Issues and Cases

If government hires by race, it must be prepared to justify the biased practice in court

Shea v. Kerry


Contact: Joshua P. Thompson and Ralph W. Kasarda

Status: Petition for writ of certiorari was filed on December 7, 2015. The petition was denied on Apr. 18, 2016.


Summary:  Under the State Department’s Mid-Level Affirmative Action Plan (MLAAP), the Department hired entry-level, self-identified minorities directly into a mid-level position.  William Shea, a white male Department employee, brought an employment discrimination claim under Title VII of the Civil Rights Act, arguing that he was subjected to unequal treatment under the MLAAP because of his race.

The district court ruled that Shea bears the burden to show that the race-based program was illegal, and he has failed to carry that burden of proof.  The court noted that had Mr. Shea brought his claim under the Equal Protection Clause of the Fourteenth Amendment, the government’s burden would have been higher, and he would have prevailed.

Representing Mr. Shea on appeal, attorneys for PLF contend that when government institutes a race-based hiring plan, it must bear the burden of showing why the program is necessary, regardless of whether the challenge to the plan is brought under the Constitution or Title VII.

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