United Airlines has announced a new policy regarding the hiring of pilots. The company states:
Over the next decade, United will train 5,000 pilots who will be guaranteed a job with United, after they complete the requirements of the Aviate program – and our plan is for half of them to be women and people of color.
What if that “plan” is inconsistent with selecting the best qualified candidates for guaranteed jobs? If the airline then gives up or modifies its plan, as it should, there is no problem.
But if the company rejects best-qualified white male candidates in adherence to its plan, it will be vulnerable to claims of race and/or sex discrimination. In addition, it will lower the quality of its pilot force — hardly a trivial matter considering the responsibilities of an airline pilot.
How would United defend selecting less qualified pilot trainees due to considerations of race and gender? In its statement, United alluded to “financial barriers that [according to the company] limited access to the airline pilot career path for generations of women and people of color.”
I don’t believe this is a legal defense to an employment discrimination claim.
It’s also somewhat incoherent. Let’s assume that past generations of women and “people of color” had fewer opportunities to become pilots than white males. Granting racial preferences to an entirely different generation of women and people of color does nothing to help those who were deprived of opportunities way back when.
In fact, if United prefers female applicants to better qualified male applicants, it might inflict damage on the sons and/or grandsons of women deprived of equal opportunity years ago.
Does United contend that financial barriers still limit access to certain groups? It doesn’t say this. But if it is so, this means, unfortunately, that members of these groups are probably less qualified, as a collection, to become airline pilot trainees.
United doesn’t say that it has discriminated against women and people of color in filling pilot positions. Indeed, by citing “financial barriers,” United seems to be placing blame elsewhere.
But absent past discrimination by United, I don’t believe the company can defend selecting less qualified women and racial minority candidates. And even if the company could show that it discriminated in the past on the basis of race and/or gender, it might be hard pressed to defend filling its next 5,000 pilot jobs, over a period of ten years, with 2,500 women or minority group members.
To my knowledge, when courts have approved of quota hiring as a remedy for proven past discrimination — which they rarely do — the quotas haven’t been nearly as drastic and longstanding as the one United contemplates.
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.