Job Discrimination: Chapter 10

Perhaps the most important lesson I've learned is that there are no airtight, completely coherent, unassailable, and holistic answers on the question of affirmative action. —John Bunzel, President of San Jose State Univ.   

Last updated
December 2000

  Lecture Highlights 
   Links

Lecture Highlights

What is Affirmative Action? 
"Affirmative action, the set of public policies and initiatives designed to help eliminate past and present discrimination based on race, color, religion, sex, or national origin, is under attack." http://www.now.org/nnt/08-95/affirmhs.html

Text's definition: "Positive measures beyond neutral nondiscriminatory and merit-hiring employment practices.   It is an aggressive program intended to identify and remedy unfair discrimination practiced against many people who are qualified for jobs."(363)

When was the term affirmative action first used?

In 1961 John F. Kennedy instructed Federal contractors to take  "to take 'affirmative action'  to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin."  Executive Order 10925   http://www.inmotionmagazine.com/aahist.html

What impact does affirmative action have on Three Rivers?
To stay within guidelines, an affirmative action plan is created which identifies hiring goals and promotional goals. These goals are based on the labor force and availability.  

Equal Employment Opportunities are based on skill categories, such as faculty, managerial & staff....

The college looks at workforce representation & asks, "How do we stand?"

If representation  is imbalanced, we must prove we've made a "Good Faith Effort"  to  remedy the situation.  We've sought applicants from the proper channels to reach a diverse population.

If we don't have a a pool of candidates that is diverse, we will ask, "Do we need to re- advertise, or have we  truly made our best good faith effort?"

When a search committee looks through applications to determine who will come to an interview, the nationality is not included on the curriculum vitae.  The nationality is not known to the committee.  However, if the committee selected all  black candidates, personnel may ask, "Are you sure you didn't overlook good candidates?"

In short, each state agency makes up a yearly affirmative action plan.  Private companies who deal with state contracts  or who have  a signification # of employees ( it used to be $50,000 and 25 employees), must also draw up affirmative action plans.  (Above Information from Louise Summa  )

Sample job offering in Chronicle of Higher Education for Three Rivers

On what bases is it illegal to discriminate in Connecticut?

According to the Connecticut Commission on Human Rights & Opportunities , under Connecticut law, with few exceptions, it is illegal to discriminate based on...

Connecticut is still a "Fire and Hire at Will" state.
We  can hire the person who is best for the job.
However, if  an office has 9 white male lawyers & they  are hiring  & from a pool of 100 candidates 10 are suitable   and 2 of those are not white and male - then their diversity  would be of benefit to the firm.  This is reasonable.

In Norwich City Hall, for example,  preference is given across the board to Norwich employees - 5 points.

Similarly, some agencies give points for military 

The law is the law-      O
 It's clear in the center of the circle &  fuzzy around the edges

More prevalent than race today may the ADA - The American Disability Act of 1990
What is a disability - depression? how severe

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination in employment, in places of public accommodation, including all hotels, restaurants, retail stores, theaters, health care facilities, convention centers, parks, and places of recreation, in transportation services, and in all activities of state and local governments because a person has a disability.

Approximately 43,000,000 Americans have one or more physical or mental disabilities

What should you do if you, living in Connecticut feel you've been discriminated against?

1. Either phone (886 5703 ) or visit the nearest Connecticut Commission on Human Rights and Opportunities Office.
2. They will inform you  of your rights - that it is illegal for employers  to discriminate based on above list.
3. You will be informed it is illegal for anyone to retaliate against you for filing a discrimination complaint.
4. Your sworn complaint must be filed within 180 days of the time you became aware of the discrimination.
5. The respondent must respond under oath within 30 days with one 15-day extension allowed.
6. The 90-Day Merit Assessment Review
   • the complaint
   • the respondent's answer
   • the complainant's comments to the respondent's answer
     some will be summarily dismissed
7. The Investigation:  Neutral person will gather info from both sides (may subpoena witnesses & documents) 
8. The Determination:   CCHRO investigator looks at laws that apply to the case & facts uncovered by investigation &  determines if there is  "reasonable cause"  to believe your rights were violated.
9. The Remedies:   Getting Job back, award of back pay.... - effort to make you "whole."

Chronology of Affirmative Action

When was the term affirmative action first used?

In 1961 John F. Kennedy instructed Federal contractors to take  "to take 'affirmative action'  to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin."  Executive Order 10925   http://www.inmotionmagazine.com/aahist.html

1961 Civil Rights Act: Requires businesses that have substantial dealings with the federal government to undertake affirmative action programs.
Affirmative action programs are plans designed to correct imbalances in employment that exist directly as a result of past discrimination.  (1964?) (text 367)

 1964 Civil Rights Act:  Also protected women's rights.  

The term was repeated  in President Lyndon Johnson's 1965  Executive Order 11246 which requires federal contractors to "take affirmative action to ensure that ...employees are treated during employment, without regard to their race, creed, color, or national origin." http://www.now.org/nnt/08-95/affirmhs.html

Aside: According to  the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment occurs, "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

In 1967  President Johnson amended E.O. 11246 to include affirmative action for women. Good-faith efforts to expand employment opportunities for women and minorities were required of Federal contractors.

1972  Equal Employment Opportunity Act: "Requires businesses that have substantial dealings with the Federal government to undertake affirmative action programs.  
Affirmative action programs are plans designed to correct imbalances in employment that  exist directly as a result of past discrimination. (text 367)

1978 The U.S. Supreme Court in Regents of the University of California v. Bakke upheld the use of race as one factor in choosing among qualified applicants for admission.   Bakke, a white male, had been rejected two years in a row by a medical school that had accepted less qualified minority applicants— At the same time, it also ruled unlawful the University Medical School's practice of reserving 18 seats in each entering class of 100 for disadvantaged minority students. Justices were split : 5-4 decision 
Justice Powell noted that lawful affirmative action programs may be based on reasons other than redressing past discrimination -- in particular, a university's educational interest in attaining a diverse student body could justify appropriate affirmative action programs.

1979 The Supreme Court ruled in United Steel Workers of America, AFL-CIO v. Weber that race-conscious affirmative action efforts designed to eliminate a conspicuous racial imbalance in an employer's workhorse resulting from past discrimination are permissible if they are temporary and do not violate the rights of white employees. http://www.inmotionmagazine.com/aahist.html

1995 The Regents of the University of California voted to end all affirmative action programs at all University of California campuses. Beginning in 1997 for graduate schools and 1998 for undergraduate admissions, officials at the University were no longer allowed to use race, gender, ethnicity or national origin as a factor in admissions decisions.http://www.inmotionmagazine.com/aahist.html

1997 The U S Supreme Court refused to hear a challenge to California’s Prop. 209. By declining to review the case, the court did not decide the case on its merits but allowed Prop. 209 to go into effect.http://www.inmotionmagazine.com/aahist.html

1998 Ban on use of affirmative action in admissions at the University of California goes into effect. UC Berkeley had a 61 percent drop in minority admissions, and UCLA had a 36 percent decline. http://www.inmotionmagazine.com/aahist.html

Comparison Chart: # Admitted at Berkeley (text 399)

Berkeley
Text says the Berkeley's class of 97  contained only one black & eighteen hispanics - compared to last  year's class of 22 black & 28 Hispanic

December 13, 2000   In Gratz v. Bollinger
University of Michigan’s affirmative action policy upheld
A federal judge ruled that the use of race as a factor in admissions at the University of Michigan was constitutional. The reasoning on the university's part was: just as preference is granted to children of alumni, scholarship athletes, and others groups for reasons deemed beneficial to the university, the affirmative action program also  serve “a compelling interest” by providing educational benefits derived from a diverse student body.
http://www.infoplease.com/spot/affirmativetimeline1.html#1998

Looking  Further Back - Brief History of Civil Rights

 1865  The 13 Amendment to the Constitution made slavery illegal; 

1868  The 14th Amendment     guarantees equal protection under the law;

 1870  The 15th  Amendment forbids racial discrimination in access to voting. 

In 1896, the Supreme Court's decision in Plessy v. Ferguson upheld a "separate, but equal" doctrine, which proved to be anything but.   Jim Crow laws spread in the South

In 1941, President Franklin D. Roosevelt signed Executive Order 8802 which outlawed segregationist hiring policies by defense-related industries which held federal contracts.

1954:" In Brown v. Board of Education, the decision widely regarded as having sparked the modern civil rights era, the Supreme Court rules deliberate public school segregation illegal, effectively overturning "separate but equal" doctrine of Plessy v. Ferguson. Chief Justice Earl Warren, writing for a unanimous Court, notes that to segregate children by race "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Thurgood Marshall heads the NAACP/Legal Defense Fund team winning the ruling." http://www.civilrights.org/library/permanent_collection/resources/crchron.html

112/1/1955  , Rosa Parks, a seamstress in Montgomery, Alabama, refused to give up her seat on a public bus to a white man who had boarded the bus after she did. At that time,  African-Americans not only had to ride in the back of the bus, but also had to give up their seats to any white person who wanted to sit

What is another significant law that prohibited discrimination?
Other equal protection laws passed to make discrimination illegal were the 1964 Civil Rights Act, Title II and VII of which forbid racial discrimination in "public accommodations" and race and sex discrimination in employment.

What is Proposition 209 & how does it fit in to our discussion?
California Against Discrimination -

Who is Dan McAleer,  & what impact did he have on AT&T hiring practices?
Aleer, a service representative, sued AT&T on Dec 8, 1975, as he lost out on a promotion to a less qualified female employee (as a result of an agreement with EEOC  where goals & timetables were set up for hiring minorities)

The court allowed Aleer to have monetary compensation (as he was an innocent victim) but it did NOT give Aleer the promotion

On January 18, 1979 the agreement between AT&T & EEOC expired, with AT&T having reached 99.7% of female-hiring  goals established in 1973.

What are the 2 controversial aspects of AA listed in the text? 
 ( Preferential treatment - )  (363)

1. Preferential hiring:  Gives special consideration to people  from groups that have been traditionally victimized.

2.  Quota hiring:  The policy of hiring and employing people in direct  proportion to their numbers in society.

What is reverse discrimination?
The unfair treatment of a majority member (usually  a white male).

What is sexism?
Unfair treatment of a person exclusively on the basis of sex.

What is job discrimination? (text 364)
Making an adverse decision against employees based on their membership in a certain class & this includes 3 basic elements:

1. The decision is against the employee solely because of their membership in a certain group.
2. The decision is based on the assumption that the group is  in some way inferior & thus deserving of unequal treatment.
3. The decision harms those it's aimed at.

What are four forms of discrimination? (text 365)

1. Intentional Individual Discrimination  - Knowingly passing over  someone
        Male passes over females for supervisors  because lady bosses mean trouble.
2. Unintentional Individual Discrimination - unthinkingly adopting traditional practices -
         tough for woman to lift transmissions & be a mechanic - in cold weather & heat..
3. Intentional Institutional Discrimination- No women supervisors as  males resent them
4. Unintentional Institutional  Discrimination  -   firm thinks women poor engineers

What 2 reasonable grounds indicate discrimination? (365)

1. Statistics indicate that  members of a group re being treated unequally in comparison with other groups
2. Endemic attitudes and formal & informal practices and policies seem to account for the skewed statistics

Wage comparison chart 1999 Median Income males    (text)

Wage comparison chart 1999 Median Income   (text)

What are discriminatory requirements not directly related to the job?
(366-367)

Standardized intelligence tests:    culturally biased
Weight requirements:                  may rule women out from physical work
Word of mouth:   White male dominated  jobs spread to white males
Resistance:           Of people who are not like us

What are Affirmative Action Programs?
Plans designed to correct imbalances in employment that exist directly as a result of past discrimination.

What do Affirmative Action Programs involve?

1. Firms must issue an equal-employment policy & AA commitment
2. Firms must appoint and individual to direct & employment the program & to publicize the policy
3. Firms must  survey females & minorities by  dept. & job classification.

What is the result of above?
Preferential Treatment:  The practice of giving individuals favored consideration in hiring or promotions for other than job-related reasons.

What are the two bases for preferential treatment/ compensatory justice?
Since women & minorities clearly continue to be victimized directly and indirectly by traditional discrimination in the workplace, they are entitled  to some compensation. . The soundness of this contention relies on at least 2 factors:  (368)

1. It will provide adequate compensation
2. It will provide compensation more fairly than any other alternative

What are 5 problems associated with taking the "collective approach" to remedying job discrimination?  (369)

1. It pits one social group against another, i.e. black females against Hispanic males, raising race  & sex consciousness 
2. It victimizes some individuals
3. Occasionally women & minority selected are les deserving of compensation than  women not selected - because group membership is divorced from individual need.
4.  Majority group members may be as deserving or more deserving - & thus become seriously limited in seeking employment
5. It is prohibitively expensive for businesses to deal with gov. agencies & main elaborate records

The just employment practice is" that a person should be hired or promoted only on job-related grounds" whereas affirmative action programs may  by nature "provide compensation at the expense of white males' right to fair and equal employment treatment" (370)

What  does Prof Ablert Flores say about   equal treatment?  (370)
While justice  would demand that equals receive equal treatment, it is likewise true that unequals should receive treatment appropriate to their differences. Hence, he concludes that 'unfair or differential treatment may be required by principles of justice.' 
While Flores may hire  a "female" over a white male, this is not compensatory justice.   because firms are justified in introducing  some concept of social justice, which take cognizance of a fair distribution of society's resources among competing groups.

Point Counterpoint - Against Reverse Discrimination:  ( 371 )

1.  All discrimination on the basis of race & sex is inherently unfair
Color blind society is idea, but AA i necessary if we are to achieve it.

2. Reverse discrimination leads to resentment & social tensions
Look back at rock throwing with integrating schools & women libbers

3.  Reverse Discrimination  stigmatizes minorities & women (talented minorities)
All who have achieved a position goal deserve respect.

4.  Reverse discrimination wastes the best human resources - the best for the job don't get it
Can we deny people the opportunity to prove themselves. who knows who is  qualified

For Reverse Discrimination (373)

1. Justice requires that we compensate for the results of past discrimination
How can we compensate countless groups. who hasn't been discriminated against ?  Appalachians - all poor?

2.  Preferential treatment is the only way to overcome current racism & sexism.
Not any more.  We have the Equal Employment Opportunity Act

3. Women & minorities need role models
Collin Powell wasn't selected for his position because of his race.

Readings

Robert Wassertrom, "A Defense of Programs of Preferential Treatment:"

 1.  One common objection people have is :Those now supporting preferential treatment opposed it in the past;  but in reality
There is no inconsistency involved in holding both views.
Social realities do make an enormous difference
"There is simply no way in which all of these programs taken together could plausibly be viewed as capable of relegating white males to the kind of genuinely oppressive status characteristically bestowed upon women and blacks in by the dominant social institution." 384

2.  A second common objection is: Introducing SEX & RACE compromise what should really matter: Individual Qualifications.

Wasserstrom's rebuttal, "Would anyone claim that Henry Ford II is the head of the Ford Motor Company because he is the most qualified person for the job?" what are qualifications for COE

William Blackstone 'Reverse Discrimination & Compensatory Justice"

Majority groups wouldn't want to disadvantage themselves for past injustices.
Claims & counter-claims by Chicanos, American Indians, orphans, illegitimate children.   

Ultimate effect:  social chaos rather than social justice
Think about the quality of higher education

Lisa Newton:  "Reverse Discrimination as Unjustified"  392

Ends cannot justify means

No violation of justice can be justified by an appeal to the ideal of equality, for the idea of equality is logically dependent on the notion of justice

Insoluble problems: determining what groups have been significantly discriminated against.

Reverse discrimination destroys justice, law, equality & citizenship itself.

Primary human rights are useful guides to legislation, but cannot stand as reasons for awarding remedies for injuries sustained.

Utilitarian foundation:  More harm than good would follow

Affirmative Action Links

Bureau of Labor Statistics - as recommended per text

California Against Discrimination -  - supports proposition 209 

Civil Rights.org - News, library

Civil Rights Chronology - easy-to-read, by date

Civil Rights - Major Court Cases

Equal Employment and opportunities Commission - home page

Facts About Employment Discrimination   Questions & Answers

Equal employment opportunity commission:- Federal laws prohibiting Job Discrimination

Title VII of the Civil Rights Act of 1964  -  text

Title VII, Civil Rights Act of 1964, Section 2000e-16

United States Census Bureau  - full of statistics & projections