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5 Discrimination in the Workplace

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Learning Objectives

After reading this chapter, you should be able to:

• Define the various types of discrimination.

• Explain the notions of affirmative action, equal opportunity, preferential treatment, individual and group compensation, and reverse discrimination.

• Describe the different U.S. affirmative action laws and procedures and the major Supreme Court decisions that have clarified those laws.

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Introduction

Introduction Racial prejudice has been the source of social conflict and personal suffering for as long as there have been human records, and quite possibly for tens of thousands of years before that. Rival ethnic groups wage war upon each other, enslave members of opposing groups, and even try to exterminate them. The concept of racial equality is a comparatively recent one, and it has only been a matter of decades that governments have denounced racial prejudice and made efforts to undo at least some of the damage it has caused.

India is a case in point, with its centuries-old tradition of the caste system, which has splintered the population into a hierarchy of social classes determined by birth. While the higher castes have been the holders of the country’s wealth and power, at the very bottom are the “untouch- ables” who are so low that, in the past, upper castes avoided coming into any contact with them. Making up 16% of the country’s population, they historically had no meaningful access to edu- cation, respectable employment, or political representation. Millions today live on the streets or in garbage dumps, where they forage for scraps of anything that might have some resale value.

Chapter Outline Introduction

5.1 Discrimination

Features of Discrimination

Social Institutions and Discrimination

Intentional and Unintentional Discrimination

Evidence of Public Accommodations Discrimination

Evidence of Employment Discrimination

5.2 Employment Discrimination and Affirmative Action

Features of Affirmative Action

Preferential Treatment

Compensation for Discrimination

Arguments for Affirmative Action

Arguments Against Affirmative Action

5.3 U.S. Anti-Discrimination Laws

The Civil Rights Act of 1964

Affirmative Action: Two Laws, Two Governmental Agencies

Compliance Guidelines and Plans

Supreme Court Cases on Affirmative Action

Conclusion

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Section 5.1 Discrimination

While India was a colony, the British government made efforts to elevate the untouchables into mainstream society, one of the first efforts at what we now call affirmative action. After independence in 1947, the government of India continued this policy, even writing into the constitution special protections and opportunities for the untouchables. Among these poli- cies is the reservation of 16% of all government jobs for untouchables, in direct proportion to their number in the population. A high percentage of student positions in universities are also reserved for them.

When we look at India’s situation, it is easy to conclude that the country chose the right remedy: Dramatic injustices call for dramatic correc- tive measures, without which the untouchables would be forever locked into a cycle of the most unimaginable poverty. It is not just India, however, that has this prob- lem. Many of the world’s countries have minority groups that are eco- nomically suffering because of a history of discrimination.

The United States is a case in point. This country has adopted solutions like India’s, though not quite as radical. Businesses, in particular, are on the cutting edge of social reforms that aim to elevate historically disadvantaged minority groups. Some- times companies proactively embrace these efforts, but in most cases the efforts are backed by government mandates and businesses have no choice but to comply. Discrimination in the workplace is one of the most important ethical and legal issues for businesses. Social conscience urges companies to eliminate discriminatory practices, and the law requires them to do so. In this chapter, we will explore many of the issues connected with discrimination in the workplace.

5.1 Discrimination We will begin with a look at the nature of discrimination itself, how it affects businesses and other social institutions, and the evidence for it.

Features of Discrimination

Two types of discrimination are relevant to businesses:

• Public accommodations discrimination: In this type of discrimination, a business or some other public access place prejudicially denies services to some customers.

• Employment discrimination: This type of discrimination refers to prejudicial treatment of people in hiring, promotion, and termination decisions.

Saurabh Das/Associated Press

Although Hari Kishan Pippal is an Indian “untouchable,” he has prospered despite the odds. He now owns a hos- pital, a Honda dealership, and a shoe factory.

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Consider this simple case of public accommodations discrimination: A White man and a Black man who are dressed similarly enter a restaurant; the White man is served and the Black man is asked to leave. In essence, the Black man was asked to leave purely because of his race. Here is a simple case of employment discrimination: A man and a woman both apply for the same job; the woman’s qualifications are much stronger, but the employer hires the man instead. Here, the woman was turned down purely because of her gender, not because of her abilities.

Thus, we can say that discrimination is the unjust or prejudicial treatment of people on arbi- trary grounds, such as race, gender, or age, which results in denial of opportunity, such as in public accommodations or employment. Key to this definition is the idea that the treatment is based on arbitrary grounds. With public accommodations discrimination, a person’s gender or skin color is irrelevant to his or her function as a customer, and it would be arbitrary to deny that person service. With employment discrimination, a person’s gender or skin color is also irrelevant to the person’s job performance, and it would also be arbitrary to deny that person an employment opportunity on that basis.

Of course, it is not always discriminatory to deny opportunities to people because of some unique feature about them. Suppose that a blind person tried to rent a car from Hertz or apply for a job as an air-traffic controller. In these cases, having eyesight is a necessary requirement for driving a car or being an air-traffic controller, and there is nothing arbitrary about denying those opportunities to blind people.

However, it can at times be a challenge to determine whether a particular physical fea- ture is needed to do the job. For example, a 240-pound woman from San Francisco was denied work as an aerobics instructor because of her weight. The company in question was Jazzercise, which advertised itself as the world’s leading dance-fitness program, hav- ing 5,000 certified instructors across the country. The company’s stated policy was that their instructors must have a “fit appearance,” and they turned down the woman when seeing her in person. After she complained to the San Francisco Human Rights Commis- sion, the Jazzercise company agreed to drop the “fit appearance” criterion and conceded that “recent studies document that it may be possible for people of varying weights to be fit” (quoted in Ackman, 2002). This case shows that long-standing stereotypes may be grounded in little more than prejudice, and this is precisely what makes discriminatory treatment unfair.

The most commonly acknowledged forms of discrimination today are on the bases of:

• race, • gender, • disability, and • age.

Still others include color, creed, political affiliation, national origin, religion, ancestry, preg- nancy, medical condition, mental condition, marital status, sexual orientation, and status as a veteran. The list of discrimination types could be endless: I could discriminate against people who were fans of a rival sports team, or liked a particular type of music, or drove a particular model of car. Whatever differences exist between one human and another can potentially become matters of prejudice and arbitrary treatment.

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Social Institutions and Discrimination

In combating discrimination, there are three principal social institutions that are targeted for change: schools, governments, and businesses.

Eliminating discrimination in schools is important because these institutions provide people with the skills to compete for almost everything else in life. If schools at both the K–12 and college levels systematically discriminated against certain groups, those individuals would forever be at a competitive disadvantage and locked into something like a caste system, which it would be exceedingly difficult to rise above.

Eliminating discrimination in positions of political power is important because it is the gov- ernment that shapes social policy regarding the equal treatment of groups. Without proper representation in government, the risk is too great that the interests of White males will pre- vail over those of other groups.

Finally, eliminating discrimination in the workplace is important because it is the quality of jobs that determines whether an employee becomes rich or poor. When employers systemati- cally discriminate against certain groups, they turn those groups into a socioeconomic under- class from which, again, it is difficult to break free.

Intentional and Unintentional Discrimination

In the past, discrimination was an integral and acceptable part of doing business; that was a reflection of the prevailing social order. Women and ethnic minorities, it was felt, should be

What Would You Do?

In the court case Swartzentruber v. Gunite Corp. (2000), Sheldon Swartzentruber sued his employer for religious discrimination. Swartzentruber was a member of the Church of the American Knights of the Ku Klux Klan and had a tattoo on his forearm of a hooded figure standing in front of a burning cross, one of the sacred symbols of his church. Fellow workers complained that they found the tattoo offensive and threatening. His supervisor asked him to keep it covered, which he did inconsistently, but after several reminders from his boss, Swartzentruber sued for harassment.

1. If you were Swartzentruber’s supervisor, would you have made him cover the tattoo, let him expose it, or fire him? Explain your answers.

2. If you were an African American worker at the company, would you have complained about Swartzentruber’s tattoo, quit your job, or just tried to ignore it? Explain your answers.

3. The court maintained that the alleged harassment “occurred because of his self- identification as a member of the KKK, not because of his religious beliefs.” Is that relevant to whether Swartzentruber was discriminated against? Why or why not?

4. The court concluded that “A company demand that he cover a tattoo that, to many people, symbolizes racism and hate and company monitoring to ensure compliance is not harassment and does not contribute to an environment that could reasonably be viewed as hostile.” Do you agree with the court? Why or why not?

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treated differently as customers and belonged only in specific jobs, typically lower paying ones, and it was just assumed that the better jobs should go to White males. Not so now. The law protects women and minority groups from discrimination, and it is a serious blemish on a business’s moral record to be accused of discriminatory practices. Still, some discrimination continues today in spite of changing laws and social attitudes.

Sometimes businesses engage in intentional discrimination, when the policies or practices of a company are shaped by overt racial prejudices of its managers or executives. For example, in one racially divided town, a family restaurant had a policy of placing a small letter B on the backs of application forms filled out by Black applicants. They would then overlook these applications when selecting candidates to interview. The business managers were knowingly and intentionally discriminating against Black applicants.

Other times, however, businesses engage in unintentional discrimination, when their poli- cies or practices uncritically reflect prejudicial stereotypes. A famous public accommoda- tions example of this was when President Bill Clinton’s 21 secret service agents went to a Denny’s restaurant for breakfast; while the White agents received their meals, those for six Black agents arrived only after repeated requests an hour later, just as the group was leaving. A spokesperson for Denny’s stated that “It’s a service issue, not a discriminatory issue,” which he said resulted from the quantity of orders and the kitchen backlog. The incident sparked a $54-million class action lawsuit against Denny’s that revealed a pattern of discriminatory activity in many of the restaurant’s locations.

The Jazzercise example from before appears to be a case of unintentional employment dis- crimination in that the company wrongly assumed that only people within a certain weight range were athletically fit. In addition to those about weight, policies about height, beards, tattoos, and body piercings can also have a discriminatory effect. Unintentional discrimina- tion of this sort is sometimes referred to as a “facially neutral employment practice,” which is defined by anti-discrimination law as a practice “that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect” (The Free Dictionary, n.d.). For example, a company can establish a dress code, but it cannot have a discriminatory impact, either on its face or as an effect.

Some of our personal biases are hidden from us, and, to help reveal them, a research proj- ect called Project Implicit has several free online tests that users can take to uncover their implicit associations about race, gender, weight, sexuality, religion, disability, and age. Accord- ing to Project Implicit, “Much of perception, thinking, and action occurs outside of conscious awareness or conscious control. Because of that, judgment and action can be unintentionally influenced by factors that we do not recognize, and may not value.” By becoming aware of these unconscious factors, businesses might better achieve “organizational innovation and change” (Project Implicit, 2011).

Evidence of Public Accommodations Discrimination

When looking for evidence of discrimination within the business world, there are two types:

• Direct evidence of discrimination is overt written or oral statements by employ- ers that display their discriminatory intention. A sign on a restaurant door that says “No Blacks” would be an example of this in regards to public accommodation

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discrimination. However, find- ing direct evidence is often dif- ficult because employers rarely make explicit discriminatory statements such as “our policy is to not serve Black people” either in writing or verbally.

• It is more likely that there will be indirect evidence of discrimination, in which the behavior of the company implies discriminatory con- duct. An example would be the Denny’s case of serving White agents before Black ones.

Before the Civil Rights Act of 1964, direct and indirect evidence abounded: Conduct an Internet image search for “Whites only” and “no colored” and you will get numerous old photographs of discrimina- tory signs on restaurants, hotels, restrooms, water fountains, and so on. But what about now: Hasn’t public accommodations discrimination been eliminated? Unfortunately, it is alive and well in business. Attorneys specialize in it throughout the country, state govern- ments have offices devoted to it, and complaints are plentiful.

Immediately after the terrorist attacks on September 11, 2001, many businesses overtly discriminated against Middle Eastern customers. For example, on the afternoon of the attacks, a hotel in Des Moines, Iowa, revoked its previous offer to host the annual convention of the Midwest Federation of American Syrian-Lebanese Clubs, and repeatedly refused to recon- sider its decision in the subsequent weeks. In another case, the manager of a nightclub told a Sikh customer to remove his turban or leave the club, while that same Sikh customer had been permitted to wear it at the club prior to September 11. A survey of around 1,000 Arabs and Muslims by the New York City Commission on Human Rights indicated that 69% of the respondents experienced discrimination after the attacks, one-quarter of which was related to public accommodations.

But even in less politically charged climates, clear cases of public accommodations discrimi- nation still occur. In 2008, a case was settled against a nightclub in Virginia Beach, Virginia, that imposed a dress code that targeted hairstyles common among African Americans, such as dreadlocks, cornrows, and braids, and did so as a pretext for denying African Americans admis- sion. A government spokesperson commented, “It is unfortunate that in today’s society, Afri- can Americans and other individuals still must endure discrimination and segregation in public gathering places such as restaurants and nightclubs” (U.S. Department of Justice, 2008).

In another example, in 2012 the U.S. Department of Justice settled a case against a swim club in Huntingdon, Pennsylvania, which had contracted with a day camp to have weekly 90-min- ute use of the club’s pool for the camp’s students. On the first day, 56 campers, predominately Black, used the pool; some club members complained on the basis of race. The next day the club enacted a policy barring all summer camps from using the pool, which prevented this day camp from returning (U.S. Department of Justice, 2012).

Everett Collection/Superstock

For 100 years after the Civil War, Jim Crow laws enforced segregation in public areas with “Whites only” and “Coloreds only” signs.

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In 2014, a case was settled against a restaurant owner in Boston, Massachusetts, who on sev- eral occasions refused to admit African American, Hispanic, and Cape Verdean patrons. One staff member allegedly told these patrons that they could not enter the bar because they did not “know the owner” and that the bar did not want any “trouble” or “problems” (Attorney General of Massachusetts, 2014). The owner agreed to a $100,000 settlement.

When complaints of accommodations discrimination are brought to the Department of Jus- tice, the agency sometimes uses “testers” to confirm the allegations, which they explain here:

Fair housing testing consists of individuals posing as prospective home seek- ers (i.e., testers) simulating housing transactions with a housing provider. Responses from the housing provider to the testers are compared for differ- ences. An inference of discrimination can be made when there is a substantial difference in the treatment of the testers by the housing provider when the only material difference between the testers is a protected basis (e.g., dis- ability). A “Protected Tester” is one who exhibits the protected characteris- tic being tested. A “Control Tester” lacks the protected characteristic. (United States v. Westminster Asset Corp., 2014)

In 2013 the Department of Justice settled a case in which a property manager in Edina, Minnesota, discriminated against a prospective renter from Somalia. The testing evidence indicated that the manager “showed white testers apartments when they walked in while she told Somali testers they had to make an appointment to see an apartment the next day. She also failed to tell Somali testers about certain apartments becoming available that she men- tioned to white testers” (U.S. Department of Justice, 2013).

Similarly, in 2014, the Department of Justice settled a case against an apartment complex landlord in North Ridgeville, Ohio, who routinely quoted higher rental and application fee rates to African Americans and refused to show them vacant units. “The department sent African-American and white testers posing as prospective renters to the complex and the African-American testers were quoted higher rents and application fees than the white testers. African-American testers were also told that they could not view a unit at that time, while similarly situated white testers were shown units” (U.S. Department of Justice, U.S. Attorney’s Office, Northern District of Ohio, 2014). The landlord agreed to pay $30,000 to resolve the complaint. A Department of Justice spokesperson said, “It is simply unacceptable for a landlord to make renting an apart- ment more difficult and more expensive because of a person’s race.”

Evidence of Employment Discrimination

The employment process within business is usually a private one, in which discussions and decisions about prospective candidates are not open to the public. As a result, direct evidence of employment discrimination is hard to come by, and evidence has to be gathered by more indirect means. One strategy for presenting indirect evidence of employment discrimination in court is called the burden-shifting formula, where the burden rests on the employer to show that its behavior was not discriminatory (McDonnell Douglas Corp v. Green, 1973). The formula has three steps:

1. The employee makes an initial case that she was treated differently, such as that she was overlooked for promotion because she was female.

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$10,000

$20,000

$30,000

$40,000

$50,000

$60,000

$70,000

White male, not Hispanic

White female, not Hispanic

Asian male

Asian female

Black male

Black female

Hispanic male

Hispanic female

Section 5.1 Discrimination

2. The employer gives a nondiscriminatory explanation for its conduct, such as that the woman lacked seniority and thus was not qualified for promotion.

3. The employee refutes this explanation as a mere pretext for discrimination, such as by showing that less experienced males in the company had gotten promotions.

The evidence here is still indirect—there is no explicit statement from the company to the effect of “we did not promote you because you are a woman.” However, through the under- mining of the company’s nondiscriminatory explanation, it seems more reasonable that the company’s differential treatment was discriminatory in nature.

There is another type of indirect evidence that suggests the ongoing discriminatory treat- ment of minorities within society as a whole—namely, income inequality, which involves the extent to which income is distributed in an uneven manner among a population. Some income-inequality studies focus on race and gender disparities, and much of those data in the United States come from the Census Bureau. The statistics show that race and gender income differences have decreased since 1953, but a sizeable income gap still remains, as Figure 5.1 reveals. Note that the statistics themselves show only that major income disparities exist—to use this as evidence for discrimination, a person must further show that these differences cannot be reasonably explained by nondiscriminatory factors.

Figure 5.1: The U.S. income gap, 2013

Income inequalities may reflect race and gender disparities. Race and gender discrepancies have decreased since the 1950s, but there is still a large income gap.

Source: U.S. Census Bureau. (2013). Historical income tables. Table P-36. Retrieved from www.census.gov/hhes/www/income/data /historical/people/

$10,000

$20,000

$30,000

$40,000

$50,000

$60,000

$70,000

White male, not Hispanic

White female, not Hispanic

Asian male

Asian female

Black male

Black female

Hispanic male

Hispanic female

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1994 2012

Women Men

Section 5.1 Discrimination

There are a few nondiscriminatory reasons used to explain the income inequality between genders. For example, it is often suggested that women gravitate toward careers that pay lower than those of men, such as education, counseling, and nursing. It is also argued that many women place less value on jobs with long work hours that pay more, and place more value on a flexible schedule that allows for family commitments and perhaps pays less. These explanations are controversial, and perhaps even grounded in stereotypes. However, they suggest that women’s own choices may be a cause of gender income disparities and, if so, the income-inequality argument for discrimination falls apart.

With racial income inequality, there is also a possible nondiscriminatory explanation: Black and Hispanic people have less access to education, which in turn makes them less competitive for lucrative jobs. Thus, their lower pay may be not the result of employment discrimination, but instead an unfortunate consequence of their sociological background. The educational obstacle is less of a barrier for White women, who first surpassed White men in college enrollment in 1991; since then, the gap has continued to widen, as Figure 5.2 shows.

Figure 5.2: Share of recent high school completers enrolled in college

the following October

Between 1994 and 2012, the number of female high school completers who enrolled in college the following fall increased from 63% to 71%.

Source: Pew Research Center “Women’s College Enrollment Gains leave Men Behind,” March 6, 2014, www.pewresearch.org/fact-tank/2014/03/06/womens-college-enrollment-gains-leave-men-behind/

1994 2012

Women Men

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Pay gaps that begin at the initial acquisition of jobs often continue with promotions within the company. This sometimes is associated with a phenomenon called the glass ceiling, where women and minority workers hit a level beyond which they cannot advance, while their White male counterparts continue to progress. For example, Outback Steakhouse recently settled a $19 million class action lawsuit by female employees who maintained that they “hit a glass ceiling and could not get promoted to the higher-level profit-sharing management positions in the restaurants” (Equal Employment Opportunity Commission, 2009). One analysis of the glass ceiling looked at the percentage of women vs. men in the top 1% of earnings. According to the author, gathering data on this in the United States is difficult because tax records of married couples reflect joint income, not each spouse’s individual income. However, some parallel might be drawn from countries that do record individual income of couples. In Canada, for example, the proportion of women in the top 1% rose from 11% in 1982 to 21% in 2010 (Atkinson, Casarico, & Voitchovsky, 2014).

But this concept of the glass ceiling is also controversial, and with gender-based glass ceil- ings the argument has been put forward that many obstacles to women’s promotion result from personal choices similar to those discussed above, such as the desire for part-time working arrangements. As one analyst stated, “the only ceiling that exists in corporate America is gender-neutral—it prevents those who choose to devote more time to their per- sonal lives from advancing at the same rate as those who devote more uninterrupted time to the workplace” (Women in Management, 2002).

In short, income-inequality statistics and the phenomenon of the glass ceiling demonstrate that serious pay gaps exist. Those, in and of themselves, do not constitute compelling indi- rect evidence of systematic employment discrimination. However, it still may be important to attempt to eliminate the pay gap even if it cannot be demonstrated to result from current discriminatory employment practices. The pay gap that exists still has historical roots in past discrimination, and that alone may justify remedying the inequality.

5.2 Employment Discrimination and Affirmative Action

There is no doubt that employment discrimination has taken place in the past and contin- ues today. The question, then, becomes one of finding the best means of combating it. The gentlest public policy for uprooting discrimination in organizations is equal opportunity, which is simply the policy of treating employees without discrimination. It involves neu- tral, nondiscriminatory hiring practices. The hope is that, through the simple removal of discriminatory barriers, historically disadvantaged groups may finally be able to compete head-to-head with White males and thereby eventually remove all racial and gender eco- nomic disparities.

A much more aggressive mechanism for combating discrimination is affirmative action, which is a policy of improving the opportunities of those within historically disadvantaged groups through positive measures beyond neutral, nondiscriminatory action. We will next look at key features of affirmative action policies and at arguments for and against them.

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Features of Affirmative Action

The principal aim of affirmative action policies in the workplace is to increase the representa- tion of women and minority groups in areas of business from which they have been histori- cally excluded. Some of these positive measures include

• active recruiting of minority workers, • elimination of biases in job criteria, • minority training programs for senior positions, and • active promotion of minority workers to senior positions.

The aim of affirmative action is sometimes described as equal results, meaning achieving pro- portional minority representation in a work or economic environment where minorities are pres- ently underrepresented. For example, if 2% of the White male population is wealthy, then 2% of the population of women and minorities should be wealthy. In this sense, affirmative action seeks to achieve an outcome in which women and minorities are proportionally represented in posi- tions of wealth and power. Affirmative action policies are typically seen as temporary measures to fix problems that exist right now; when equality is achieved, they will no longer be necessary.

Preferential Treatment

The most controversial component of affirmative action is preferential treatment, that is, special consideration given in hiring and promotion situations to people from historically dis- advantaged groups. Suppose, for example, that a White man and a Black man are applying for the same job, and, although their credentials are similar, the White man has more educational experience. Thus, on paper, the White man is the stronger candidate. Because the Black man is a member of a historically underrepresented group, preferential treatment policies would make him the preferred candidate over the White man.

Sometimes preferential treatment involves a quota system, where a certain number of jobs are set aside for members of minority groups in direct proportion to their numbers in the community. The notions of affirmative action and preferential treatment are often used inter- changeably, but they are not identical: Preferential treatment is just one type of affirmative action policy, and is not necessarily the central component. As one governmental agency stated, “Affirmative action is not preferential treatment. Nor does it mean that unqualified persons should be hired or promoted over other people. What affirmative action does mean is that positive steps must be taken to provide equal employment opportunity” (Office of Fed- eral Contract Compliance Programs, 1993). Nevertheless, preferential treatment has become the focal point for debates about affirmative action policies.

Compensation for Discrimination

The strategy of affirmative action programs is group-oriented in the sense that every indi- vidual who belongs to a designated group will thereby qualify for some special consideration. To explain, there are two ways that we might compensate minority groups for their historical disadvantages:

• There might be individual compensation, in which each person is compensated based on his or her individual claim. For example, a Black man might argue that he was

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discriminated against when he was overlooked for a promotion at his job. He could then sue his company and present his case in court; if he succeeded, his company would then compensate him individually. Scenarios like this occur regularly, in fact.

• Alternatively, there might be group compensation, in which each individual within a disadvantaged group is compensated based purely on his or her membership in that group. This is the approach that the government takes with affirmative action policy. It identifies a group that has been historically disadvantaged and addresses the situation by compensating each person within that group.

The benefit of group compensation is that it avoids the impossible task of examining the claims of each person individually within that group. For example, with group compensation, a Black woman would not have to show how she had been personally disadvantaged through the legacy of slavery, Jim Crow laws, and racial prejudice. Those facts have already been estab- lished for her minority group as a whole, so she would not have to make her case individually.

There are downsides to group compensation, however, which is the source of some of the controversy with affirmative action policies:

• Some individual members of a minority group may be less deserving of compen- sation than other individual members but receive the benefit anyway. Take, for example, a Black man who was raised in an affluent family and has not personally experienced discrimination. He would still be entitled to the same special consid- eration as a Black man who has personally and regularly experienced social and economic discrimination.

• Some members of majority groups may be as deserving of special consideration as members of a minority group are, yet they will not qualify to receive it. Take, for example, a White man whose family has been caught up in a cycle of poverty for generations and who experiences the same socioeconomic disadvantages as a poor Black man. Because he is not a member of the Black minority group, he does not qualify for compensation.

From the government’s standpoint, however, the strengths of group compensation outweigh its weaknesses, so this is the approach that affirmative action policies take.

Arguments for Affirmative Action

Among the many arguments offered in defense of affirmative action policies, here are three common ones.

Helps Create Fairness The first and most important one is that affir- mative action is a matter of fairness because it lessens the competitive disadvantage of minorities, which results from past unjust social treatment. It creates a more equal play- ing field for employment and promotion, since White males still have many advantages. The

Melanie Maxwell/The Ann Arbor News/Associated Press

In this photo, students supporting affirma- tive action at the University of Michigan organize a protest that ultimately shut down a meeting of the school’s Board of Regents.

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rationale behind affirmative action was given in a famous speech by President Lyndon John- son in 1965:

Equal opportunity is essential, but not enough, not enough. Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family that you live with and the neighborhoods you live in—by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child, and finally the man. (para. 16)

Johnson’s point was that people’s abilities are often shaped by social factors beyond their con- trol, particularly education and family environment. A member of a racial minority who is born into such a disadvantaged situation will not be able to effectively compete for higher level jobs; it is only through affirmative steps that society can help elevate him or her to those positions. President Bill Clinton similarly stated that “the purpose of affirmative action is to give our nation a way to finally address the systemic exclusion of individuals of talent on the basis of their gen- der or race from opportunities to develop, perform, achieve and contribute” (1995, p. 1108). His point was that social practices of systematic exclusion have had a long-term negative impact on minority groups that cannot immediately be erased by merely ending discriminatory behavior.

Helps Reduce Poverty A second argument for affirmative action is that it helps reduce poverty. Completely apart from issues of fairness, affirmative action has an important social benefit, since high poverty rates adversely affect society as a whole and not just the poor themselves. Poverty contributes to crime, reduces the educational level of the workforce, and strains the country’s welfare system. Minority discrimination and poverty are correlated, and thus by providing job oppor- tunities to members of those minority groups, poverty within those groups is lessened. This not only reduces poverty for the recipients of affirmative action, but it helps break the cycle of poverty that these recipients would otherwise pass on to their children.

Helps Reduce Racism A third argument is that affirmative action helps reduce racism. Much of the bigotry expressed toward minorities owes to low socioeconomic status, a culture of poverty, and harmful ste- reotypes that inevitably result from this. Through getting better jobs, the socioeconomic sta- tus of members of minority groups is improved, and the traditional stereotypes do not apply. These workers thus become positive role models that others within that minority group may be inspired to follow. They also become positive models that others in society can look toward when upgrading their own attitudes about minorities.

Arguments Against Affirmative Action

There are three main arguments against affirmative action, each of which focuses on the con- troversial component of preferential treatment.

Creates Reverse Discrimination The first of these is that preferential treatment is unfair and amounts to reverse discrimi- nation, in which a more qualified candidate from the majority group is unfairly denied an opportunity in preference to a less qualified candidate from a minority group. According to

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this view, affirmative action policies work so hard to protect minority groups that they often penalize a member of the majority group, usually a White male. Thus, all discrimination on the basis of race and sex is inherently unfair and unequal—and that also applies to preferen- tial treatment. The rights that White males have to not be discriminated against are as valid as those of any member of a minority group.

The point is that even if we concede that preferential-treatment programs aim to help his- torically disadvantaged groups, such good intentions alone do not make the policies just. Imagine that, in our efforts to redress the past harms from discrimination, we redistributed half of the wealth of all White males among minorities. One day I have $10,000 in my bank account and the next day I have $5,000, with the missing half going into the bank accounts of members of disadvantaged minorities. Even if this had a proven benefit to the members of the minority groups, most of us would judge an effort like this to be grossly unfair to White males. While preferential treatment is not as extreme as this, it has the same kind of built-in unfairness. Another way that this unfairness is expressed is that preferential treatment essentially takes the view that two wrongs make a right. Some Whites in the past discriminated against some minority groups, even enslaving their members, and that was undoubtedly wrong. In the present, descendants of those members of minority groups, through preferential-treatment programs, have been given opportunities over better-quali- fied Whites who had nothing to do with that past discrimination. But, it is argued, these two wrongs do not make preferential treatment right.

Creates Social Tension and Negative Attitudes About Minorities A second argument against preferential treatment is that it creates social tension and nega- tive attitudes about minorities who benefit from these programs. If an employer has one job opening and hires a minority applicant to fill it, there may be 50 angry White male applicants, each of whom blames that minority applicant for taking the job away from him. Other critics have gone further and argued that preferential-treatment programs have created an atmosphere in which White males are openly vilified and can do little to stop it. As one opponent of these programs stated, “We have institu- tionalized a counter-white-male bias. We have created a new group who are being discriminated against. . . . [This group has] no access to legal recourse or power. We have institutionalized discrimination against one group. When does it end?” (Lynch, 1989, p. 181). Rather than creating equality and removing social tension, pref- erential treatment has resulted in a new inequality where there is a hierarchy of the oppressed. Blacks are the primary recipi- ents of preferential treatment, followed by women, then Native Americans, then His- panics, then Asians, then individuals with

Stew Milne/Associated Press

Roger Williams University student Adam Noska (center) is awarded a “whites only” scholar- ship from College Republicans president Jason Mattera (left). The award was intended to draw attention to the issue of affirmative action. How- ever, just days after receiving the award and amid a whirl of controversy at the school, Noska announced he regretted taking the scholarship and was donating the money to charity.

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disabilities, and this continues until we finally reach White males at the bottom of the scale. Thus, according to critics, what started out as a policy to reduce social tensions has ended up creating new tensions.

A vivid example of this a student named Adam Noska who won a $250 “whites-only” schol- arship that was set up as a prank by members of the College Republicans at Roger Williams University. Paralleling racial minority scholarships, candidates for the scholarship had to write an essay—in this case a 100-word essay—on “why you are proud of your white heritage” and “what being white means to you.” Candidates also had to include a photo to “confirm whiteness.” The irony was that the student who devised the scholarship was His- panic and the recipient of a minority scholarship himself. Liberal students at the Univer- sity protested, the issue attracted national attention, the state Republican Party criticized it for having racist overtones, and the University’s president said that he had redouble his efforts to make the campus an open environment. Noska ultimately donated the money to a local charity and stated, “What I was not prepared for was the overwhelming number of people who told me that I had disappointed them or that they expected more out of me” (Associated Press, 2004).

Exceeds Sufficient Nondiscrimination Without Preferential Treatment A third argument is that nondiscrimination without preferential treatment is sufficient for achieving social equality. This argument states that society has come a long way since the days of overt racism and sexism, and the laws that we currently have in place are all that we need to elevate the economic status of women and minorities. Government officials continu- ally promise that preferential treatment is only a temporary measure that in time will no longer be necessary, but, critics claim, that time seems to never come. Critics thus contend that programs of preferential treatment are no longer necessary, and now is the time for dis- mantling them.

What Would You Do?

You are a White employee and are on a list to be considered for a training program that would lead to career advancement and a pay increase. You find out that you were not accepted, but some minority candidates with less seniority and experience than you were.

1. Would you accept the decision? Why or why not? 2. Would you complain to the person in charge and ask for your candidacy to be

reevaluated? Why or why not? 3. Would you attempt to negotiate an agreement that you will accept the decision in

this case, but that you expect to be accepted into the program the next time? Why or why not?

4. Suppose that you tried to negotiate an agreement for the next time the program was offered, but the company did not cooperate. Would you get a lawyer and threaten to sue? Why or why not?

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5.3 U.S. Anti-Discrimination Laws Each country has its own history of both discriminatory practices and laws to combat them; we have already discussed part of the situation in India. In this section, we will look at U.S. anti-discrimination laws and the impact they have on businesses. The legal issues surround- ing affirmative action policies in the United States are not always the most enjoyable things to explore. There are subtle conceptual distinctions and complex regulations, and emotions run high. However, this is precisely where nondiscrimination in the workplace is put into practice. From a practical standpoint, being ethical in non-discriminatory business practices ultimately means following government regulations. All employees in medium to large com- panies need to be familiar with key aspects of these laws; for many managers, mastery of non-discrimination policies will be a key part of their job.

The Civil Rights Act of 1964

The story of Federal anti-discrimination laws begins with the Civil Rights Movement of the late 1950s and the Civil Rights Act of 1964. This legislation was devised to put an end to a cen- tury of racial segregation and discrimination. It was hotly contested in Congress; one South- ern senator stated, “We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states” (quoted in Spartacus Educational, 2014). Fortunately, that senator was outvoted. The Act addresses issues of discrimination in voting and segregation in public facilities and schools, but two portions are especially relevant to businesses. Title II of the act prohibits discrimination and segregation in places of public accommodation, such as hotels, restaurants, gas stations theaters, and stadiums. The critical portion of it is this:

All persons shall be entitled to the full and equal enjoyment of the goods, ser- vices, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. (Civil Rights Act of 1964, 1965, Section 201)

Employment discrimination is addressed in Title VII, the critical portion of which is this:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such indi- vidual’s race, color, religion, sex, or national origin. (Civil Rights Act of 1964, 1965, Section 703)

Title VII allows for some exemptions where discrimination can be permitted, but these must involve bona fide occupational qualifications, that is, qualifications that relate to an essential

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job duty and are “reasonably necessary to the normal operation of that particu- lar business or enterprise” (Civil Rights Act of 1964, 1965, Section 703, 3e). An example of this would be disqualifying a blind applicant for an air-traffic control- ler job, as mentioned earlier. Similarly, a theater company could disqualify a male actor who applied for a female role in a play, or an Episcopal church could dis- qualify an ordained Baptist preacher for a ministerial position.

In both Title II and Title VII we see ref- erence to the concept of protected classes, which are the specific groups that are protected from discrimination by law. The groups mentioned above are those of an individual’s race, color, reli- gion, sex, and national origin.

Affirmative Action: Two Laws, Two Governmental Agencies

Affirmative action policies in the United States are founded on two distinct laws: Title VII of the Civil Rights Act of 1964 (just discussed) and Presidential Executive Order Num- ber 11246 in 1965. The term affirmative action made its way into law through an earlier executive order by President Kennedy in 1961 requiring any business seeking a Federal government contract to engage in affirmative action. The order stated, “The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin” (Executive Order No. 10925, 1961). But Kennedy’s conception of affirmative action was mild, and meant essentially that con- tractors needed to exhibit an active concern to eliminate discrimination. Four years later, this order was revised and strengthened by President Johnson and also included gender (Executive Order No. 11246, 1965).

It was in 1968 that the government first required target dates for evaluating a contrac- tor’s affirmative action program. The regulation stated, “The contractor’s program shall provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity” (“Affirmative Action Law and Legal Definition,” n.d.). This is the basis of the more aggressive notion of affirmative action that includes preferential treat- ment. In theory, the executive orders for contractors do not require every company in the United States to adopt aggressive affirmative action policies. However, since govern- ment contracts are such an important source of revenue throughout the business world, the executive orders had the practical effect of mandating this uniformly, especially for medium to large corporations.

In this photo, Rosa Parks sits at the front of a Montgomery, Alabama, bus. In 1955, Parks was arrested for refusing to vacate her seat on a Mont- gomery bus for a White passenger.

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Enforcing Title VII and Executive Order No. 11246 The task of enforcing Title VII of the Civil Rights Act was assigned to the Equal Employment Opportunity Commission (EEOC), which sets policies for dealing with discrimination com- plaints, holds hearings on specific complaints, and has the authority to file discrimination suits against employers. The commission’s single mission is “the elimination of illegal dis- crimination from the workplace” (Equal Employment Opportunity Commission, n.d.).

While the EEOC oversees compliance with Title VII, the affirmative action Executive Order for government contractors is under the domain of the Office of Federal Contract Compliance Programs (OFCCP)—a branch of the Department of Labor. The OFCCP enforces affirmative action compliance in several ways. It offers technical assistance to Federal contractors and subcontractors to help them understand the regulatory requirements and review process. It conducts compliance evaluations and complaint investigations of Federal contractors’ per- sonnel policies and procedures. The ultimate punishment by the OFCCP for violations is the loss of a company’s Federal contracts, and companies may have to pay lost wages to victims of discrimination. Each year, the OFCCP issues an “Opportunity Award” to a contractor who implements outstanding affirmative action programs; recipients have included Raytheon, Texas A&M University, and Dell.

The laws and regulations that are jointly enforced by the EEOC and OFCCP are called equal employment opportunity (EEO) laws. From a business’s perspective, EEO laws mandated by the EEOC and OFCCP go hand in hand: While the one agency oversees Title VII, and the other government contracts, medium to large businesses typically need to comply with both. It is beyond the scope of this chap- ter to give a detailed account of the EEO laws, but there are a few important concepts relat- ing to these laws that are central to compliance for businesses and to the debates surround- ing them. One of them is the concept of a pro- tected class, described above. Since the Civil Rights Act of 1964, the list of legally protected groups regarding employment discrimination has grown, and now the list includes (1) race, (2) color, (3) religion, (4) sex, (5) national ori- gin, (6) age—people over 40, (7) disability, and (8) genetic information.

Technically speaking, every U.S. citizen belongs to some protected class, if only by virtue of being either a man or a woman and having genetic information. However, the EEO laws aim specifically at protecting women and minority groups because of the history of discrimina- tion against them. A minority is a subgroup of a population that differs in race, religion, or national origin from the dominant group. The EEOC designates a minority as being one of four groups: (1) American Indians or Alaskan Natives, (2) Asians or Pacific Islanders, (3) Blacks, or (4) Hispanics. The EEOC does not technically classify women as a minority. However, women are considered as having “minority status” as far as the law is concerned, because

Chip Somodevilla/Getty Images

When a Muslim woman was denied employment at Abercrombie & Fitch for wearing a head scarf, the EEOC successfully sued the company in a case that went to the Supreme Court. In this photo, support- ers from the Council on American-Islamic Relations protest outside the Supreme Court building in 2015.

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they have experienced the same kind of systematic employment discrimination as the various minorities.

Compliance Guidelines and Plans

The government does not simply trust that employers will embrace nondiscrimination and affirmative action practices. Rather, employers must follow complex protocols, and compli- ance places high demands on their personnel resources. Many consulting companies special- ize in affirmative action compliance; one advertises that it can find “unique solutions to the ever-changing EEO and Affirmative Action compliance landscape” (Pinnacle, 2015).

Government Protocols There are two main government protocols that most medium to large businesses must follow for proper compliance. The first is the Uniform Guidelines on Employee Selection Pro- cedures (UGESP), which are guidelines that require employers to carefully inspect the pro- cesses they use to hire, promote, or terminate employees, and ensure that those processes are fair and nondiscriminatory. If a company’s current practices produce a deficiency of women or minority employees, the company must conduct a validity study to show that the imbal- ance was not discriminatory (“Uniform Guidelines,” 2010).

The UGESP aims at weeding out discriminatory hiring and promotion practices. However, a second government protocol, known as an affirmative action plan (AAP), focuses more aggressively on assuring that employers implement affirmative action in their employment practices. In some cases, affirmative action plans are mandatory; in others, they are volun- tary. The OFCCP requires contractors with 50 or more employees and government contracts of $50,000 to develop these plans. However, the EEOC advises all private-sector companies to devise voluntary affirmative action plans as a way of addressing deficiencies in their hir- ing and promotion procedures, especially as might be revealed by the Uniform Guidelines on Employee Selection Procedures.

Putting the Plan Into Practice It is not enough for businesses to merely create an affirmative action plan; they must also make a good-faith effort to put the plan into practice. According to the OFCCP, “good faith efforts may include expanded efforts in outreach, recruitment, training and other activities to increase the pool of qualified minorities and females” (2002). The government recognizes the controversial nature of preferential-treatment policies and potential accusations of reverse discrimination. Accordingly, the OFCCP has stated that “the actual selection decision [for hir- ing or promotion] is to be made on a nondiscriminatory basis” (2002). The EEOC has stated further that “a voluntary affirmative action plan cannot unnecessarily trammel the rights of non-targeted groups, usually non-minorities or men” (1997).

Supreme Court Cases on Affirmative Action

Since the 1970s, the U.S. Supreme Court has heard a series of cases on affirmative action poli- cies, and those rulings have established that some policies are legally permitted under the U.S. Constitution while others are not. The court’s decisions, though, are made on a case-by-case basis, and do not always establish clear and uniform policies. One reason is that the makeup of the Supreme Court continually changes, with some justices being more sympathetic to

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affirmative action than others. Another reason is that the court cases themselves significantly differ in their details, even when on the surface they seem to be about the same issue. We will look at some of the famous Supreme Court cases that have wrestled with the nuances of affir- mative action practices of businesses, universities, and government offices. We will consider them chronologically.

Regents of the University of California vs. Bakke (1978) The first important case, Regents of the University of California vs. Bakke (1978), involved a White man named Allan Bakke who twice applied to the school of medicine at the Univer- sity of California, Davis, but was rejected both times, while less qualified minority applicants were admitted as part of a racial quota system that reserved 16 places for minorities. The court ruled that universities could take race into account when admitting students, but it was unconstitutional for them to use rigid racial quotas to increase minorities as the University of California had done.

The university was required to admit Bakke. While the legal case ended there, the ruling has been continually debated by legal scholars and in the media. A case in point is the following comparison between the medical careers of Bakke and Patrick Chavis, one of the 16 minority candidates against whom Bakke was originally competing:

Bakke . . . ended up with a part-time anesthesiology practice in Rochester, Min- nesota. Dr. Patrick Chavis, the African-American who allegedly “took Bakke’s place” in medical school, has a huge OB/GYN practice providing primary care to poor women in predominantly minority Compton. Bakke’s scores were higher, but who made the most of his medical school education? From whom did California taxpayers benefit more? (Rice & Hayden, 1995)

United Steelworkers of America v. Weber (1979) In another case, United Steelworkers of America v. Weber (1979), Brian Weber, a young White laboratory assistant at the Kaiser Aluminum and Chemical Corporation, applied for a spe- cial training program that would have resulted in a promotion. The company made an agree- ment with the United Steelworkers of America labor union that for every one White person accepted into such training programs, one Black person would also be accepted. The com- pany had many more Whites than Blacks, and thus accepted some Black employees into the program ahead of White employees with more seniority. When Weber was not accepted into the program, he sued on the grounds that the decision violated Title VII of the Civil Rights Act. The court ruled against Weber and in favor of his company.

Affirmative action plans were acceptable, according to the court, when they aimed to correct a statistical imbalance but did not involve quotas. Thus, Kaiser did nothing wrong, since the one-for-one system was not, strictly speaking, based on quotas. The court’s decision was con- troversial, and one dissenting justice stated the company’s preferential treatment of Blacks clearly violated the wording of Title VII, which prohibits discrimination for employment opportunities on the basis of race. The justice continued that, by siding with the Kaiser com- pany against Weber, the court’s majority decision was reminiscent of “escape artists such as Houdini” insofar is it eluded the clear language of the law in Title VII and wrongly concluded that employers are “permitted to consider race in making employment decisions” (United Steelworkers of America v. Weber, dissenting opn. of J. Rehnquist, 222).

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Grutter v. Bollinger (2003) Another important case regarding affirmative action in universities is Grutter v. Bollinger (2003). Barbara Grutter, a White woman with strong academic credentials, was rejected from the Univer- sity of Michigan’s law school. She sued on the grounds that the school had used race as a predom- inant factor, thus giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups. The court ruled in favor of the law school, indicating that the Constitution “does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” (Grutter v. Bollinger, 343). The court clarified, though, that preferential-treatment policies cannot go on indefinitely:

Race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are poten- tially so dangerous that they may be employed no more broadly than the inter- est demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. (Grutter v. Bollinger, 342)

The point is that even though preferential-treatment programs serve an important social pur- pose, they are potentially damaging and can only be used as temporary measures. The Court explicitly stated, “We expect that 25 years from now the use of racial preferences will no lon- ger be necessary” (Grutter v. Bollinger, 343).

Wal-Mart Stores, Inc. v. Dukes et al. (2011) All of the Supreme Court cases we have discussed so far specifically involve questions about preferential-treatment policies and whether they violate the rights of Whites. While the rul- ings differ in many respects, a consistent pattern emerges regarding the permissibility of quota systems in affirmative action programs. Generally speaking, the court considers quo- tas discriminatory against Whites; however, the government can rightfully order companies to meet gender and minority quotas when they have repeatedly engaged in discriminatory practices.

A final Supreme Court case on affir- mative action is not about reverse discrimination against Whites but instead about the ability of women and minority employees to sue their employers for discriminatory prac- tices. The 2011 case, Wal-Mart Stores, Inc. v. Dukes et al., was the largest gen- der-discrimination case to that point in history. Betty Dukes, a 54-year-old Walmart employee, sued the com- pany for sex discrimination when she was denied training that would have led to a promotion. Her suit, though, was a class action lawsuit on behalf of 1.5 million female employees who, like herself, she claimed, were also

Karen Bleier/AFP/Getty Images

Betty Dukes stands outside the Supreme Court building with supporters at a rally one year after her unsuccessful class action lawsuit against Walmart for gender discrimination.

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denied promotion within the company because of their gender-discriminatory employ- ment practices.

Walmart argued that the class action lawsuit was unjustified, because the 1.5 million female employees had different jobs with different supervisors at 3,400 different stores nationwide, and did not have enough in common to be combined together into a single suit. The Supreme Court agreed with Walmart and threw out the case.

What this means is that it may be more difficult for victims of systematic discrimination to bring class action lawsuits against their employers; they may only be able to bring suits on an individual basis. That makes a major difference in the deterrence effect that potential law- suits could have on businesses. A class action suit like Dukes’, if successful, could have cost Walmart billions of dollars. By contrast, the damages of a lawsuit by a single individual might only be in the thousands of dollars.

Conclusion We opened this chapter looking at affirmative action in India. In his book Affirmative Action in India and the United States, economist Thomas Sowell (2004, p. 49) argued that India’s efforts at boosting the social level of untouchables have been a failure: “It is hard to escape the conclusion that affirmative action in India has produced minimal benefits to those most in need and maximum resentments and hostility toward them on the part of others.” According to Sowell, while untouchables have had special positions open to them in universities, busi- nesses, and governments, comparatively few have been able to acquire the skills to move into those positions. For a teenager whose life experience has been salvaging scrap metal from a garbage dump, it makes little difference if law schools have special spots available to students who are untouchables. The odds are slim that such a teenager will succeed in even getting a high-school diploma.

Sowell’s assessment of affirmative action programs throughout the world was the same, and he argued that people in the United States can learn by observing patterns of failures else- where. One such pattern is that every country claims that its problem with discrimination against minorities is unique, which justifies its policies of preferential treatment. Further, Sowell wrote, in all of these countries “considerable effort has been made to depict such poli- cies as ‘temporary,’ even when in fact these preferences turn out not only to persist but to grow” (2004, p. 2). The reason, he explained, is that politicians would be blamed for saying no to them, whereas it is much easier to just say yes (Robinson & Sowell, 2004). Perhaps most importantly, Sowell argued that there often are not adequate statistical data to show the prog- ress of groups that have been given preferential treatment. Even when such data do exist, it is difficult “to determine how much of that progress was due to preferential policies, rather than to other factors at work at the same time” (Sowell, 2004, p. 19). Nevertheless, Sowell argued, countries push on with their affirmative action programs in the absence of any good data that it works.

Preferential treatment policies are controversial in the United States and everywhere else in the world where they have been put into practice. Public support might be stronger for these programs if it could be shown with some certainty that they are indeed successful in

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improving the conditions of historically disadvantaged groups and that they will not continue indefinitely. The problem, though, is that discrimination and its devastating effects on minori- ties are the consequence of hundreds, and sometimes thousands, of years of prejudicial tradi- tion. It is unrealistic to expect that such a historically rooted problem can be solved with just a few decades of policy changes, and it is understandable that “temporary” policies of prefer- ential treatment have become ongoing features of social policy.

Summary & Resources

Chapter Summary We began this chapter looking at different types of discrimination, the main two types being public accommodations discrimination and employment discrimination. Some discrimina- tion is intentional, some unintentional. Evidence of discrimination can be direct or indirect. One indirect type of evidence for discrimination is income inequality and another is the phe- nomenon of the glass ceiling.

Next we looked at affirmative action, the most controversial type preferential treatment, which involves special consideration given to people from historically disadvantaged groups in hiring and promotion situations. This often involves a quota system. Compensating victims of discrimination can be done individually or as a group; governmental affirmative action policies rest on group compensation. The concept of affirmative action is a controversial one, and we looked at arguments both for and against it.

From a practical standpoint, nondiscriminatory behavior in the workplace essentially means following affirmative action laws that are mandated by the government. The two main affir- mative action laws are (1) the Civil Rights Act, which grants equal access to public accommo- dations (Title II) and equal opportunity for employment (Title VII), and (2) the presidential executive order requiring government contractors to take affirmative action measures. The Equal Employment Opportunity Commission (EEOC) oversees compliance with Title VII, and the Office of Federal Contract Compliance Programs (OFCCP) oversees compliance with the executive order. These two agencies stipulate two procedures for compliance. The first is laid out in the Uniform Guidelines on Employee Selection Procedures (UGESP), and the second involves the creation of an affirmative action plan (AAP).

Problems routinely arise within the business world with attempts to follow affirmative action laws. Several major Supreme Court rulings have clarified when a business’s affirmative action decision crosses the line and becomes unconstitutional. The Supreme Court’s general view is that quota systems are discriminatory against White males, but companies can still be ordered to use quotas when they have repeatedly engaged in discriminatory practices.

Discussion Questions

1. Consider the Jazzercize example at the beginning of this chapter and discuss whether the company was discriminating against the instructor.

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2. Unintentional discrimination occurs when a company’s policies uncritically reflect prejudicial stereotypes yet do not involve overt racial prejudices of its managers or executives. Think of examples, either real or imaginary, in which a company might be engaged in unintentional discrimination.

3. Examine the statistical data presented earlier that indicate income inequality throughout the United States. Then discuss how much of that inequality can be attributed to discrimination rather than to nondiscriminatory factors.

4. Preferential treatment is just one component of affirmative action, but it is the com- ponent that has caused the most controversy. Suppose that the government banned all preferential-treatment programs throughout the country. Would this make the remaining elements of affirmative action ineffective? That is, is affirmative action essentially meaningless without preferential treatment?

5. Governmental affirmative action policies rely on a system of group compensation, rather than individual compensation. Examine the different advantages and disad- vantages of the group-compensation approach as listed in the chapter, and discuss whether the government did the right thing by adopting the group-compensation approach.

6. Consider the three arguments in favor of affirmative action discussed in the chapter. Indicate which is the weakest and which is the strongest, and discuss why.

7. Consider the three arguments against affirmative action discussed in the chapter. Indicate which is the weakest and which is the strongest, and discuss why.

Key Terms

affirmative action The policy of improving the opportunities of those within historically disadvantaged groups through positive measures beyond neutral, nondiscriminatory action.

affirmative action plan (AAP) U.S. Fed- eral requirement for assuring that employ- ers implement affirmative action in their employment practices.

bona fide occupational qualifications Qualifications that relate to an essential job duty and are reasonably necessary for the normal operation of that particular business or enterprise.

burden-shifting formula The legal strat- egy for a minority employee where the burden rests on the employer to show that its behavior was not discriminatory.

direct evidence of discrimination Overt written or oral statements by employers that display their discriminatory intention.

discrimination The unjust or prejudicial treatment of people on arbitrary grounds, such as race, gender, or age, which results in denial of opportunity, such as public accom- modations or employment.

employment discrimination The preju- dicial treatment of people in hiring, promo- tion, and termination decisions.

Equal Employment Opportunity Commis- sion (EEOC) U.S. Federal agency respon- sible for enforcing Title VII of the Civil Rights Act by setting policies for dealing with dis- crimination complaints, holding hearings on specific complaints, and filing discrimination suits against employers.

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equal employment opportunity (EEO) laws The laws and regulations that are jointly enforced by the EEOC and OFCCP.

equal opportunity The policy of treating employees without discrimination.

equal results An affirmative action con- cept of achieving proportional minority representation in a work or economic environment where minorities are presently underrepresented.

glass ceiling A discrimination situation in which women and minority workers hit a level beyond which they cannot advance, while their White male counterparts con- tinue to progress.

group compensation An antidiscrimination policy in which each individual within a disad- vantaged group is compensated based purely on his or her membership in that group.

income inequality Indirect evidence of discrimination based on an analysis of the extent to which income is distributed in an uneven manner among a population.

indirect evidence of discrimination Behavior of a company that implies discriminatory conduct.

individual compensation An antidiscrimi- nation policy in which each person is com- pensated based on his or her individual claim.

intentional discrimination Discrimina- tion in which the policies of a company are shaped by overt racial prejudices of its man- agers or executives.

minority A subgroup of a population that differs in race, religion, or national origin from the dominant group.

Office of Federal Contract Compliance Programs (OFCCP) U.S. Federal agency (a branch of the Department of Labor) responsible for implementing the affirma- tive action executive order regarding govern- ment contractors.

preferential treatment Special consid- eration given to people from historically disadvantaged groups in hiring and promo- tion situations.

protected classes Specific groups that are protected from discrimination by law.

public accommodations discrimination A business or some other public access place prejudicially denies services to some customers.

quota system An affirmative action con- cept where a certain number of jobs are set aside for members of minority groups in direct proportion to their numbers in the community.

reverse discrimination An aspect of pref- erential treatment in which a more quali- fied candidate from the majority group is unfairly denied an opportunity in preference to a less qualified candidate from a minority group.

Uniform Guidelines on Employee Selec- tion Procedures (UGESP) U.S. Federal guidelines that require employers to care- fully inspect the processes they use to hire, promote, or terminate employees, and assure that those processes are fair and nondiscriminatory.

unintentional discrimination Discrimina- tion in which a company’s policies uncriti- cally reflect prejudicial stereotypes.

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Business Ethics Case Study 5.1: Religious Freedom and Public Accommodations Discrimination—Conflict Between Two Laws

The First Amendment to the Constitution establishes freedom of religious expression: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ”; Title II of the Civil Rights act prohibits businesses from discriminating against customers:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. (Civil Rights Act of 1964, 1965)

As firm as these two laws are, they come in conflict with each other when a business owner refuses to accommodate a customer on the basis of the owner’s deeply held religious convictions. One example of this is with pharmacies that refuse to sell contraception to customers. This was the situation in three Walgreens stores in Alabama and Georgia where pharmacists cited religious convictions as the reason for not dispensing the Plan B contraception to male customers for their female partners, even though such purchases were legal.

Similar conflicts arise when businesses refuse to provide services to homosexuals based on religious objections. In one case, the owner of a cake shop in Colorado turned away a customer who wanted a cake for a same-sex marriage. The business owner said, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings” (Craig v. Masterpiece Cakeshop, 2015). In another case, a florist in the state of Washington was sued by a long-time customer when she refused on religious grounds to provide him with flowers for his same-sex wedding (Ingersoll v. Arlene’s Flowers, 2015). In yet another case, a social work graduate student at Eastern Michigan University refused to treat a gay student because her religious convictions prevented her from affirming homosexual lifestyles. She was subsequently expelled from her university’s program for being in violation of the American Counseling Association code of ethics which stipulates that counselors must not “engage in discrimination based on . . . sexual orientation” (Ward v. Wilbanks, 2010).

One case that has received widespread attention is that of Elaine Huguenin, owner of Elane Photography in New Mexico, who turned down an email request from Vanessa Willock to photograph a same-sex commitment ceremony (Elane Photography, LLC v. Willock, 2013). Huguenin responded, saying, “We do not photograph same-sex weddings.” Willock sued, and eventually the New Mexico Supreme Court ruled in favor of Willock. In many ways, Elane Photography never stood a chance because explicit wording in the New Mexico Human Rights Act that prohibits public accommodations discrimination on the basis of sexual orientation. While the U.S. Civil Rights act prohibits public accommodations discrimination against “race, color, religion, or national origin,” New Mexico’s act is stronger and its full list of protected classes includes “race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap.”

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Elane Photography denied discriminating on the basis of sexual orientation, and said that its motivation was that it “did not want to convey through pictures the story of an event celebrating an understanding of marriage that conflicts with [its] beliefs.” The Court maintained that Elane Photography misunderstood the issue. If it merely “took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public” then the law would not apply to them. But once they became a business and put themselves out publically for hire, the public accommodations law applies. To exempt them in this case on religious grounds would allow any creative business to refuse service to any member of a protected class. The Court noted that an African American photographer could refuse to photograph a KKK rally because political group membership is not a protected class in New Mexico. However, a KKK photographer could not refuse to photograph an African American because race is a protected class.

In the Court Ruling, Judge Richard C. Bosson, who wrote the concurring opinion, made it clear why civil rights won out over religious freedom. New Mexico’s Human Rights Act makes sexual-orientation discrimination “just as intolerable as discrimination directed toward race, color, national origin, or religion,” and Elane Photography’s owners cannot turn away gay customers any more than “they could refuse to photograph African-Americans or Muslims.” According to Bosson, this case is an important lesson that, in a pluralistic society, “all of us must compromise, if only a little, to accommodate the contrasting values of others.” Such compromise, Bosson concluded, “is part of the glue that holds us together as a nation” and “it is the price of citizenship” that the owners of Elane Photography must pay (Elane Photography, LLC v. Willock, 2013).

In the aftermath of cases like Elane Photography v. Willock, legislatures in several states have proposed laws to allow businesses the right to refuse service based on religious convictions. Some bills explicitly target sexual orientation, such as one in South Dakota that would prohibit lawsuits against a business “for refusing to serve a person or couple based on sexual orientation” (SD SB128, 2014). Others do not mention sexual orientation or any other issue but seek to elevate the right of religious freedom to a point where it would trump other considerations. For example, Arizona’s “Religious Freedom” bill says that “state action shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” (AZ SB1602, 2014). That is, no law can prevent someone from practicing a required component of their faith, even in situations that might otherwise legitimately restrict a person’s speech or conduct. Thus, religious freedom would outweigh sexual-orientation freedom. The bill passed Arizona’s legislature but was vetoed by the governor after a heated public debate. Mitt Romney stated that, if passed, the Arizona law “would have allowed people to use religion as a fig leaf for prejudice.”

The American Civil Liberties Union, which opposes such laws, argues that there is nothing new about claiming a right to discriminate in the name of religion. “In the 1960s, we saw institutions object to laws requiring integration in restaurants because of sincerely held beliefs that God wanted the races to be separate. . . . In those cases, we recognized that requiring integration was not about violating religious liberty; it was about ensuring fairness. It is no different today” (2015).

Business Ethics Case Study 5.1: Religious Freedom and Public Accommodations Discrimination—Conflict Between Two Laws (continued)

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Discussion Questions

1. Judge Bosson stated that tolerance and non-discrimination is the price of citizenship in the multi-cultural environment of the United States. Is he right? Explain your answer.

2. Religious freedom is just one of many values in the United States. Is it right to pass laws that elevate that value above other ones, particularly anti-discrimination values? Why or why not?

3. Some businesses involve creative efforts, such as artists, musicians, and speechwriters, and they typically have freedom to accept or reject commissions as they wish to suit their artistic expression. Does this rationale justify cake makers, florists, or photographers turning away same-sex couples? Why or why not?

4. In the Washington case of Arlene’s Flowers, that business was run solely by the owner. Elane Photography was a husband-and-wife operation. Does being the sole owner and operator of a business justify it in turning away same-sex couples? Why or why not?

5. The ACLU argues that using religion to discriminate against same-sex couples in public accommodations today is similar to using religion to discriminate against racial integration in the 1960s. Are these cases similar? Explain your answer.

Business Ethics Case Study 5.1: Religious Freedom and Public Accommodations Discrimination—Conflict Between Two Laws (continued)

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