for pilot positions, but (2) it ceased and remedied its discrimination against these groups in the mid 1990s by hiring fairly large numbers of women and minority pilots (indeed, a source in the airline industry tells us that, in the past, United has hired “affirmative action pilots” who are widely regarded as subpar), and that (3) United has not discriminated on the basis of race or gender in the selection of pilots for decades.

What are the legal implications of this state of affairs for United’s “plan” to set aside half of its 5,000 pilot trainee jobs for women and minority group members? I think it means that if United’s plan results in white men being passed over in favor of women or minorities who are less qualified, United will have violated Title VII of the 1964 Civil Rights Act.

In a 1979 case, Weber v. Steelworkers, the Supreme Court held that Title VII does not prohibit private employers from taking steps to remedy severe cases of past employment discrimination. It therefore upheld a joint employer-union affirmative action-based training program to increase the number of black skilled craft workers at the company (Kaiser Aluminum). Half of the dozen or so eligible positions in the training program were reserved for blacks.

But this was against a background of racial segregation. At the Kaiser plant in question, as of 1974, only 1.83 percent of the skilled craftworkers were black, even though the local work force was approximately 39 percent black.

In upholding the plan, the Court noted that it was a temporary measure and was not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.

It seems unlikely that United Airlines could defend its ten-year plan along the lines laid out in Weber. There is no relevant background of racial or gender segregation among pilots at the airline. Whatever discrimination United engaged in appears to have been remedied decades ago, to the satisfaction of the EEOC.

Thanks in part to that remediation, United’s pilot force includes plenty of women and minority group members. Their numbers don’t mirror their representation in the general workforce, but for a highly specialized job like airline pilot, that fact does not suggest discrimination, let alone segregation.

The Supreme Court’s ruling in Weber was premised on the view that a major purpose of Title VII was “to open employment opportunities for Negroes in occupations which have been traditionally closed to them.” This purpose was held to trump anti-quota language in the statute (a mode of statutory interpretation that the current Supreme Court does not favor).

But for decades, the airline pilot job has not been closed to women and people of color. United’s plan to set aside 2,500 pilot jobs for members of these groups isn’t an effort to break down barriers that deprive them of employment opportunities. Rather, it’s an effort at woke virtue signaling — and one that might well reduce the quality of United’s pilots and thereby create unnecessary risk for United’s passengers.

As I wrote last night, any highly qualified white male applicant to United’s pilot program who is rejected by the company during the next ten years should consider consulting a lawyer.

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