OPINION OF THE COURT
MANSMANN, Circuit Judge.
Karl C. Schurr, a light and sound technician in the casino industry in New Jersey, appeals from an order of the District Court granting summary judgment in favor of Resorts International Hotel, Inc., and Bradford Smith, Chairman of the New Jersey Casino Control Commission, in connection with Schurr's claims of reverse discrimination in hiring.
Because this matter, both legally and factually, arises against the regulatory background established by the Casino Control Commission pursuant to the Casino Control Act, N.J.S. 5-12:134, we examine this background first. The Casino Control Act requires that every casino license holder undertake affirmative measures to ensure equal employment opportunities. Relevant regulations require that casino licensees take affirmative steps "to ensure that women, minorities and persons
Minority Goal Female Goal EEOC Job Category (Percentage) (Percentage) Officers and Managers 25 46 Professionals 25 46 Technicians 25 46 Sales workers 25 46 Office and Clerical 25 46 Crafts persons 14 5 Operatives 25 30 Laborers 25 14 Service Workers 25 46
In setting these goals, the Commission reviewed 1990 census data for Atlantic City, New Jersey and for the Commission's casino industry work force composition analysis. See 25 N.J.R. 3690 (August 15, 1993). The goals for each category were "based on the actual number of employees in the comparative work force who were actually available to fill such positions," and were set so as not to exceed the cumulative Atlantic County work force statistics in the given category. Id. In addition, "if the Atlantic County availability statistic falls significantly (more than ten percent) below the cumulative Atlantic County work force statistic for that class, the employment goal for that particular EEOC category and class will be the Atlantic County availability statistic." Id.
In order to meet these goals and as a prerequisite to licensing, each casino licensee is required to develop an Equal Employment and Business Opportunity Plan ("EEBOP"). N.J.A.C. 19:53-6.1. The EEBOP must set forth a detailed description of "the means by which the[casino] intends to comply with the equal opportunity and regulatory obligations imposed by N.J.A.C. 19:53-4.4." N.J.A.C. 19:53-6.4. While the regulations do not specify the means which must be used to meet employment goals, the terms of the EEBOP are subject to the approval of the Commission.
By statute, the Commission is also charged with monitoring the composition of the workforce at each licensed casino. Each licensee is required to file quarterly and annual reports with the Commission and the Division of Gaming Enforcement on its "affirmative action efforts . . . concerning [its] operations work force." N.J.A.C. 19:53-4.5, 4.6. The quarterly report must include a listing of the operations workforce by race and gender in each EEOC job category and subclass. Id. Each casino is also required to supply a summary of new hires, promotions, terminations, and layoffs, a copy of all grievance reports relating to equal employment opportunity, and a report on the implementation of upward mobility training programs and the status of participants. Id. If in a given quarter the "casino licensee is below the applicable . . . goal established by the N.J.A.C. 19:53-4.4 for a job category in which a position with a salary of $35,000 or more is filled by someone other than a woman or minority, the casino licensee [must] document its efforts to hire or promote a woman or minority to the position." N.J.A. 19:53-4.5(c)(2). Similarly, "each casino licensee whose annual workforce composition report does not demonstrate that the casino licensee or applicant achieved the applicable employment goals . . . shall be required to document its efforts to implement and comply with the operations workforce section of its EEBOP. . . ." N.J.A.C. 19:53-4.6.
Casino licensees are also subject to periodic EEBOP assessment hearings at which the licensee is required to demonstrate its compliance with its equal opportunity and affirmative action obligations. If the Commission finds that the licensee has failed to
With the legislative and regulatory background established, we turn to the facts. In July 1994 Karl Schurr, a white male resident of New Jersey, sought a position as a light and sound technician at Resorts in Atlantic City, New Jersey. Schurr had worked at Resorts in a number of full-time jobs from 1974 until 1986 when he resigned in order to enter the restaurant business. After June 1986 Schurr continued to work for Resorts on occasion as a "casual" worker
In late 1993 a full-time light and sound technician at Resorts was suspended. While arbitration proceedings relevant to this suspension were pending, Schurr, still working as a casual employee, filled in for the suspended employee on a regular basis. In early July 1994, the labor arbitration was concluded and the full-time technician's job became available. Five people, including Schurr, applied for the job.
After learning that he had not been hired for the full-time technician position, Schurr continued to work as a casual employee at Resorts and at other Atlantic City casinos.
Following the close of discovery, the parties filed motions for summary judgment. In an order dated June 30, 1998, the District Court entered an order granting the motions filed by Resorts and the Commission Chairman and denying the motion filed by Schurr. This timely appeal followed.
We address first whether Schurr has standing to assert claims against the Commission Chairman for declaratory and injunctive relief. Schurr contends that his Fourteenth Amendment equal protection rights were violated when the Commission Chairman enforced the Commission's regulations setting minority employment goals and requiring that casino licensees implement affirmative action plans designed to meet these goals: "Smith and the Commission's actions in imposing employment goals in Resorts' [EEBOP] and in approving and monitoring same, directly resulted in Resorts' denial of the Light and Sound Technician . . . position to Schurr." The District Court granted summary judgment in favor of the Commission Chairman, concluding that Schurr lacked standing to pursue his claim.
The standing requirements embodied in the "case" or "controversy" provision of Article III of the United States Constitution mandate that in every case, the plaintiff be able to demonstrate:
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted). Applying these standing requirements to the facts of this case, the District Court concluded, first, that Schurr did not suffer an "injury in fact" within the meaning of Article III. In Northeastern Florida Chapter of the Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), the Supreme Court determined that "the `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of [a] barrier. . . ." Relying on this language, the District Court concluded that the challenged regulations constituted merely a means of "outreach" to minorities and women, and did not constitute a barrier to others:
Schurr v. Resorts Int'l Hotel, Inc., 16 F.Supp.2d 537, 548-49 (D.N.J.1998). The District Court reasoned that because the regulations merely required casino licensees to "broaden the applicant pool by employing various outreach efforts," they had not injured Schurr. Id. at 549.
The District Court also concluded that Schurr lacked standing to maintain his claim against the Commission Chairman because he failed to show a causal link between the relevant regulations and Resorts' decision to hire the minority candidate. "[T]here is only the most attenuated relationship between the Commission's regulations and the hiring decisions which allegedly injured or will injure Schurr." Id. at 550. In the District Court's view, the regulations at issue did not mandate a particular employment decision:
Id. The Court concluded that:
Id. (internal citation omitted.)
The District Court's standing analysis as to both injury in fact and causation rested on its characterization of the Commission's regulations: "[These] regulations specifically do not authorize or encourage the use of preference in hiring. Instead they specifically provide for other, much more benign methods by which casino licensees may expand the applicant pool." Id. at 549-50. According to the District Court, "even the most casual review of the Commission's regulations" reveals that "the obvious thrust of the regulations is that, in order to improve the representation of women and minorities . . . a casino licensee should broaden the pool of applicants. . . ." Id. at 549.
We disagree with the District Court's characterization of the regulations. Our reading of both the Act and the implementing regulations convinces us that the regulatory scheme challenged here contemplates something beyond "benign methods by which casino licensees may expand the applicant pool." Id. at 550. The finding that the challenged regulations are directed only at recruitment is inconsistent with the language used in the regulations.
The regulations were drafted to prohibit discrimination by "encouraging businesses to achieve a balanced representation of employees at all levels of the work force," N.J.A.C. 15:32-1.1, and to ensure that "affirmative efforts are made to recruit and employ" minorities, N.J.A.C. 19:53-1.4 (emphasis added). Affirmative efforts are to address, without limitation, all employment practices including:
N.J.A.C. 19.53-4.3. If a casino licensee fails to meet the established goal, the licensee is required to document its good faith efforts to hire a qualified female or minority candidate for the position. N.J.A.C. 19:53-4.3.
The broad language used throughout the regulations as a whole undermines both the District Court's conclusion that the scheme is addressed to recruitment alone and its disposition of the standing issue on the basis of that conclusion. We agree with the District Court that the regulations do not mandate specific hiring decisions. We are convinced, however, that in setting employment goals for women and minorities, in monitoring compliance with these goals, and in providing for sanctions if casino licensees cannot demonstrate good faith efforts to comply with those goals, the regulations were intended to influence employment decisions generally and may, as here, affect concrete decisions; for example, which of two equally qualified job candidates will be hired.
This conclusion is supported by the testimony of the Resort employees responsible for hiring under the EEBOP. They testified that they believed that the regulations and the EEBOP formulated and reviewed pursuant to those regulations required that they hire the minority candidate over Schurr. Given the candidates' comparable qualifications, those responsible for hiring at Resorts were unable to justify hiring Schurr where the technician job category was underutilized. Furthermore, they did not want to bear the administrative burden of having to do so. This evidence supports the conclusion that the regulations set employment goals, and place administrative pressure upon casino licensees to meet these goals. The fact that the regulations do not explicitly require minority hiring or mandate a race-based decision is not dispositive of the causation question.
Although it was decided under a somewhat different set of facts, our causation analysis is guided by the discussion set forth by our sister Court of Appeals for the Ninth Circuit in Bras v. California Public Utilities, 59 F.3d 869 (9th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 748 (1996). In Bras, the court considered an equal protection challenge to a California statute, the California Women and Minority Business Enterprise Law, which required nongovernmental contractors to meet minority participation goals. Pursuant to this law, the California Public Utilities Commission was directed to formulate goals for state utilities in the procurement of goods and services from minority-owned businesses. In 1988, the Commission promulgated an order requiring each state utility to establish a "goal" specifying that it would purchase at least fifteen percent of its utilities requirements from minority firms.
In response to this Order, in 1991, Pacific Bell provided a prequalification form to a number of architectural firms from which it expected to receive proposals for future work. This form required the firms to specify whether they were certified as a minority or women enterprise. Bras submitted its form, stating that it was not so certified. Because it was not a minority enterprise, Bras was not selected as one of the firms eligible to bid on Pacific Bell projects.
Bras filed suit in federal court alleging that the Law and the Order violated the requirements of the Equal Protection Clause. Bras also sought a permanent injunction preventing the Commission from implementing the goals provided for in the Law and the Order. The district court dismissed Bras' claim for lack of standing.
We do not find any meaningful distinction between the goals at issue in Bras and those challenged here. The challenged goal-based regulations, like those at issue in Bras, clearly have the practical effect of encouraging (if not outright compelling) discriminatory hiring.
That employment goals may, in some circumstances, create a classification based on race was also recognized by the Court of Appeals for the District of Columbia Circuit in Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C.Cir.), reh'g denied, 154 F.3d 487 (D.C.Cir.), and reh'g en banc denied, 154 F.3d 494 (D.C.Cir.1998). There the Court addressed the impact of the FCC's regulatory requirement that radio stations adopt affirmative action programs incorporating numerical goals, based on population data, for hiring women and minorities. In determining that goals similar to those at issue here created minority preferences subject to equal protection analysis, the Court of Appeals noted that the crucial point is not whether the regulations required quotas, but rather whether they obliged stations to grant some degree of preference to minorities in hiring. Concluding that the challenged regulations granted such a preference, the court explained:
However, our conclusion that the District Court erred both in characterizing the regulations at issue and in holding that Schurr failed to establish causation does not mandate reversal, for there is another component of the standing inquiry that is at issue.
Schurr's sole equal protection claim against the Commission Chairman is for forward-looking declaratory and injunctive relief. In order to have standing to challenge future rather than past application of the regulation, Schurr must allege that the setting of minority employment goals for job categories within the casino industry "in the future constitutes `an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'" Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). Under this standard, Schurr must demonstrate that he will in the future be prevented from competing on an equal basis with minority candidates; i.e., Schurr must show that the employment goals embodied in the challenged regulations will cause "imminent" injury. The District Court held that Schurr failed to do so. Schurr, 16 F.Supp.2d at 551. We agree.
Schurr's evidence in support of his claim that he is in danger of imminent injury in fact supports the opposite conclusion. For example, Schurr testified at his deposition that since January 1996, he has held a full-time position as an engineer at another casino. The engineering position appears to be one covered by the challenged regulations (under either the "professional" or "technician" category). Schurr also testified that in addition to this full-time work, he has obtained part-time casino work — at Resorts as well as at least five other casinos — "filling in" for extra money. The part-time work appears to be that of a technician. This evidence indicates that since being denied the full-time technician's job in 1994, Schurr repeatedly has been subjected to the regulations, with no apparent adverse effect.
In evaluating Schurr's evidence of imminent harm, we are also mindful of what is not in the record. There is no evidence of how frequently jobs for which Schurr is qualified become available.
In sum, Schurr failed to make an adequate showing that he is in danger of
We focus next on Schurr's claim that Resorts violated the requirements of Title VII when it made race a factor in the decision not to hire Schurr.
Because the District Court, after extensive analysis, rejected Schurr's equal protection claim for lack of standing,
The terms of Title VII are violated when an employer takes action "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" or "to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect his status as an employee" on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Although this language was initially construed as absolute — prohibiting all discrimination in employment, see e.g. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 643, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) — it is clear now that in certain circumstances, race-based employment decisions made pursuant to an affirmative action plan do not run afoul of the statute.
We considered affirmative action efforts in the context of a Title VII action in Taxman v. Board of Educ., 91 F.3d 1547 (3d Cir.1996), cert. dismissed, 522 U.S. 1010, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997). There, we cited the Supreme Court's decision in United Steelworkers v.
In order to determine the purpose underlying Title VII, we analyzed Supreme Court precedent in light of the plain language of Title VII, and concluded that:
Id. at 1556. We placed particular emphasis on the remedial component of Title VII, finding it central to the Title VII scheme:
Id. We then announced the following rule which now guides our discussion of Schurr's Title VII claim and Resorts' affirmative action plan: "Unless an affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of the statute, and, therefore, cannot satisfy the first prong of the Weber test." Id.
The parties in this matter agree that Schurr has established a prima facie case of race-based employment discrimination
We have carefully reviewed the record in this matter and are convinced that the affirmative action plan offered to rebut Schurr's prima facie case lacks the remedial purpose required by controlling precedent. In order to be characterized accurately as remedial, an affirmative action plan must be designed to correct a "manifest imbalance in traditionally segregated job categories." Weber, 443 U.S. at 207, 99 S.Ct. 2721. "The requirement that `manifest imbalance' relate to a traditionally segregated job category `provides assurance . . . that race will be taken into account in a manner consistent with Title VII's purpose of eliminating the effects of employment discrimination . . ." Johnson, 480 U.S. 650, 107 S.Ct. 1442 (emphasis added).
Under our reasonable interpretation of this standard, Resorts' affirmative action plan is deficient. The plan itself and the regulations which mandate the plan were not based on any finding of historical or then-current discrimination in the casino industry or in the technician job category; the plan was not put in place as a result of any manifest imbalance or in response to a finding that any relevant job category was or ever had been affected by
The remainder of the record contains nothing to suggest that the Act or the regulations promulgated pursuant to that Act were drafted or enacted with an intent to remedy any discrimination. The Commission does not contend otherwise. On appeal, the Commission makes the following statement relevant to the purpose underlying the Act and the regulations:
This absence of any reference to or showing of past or present discrimination in the casino industry is fatal. The affirmative action plan relied on by Resorts in this Title VII action is invalid under the first prong of Weber
Our disposition of Schurr's Title VII claim dictates reversal of the District Court's grant of summary judgment in favor of Resorts on Schurr's claims based on the NJLAD and on section 1981.
Analysis of a claim made pursuant to the NJLAD generally follows analysis of a Title VII claim. We predicted in Taxman that the New Jersey Supreme Court considering an affirmative action plan in light of the NJLAD "would follow the analytical directive of Weber and Johnson." 91 F.3d at 1564. The result under the NJLAD would, therefore, be the same as that reached in our Title VII analysis. Schurr is entitled to summary judgment on his claim made under the NJLAD.
The result is similar with respect to Schurr's claim based on 42 U.S.C. § 1981. While a valid affirmative action
Because the District Court granted summary judgment in favor of the defendants on the Title VII and related statutory claims, it did not, of course, consider the question of damages. Based on our holding in this matter, an assessment of damages is required. As the record is understandably devoid of evidence bearing on this assessment, we will remand this matter to the District Court for further proceedings.
We find that the District Court properly granted summary judgment in favor of the Commission Chairman on Schurr's equal protection claim and will, therefore, affirm the Order of the District Court with respect to that claim. We find that the District Court erred in granting summary judgment in favor of Resorts on claims made pursuant to Title VII, Section 1981, and the NJLAD, and will direct that summary judgment be entered in favor of Schurr on these claims. This matter will be remanded to the District Court for consideration of damages under Title VII and the related statutes.