Reno professor loses Supreme Court race discrimination case

Monday, March 9, 1998 | 10:36 a.m.

The court, without comment, turned away Yvette Farmer's arguments that the University of Nevada, Reno, violated a federal anti-bias law when it hired a black sociology professor before her.

Farmer's appeal also contended that the school, which hired her a year later, illegally paid her less money than her black colleague.

She asked the court to decide what, if any, efforts are legal to achieve or enhance racial diversity in an employer's workforce if there's no proof of past discrimination.

That issue had been before the justices in a Piscataway, N.J., case, but civil rights activists engineered a settlement in November. They arranged a $433,500 payment to a white high school teacher to prevent what they feared would be a much-costlier defeat.

At issue in the Nevada case was a temporary affirmative action policy under which the university sought to increase the number of minorities on among its faculty members.

Between 1989 and 1991, only 1 percent of the school's faculty were black; nearly 90 percent were white. The university added a "minority bonus policy" to its existing affirmative action program that allowed any department to hire an additional faculty member following the initial hiring of a minority candidate.

In 1990, the university's sociology department hired Johnson Makoba, a Ugandan emigrant and agreed to pay him $35,000 a year and raise that salary to $40,000 when he completed his Ph.D.

Farmer claims she was a more qualified candidate but the search committee that recommended hiring Makoba decided his qualifications "slightly exceeded" Farmer's.

The university's sociology department hired Farmer in 1991, at an annual salary of $31,000. She was promised her salary would be raised to $33,000 when she completed her Ph.D.

Farmer sued in state court in 1993, contending that the university violated both the federal Equal Pay Act and an anti-discrimination law known as Title VII of the Civil Rights Act of 1964.

A jury awarded Farmer $40,000 after ruling that the university had violated both federal laws, but the Nevada Supreme Court threw out the jury verdict last year.

Stating that recent affirmative-action rulings by the nation's highest court have produced "schizophrenic results," the state court nevertheless relied on a 1979 Supreme Court ruling that said employers may utilize voluntary race-conscious plans to open traditionally closed positions to minorities as long as white employees are not harmed unnecessarily.

"The university demonstrated that it has a compelling interesting in fostering a culturally and ethnically diverse faculty," the state court said. "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."

In the Piscataway case, a federal appeals court had ruled that Title VII prohibits any such race-conscious decision-making if not taken to remedy past discrimination.

In the appeal acted on today, Farmer's lawyers said the Nevada Supreme Court ruling is in direct conflict with that federal appeals court decision.

They said the state court ruling "invites an employer to use race in any employment decision ... so long as the employer claims that the race-based decision was necessary to increase diversity."

The university urged the justices to reject Farmer's appeal. "The evidence reflects that between the two, Makoba was the most qualified," it told the court. "That being the case, the action is not even about Title VII or affirmative action for, quite simply, the individual most qualified for the job was hired."

Farmer, 37, now has a job in the Seattle area.

In another court ruling, the high court today told a federal appeals court to restudy a sexual-harassment lawsuit against Belleville, Ill., by twin brothers who say they were tormented during a summer job for the city.

The justices ordered the 7th U.S. Circuit Court of Appeals to restudy the case in light of their ruling last week that said on-the-job sexual harassment can be illegal even when the offender and victim are the same sex.

Today's high court action is notable because it set aside an appeals court ruling in the Illinois case that had allowed the brothers to pursue their sexual-harassment claims based on the conduct of male co-workers.

The justices did not explain why they sent the case back for more study.

Twin brothers identified in court documents only as J. and H. Doe sued Belleville over the harassment they say they received while working for seven weeks the summer of 1992 cutting grass for the city's Cemetery Department.

The brothers, then 16, were subjected to crude and boorish comments from co-workers. H. Doe, who wore an earring, was dubbed a "fag" or "queer." His brother was nicknamed "fat boy" by his co-workers, and both brothers allegedly were threatened with rape.

A federal judge threw out the lawsuit but the 7th Circuit court reinstated part of it, ruling that the alleged conduct could amount to illegal sexual harassment.