Chapter 11 Equal Employment Opportunity

INTRODUCTORY CONCEPTS:

1. Results in economic efficiency

2. Encourages incentives for new business and investment (including in human capital)

3. Rewards those who use resources efficiently and wisely

1. It assumes that unequal results based upon ability and effort are morally just.

2. Merit based upon ability and effort gives rewards to those that are deserving, regardless of age, race, gender, religion, creed, or national origin.

3. Economic discrimination based upon productivity differences is not the same as other forms of discrimination based upon age, race, gender, etc.

1. Prejudice and stereotyping, environmental limitations, and institutional forces are barriers to equal opportunity.

2. In what ways does the market fail in implementing equal opportunity? Could this exist if competitive factors were strong enough?

3. Why has the implementation of equal opportunity become a matter of public policy?

1. It is concerned with the inability of certain groups, notably women and minorities, from having an equal chance of job opportunities.

2. The elements of discrimination are found in the workplace: (1) treatment based upon something other than job performance; (2) assumes not worthy of equal treatment; and (3) is costly to that group in terms of job positions or higher pay for equal work.

PUBLIC POLICY MEASURES

1. Important because of coverage during war effort.

2. Blacks and women loss representation after the war ended.

1. Power to investigate complaints by employees and enforce ban on discrimination by federal contractors.

2. Required federal contractors to take "affirmative action" to make certain minority group members were informed of job openings and treated equal concerning job opportunities.

1. Enforcement varied among states from administrative hearings and enforcement to misdemeanor criminal enforcement in courts to a call for voluntary compliance only.

2. These actions prior to the 60s were prior to the civil rights and feminists movements.

1. Title VII is the cornerstone of the Act that forbade discrimination in employment by an employer, employment agency, or labor union on the basis of race, color, sex, religion, or national origin, in any term, condition, or privilege of employment.

2. The Act also forbade discrimination in hiring and firing practices, wages, fringe benefits, classifying, referring, assigning or promoting employees, extending or assigning facilities, training, retraining, apprenticeships, and other employment practices.

3. Established the Equal Employment Opportunity Commission (EEOC) to implement the Act without enforcement powers.

4. Section 703 (j) of Title VII called for the "quota" provision. Percent comparison between workforce and population within community, state, section, or other area.

1. Amended Title VII to broaden and five EEOC poser to bring enforcement action in the courts.

2. Discrimination charges could be brought by organizations on behalf of aggrieved individuals, as well as by employees and job applicants themselves.

1. Prohibits termination or refusal to hire or promotion of women solely because they are pregnant.

2. Bars fixed pregnancy leave conditions.

3. Protects reinstatement rights of women on pregnancy leave.

4. Treats pregnancy as any other disability under fringe benefit plans.

1. Extended punitive damages and jury trials to victims of employment discrimination.

2. Put women on equal basis with victims of race-based discrimination.

3. Put more of the burden of proof of non-discrimination on the employer.

1. Prohibits discrimination because of sex in payment of wages for equal work requiring equal skill, effort, responsibility, and working conditions.

2. Prohibited reducing wages of an employee to equalize pay between the sexes.

1. Extended top age to 70 with regard to hiring, promotion, or termination.

2. Applies to employers with 20 or more employees and public employees.

1. Called upon prime government contractors to develop affirmative action plans in "good faith" for the hiring and training of minorities.

2. Revised in 1970 to require written affirmative action programs identifying areas of minority and female underutilization and establishing goals and timetables to correct existing deficiencies in their employment.

3. Underutilization meant fewer minorities or women in a particular job classification than would reasonably be expected by their availability.

1. Required federal contractors to take affirmative action to employ and promote qualified handicapped persons.

1. Bars employment discrimination against people with physical or mental disabilities.

2. Requires access to public buildings, telephone service, mass transportation, and government services by the handicapped.

1. Approved by 35 states from 1972 (to 1982), but below 2/3rds needed for constitutional amendment.

2. Gave equality of rights that could not be denied by the U.S. or by any State on account of sex.

ADMINISTRATIVE STRUCTURE

1. Established guidelines on employment discrimination (coordination and education).

2. Investigates charges of discrimination.

3. Settles discrimination cases through conciliation or litigation.

1. Jurisdiction over all programs requiring equal employment opportunity and affirmative action by federal contractors and subcontractors.

2. Uses comprehensive review process and requires compliance.

3. Controversy under the Reagan Administration concerning quotas and reverse discrimination.

IMPLEMENTATION OF EQUAL EMPLOYMENT OPPORTUNITY

1. Develops an active (as opposed to passive) plan to increase the hiring of women and minorities.

2. Requires explanation of "underutilization" and goals and targets of affirmative action commitments to relieve deficiencies within a specified time table.

3. Quotas and goals are the most widely used devices to ensure compliance regarding federal contracts to meet "good faith" effort of complying with equal employment legislation.

4. Proving intent to discriminate is difficult, so that comparisons with area percentage of the labor force was used as evidence of discrimination that could be corrected by affirmative action plans.

5. Affirmative action plans are results oriented beyond the pace that might ordinarily occur under equal opportunity.

An inevitable result of wide use of goals and quotas. The Bakke Case brought by Alan Bakke when denied admission to the medical school at the University of California in 1973 and 1974 because of reverse discrimination. 16 of 100 openings were given by discretion in favor of nonwhite applicants. Went to Supreme Court left open the option to discriminate to correct deficiencies where previous discrimination had been found.

The Weber Case involved an employee of Kaiser Aluminum and Chemical Corporation, claiming exclusion from a training program in which half of the places were reserved for minorities. The Circuit Court agreed but was overturned by the Supreme Court that gave blacks special preference for jobs that had traditionally been all white. The Key elements are: (1) to correct a manifest racial imbalance; (2) voluntary in nature; and (3) temporary until imbalance was corrected.

The Santa Clara transportation agency affirmative action plan for a road dispatcher that applied to the hiring of women to mirror the percentage of women in the area. A woman was hired with a 2 point lower interview score than a male counterpart, but the Court upheld the appointment when there was evidence of a manifest imbalance in the number of women or minorities holding the position.

Do blacks and women deserve some kind of preferential treatment to compensate them for past wrongs or to promote social goals?

One arguments in favor: The job belongs to the community as opposed to past preferences of white males. Argument against: Compensatory judgment should not punish all members of a group based upon some wrong doers. Specific individuals, therefore, should compensate injured parties as opposed to the victims of affirmative action plans that give preferential treatment.

A second argument in favor: Justification as necessary to attain equal justice and strive for a society with greater equal opportunity, neutralizing the competitive disadvantage of blacks and women and bringing them to the same starting point. Argument against: Preferential treatment discriminates against white males and thus violates the principle of equality by allowing a nonrelevant characteristic to determine employment.

The Reagan Administration took a stand against preferential treatment in 1983 when the Justice Department asked the federal appeals court to strike down a consent degree affecting the hiring of blacks by the New Orleans Police Department. The administration was not against affirmative action in principal but opposed quotas and numerical goals to attain civil rights objectives.

The Bush Administration backed away from some of these attacks against quotas and goals, but a conservative Supreme Court continued the Reagan philosophy. In Wards Cove v. Atonio the Court ruled that those bringing race bias charges must prove that an employer had no business reason for imposing the job requirements they were contenting. This reversed the burden of proof from the 1071 precedent established in Griggs v. Duke Power. Martin v Wilks regarding the enforcement of a consent decree that established a quota for hiring black fire fighter in Birmingham was overturned by the court in order to give Wilks his day in court. The Civil Rights Act of 1991 (passed by liberal Democrats) barred most retroactive challenges to consent decrees by third parties, such as white firefighters. In Patterson v McLean Credit Union a 1866 civil rights law was ruled to not apply in the case of racial harassment or discrimination on the job after a person is hired.

Section 703(h) of Title VII seems to exempt bona fide seniority systems and insulate them from discrimination charges. The key as to whether or not a seniority is bona fide is whether it was adopted without a discriminatory motive.

The Court has supported seniority in hiring and firing, but not the concept of affirmative action in remedying the effects of past discrimination. Thus, LIFO applies to layoffs and seniority systems that may discriminate. About 80 percent of the nation's workforce is not covered by seniority provisions of union contracts.

WOMEN AND EQUAL OPPORTUNITY

During early 1990 Supreme Court nominee Clarence Thomas was accused by Anita Hill, a former employee when Thomas headed the EEOC, of sexual harassment. Since that time sexual harassment cases brought by women have increased. The surge of women in the workforce, many as single parents, has increased the opportunity for sexual harassment. After the hearing the EEOC logged a record 9,920 cases in 1991 , up over 50 percent from the previous year.

The federal government and courts view sexual harassment as illegal discrimination in employment. Businesses have responded to the threat of litigation with employee education and written policies.

Cases can be divided into quid pro quo cases where the employee has been promised promotion for sexual favors or hasn't been promoted for refusing sexual advances, and work-environment cases where sexual harassment creates an abusive, hostile, and intimidating environment. There must be a persistent and calculated pattern of antisocial behavior to constitute a hostile working environment. Quid pro quo cases may be based upon a single situation. In 1992, third-party harassment involving a client, customer, or supplier who is the harasser began to be considered a serious offense that was rampant in the workplace.

Defining sexual harassment and proving that it took place is difficult. The EEOC defines it as unwelcomed sexual advances of a verbal or physical nature. Three types of behavior must occur: (1) submission to such conduct is and explicit or implied term or condition of employment;

(2) submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual, or (3) or such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

The employer has strict liability for sexual harassment perpetuated by its agents and supervisors and for non-supervisory employees when the employer knows of sexual harassment and does not take immediate and appropriate action. Remarks or behavior that a "reasonable woman" would find offensive, even though a woman's perception might differ from a man's perception are considered harassment.

Nine characteristics might influence EEOC decisions: (1) perceived seriousness of the behavior reported, (2) frequency of harassment, (3) status of the harasser, (4) the severity of the job-related consequences, (5) the existence of witnesses to the complaint, (6) the existence of documents to support the claim, (7) management's reasons for adverse employment related consequences, (8) whether the complainant had notified management of the harassment prior to filing charges, and (9) whether the organization had take investigative or remedial action when notified of the problem.

Sexual harassment guidelines cover both men and women. Men have filed charges and might be expected to file more in the future as women take on more responsible supervisory positions.

The shift from manufacturing to services has enabled women to increase their holdings of management positions (currently 41 percent compared to 27 percent a decade ago.) Business school enrollment by women has enabled half of the entry-level manage crop to be females in 1992. Still less than 3 percent of top executives of Fortune 500 companies are women. Women at the vice present level earned 42 percent less than their male counter part in 1986. At the current pace it would take 75 to 100 years to remove the disparity.

In the federal government in 1992 nearly half of the white-collar jobs were held by women, but only 25 percent were supervisory and 10 percent federal executives. Black women make up 2 percent of managers in companies with 100 or more employees in 1988 even though they account for 10 percent of the work force.

In early 1989 the Harvard Business Review article by Felice Schwartz that proposed a formal two-track system for promoting women into high management positions was met with a storm of controversy. The "mommy track" that segregated some women from the "career-primary" women was feared to be an excuse for reducing the amount of corporate investment in grooming working women for high management positions.

The Equal Pay Act make it unlawful for an employer to pay wages at a rate less than the rate at which he pays employees of the opposite sex in such establishment for equal work on jobs the performance of which require equal skill, effort, responsibility, and working conditions. The controlling factor was job content, not job titles or classifications.

After several years there is still disparity between men and women's median income. The gap has fluctuated between 57 and 72 percent but is up only 10 cents from 1963 (one-third of one percent). The disparity is primarily due to disparity among jobs, although women working as data entry keyers make 95 percent of their male counterparts, lawyers make 78 percent, doctors 72.2 percent, and financial managers 62.4 percent.

Women are channeled into lower paying jobs due to tradition, supporting or nurturing roles, and treatment as a class rather than individuals. Job importance and skills are understated in many traditional women's positions, such as nurses and teachers.

By 1990 women constituted 45.4 percent of the labor force, compared with 12 percent in 1900 and 29 percent in 1950. They provide services from teaching, air traffic control, medicine, and legal advice to administrative and technical support. Over the next decade only 15 percent of new entrants to the workhorse will be native white males, compared to 47 percent in the late 1980s. Non-whites, women, and immigrants will make up more than five-sixths of the net additions to the workforce over the next decade, although the currently make up about half the current workforce.

Demand for day care, time off for pregnancies, and child-rearing duties will increase. Women will increasingly participate in highly skilled occupations that have been almost exclusively male.

EQUAL OPPORTUNITY AND THE BLACK POPULATION

Gains by blacks are not encouraging. Over the past 20 years some studies have reported that real income of blacks has fallen by about one-third and their chances of entering the middle class is diminishing. The gap is primarily due to the relative importance of education and higher technology affecting the income of the "haves" rather than the "have nots." Black women with a high school education experienced a 32 percent decline in real family income from 1980-85 compared with the 1967-72 period. Only 27 percent of black women ended up with a family income of more than $25,000 (compared with 51 percent in the same relative bracket 15 years earlier). These were women who graduated from high school and did not give birth out of wedlock in their teens.

Many blacks have found the military as an avenue for economic progress. While blacks make up 12 percent of the population they hold 21 percent of all military positions. Sharp cuts in defense spending will adversely affect their relative gains.

In 1989 about 5 percent of all management positions in the U.S. were held by blacks. Blacks commonly hold positions such as restaurant manager or school administration rather than senior management positions of companies.

Blacks have made political gains, especially in cities. David Dinkins became the first black mayor of New York City in Jan. 1990. L. Douglas Wilder became the firs black governor in history, in Virginia. Norman Rice won the race for mayor in Seattle.

In the 1990s a new phrase began to appear with respect to equal opportunity, as companies began to emphasize diversity. Companies are beginning to take an active role in mirroring multiculturalism within their organization. White males can be expected to have some problems with their identity and role in society. Their dominance will seem to be attacked from all sides, especially as new entrants in their group decline relative to other groups.

The O.J. Simpson trial and Million Man March (message versus the messenger, Louis Farrakhan) are recent developments that point out racial division and the role of black men in meeting the challenge of many of the problems in black neighborhoods (black on black crime, jobs, drugs, welfare, education, racism and divisiveness.)