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Can Delta Discriminate Against Overweight Flight Attendants?

Publication Date: 
June 25, 2013
William Baldwin

Professor John Donohue participated in a Q&A with Forbes magazine to help answer questions on the "murky legal territory" of discrimination, and "what is and what is not permitted in the workplace, on campus and in housing."

Discrimination on the basis of race, gender, disability and a lot of other categories is illegal. Or is it? The law is unsettled. There are a lot of unanswered questions about what is and what is not permitted in the workplace, on campus and in housing.

The Fisher v. University of Texas ruling that came down June 24 didn’t decide much, since this affirmative action case goes back to lower courts for more “scrutiny.” Meanwhile, the Supreme Court has agreed to consider whether a Michigan law banning discrimination is discriminatory and whether the federal government has gone too far with its “disparate impact” theory.

To explore this murky legal territory we posed questions, by phone and by e-mail, to John J. Donohue, a Stanford law professor and co-author of the treatise Employment Discrimination: Law and Theory.

Q. It now seems possible that affirmative action by public colleges won’t survive the 25 years allotted by Justice O’Connor in 2003. Could it last longer in private colleges?

A. Yes. When Berkeley’s affirmative action was restricted by state law, Stanford’s was completely unaffected. On the other hand, if the Supreme Court were to say that a type of affirmative action undertaken by state universities violated the Equal Protection clause, that ruling might well be deemed to prohibit similar affirmative action plans by private universities that accept federal funds, as almost all do.

Q. Suppose you’re a basketball team owner and you want to see more white faces on the court. Could you discriminate against African-Americans on the theory that whites are statistically underrepresented?

A. Only if you can make the case that whites are underrepresented because of a history of discrimination against them. A racial preference would be permissible under Title VII of the 1964 Civil Rights Act only in order to overcome some prior legacy of underrepresentation.