Exceptional Proff 602
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Lesson3.docxOther Discrimination Concepts
LESSON TOPICS
· Bona Fide Occupational Qualifications (BFOQ)
· BFOQs in the Work World
· Affirmative Action
· Disagreement on Affirmative Action
· Value of Diversity
· Why Develop a Diverse Workforce
INTRODUCTION
In Lessons One and Two, we reviewed the classifications protected from discrimination by United States law, including race/color, national origin, religion, sex/gender, disability, age, pregnancy, and others. In Lesson Three, we will discuss some ancillary concepts related to discrimination, including bona fide occupational qualifications, affirmative action, and diversity initiatives.
Bona Fide Occupational Qualifications (BFOQ)
Just because certain qualities have been proscribed by law as bases for discrimination, does not mean that discrimination — even the kind that is intentional — can never legally occur. Under certain circumstances, business owners may be able to successfully justify discrimination in their employment practices. However, doing so requires proof of the existence of a bona fide occupational qualification, and this is not an easy standard to meet. While the law makes every effort to provide a fair and unbiased employment environment for all, it also recognizes that there may be cases — however rare — where discrimination against an individual, even based upon immutable characteristics, may be prudent and even necessary.
First, the law recognizes the obvious need for discrimination when the concern is safety or privacy. For example, gender discrimination may be necessary. For example, there may be instances in the healthcare industry where having medical staff of the same gender as patients may serve privacy interests. Likewise, in the penitentiary system, corrections officers of the same gender as inmates may be shown statistically to make for a safer environment for all (Miaskoff, 2013).
BFOQs in the Work World
Whether BFOQs must concern privacy or safety to be legitimate in still unclear. The most well-known and instructive case addressing this matter was the notorious Hooters debacle. It is important to emphasize again that the standard for BFOQs is not an easy one to meet. A business owner cannot simply decide unilaterally that a particular trait is essential for working in a given position or capacity. Instead, such exclusionary policies must be justifiable based on a legitimate business need. Aside from the Hooters example, other environments where BFOQs are controversial include performing arts and modeling. In these occupational areas, it is unclear whether one’s qualities (even the immutable ones) may be determinative of their propriety for a particular job. For example, the law allows for gender as a BFOQ in casting for the purposes of ‘authenticity or genuineness’ (29 C.F.R. 1604.2(a)(2), 1964), race has been explicitly proscribed.
Additionally, models are generally hired based upon specific body types, sizes, skin colors, races, and other factors. Historically, this has been permitted where such practices are necessary; an example is hiring only males for men’s clothing modelling (Bona Fide Occupational Qualification, n.d.). This is interesting insofar as it has been used as something of a loophole in various occupations that might not intuitively be thought of as “modelling”.
For example, the 2001 movie Ocean’s 11 made reference to the common Las Vegas practice of hiring casino cocktail servers as “models” rather than just staff (Weintraub & Soderbergh, 2001). Casinos in both Las Vegas and Atlantic City have traditionally been successful in defending their right to hire and fire based on factors such as gender, size, and even subjective attractiveness by changing the job title, description, and specifications in this way. However, more recent cases have suggested that this right is losing favor in the eyes of the law (Bronson, 2015).
“HOOTER’S GIRL” BFOQ?
In these multi-plaintiff lawsuits, male job applicants sued Hooters for discrimination after they applied to work at various Hooters restaurants, and were rejected because they were males. Hooters is, of course, a very well-established restaurant company, and they argued that their notoriety and brand recognition is derived primarily from their exclusively female, scantily-clad, young, fit, and attractive waitstaff. What was therefore at issue was whether the “Hooters Girl” concept and image was so essential to the Hooters brand that to deny the company the legal right to preferentially select women over men (and, arguably, attractive young women over other women) for wait staff positions would have been tantamount to destruction of the Hooters business’s core identity.
The case was carefully scrutinized by the courts, and ultimately it was determined that while attracting customers through sex appeal may be a significant element of the Hooters business model, it was an insufficient reason to discriminate. Hooters settled the cases for $3.75M USD in the aggregate and was required to create positions such as host and bartender for male applicants, though it was not specifically prohibited from maintaining an all-female wait staff (Groos, 2009).
For HR professionals, the general rule to bear in mind is that if there is any good faith question as to whether a preference can be justified as a bona fide occupational qualification, it probably can’t. As has been repeated several times already, HR professionals should make every effort to avoid discrimination of any kind, illegal or otherwise, unless doing so is absolutely unavoidable.
Affirmative Action
The concept of affirmative action was first established in the mid-20th century in an effort to correct a long standing history of discrimination in social institutions. Although our discussion will naturally focus on the employment context, affirmative action has also been applied to a variety of other purposes, including college student admissions, political candidacy, and military recruitment (Affirmative Action, n.d.).
Affirmative action is the practice of intentionally granting favor in employment decisions to individuals with certain qualities, with the aim of correcting imbalances in the proportionalities of different qualities represented within a workforce.
An example will serve to illustrate. Suppose a company operates a business in a city which is, by population, approximately 50% black and 50% white. Now, also suppose that within this company’s workforce, the relative spread is 10% black and 90% white. If this company were to adopt a policy of affirmative action, then it would actively favor black candidates in future hiring’s or layoffs, with the intent of rebalancing the scales of the internal workforce so that it more closely mirrors the demographics of the surrounding population. This sounds straightforward, but in reality, this kind of practice is hardly so simple. The challenges facing a business that supports affirmative action are myriad.
CHALLENGES
ESTABLISHING STANDARD PROPORTIONS
Such evenly dichotomous communities, as in our example, just don’t exist. Hundreds of years of international and cultural emigration have resulted in most American societies being ‘melting pots’ with many different races, ethnicities, cultures, nationalities, sexual orientations, etc., and this makes establishing standards all the more difficult.
DETERMINING THE “SURROUNDING COMMUNITY”
Another issue is determining where, precisely, one draws the lines of the “surrounding community” for the purposes of establishing a baseline of demographic proportionalities? Should one use the statistics of the surrounding city? Or the county? Or the state? Additionally, there are often many sources for such demographic information, and the sources rarely agree perfectly.
GREATER COMPLEXITY WITH INTERNATIONAL COMPANIES
If one runs a large international company like General Motors, should one aggregate all employment data statistics across the entire company when calculating internal proportionalities? Or should one calculate by region? By nation, state, or city? By individual work location?
PRIORITIZING TARGETED ACTIONS
LACK OF QUALIFIED CANDIDATES
What if a review of the relative balances indicates a need for corrective action, but there just aren’t any qualified candidates in the area who meet the criteria? For example, if an affirmative action review of a law firm suggests that it should hire more Spanish people, but few if any Spanish people in the area have the requisite legal education or experience, what is the law firm to do?
Disagreement on Affirmative Action
Even if one does develop a successful plan for overcoming all of these obstacles, there is a significant ethical argument against affirmative action worth considering; some scholars assert that affirmative action amounts to “reverse discrimination” (Does affirmative action, 2009). This argument contends that by actively giving preference to applicants on the basis of protected classes such as race or gender, employers are effectively discriminating against all those who do not receive such preferential consideration. Proponents of the reverse discrimination position are not swayed by the noble intentions of affirmative action to correct existing imbalances in the workforce. Instead, supporters of this view aver that discrimination of any kind, irrespective of intent, is wrong and that employment decisions should be based only on relevant qualifications for the job at hand.
Affirmative action programs are rarely mandated by law, except either for certain employers (e.g. federal contractors) or through court order when it is found that an employer has engaged in traditional discriminatory practices.
These exceptions aside, the decision to adopt an affirmative action program is usually left to the discretion of the employer, but the distinctions between legal and illegal affirmative action programs are far from clear. The Supreme Court has upheld the legality of affirmative action programs using narrowly-tailored quota systems and where the employer has a “long and shameful record of delay and resistance” as it pertains to diverse hiring practices. However, the highest court in the land has also held that certain practices designed to promote minority races in employment decisions cross the line (Affirmative Action, n.d.).
Given the lack of consensus in both legal standard and public opinion surrounding affirmative action, HR professionals should tread carefully here. Demographic disparities between the company and the local community should be carefully scrutinized, and local laws/cases should be consulted before adopting such practices.
Value of Diversity
Putting the legality of discrimination practices aside for just a moment, it is important to add that employer values have changed considerably in the last thirty or so years. The first use of the term “workforce diversity” was in a publication called Workforce 2000, published in the 1980s (Confederation of British Industry, 1988). The report was a prediction of the detailed characteristics of the first world workforces at the turn of the millennium.
Recognizing the reality that different races, ethnicities, genders, disabilities, and other attributes would inevitably alter the typical work environment, employers have chosen to focus on the value that this diversity can bring to an organization in the way of human capital. Businesses quickly grew to learn what psychology and sociology have known for years: that people of different circumstances bring with them different perspectives, values, and ideas and this can be invaluable for organizational development.
Consider, as just one example of the superiority of diverse work environments, the well-established psychological phenomenon of “groupthink”. Groupthink occurs when people of similar thinking and perspectives working as a group suffer from limited thought differentiation, and grow to value conformity and cohesion over optimization (Janis, 1971). When a problem is presented to such a group, people with similar backgrounds tend to think in similar ways and thus arrive at similar conclusions. Additionally, they tend to prioritize agreement and loyalty to the group over hashing out the very best solutions.
Sociological research has yielded strong evidence that diverse groups are much less likely to suffer from groupthink because members are diverse and do not think in the same ways or value all of the same things. Alternative points of view are much more likely to be heard, and thus diverse groups are much more likely to arrive at the best decisions (Cox & Blake, 1991; Fernandez, 2007).
Why Develop a Diverse Workforce
A hypothetical might serve to illustrate. Suppose a project team at an automotive company is trying to develop a new car concept. The team is comprised mainly of American white males, but the company recently added a female who was born and raised in India. Now, normally, this group would suffer from the limited perspective of white men in the United States, but because of their new addition, they benefit from the perspective of a female driver and someone experienced with international traffic customs, laws, and demand. Their new teammate can provide priceless insight toward developing a better, safer, more versatile, and more marketable product than they might otherwise have developed by themselves.
Aside from better products, services, and solutions, globalization provides yet another strong reason for the development of a diverse workforce. The economic world is indeed getting smaller everyday, and as successful companies in all different nations begin to consider their first steps into foreign markets, they do well to hire and integrate employees native to the international markets they seek. No one knows laws, customs, cultural norms, and business practices in a particular country better than someone born and raised there (Rowntree, Lewis, Price, & Wyckoff, 2002).
Conclusion
With these powerful reasons in mind, HR professionals should reframe their perspective on diversity in employment away from being just a matter of legal compliance, and toward being a strategy of competitive advantage and organizational strength. If HR professionals genuinely value the diverse contributions of employees, then the legal mandates of non-discrimination tend to take care of themselves.
In this lesson, we discussed concepts ancillary to non-discrimination in employment, including bona fide occupational qualifications, affirmative action, and diversity initiatives. In next week’s lesson, we will discuss other areas of employment liability such as negligent hiring and privacy concerns.
