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MHR 6401, Employment Law 1

Course Learning Outcomes for Unit II Upon completion of this unit, students should be able to:

2. Summarize Title VII of the Civil Rights Act of 1964. 2.1 Determine the protected classes under Title VII. 2.2 Determine the range of actions to which Title VII applies, including the key areas of hiring,

promotion, and protected activity.

4. Characterize conduct that violates the federal anti-discrimination laws in employment. 4.1 Describe how violations of Title VII by employers occur. 4.2 Explain the role of the Equal Employment Opportunity Commission (EEOC) in workplace

discrimination issues.

6. Discuss the history of racial discrimination in employment in the United States. 6.1 Explain the importance of the passage of Civil Rights Act and its impact in eliminating racial

discrimination in the workplace.

Course/Unit Learning Outcomes

Learning Activity

2.1

Unit Lesson Chapter 3 Chapter 7 Unit II PowerPoint Presentation

2.2

Unit Lesson Chapter 3 Chapter 7 Unit II PowerPoint Presentation

4.1

Unit Lesson Chapter 3 Chapter 7 Unit II PowerPoint Presentation

4.2

Unit Lesson Chapter 3 Chapter 7 Unit II PowerPoint Presentation

6.1

Unit Lesson Chapter 3 Chapter 7 Unit II PowerPoint Presentation

Reading Assignment Chapter 3: Overview of Employment Discrimination, pp. 67–105 Chapter 7: Hiring and Promotion Decisions, pp. 223–257

UNIT II STUDY GUIDE

Discrimination in the Workplace

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Unit Lesson The 1960s was a decade of great change in the United States, socially and politically. This unit introduces the law that has had the greatest impact on the employment relationship in the United States – Title VII of the Civil Rights Act of 1964. The photograph reflects the signing of the Civil Rights Act into law by President Lyndon Johnson, with Martin Luther King, Jr. and Congressional supporters of the law looking on. Foretelling the passage of Title VII, President Franklin Roosevelt issued an executive order in 1941 prohibiting racial discrimination by federal defense contractors (National History Day, National Archives and Records Administration, & USA Freedom Corps, n.d.). Employers were slow to adopt change, and job advertisements before Title VII specified race and gender (Lytle, 2014). Women and racial minorities were deprived of equal opportunity in employment and employers missed broader pools of workers. Large pools of potential wage earners and consumers were essentially left out of the U.S. economy. Changes wrought by Title VII did not occur overnight; it has taken years for the law to develop, and it continues to develop and evolve today. This evolution occurs as demographic changes lead to ever- increasing diversity in the workforce. Women, ethnic minorities, and persons with disabilities continue to grow in the ranks of workers. This is not by accident, but it is because of protections for these groups that have eliminated some of the barriers to entering the workforce and excelling in their careers. As explained in the readings for this unit, racial discrimination appears in an infinite variety of contexts. For the purposes of legal analysis, the courts analyze racial discrimination in two ways: disparate impact and disparate treatment (Walsh, 2016). Disparate treatment is intentionally treating a person less favorably than a person of a different race because of race. Disparate impact occurs when a practice neutral on its face has an adverse impact on a racial group. Disparate treatment can occur when an employer fires a white employee for theft from the employer but gives an African-American employee a warning for the same conduct. Title VII covers whites as well as persons of non-white races. Disparate impact can result from a policy that requires all male employees to be clean-shaven. This policy, although race-neutral on its face, may have an adverse impact on African-American men because many African-American men have a skin condition that causes their skin to be very irritated when they shave. (Note: Keep in mind that disparate treatment and disparate impact also apply in other areas of discrimination when any protected class is affected, and it does not solely apply to race.) The U.S. Equal Employment Opportunity Commission (EEOC), created by the Civil Rights Act to enforce Title VII, has the authority to investigate charges of discrimination, and files lawsuits to enforce individual rights. The EEOC often takes interest in and pursues cases that involve a policy that could affect a number of workers. In a recent case, the EEOC sued an insurance company for refusing to hire an African-American applicant because she wore dreadlocks (EEOC v. Catastrophe Mnmt. Sol., 2016). The employer’s grooming policy required employees to be dressed and groomed in a professional and business-like manner and stated that hairstyles should reflect a business professional image and that “excessive hairstyles or unusual colors” were not acceptable. When an applicant who was offered the job if she changed her dreadlocks hairstyle refused to do so and was not hired, EEOC sued the employer claiming that the application of the employer’s grooming policy to dreadlocks discriminated against African-Americans because the hairstyle is an outgrowth of the natural texture of hair of African-Americans and therefore racial in nature. The lower court dismissed the case, and on appeal, the federal appeals court stated that discrimination based on black hair texture, such as a natural Afro, would be race discrimination in violation of Title VII. The appeals court found, however, that prohibiting a braided hairstyle relates to a choice and does not violate Title VII. Nevertheless, employers should realize that seemingly innocuous policies, such as ones that regulate appearance, can create problems and should be analyzed carefully by human resources and legal

President Lyndon Johnson signs into law the Civil Rights Act on July 2, 1964. (Stoughton, 1964)

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professionals. In practice, such policies can discriminate or have a disparate impact, which includes negative aspects that far exceed the intent of the policy to regulate professional appearance. Another of EEOC’s important functions is to provide guidance to employers on legal questions related to the laws it enforces, which include all federal anti-discrimination laws. EEOC has consistently supported a broader definition of the term sex under Title VII, interpreting it to include gender identity and sexual orientation. Noting that Title VII does not expressly reference sexual orientation or gender identity, EEOC relies on case law finding that employment actions motivated by gender stereotyping are unlawful under Title VII by taking the position that Title VII prohibits discrimination against gay and transgender applicants and employees. Courts, however, have pushed back on EEOC’s sometimes aggressive stances with respect to the breadth of the law. As in the dreadlocks case above, an appeals court in 2016 rejected EEOC’s argument that Title VII prohibits sexual orientation discrimination. The court was influenced by Congress’ consistent failure to amend federal law to protect gay applicants and workers (Hively v. Ivy Tech Cmty. Coll., 2016). For now at least, protection for gay and transgender workers and applicants resides at the local and state levels. Many municipalities have such protections; some apply only to public employees, while others cover both private and public workers. At the state level, 20 states have statutes that protect against discrimination based on sexual orientation and gender identity; two states have laws that protect only gay individuals. Moreover, even though the law continues to evolve in this area, for employers who operate in many states, it is only practical to include these protections in their equal employment opportunity and anti-harassment policies and training. In addition to the breadth of coverage of Title VII, developments in technology are forcing EEOC and employers to rethink how the law applies to recruitment and hiring. In its Strategic Enforcement Plan: Fiscal Years 2017-2021, EEOC (n.d.) places emphasis on breaking down barriers in recruiting employees. The strategic plan makes clear that EEOC will target class-based practices that have a disparate impact on racial, ethnic, and religious groups, as well as on female, older, and disabled workers. Interestingly, EEOC holds that the increasing use of data-driven selection devices is an area of significant concern (EEOC, n.d.). In a panel discussion to flesh out its initiatives, panelists discussed how algorithms and mining of Internet data for applicants who match a profile of a successful employee and/or a match with the employer’s culture could be unlawful discrimination (Mintzer, 2016). An EEOC panelist discussed a hypothetical technology company populated mainly with young white and Asian-American male workers. The company wants its new workers to fit into the company culture. Using technology to locate candidates who bike to work and seek benefits such as games and happy hours over childcare and health insurance benefits, could, in the EEOC’s view, illegally screen out women and older workers. The EEOC is not naïve. It recognizes that new technological tools in hiring and recruiting are inevitable and have advantages for employers in efficiency and improved selection. EEOC Chairwoman Jenny Yang (as cited in Mintzer, 2016) recognized as much by saying that this information has the potential to fuel technology that can help employers and recruiters to decrease partiality in their human resources functions. However, employers, in their rush to make big data part of their human resources professionals’ toolkits, must take care to ensure that those tools are not used carelessly and that they are free of adverse impact on protected groups. While Title VII had its 50th anniversary in 2014, there are still important questions left unanswered through EEOC interpretation and judicial decision. In addition, as the nation and its workers become more diverse and attitudes evolve, the law will continually be required to evolve as well. Stay tuned!

References EEOC v. Catastrophe Mnmt. Sol., No. 14-13482 (11th Cir. Sept. 15, 2016). Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir. July 28, 2016). Lytle, T. (2014, May 21). Title VII changed the face of the American workplace. HR Magazine. Retrieved from

https://www.shrm.org/hr-today/news/hr-magazine/pages/title-vii-changed-the-face-of-the-american- workplace.aspx

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Mintzer, R. (2016, October 17). EEOC takes on emerging issues in new strategic enforcement plan. Corporate Counsel. Retrieved from http://www.corpcounsel.com/id=1202770111946/EEOC-Takes- on-Emerging-Issues-in-New-Strategic-Enforcement-Plan?slreturn=20161007141257

National History Day, National Archives and Records Administration, & USA Freedom Corps. (n.d.). Executive

Order 8802: Prohibition of discrimination in the defense industry (1941). Retrieved from https://ourdocuments.gov/doc.php?flash=true&doc=72

Stoughton, C. (1964). Lyndon Johnson signing Civil Rights Act, July 2, 1964 [Photograph]. Retrieved from

https://commons.wikimedia.org/wiki/File:Lyndon_Johnson_signing_Civil_Rights_Act,_July_2,_1964.jp g

U.S. Equal Employment Opportunity Commission. (n.d.). Strategic enforcement plan: Fiscal years 2017-–

2021. Retrieved from https://www.eeoc.gov/eeoc/plan/upload/sep-2017.pdf Walsh, D. J. (2016). Employment law for human resource practice (5th ed.). Boston, MA: Cengage Learning.

Suggested Reading The following PowerPoint presentations are supplements to the textbook chapter readings and are provided for further knowledge and review of the unit materials. Chapter 3: Click here to access the PowerPoint presentation. Click here to access a PDF file of the PowerPoint presentation. Chapter 7: Click here to access the PowerPoint presentation. Click here to access a PDF file of the PowerPoint presentation.

Learning Activities (Nongraded) Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information. At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic situations that relate to employment law. Exploring these questions allows you the opportunity to further your understanding of the concepts in each chapter and prepares you for similar situations you may encounter in your workplace.

 Review the Chapter 3 questions in your textbook on pages 106–108.

 Review the Chapter 7 questions in your textbook on pages 257–260.