See instructions below for 2,500 word formal case-brief style paper

Affirmation Action Research

Name of Student

HRMT 602 Employment Law and Labor Relations

Name of Professor

November 25, 2018

Research on Legal Articles and Cases

Peer-Reviewed Articles for Discussion

Fernandes, L., & Alsaeed, N. (2014). African Americans and workplace discrimination. European Journal of English Language and Literature Studies, 2(2), 56-76.

Fernandes & Alsaeed (2014) present two arguments regarding affirmative action. It presents affirmative action as a concept that receives different emotions from different people. People look at affirmative action as a euphemism. Those who support it perceive it as being an enlightened imperative for the achievement of social justice. Sometimes, people may view it as being accusatory and overheated. Affirmative action looks at inequality and injustice and ways to eliminate them. Affirmative action ensures the elimination of stranglehold regarding social discrimination. Affirmative action revolves around the aspect of considering race in decision making, mostly in areas focusing on employment. Everyone should view affirmative action as a voluntary approach. Its implementation in the professional environment depends on the employers’ good will. They can choose the aspect of either considering racial discrimination or racial equality in the hiring and promotion process. This creates questions relating to making it mandatory.

Most freedoms associated with affirmative action involve doing good deeds. However, the implementation of affirmative action possesses its limits. The main reason is that affirmative action plans lead to the unfair penalization of unprotected employees (Fernandes & Alsaeed, 2014). The Civil Rights Act (Title VII) monitors the application of voluntary actions which must conform to its stipulations. The article ensures that it motivates affirmative action programs deteriorating into forums which influence reverse discrimination. It is legal to implement duties that lead to reasonable accommodations for different employees. The argument presented by the article may be understood as supporting the employers in fighting against affirmative action. Giving employers the power to choose employees from goodwill is the same as promoting racial discrimination. It means that employers should not uphold laws focusing on equality in their workplaces.

Creta, M. (2014). The accommodation of last resort: The Americans with Disabilities Act and reassignments. BCL Rev., 55, 1693.

The second article revolves around affirmative actions and disability among people. It tries to create an argument focusing on making affirmative action mandatory regarding disabled individuals receiving equal rights in the workplace. It supports affirmative action as a way to eliminate adverse issues affecting employability of the disabled. Since racial discrimination is considered a sensitive issue, modern society equates it to the treatment of disability. People of color have in the past and currently been discriminated in the employment sector. The same trend has been seen among people with disability. The situation has led to Congress introducing the American Disability Act (ADA) which forces employers’ to make reasonable accommodations for individuals having disabilities. The Disability Civil Rights Law eliminates the caste system by letting employers provide equal incentives to people without disabilities and those who are disabled (Creta, 2014). Disabled people have a productive status like the rest of the employees. Diminishing their personality due to their physical disability affects not only their performance but also their mental well-being. Such individuals may become depressed and may end up being suicidal.

The above factor means that the removal of disability hampering effect enables the employer, society, and the employee to benefit. Through the comprehension of affirmative action, one may analogize race and disability cases. Stereotypes, mental/physical impairments, and failure to understand disabled people bar them from attaining their desired employment positions. The experience is the same as that of African Americans failing to achieve employment opportunities due to racial stereotypes and their environments. The article looks at the disadvantages of disability as created by the society and puts them as one framework known as racial disabilities induced by the society. The objective of the article, in summary, is to provide people with disabilities with an opportunity to acquire equal employment opportunities like any other candidate.

Barnes, L. (2015). How Mandatory Arbitration Agreements and Class Action Waivers Undermine Consumer Rights and Why We Need Congress to Act. Harv. L. & Pol'y Rev., 9,, 329.

The role of Congress is important in the subject of making affirmative action mandatory in the United States. It creates an argument of the minimal role played by Congress in supporting the mandatory implementation of affirmative action. Despite significant bias launched against groups considered to be minorities such as African Americans and citizens with disability in the United States, policy has failed to address the issue. Congress has failed to establish an analogous duty in the accommodation of African Americans in the professional environment. This has been through failing to make affirmative action mandatory. There are many reasons for the current inaction of Congress. The first reason revolves around many in Congress that oppose affirmative action. The opposition exists both on practical and moral grounds (Barnes, 2015). The second reason is due to Congress responding to different popular sentiment, most of which opposes affirmative action focusing on race. Congress may be more responsive to issues and needs of the disabled as compared to racial discrimination.

The main reason is due to physical disabilities having a more visible status than racism. Racial discrimination acts as a construct of the society, and it may be difficult to notice unless one becomes a perpetrator and a victim. The race serves as a constitutionally suspect classification while disability does not. The situation sees Congress failing to establish a general/specific duty for all private employers to comply with plans associated with affirmative action (Barnes, 2015). Congress has the power to formulate laws that are friendly to the racial discrimination issue occurring in the employment sector. However, it chooses to do otherwise. If the most powerful institution in the land fails to uphold plans of affirmative action, then it means that the minority groups in society are left to tackle their challenges by themselves.

Priest, N., Esmail, A., Kline, R., Rao, M., Coghill, Y., & Williams, D. (2015). Promoting equality for ethnic minority NHS staff—what works? Bmj, 351, h3297.

The above discussions lead to the benefits associated with making affirmative action mandatory through law and practice. Priest, et al. (2015) present a deeper comprehension of the best approaches to employ using affirmative action for the employment sector. Affirmative action goes beyond recruitment and outreach. People have to understand that it includes diverse efforts that prevent discrimination. Eliminating barriers leading to equal opportunities in employment is significant. History has shown that the benefits associated with affirmative action are always meant to improve the development of a society. The Executive Order is one of the incentives that have been made in the past to prohibit discrimination in the United States. Essentially, affirmative action establishes an environment possessing equal opportunity. It ensures that equality prevails in any environment of implementation. When affirmative action is made mandatory, it means that the professional environment will always ensure that they promote it through their employment incentives and practices.

Employers may not take advantage of their power to discriminate employees and applicants because of fearing that the law may catch up with them. As a mandated approach in the employment discrimination litigation, affirmative action possesses compensatory status. It may serve as a remedy to discriminations employed in the past (Priest, et al., 2015). The article looks at the process of making affirmative action mandatory as the only solution to ending discrimination and the prevention of its reoccurrence. It looks at the situation as a way through which to establish new opportunities for minority groups. The article looks at the new millennium as a period of creating a dynamic change and creating laws that cement affirmative action in the development of society.

Case Studies related to Affirmative Action and Employment

Ricci v. DeStefano

The first case focuses on Ricci v. DeStefano. The legal case raised questions regarding various steps undertaken by employers in avoiding discrimination against a specific group. The City of New Haven undertook an examination of a civil service associated with fire department proportions. The outcomes of the exams included racially disproportionate results. White candidates were favored over African American candidates. The situation led to New Haven failing to certify the examination. Ricci and colleagues with higher scores on the examination and with eligibility for promotion were mistreated. They sued New Haven mayor, John DeStefano, for racial discrimination among the candidates that had higher scores (Legal Information Institute, 2009). Summary judgment was issued by New Haven and affirmed by the Second Circuit. Ricci and fellow petitioners felt that the city had discriminated against them by violating Title VII and Equal Protection Clause.

New Haven had a different claim which included complying with Title VII in the certification of the exam. The above factor meant that it did not violate either Title VII or the Equal Protection Clause. The federal district court gave summary judgment to DeStefano. It dismissed the various claims raised by Ricci regarding equal protection and Title VII. The Second Circuit of the case denied rehearing and affirmed on the first ruling. The decisions of the court will have effects in clarifying steps undertaken by employers in creating a diverse workplace in the future. The above approach may be undertaken through employers avoiding lawsuits connected to Title VII.

Phillips v. Martin Marietta Corp.

The second case revolves around Phillips v. Martin Marietta Corp. Ida Philips acted as the petitioner of the case and started the suit through the United States District Court for the Middle District of Florida. She used Title VII of the 1964 Civil Rights. She claimed that the Martin Marietta Corp failed to accept her application because of her sex. The District Court issued a summary judgment for the company on some factors. In 1966, the company communicated to Mrs. Philips that it did not accept job applications from women who had pre-school age children (FindLaw, 2018). During the summary judgment motion, the company had already initiated employment positions for women who had pre-school children. The situation saw the application period of Mrs. Philips having 70-75% of the applicants to Martin Marietta Corp being women. The company had also employed 75-80% of women for different positions. The situation raised questions of bias against women (FindLaw, 2018).

The 1964 Civil Rights Act provides clauses that give employment opportunities to an employee irrespective of sex. The situation saw Ms. Philips winning the case because of her reasons for the denial of employment. It found that the company had failed to uphold the 1964 Civil Rights Act. The situation led to discriminating against women based on their gender, a factor that was against plans of affirmative actions that were intended to protect employees against discrimination. In summary, affirmative action is meant to introduce equality in the work environment. Gender discrimination is a significant barrier to development in the professional environment.

Meredith v. Jefferson

The third case discusses the case between Meredith v. Jefferson. The case involved Crystal D. Meredith who launched a case against Jefferson County Board of Education. Students had different choices of learning institutions. However, students did not get space in some schools because they failed to accommodate them. The enrollment of students in schools was based on race, place of residence, and capacity of the schools. Black students had 11% enrollment into the schools while the white ones had a considerable number of enrollment. The court had a decision of a 5-4 margin in its outcome related to the case. It came up with a decision that the public school systems may not seek to ensure the maintenance of integration via different measures that consider the race of students based on constitutional grounds (Oyez, 2018). Chief Justice John Roberts had an opinion that limited the validity of the racial diversity in Louisville and Seattle. Discrimination was seen as an outcome and as a process.

Therefore, Chief Justice Roberts saw that discrimination and discriminating were keen on perpetuating the issue. Therefore, he summarized the situation by stating that people should stop discrimination by stopping discriminating acts due to race. According to Roberts, Justice Anthony Kennedy had a different opinion to that of Justice Roberts. Other three justices of the bench supported the opinion by Justice Roberts. Kennedy implied that diversity depended on the concept of definition and meaning. This acted as a compelling educational objective pursued by any school of thought. Concerning affirmative action, it was seen that African American students were being discriminated against in the enrollment process. It was identified that Jefferson County used race as an approach to undertake enrollment which was considered unconstitutional.

Grutter vs. Bollinger

The fourth case evaluates a case about Grutter vs. Bollinger. The case occurred in 1997 in the United States. It involved Barbara Grutter who resided in Michigan and was of white racial background. Ms. Grutter had made an application to the University of Michigan Law School for admission. As a bright student, her application was backed by an undergraduate GPA of 3.8 and LSAT scores of 161. This was excellent for any student who wanted to enter a university during that period. The situation saw her being denied admission by the university. According to the Law School, the administration admitted to using race as a critical factor in admitting students and formulating decisions about the above factor.

The decision to undertake the denial of Ms. Grutter revolved around the need of the university trying to achieve diversity to its students (Grutter V. Bollinger, 2018). According to the District Court, the reason provided by the Law School regarding its decision to achieve diversity among students lacked a compelling outcome. The situation meant that the management of the university used race as a basis to propagate its discriminatory policies against students from different races. A similar case held in 1978 by the Supreme Court was used to affirm the decision by the District Court. The case was California v. Bakke. It eliminated approaches employed by universities regarding justifying the employment of racial preferences in the admission process. Based on the case, it was identified that the Law School used a critical analysis of applications from students to admit them into their learning environments.

References

Barnes, L. (2015). How Mandatory Arbitration Agreements and Class Action Waivers Undermine Consumer Rights and Why We Need Congress to Act. Harv. L. & Pol'y Rev., 9,, 329.

Creta, M. (2014). The accommodation of last resort: The Americans with Disabilities Act and reassignments. BCL Rev., 55, 1693.

Fernandes, L., & Alsaeed, N. (2014). African Americans and workplace discrimination. European Journal of English Language and Literature Studies, 2(2), 56-76.

FindLaw. (2018). PHILLIPS v. MARTIN MARIETTA CORP. Findlaw for Legal Professionals. Retrieved from caselaw.findlaw.com/us-supreme-court/400/542.html

Grutter V. Bollinger. (2018). Oyez. Retrieved from www.oyez.org/cases/2002/02-241

Legal Information Institute. (2009). Ricci v. DeStefano (07-1428); Ricci v. DeStefano (08-328). LII Supreme Court Bulletin. Retrieved from www.law.cornell.edu/supct/cert/07-1428

Oyez. (2018). Meredith v. Jefferson County Board of Education. Oyez. Retrieved from www.oyez.org/cases/2006/05-915

Priest, N., Esmail, A., Kline, R., Rao, M., Coghill, Y., & Williams, D. (2015). Promoting equality for ethnic minority NHS staff—what works? Bmj, 351, h3297.