United Airlines Pilots File Race Discrimination Suit in the Northern District Court of California

United Airlines pilots filed suit in the Northern District Court of California last week, alleging race discrimination in the promotion of pilots and supervisors into management positions, as reported by the Los Angeles Times.
The 24 plaintiffs— 22 captains and 2 operation supervisors—alleged that United Airlines, now owned by United Continental Holdings after its 2010 merger with Continental Airlines, undertook a pattern and practice of discrimination against minority pilots to keep them from positions in the highest level of management. The case, Johnson et. al. v. United Continental Holdings Inc., et. al., is currently being heard in San Francisco by U.S. District Court Judge Donna Ryu, and alleges violation by United of Title VII of the Civil Rights Act of 1964, 24 U.S.C. 1981, and California’s Fair Employment and Housing Act. The United Airlines pilots also put forward harassment and retaliation claims under both the federal and state laws, claiming they faced adverse action after filing their claims.
This complaint by the airline pilots presents a good example of the most common evidentiary theories for most race discrimination claims. In their complaint the pilots allege that United Airlines discriminated against minority pilots by disproportionately assigning them to temporary positions, giving them fewer promotions than similarly situated non-minorities, and subjecting them to subjective and arbitrary decision-making. They claim that the discrimination was not accidental, but made up a “pattern” or “practice” of discrimination at the airline. This is one of the major theories of employment discrimination, and would need to be shown by the airline pilots during trial through statistical evidence comparing the percentage of minorities promoted to certain positions to those who were qualified for such a position. As 24 airline pilots have already filed suit, it may not be erroneous to assume that they make up the majority of minority pilots at United Airlines and would represent the group that would be compared to the baseline percentage of qualified minorities.
One of the patterns that the airline pilots allege, the use of subjective and arbitrary decision-making to select persons for promotions, also falls under a second interrelated theory of employment discrimination: that of disparate impact. The pilots here claim that in deciding promotions, United Airlines used interview formats and subjective evaluations that disproportionately adversely affected minority applicants. They also allege that the company did not post promotion announcements, and had a system of “grooming” that selected out minority applicants. To show that the airline’s actions were illegal under a disparate impact theory, the pilots must first demonstrate a disparate impact, which statistics like those above for the pattern and practice theory, may suffice. The airline then can show that the policy was job-related and consistent with business necessity to rebut the prima facie case. If the policy is found to relate to a business necessity, the plaintiffs must then show that there is a less discriminatory alternative available.
While many employers are very familiar with this test for evaluating disparate impact, they may not be aware that subjective evaluations, such as interviewing or other appraisals may be considered a test under disparate impact law and as such subject to the rigorous Duke Power Company standard. Since Watson v. Fort Worth Trust & Bank, such subjective procedures must also pass the above considerations if they disparately affect minority employees. Here the United Airlines pilots claim that the airline acted discriminatorily in not carefully adhering to its stated policies in using subjective criteria, to the detriment of minorities. Following Watson, employers must be careful when using subjective procedures that they are not only consistent with business necessity, but fairly applied. If that means employers must abandon such subjective criteria for more clearly outlined guidelines, then employers must take those steps to ensure that discrimination, whether conscious or otherwise, does not impair the prospects of minority workers.

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