Unit 3 Assessment Employment Law ***MATHGUY18***

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

3. Discuss the hot issues in discrimination in hiring, Affirmative Action, and Civil Rights. 3.1 Distinguish between disparate treatment discrimination and disparate impact discrimination. 3.2 Describe the process for filing a claim under the Civil Rights Act. 3.3 Contrast Affirmative Action and reverse discrimination. 3.4 Discuss the related concepts of race discrimination and racial harassment.

Reading Assignment Chapter 7: Civil Rights Act Chapter 8: Affirmative Action Chapter 9: Racial Discrimination

Unit Lesson The Civil Rights Act of 1964 was intended to prohibit discrimination and ensure the equal treatment of people. Title VII of that act specifically addresses discrimination in employment but does not prohibit all discrimination in employment situations. Title VII prohibits employers from discriminating against anyone in an employment situation on the basis of religion, race, color, sex, or national origin. That seems to mean that an employer can discriminate against someone for some other reason. However, while that is technically true, discriminating on the basis of some other factor may still violate Title VII of the Civil Rights Act if that other factor relates to one of the classes against which discrimination is prohibited. For instance, if you are of German descent and have very blond hair, Title VII of the Civil Rights Act might seem to allow an employer to refuse to hire you because the employer does not like people with blond hair. However, if blond hair is a dominant trait of people of German descent, you may be able successfully argue that the reason that you were not hired is directly related to your German ancestry, and, therefore, that the refusal to hire you was based on nationality, so that decision was discriminatory under Title VII of the Civil Rights Act. Under Title VII, discrimination against people in the specified classes is prohibited in “employment actions.” The phrase, “employment actions,” includes not only the acts of hiring and firing employees, but it also includes any action which affects an employee’s job, compensation, or benefits. Therefore, not promoting someone because he or she is a member of one of the protected classes or transferring someone to a less desirable job or office because he or she is a member of a protected class is prohibited discrimination under Title VII. Originally, Title VII was applied to cases of intentional discrimination, those situations where an employer deliberately acted to discriminate against an applicant or an employee based on him or her belonging to one or more of the protected classes. This kind of discrimination is known as disparate treatment discrimination – an individual who is a member of a protected class is treated differently (and more adversely) than others not a member of a protected class. However, over time, another form of discrimination was recognized – disparate impact discrimination. In some cases, the disparate impact discrimination that occurred was unintentional, but in other cases, the discrimination was intentional. Disparate impact discrimination occurs when policies of an employer, though seemingly proper on their face, have the effect of discriminating, but the discrimination is against all members of a protected class. For instance, if an employer refuses to hire a

UNIT III STUDY GUIDE

The Civil Rights Act and Discrimination in Employment on the Basis of Race

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female applicant for a position because she is female, that is disparate treatment discrimination – the applicant is a member of a protected class (sex or gender) and the decision not to hire her was based on her membership in that protected class. However, if an employer adopts a policy that it will not hire anyone who is shorter than 5’2” and who has long hair, that policy may be found to be disparate impact discrimination because more females than males are shorter than 5’2” and more females than males have long hair. Of course, if the job requirements reasonably relate to the job requirements, then the job requirements might not constitute disparate impact discrimination (Moran, 2014). If an applicant for a job or an employee believes that they have been the subject of prohibited discrimination, there is a process that the person must follow in order to assert a claim for discrimination:

1. A complaint must first be filed with the Equal Employment Opportunity Commission (EEOC), setting out the facts upon which the person believes that discrimination has occurred.

2. The EEOC determines whether it believes the complaint can be resolved by mediation between the parties.

3. If the EEOC determines that mediation is proper and the employer and employee agree, the claim will be submitted to mediation.

4. If the EEOC does not think that the complaint can be resolved by mediation or if the employer and employee do not agree to mediation, the EEOC investigates the complaint.

5. If the EEOC investigation suggests that the employer has discriminated, the EEOC will try to get the employer to voluntarily resolve the complaint.

6. If the EEOC believes that a violation of Title VII has occurred and the employer refuses to voluntarily resolve the complaint, the EEOC will take legal action against the employer.

7. If the EEOC believes that no violation has occurred or if the EEOC declines to pursue the employer, it will issue a “right-to-sue letter” which gives the applicant or employee who filed the complaint the right to sue the employer in federal district court.

There are time limits that apply to each of these steps that must be met for the process to continue (Moran, 2014). While many discrimination cases have been presented to the EEOC and the federal courts, resolution of those cases has essentially resolved single instances of claimed discrimination, but they have not addressed the problem of the lingering effects of long-term discrimination. To address that issue, the courts have adopted the concept of affirmative action, which originated in earlier executive orders. The basic concept of affirmative action is that, in situations where there has been systemic, long-term discrimination against a particular protected class, the employer will follow a plan that will allow the class that has been the subject of the discrimination to “catch up” by way of the employer favoring that class in future hiring. For example, if an employer is found to have a long-term history of refusing to hire females, an affirmative action plan might require that employer to hire two females for every male that it hires. In some cases, an affirmative action plan may be voluntarily adopted by an employer without a complaint for violation of Title VII being filed, but in most cases, affirmative action plans are authorized and imposed by a court in response to a complaint for violation of Title VII (Moran, 2014). While affirmative action plans have sought to “make up for” past discrimination, several issues have arisen with the application of affirmative action plans. One of those issues is “reverse discrimination” which suggests that affirmative action plans can result in unqualified applicants being hired when qualified applicants are available. For example, if an employer is subject to an affirmative action plan that requires that it hire two females for every male that it hires, if that employer is trying to fill three positions, the affirmative action plan will require that it hire two females and one male even if there are one female and two males applicants who are the most highly qualified for the position. There have been a number of cases that have alleged reverse discrimination, and the courts, though they have had some difficulty in explaining when affirmative action can become reverse discrimination, have sometimes found that reverse discrimination has occurred (Moran, 2014). Another issue that has recently been presented to the United States Supreme Court is the issue of how long an affirmative action plan should be in place, or in other words, how do we determine when an affirmative action plan has made up for the past discrimination that it was implemented to address. That question has yet to be answered by the Supreme Court (Williams & Arkin, 2013).

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References Moran, J. J. (2014). Employment law: New challenges in the business environment (6th ed.). Upper Saddle

River, NJ: Prentice Hall. Williams, P., & Arkin, D. (2013). Supreme Court takes on Affirmative Action in Michigan ban case. Retrieved

from http://www.nbcnews.com/news/other/supreme-court-takes-affirmative-action-michigan-ban- case-f8C11399588

Learning Activities (Non-Graded) Article Review Locate and review an article related to topics covered in this unit (e.g., civil rights, affirmative action, race discrimination). The article you select must be at least two pages long, and no more than five years old. Write a summary of the article. Include the purpose for the article, how research was conducted (if any), the results, and other pertinent information. How does the article relate to what you are learning in this course? Discuss the meaning or implications of the article’s contents, as well as any flaws you find in the article. What could have made the article better? Was any information left out? How could the author expand on the results? Does the article’s information relate to your professional or personal life? How? Your review must be at least two pages long, not counting cover page and reference page. Use proper APA formatting for all sources, including the textbook. The CSU Online Library’s databases are a good source for reliable articles. Non-graded 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.

Key Terms 1. Affirmative action 2. Business necessity 3. Color discrimination 4. Compensatory damages 5. Complaining party 6. Disparate impact 7. Disparate treatment 8. Punitive damages 9. Quota

10. Race discrimination 11. Racial harassment 12. Reverse discrimination 13. Right-to-sue letter