Ch05 Affirmative Action.docx

Affirmative Action Chapter Objectives: The objectives of this chapter are to teach students the legal requirements of affirmative action and correct the misinformation they have received about the issue over the years. As their professor, one of your primary objectives will be to dispel the misconceptions and misinformation students have about affirmative action. At the end of the chapter the students should have a firm grasp on what affirmative action is, what it is not, what the law requires in order to institute the different types of affirmative action plans, and what their role is in this area as a manager or supervisor. Scenarios - Points for Discussion Scenario 1: Employer is concerned that her workplace has only a few blacks, Hispanics and women in upper level management and skilled labor jobs. Most unskilled labor and clerical positions are held by women and minorities. Employer decides to institute a program which will increase the numbers of minorities and women in management and skilled labor positions. Is this permissible? Do you have all relevant facts needed to decide? Employer's action may be permissible, but there are factors with which employer must comply in order for a voluntary affirmative action plan to be viable and protect the employer from claims of "reverse" discrimination by employees who feel adversely affected by the plan's operation. The plan must be for the purpose of breaking down old patterns of racial or gender segregation and hierarchy, or a manifest imbalance, and it cannot unnecessarily trammel the interests of other employees or create an absolute bar to their advancement, and must be temporarily for the purpose of achieving, not maintaining a more balanced workforce. See United Steel Workers of America, AFL-CIO v. Weber, 443 U.S. 193 (1979). Scenario 2: Union has not permitted blacks to become a part of its ranks because of opposition from union members. Black employees sue to join. The court orders appropriate remedies. The union still resists blacks as members. Eventually the court orders that the union admit a certain number of blacks by a certain time or be held in contempt of court. Is this an appropriate or permissible remedy? Yes, under the circumstances of such adamant resistance to other efforts, the remedy of imposing a quota is permissible. See Local #93 IAFF v. Cleveland, 478 U.S. 501 (1986). Scenario 3: An employer is found by a court to have discriminated. As part of an appropriate remedy, employer is ordered to promote one female for every male that is promoted, until the desired goal is met. Male employees who were next in line for promotions sue the employer alleging reverse discrimination in that the new promotees are being hired on the basis of gender, and the suing employees are being harmed because of their gender. Who wins and why? The employer wins if this one-for-one affirmative action plan for promotion has been imposed by the court to remedy discrimination found to have existed and the court considered the appropriate factors in doing so. In such a case, the employer is protected from subsequent "reverse" discrimination actions by employees who feel adversely affected by the plan's implementation. U.S. v. Paradise, 480 U.S. 149 (1987). See case question 2 under U.S. Steelworkers v. Weber. LECTURE NOTES The Design and Unstable History 1. If you have heard someone say "they had to hire a black" or "We have to hire a woman?," this statement is likely rooted somewhere in the concept of affirmative action. 2. While there may be a truth somewhere in the statement, it is probably far from what it appears to be. 3. Many, mistakenly, think that affirmative action is a government requirement which takes qualified whites or men out of their jobs and gives them to unqualified minorities or women, or that affirmative action is an entitlement program which provides unqualified women or minorities with jobs while qualified whites and/or males are shut out of the workplace. See Exhibit 5-1 for some common affirmative action myths. 4. This is not so. It is one thing to say an employer "had to hire a woman." It is quite another to say, "Because the court found that the employer had discriminated against women in its hiring and promotion policies, it was required to remedy the situation by hiring and promoting qualified female applicants and candidates." The latter is what affirmative action is designed to do, the former is what may employers interpret it to be. This is not surprising given the unstable history of the concept. (See Exhibit 5-2 on the 1980's conflicting media statements made by top officials about affirmative action). 5. The misunderstanding, as well as the impact of affirmative action requirements, have been the basis for increasing concern and consternation by employers and employees alike. 6. At its simplest, affirmative action involves the employer making an affirmative effort to bring qualified women or minorities (or others statutorily mandated) into the workplace in order to make it more reflective of the population from which the employees are drawn. 7. Affirmative action must be premised upon one of several bases, but is usually as a result of a finding of discrimination, underrepresentation or a manifest imbalance in the workplace. 8. So called, "reverse discrimination" is said to occur when an employer is taking race or gender into account in order to achieve an affirmative action goal. Others not in that group allege that they are harmed by the employer's consideration of race and/or gender in hiring or promotion decisions. Thus, the employer is alleged to have discriminated in the reverse, against the suing employees. 9. As the years passed after protective employment legislation and regulations were enacted and employees entering the workplace grew farther and farther away from understanding the circumstances which created the need for the legislation and its remedies (as referenced in the chapters on Race Discrimination and Title VII), employees, and many times employers, understood less and less about the underlying reasons for the need for the remedial action provided by affirmative action. There are several reasons for this: A. The first significant employment affirmative action case was not decided by the U.S. Supreme Court until Weber in 1979, fifteen years after the Civil Rights Act of 1964 was enacted. B. During the 1980's when many of the initial affirmative action cases were decided by the Supreme Court and much of the public opinion was formed, there was great difference of opinion in national debate. See Exhibits 5-2 and 5-6. The presidential administrations of the 1980's, an important part of setting a tone for national policy and legislation, were hostile to the concept and often blasted Supreme Court decisions and enforcement officials. Even within the administration there were frequent public disagreements by officials of relevant agencies such as the Department of Labor, Department of Justice's Civil Rights Division, EEOC and the Office of Civil Rights. Employers, observing this interaction and being aware of the hostility, indecisiveness, in-fighting and ambiguity, were understandably confused. With resistance to the idea from top government officials, business often felt no particular need to embrace the concept. C. In the view of many, the economy worsened and massive layoffs, removal of jobs to foreign markets, the fight for remaining jobs, shrinking union rolls and resulting workplace uncertainty made employees even more hostile to anything that smacked of unfairness and threatened job security. D. The media, in its quest for the convenient "sound bite", rarely took the time to explain significant Supreme Court decisions in ways which helped people to understand the reasoning or impact. "The U.S. Supreme Court today determined that employers were required to hire qualified, available blacks since they were severely underrepresented in the workplace because of years of proven discrimination by the employer," became "Employers are required to hire blacks." Predictably, people were upset. E. Vote-sensitive politicians, in response to their constituents' understandable displeasure (given the above portrayal of the concept) at having affirmative action "invade their workplace and threaten their jobs," denounced Supreme Court decisions which rarely reflected the criticism leveled at them and further reinforced the negative view of the concept. F. Employers, watching this, and receiving one message from national leadership, another from enforcing agencies and courts, and not sure of what they should do, but wanting to avoid lawsuits, took the "safe" way out and interpreted the message as "we have to hire certain groups." Frequently without regard to qualifications, but in order to avoid trouble, they did so. Employees, many times improperly used by their employers to fill a "minority position" or a "female position", were the object of resentment aimed at them rather than at the employer who made the decision. 10. Throughout the chapter, keep this thought in mind: If Alaska is 99% Eskimo, then, all things being equal, that will be reflected at all or most levels of the employment spectrum there. All things being equal, it would look odd if Alaska is 99% Eskimo and there are only 5% Eskimos holding managerial level jobs, but 100% of the unskilled labor jobs. Of course, the reality is that it is rare to have a workforce which has so little diversity. Among other things, there will also be differing skill levels and interests within the workforce from which the employees are drawn. However, the example is instructive for purposes of illustrating how a workplace should reflect the available workforce from which its employees are drawn. If there is a significant difference which cannot be accounted for otherwise, the difference between availability and representation in the workplace should be addressed. In essence, this is affirmative action. 11. Affirmative action stems from the concept imposed by Executive Order 11246. 12. Under the Executive Order, those employers who contract to furnish the federal government with goods and services must agree not to discriminate in the hiring, termination, promotion, pay, etc. of employees on the basis of race, color, religion, gender, or national origin. 13. The first forerunner to this executive order was Executive Order 8802, signed by President Franklin D. Roosevelt on June 25, 1941 which applied only to defense contracts and was issued to combat discrimination during the wartime years "as a prerequisite to the successful conduct of our national defense production effort." 14. This executive order underwent several changes before the present version was signed into law by President Lyndon B. Johnson on September 24, 1965. 15. In addition to prohibiting discrimination in employment, the Executive Order requires that employers agree to take affirmative steps to insure adequate representation of women and minorities in their workplace. 16. In cases where the employer refuses to remedy disparities found, violators are debarred from further participation in government contracts. 17. Debarment is a rare occurrence since most employers eventually comply with OFCCP's suggestions for remedying disparities found. 18. The Executive Order is enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor, which issues extensive regulations implementing the Executive Order. 19. OFCCP's enforcement addresses only the employer's participation in federal government contracts and contains no provisions for private lawsuits by employees. 20. Employees seeking redress must do so through the state fair employment practice laws, Title VII or similar legislation discussed in Chapter 3. 21. However, employees may file complaints with OFCCP which the Secretary is authorized to receive and investigate, and may sue the Secretary of Labor to compel performance of Executive Order requirements. 22. Title VII prohibits discrimination in employment, but does not impose affirmative duties on the employer. 23. However, as a part of the remedies provided under Title VII, courts may order something akin to affirmative action. Affirmative Action Under Executive Order 11246 1. Employers who contract with the federal government to provide goods and services of $10,000 or more must agree to comply with the Executive Order. 2. The Executive Order requires that the employer not discriminate as set forth above. In addition, contractors and subcontractors must agree to A. post in conspicuous places, available to employees and applicants, notices provided by the contracting officer setting forth the provisions of the nondiscrimination clause B. include in all the contractor's solicitations or advertisements for employees, a statement that all qualified applicants will receive consideration for employment without regard to race, color, religion, gender or national origin C. include a statement of these obligations in all subcontracts or purchase orders, unless exempted, which will be binding upon each subcontractor or vendor D. furnish all information and reports required by the Executive Order and the implementing regulations, and permit access to the contractor's or subcontractor's books, records and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with the Executive Order and it's regulations. 3. Under implementing regulations the Executive Order increases compliance requirements in monetary increments up to $1,000,000. 4. For the smallest contracts the employer agrees that in addition to not discriminating in employment, it will post notices that it is an equal opportunity employer. 5. If a contractor or subcontractor has 50 or more employees and a nonconstruction contract of $50,00 or more, the contractor must develop a written affirmative action plan for each of their establishments within 120 days of the beginning of the contract. 6. Large contractors must also perform a workplace assessment in which the employer/contractor must indicate how many women and minorities are in each of seven employment categories ranging from unskilled workers to managerial employees and compare the percentage of women and minority employees in these positions with the percentage of such employees available in the workforce from which the employer's workforce is drawn. 7. Underrepresentation or underutilization is defined in the OFCCP regulations as "having fewer minorities or women in a particular job group than would reasonably be expected by their availability." 8. If the assessment indicates that the employer has an underrepresentation in a given category, for instance too few women in upper level management, then the employer must set forth a plan of corrective action which includes goals as to how many employees are needed to correct the underrepresentation, and timetables for accomplishing the goals. 9. This plan of corrective action is called an affirmative action plan, as it represents a plan of action the employer will affirmatively pursue in order to address deficiencies found to exist in the workplace. 10. Employers submit annual reports to the OFCCP giving the results of their affirmative action programs. 11. The concept of "availability" is not based upon the mere presence of the women and minorities in a given geographic area. It is based upon the availability of women and minorities qualified for the particular job. 12. Simply because there are 35% women in the general population does not mean that that 35% are qualified to be doctors, teachers, skilled craft workers or managers. The 35% figure is more appropriate for entry-level jobs requiring minimal skills. Availability for jobs as managers would not consider the presence of 35% females in the population, but rather, the percentage of the 35% qualified to be managers. 13. Construction contracts are handled somewhat differently, though contractors and subcontractors who receive federal assistance for construction contracts must also engage in affirmative action. In order to obtain a contract, the applicant's contract bid must include an affirmative action clause requiring the contractor to comply with goals and timetables for minority and female employment set periodically by the OFCCP according to the geographic location of the project. Penalties for Noncompliance 1. The Secretary or the appropriate contracting agency can impose a number of penalties on the employer for noncompliance, including: ? publishing the names of nonconforming contractors or labor unions ? recommending to the EEOC or the Department of Justice that proceedings be instituted under Title VII ? requesting the Attorney General to bring suit to enforce the Order in cases of actual or threatened substantial violations of the contractual EEO clause ? recommending to the Department of Justice that criminal proceedings be brought for furnishing false information to a contracting agency or the Secretary of Labor ? canceling, terminating or suspending the contract or any portion thereof, for failure of the contractor or subcontractor to comply with the nondiscrimination provisions of the contract, (this may be done absolutely, or continuance may be conditioned upon a program for future compliance approved by the contracting agency), or ? debarring the noncomplying contractor from entering into further government contractors until the contractor has satisfied the Secretary that it will abide by the provisions of the Order. 2. The Secretary must make reasonable efforts to secure compliance by conference, conciliation, mediation and persuasion before requesting the Attorney General to act or before canceling or surrendering a contract. 3. While a hearing is required before the Secretary can debar a contractor, it may be granted before any other sanction is imposed, if appropriate. 4. The more severe penalties are rarely used, as contractors are generally not so recalcitrant toward OFCCP orders. 5. An employer would do well to conduct a voluntary equal employment opportunity audit from time to time, in order to monitor the workplace so that potential problems can be discovered before they worsen. The longer the problem exists, the more likely it is to be viewed as intentional action by the employer. Judicial Affirmative Action 13. Bakke involved affirmative action in medical school admissions rather than employment, however, the case is viewed as the one which opened the affirmative action debate, and much of its reasoning was used in subsequent employment cases. Case Example: Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Issue: Whether a medical school admissions program could take race into consideration in its admission decisions in an effort to increase its enrollment of minorities. Facts: A white male applying to medical school was rejected for admission and sued after discovering less qualified students were admitted under a special admissions program which reserved a certain number of spaces for "disadvantaged" students. Decision: The Supreme Court struck down the program, but did not outlaw such plans in general and said that race is a factor that can be considered in such programs. If Davis's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not--as insubstantial, but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations, the government has no compelling justification for inflicting such harm. Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. Case Questions 1. Do you think that affirmative action plans should be permitted employers who wish, as the university did, to remedy societal discrimination? Why or why not? Student response. 2. Do you agree with the Court that it is an important factor for a school to have diversity among its student body in order to enhance the educational experience of all? Why or why not? Student response. Many students will believe in the concept of affirmative action programs such as this, but when it comes down to the reality of how such a program should be instituted, they have real problems with it. They need to be made aware that it is not enough to agree in concept only. In order to accomplish the law's intent, they must be willing to put it into action. In doing so, they will not be able to "make an omelet without breaking any eggs," so to speak. There will be those who feel adversely affected by the plan and will disagree with its implementation. The only way to minimize the impact will be to ensure that the plan is instituted for the correct reasons and with the correct considerations in mind. 3. If you were an employer and felt, as the university here did, that diversity was important, what would you do to increase it in your workplace? Student response. LECTURE NOTES 1. Even though Bakke involved a medical school's admission policy, the analysis is similar for affirmative action plans in employment. The Bakke case is a seminal case in affirmative action in that rather than dismiss the concept of voluntary affirmative action plans, the Supreme Court held that race or ethnicity could be used by the state as a basis for preferential treatment where there was a compelling state interest furthered by doing so, such as remedying past discrimination. 3. The Court also indicated the requirements such public sector plans must meet in order to be acceptable. 4. In Local 28 Sheet Metal Workers v. EEOC, the court further held that the victims of relief in an affirmative action plan could be non-specific, if necessary. Voluntary Affirmative Action Sometimes employers take it upon themselves to create affirmative action plan voluntarily. As you can see from Weber, they mustr be sure to meet the requirements or the plan will not stand. Case Example: Local 28, Sheet Metal Workers v. E.E.O.C., 478 U.S. 421 (1986) Issue: Whether a court could impose upon a recalcitrant union which defied years of court orders to remedy its longstanding discriminatory policies a plan which would include benefits for minorities who may not have actually been discriminated against by the employer. Facts: The union and its apprenticeship committee were found guilty of discrimination against Hispanics and blacks and were ordered to remedy the violations. They were found numerous times to be in contempt of the court’s order and after 18 years the court eventually imposed fines and an affirmative action plan. The plan included benefits to persons not members of the union such as educational programs for youth. Decision: The Supreme Court held remedies to be appropriate under the circumstances. We hold that section 706(g) does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination. The availability of race-conscious affirmative relief under section 706(g) as a remedy for a violation of Title VII furthers the broad purposes underlying the statue. Congress enacted Title VII based on its determination that racial minorities were subject to pervasive and systematic discrimination in employment. It was clear to Congress that the crux of the problem was to open employment opportunities for Negroes in occupations which have been traditionally closed to them and it was to this problem that Title VII’s prohibition against racial discrimination was primarily addressed.” Title VII was designed to achieve equality of employment opportunities and remove barriers that have operated in the pas tot favor an identifiable group of white employees over other employees. In order to foster equal employment opportunities, Congress gave the lower courts broad power under section 706(g) to fashion the most complete relief possible to remedy past discrimination. In most cases, the court need only order the employer or union to cease engaging in discriminatory practices, and award make-whole relief to the individuals victimized by those practices. In some instances, however, it may be necessary to require the employer or union to take affirmative steps to end discrimination effectively to enforce the Title VII. Where an employer or union has engaged in particularly longstanding or egregious discrimination, an injunction simply reiterating Title VII’s prohibition against discrimination will often prove useless and will only result in endless enforcement litigation. In such cases, requiring a recalcitrant employer or unions to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the workforce may be the only effective way to ensure the full enjoyment of the rights protected by Title VII. Further, even when the employer or union formally ceases to engage in discrimination, informal mechanisms may obstruct equal employment opportunities. An employer’s reputation for discrimination may discourage minorities from seeking available employment. In these circumstances, affirmative race-conscious relief may be the only means available to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Affirmative action promptly operates to change the outward and visible signs of yesterday’s racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices. Case Questions 1. Is it clear to you why a court would be able to include in its remedies those who are not directly discriminated against by an employer? Student response. 2. If you were the court and were still trying to get the union to comply with your order 18 years after the fact, what would you have done ? Student response. 3. As an employer, how could you avoid such a result? Student response. Case Example: United Steelworkers of America, AFL-CIO v. Weber, 443 U.S. 193 (1979) Issue: Whether Title VII permits private sector voluntary affirmative action plans. Facts: A white employee sued under Title VII alleging race discrimination in that the union and employer adopted a voluntary affirmative action plan reserving for black employees 50% of the openings in a training program until the percentage of black craft workers in the plant approximated the percentage of blacks in the local labor force. Decision: The Supreme Court held that the program was permissible because Title VII did not prohibit voluntary race-conscious affirmative action plans undertaken to eliminate a manifest racial imbalance, the measure is only temporary and it did not unnecessarily trample the rights of white employees. The question is whether Congress, in Title VII, left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories. We hold that Title VII does not prohibit such race-conscious affirmative action plans. The very statutory words intended as a spur or catalyst to cause "employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history," cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to "open employment opportunities for Negroes in occupations which have been traditionally closed to them." At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Case Questions 1. Does this decision make sense to you? Why/why not? Student response. 2. If, because of discrimination, blacks were not in a workplace for as long as whites and therefore did not have as much seniority as whites, does it seem reasonable to allow blacks with less seniority than whites to join the training program? Student response. To clarify and make graphic this area I have found it extremely helpful for students to do the following: A. Draw on the chalk board a vertical line of five WMs (representing white males) and number each B. Above the vertical line of WMs, put two Xs (representing jobs). C. Parallel to the line of WMs, draw a line of Ms, representing minorities. Parallel to that line, draw a vertical line of Ws, representing women. When you finish it will look like this: X X WM#1 W M WM#2 W M WM#3 W M WM#4 W M WM#5 W M D. Explain to the students that before Title VII, the five WMs had only each other to compete against for the jobs at the top on the horizontal line. The Ws and Ms were excluded from the workplace and therefore the WMs did not have to compete with them. E. Explain that after Title VII, the Executive Order and affirmative action, a typical plan now said that instead of person #2 in the WM line getting the next job, the employer must now give the job go to someone in the M or W line, if pursuant to a valid affirmative action plan enacted to either redress judicially determined workplace discrimination, or, as in Weber, to voluntarily redress longstanding, exclusionary patterns. Since WM #2 was next in line behind WM #1, when a W or M is put ahead of him he is now #3 rather than #2. Prior to Title VII, the WMs had a 1 in 5 chance of getting the job, but after Title VII the workplace was opened up to employees other than WMs and those same job opportunities must be shared. Rather than competing with 4 others for the job, the WM must now compete with 14 others in the scenario above. WM #1, and even others lined up behind him, is upset and may bring suit for "reverse discrimination," feeling adversely affected by the affirmative action plan which puts a W or M in front of him. F. Since many are concerned about the effects of affirmative action on "innocent" employees who have not themselves discriminated, explain how, in a broad or macro sense, because of the exclusionary system we lived in, while the WMs may not have themselves discriminated, they greatly benefited from the system by only having to compete with the five WMs, since the Ws and Ms were virtually excluded from the workplace until Title VII was passed. WMs had the field all to themselves until 1964. G. Explain that the WMs expectation of being next in line is actually a false expectation built on an exclusionary system which should have never been exclusive and only allowed them to only compete with other WMs in the first place. To say they have not "done anything wrong" is to overlook the fact that they have been the passive beneficiaries of a system which undeniably benefited them for all the years this country has been in existence up until 1964. Just as they have "done nothing wrong," neither did the Ws or Ms who were excluded from the workplace. They were kept from the workplace simply because of immutable characteristics over which they had no control. To try to now say things should be "equal" and that the playing field should be level ignores the impact that hundreds of years of being kept out of the workplace had on those who benefited from such a system, as well as those who were harmed by it. Changing the rules that were in effect for hundreds of years will not mean that everything is automatically equal from that point on. Affirmative action is simply a way to try to make the playing field more level. This analysis seems to help students a great deal. 3. As a manager in a firm which is thinking of instituting a voluntary affirmative action plan, what factors would you consider? Student response. LECTURE NOTES 1. Many employers were surprised by Weber since the year before the Court struck down a voluntary affirmative action plan in Bakke. 2. While Bakke and Weber both concerned affirmative action plans, there were considerable differences, beyond even public versus private employers. 3. Both endorsed the concept of affirmative action, but the requirements were not met in Bakke and were in Weber, thus giving different outcomes. 4. Seven years later, in the case of Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) and consistent with language in Bakke and Weber, the Supreme Court upheld the concept of affirmative action (in Wygant, preferential protection against layoffs) for public employees, though it held that the requirements of it being based upon a demonstrated compelling state interest and narrowly tailored to meet the objective had not been met in this particular case. 5. This answered the question of whether the Court's analysis in Bakke involving a preferential admissions policy for a public university, also applied to an affirmative action plan in a public workplace. It did. 6. It also answered the question left after Weber as to whether the acceptance of voluntary affirmative action in private employment also applied to public employment. It did. 7. Johnson v. Transportation Agency, Santa Clara County, California, 480 US 616 (discussed later), a 1987 Supreme Court decision which relied heavily upon Weber, determined that under circumstances similar to those in Weber, but involving a public employer rather than private and gender rather than race, the employer could appropriately take gender into account as one factor of a promotion decision, under its voluntary affirmative action plan. The Court said the plan, voluntarily adopted to redress a "conspicuous imbalance in traditionally segregated job categories" represented a "moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women." 8. The plan was acceptable because it did not unnecessarily trammel male employees' rights or create an absolute bar to their advancement, set aside no positions for women and expressly stated that its goals should not be construed as quotas to be met, unsettled no legitimate, firmly rooted expectation on the plaintiff's part, was only temporary in that it was for purposes of attaining, not maintaining a balanced work force, and there was minimal intrusion into the legitimate expectations of other employees. See Exhibit 5-5 on the different type of actions which can be taken in affirmative action plans. Voluntary Affirmative Action 1. In the Sheet Metal Workers case below, the Court held that there need not be a showing of discrimination against the particular individual (employee, applicant, promotion candidate, etc.) as long as the affirmative action plan meets appropriate requirements set forth above and the individual fits into the category of employees the plan was designed to benefit. 2. While the notion of providing relief for nonspecific victims of discrimination may appear somewhat questionable, Sheet Metal Workers is the type of situation which justifies such action. LECTURE NOTES Reverse Discrimination 1. All discrimination is the same under Title VII, but “reverse discrimination” is the term used by those who feel they have been adversely impacted by the use of an affirmative action plan. For example, an employer has an underrepresentation of women in managerial positions and develops an affirmative action plan for their inclusion under which one female is to be chosen for each male chosen for a managerial training position. A male employee who feels he is next in line after the male who is chosen sues when the female is chosen next. The allegation is that but for his gender, he would have been chosen for the position. 2. Reverse discrimination accounts for only about 3% of the charges filed with EEOC, contrary to the popular belief that abuses are widespread. 3. Once an affirmative action plan is deemed necessary consideration of race or gender becomes a necessary part of the remedy. 4. The law builds in protections for employees who think they may be adversely affected by ensuring that the plan is only given legal protection if it complies with the legal requirements for affirmative action plans. 5. Affirmative action is about today’s discrimination, not about slavery or the “sins of the fathers being visited upon the sons.” 6. The U.S. Department of Labor’s 1995 Glass Ceiling Report found that though anti-discrimination laws have made a significant impact in bringing in women and minorities into the workplace at entry level positions, there are still significant workplace disparities. For instance, white males are only 43% of the Fortune 2000 workforce, but hold 95% of the senior management jobs. Case Example: Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616 (1987). Issue: Whether a public employer could institute a voluntary affirmative action plan to address traditionally segregated job classifications in which women were significantly underrepresented. Facts: A male employee sued when a female with similar qualifications was promoted instead of him pursuant to a voluntary affirmative action plan adopted by the employer to remedy significant underrepresentation of females in the workplace. The agency’s plan was adopted after the agency reviewed its work force composition and noted that women were represented in numbers far less than their proportion of the county labor force in the agency as a whole and in five of seven job categories. Women were 36.4% of the area labor market, but 22.4% of the agency employees. Women working at the agency were concentrated largely in jobs traditionally held by women, i.e., women were 76% of the office and clerical workers, but only 7.1% of the agency officials and administrators, 8.6% of professionals and 9.7% of technicians. None of the 238 skilled craft workers were women. The agency noted that this was in part, because women were not traditionally employed in these positions and had not been strongly motivated to seek training or employment in them because of the history of limited opportunities. The agency’s plan did not set aside a specific number of positions for minorities or women, but authorized consideration of ethnicity or gender as a factor when evaluating qualified candidates for jobs in which such groups were poorly represented. The agency performed a yearly review of its goals in order to adjust them based on relevant factors, so that it was not a rigid document, but rather, one which took into account the specifics of the agency’s reality. Decision: Yes, an employer can institute such a plan and use gender as a factor in promotion as long as the meets certain requirements. They are: the plan does not unnecessarily trammel male employees’ rights or create an absolute bar to their advancement; it sets aside no positions for women and expressly states that its goals should not be construed as quotas which must be met; it unsettles no legitimate, firmly rooted expectation of plaintiff; it is only temporary and is for the purpose of attaining, not maintaining a balanced workforce; and there is minimal intrusion into the legitimate, settled expectations of other employees. Case Questions 1. What do you think of the court’s decision in this case? Does it make sense to you? Why/why not? Student response. Don’t let students slide by without a well-reasoned answer. Many students have strong objections to affirmative action, and this is their chance to analyze the court’s thinking and poke holes in it if they can. Encourage them to pick the decision apart and tell why it is not a good one if they think it isn’t. Don’t allow them to dismiss the history which makes the decision a necessary evil. Often, because they were not around for the history, students try to dismiss it as irrelevant to today. However, this is impossible to do and still accord appropriate rights. It is not enough to simply say “that was a long time ago, why can’t we move on.” Challenge them to analyze the decision in light of the considerations present. 2. If you disagree with the court’s decision, what would you have done instead as the employer? Student response. Press them to come up with viable alternatives. Often, they cannot do so and are left realizing that though it is imperfect, under the circumstances, there is little choice, given our history and its ramifications. 3. Are the court’s considerations for how to institute an acceptable affirmative action program consistent with how you thought affirmative action worked? Student response. Most students will think it is not consistent with what they thought because they thought the employer was simply able to make decisions based on race or gender, regardless of qualifications or anything else. Valuing Diversity/Multiculturalism 1. Once affirmative action plans accomplished (at least to a limited degree) their purpose of bringing nontraditional employees into the workplace, employers discovered that this, in and of itself, was not enough. 2. Employees coming into workplaces that were not used to their presence, found the workplace often hostile in subtle ways. 3. While the hostilities may have been subtle, the impact upon their work lives was not. 4. Employees found they did not move up as quickly as other, more traditional, employees. They may also not be included in workplace activities, may be reprimanded more often, not receive the same opportunities, and have higher turnover rates. Even subtle differences in their treatment meant the difference between progressing in the workplace and remaining stagnant. 5. Faced with workplaces filled with new kinds of people, employers sought answers. The search became even more immediate after the release of the Hudson Institute's "Workforce 2000" study in 1987. 6. According to the study, the US was about to face its largest wave of immigration since World War II, and unlike the last big wave which was 90% European, this one would be about 90% Asian and Latin American. 7. The idea of valuing diversity began to take root. For the past few years, employers all over the country have sponsored workplace programs to sensitize employees to differences among people in the workplace. 8. Valuing diversity is being sensitive to and appreciative of differences among groups that may be unfamiliar with each other, and using those differences, yet basic human similarities, as a positive force to increase productivity and efficiency. 9. Being made aware of these differences in various racial, ethnic, religious, and other groups has helped employees learn to better deal with them. See Exhibits 5-7, 5-8, 5-9 for further explanation and information. Chapter-End Questions 1. What is the monetary floor an employer/federal government contractor must meet in order to have Executive Order 11246 imposed? The contractor must have federal government contracts of $10,00 or more. 2. Anne is employed by Bradley Contracting Co. Bradley has a 1.3 million dollar contract to build a small group of outbuildings in a national park. Anne alleges that Bradley Contracting has discriminated against her, in that she has not been promoted to skilled craft positions with Bradley because it thinks that it is inappropriate for women to be in skilled craft positions and that most of the male skilled craft workers are very much against having women in such positions. Knowing that Bradley Contracting Co. has a contract with the federal government, Anne brings suit against Bradley under Executive Order 11246 for gender discrimination. Will she be successful? Why or why not? No, Anne will not be successful if she sues Bradley for gender discrimination under the Executive Order. The Executive Order does not provide a private cause of action for damages for gender discrimination. Violations only result in debarment from further federal contracts, not reinstatement, backpay or damages for employees discriminated against under the Order. Anne's suit will be dismissed. 3. Can employers lawfully consider race or gender when making hiring or promotion decisions? Yes. Under appropriate circumstances, employers can do so, but only pursuant to a lawful affirmative action plan which meets the requirements necessary for the type of employer involved. 4. If so, may the employer it only be used to remedy identified past discrimination? Not necessarily. Discrimination need not be given as the basis for instituting the plan. If all other requirements are in order, merely showing a manifest underrepresentation in an area traditionally segregated can be a sufficient basis for instituting an affirmative action plan, without the employer showing that the employer actually caused the underrepresentation by discriminating. 5. Must such discrimination have been committed by the employer or can the discrimination have been committed by society in general? Explain. The affirmative action plan that is providing the remedy must be based upon an underrepresentation found in the workplace. This lack of representation must be present in order for the affirmative action plan to withstand judicial scrutiny. While the underrepresentation need not result from the employer intentionally discriminating against the employee, as in Wygant, voluntary government affirmative action plans cannot be based only upon a perception that employees have suffered general societal discrimination. 6. May preferential treatment be used to benefit those who did not actually experience discrimination? Yes. The employee may be included in a group for which preferential treatment is appropriate, even though the employee him- or herself may not have been proven to be a victim in this particular case. 7. Can race or gender be the only factor in an employment decision? Race or gender can only be one of the considerations, but cannot be the only reason the employee is given the job. The employee must be otherwise qualified for the position. 8. If race or gender can be the only factor in an employment decision, how long can it be a factor? Race or gender can be a factor only until the underrepresentation is remedied. Affirmative action plans may not be used to maintain racial or gender balance, but only to attain it. 9. What is the difference between an affirmative action goal and a quota, or is there one? There is a difference. Goals set forth percentages to work toward to make the workplace more reflective of the area from which the employees are drawn. Quotas are absolute numbers of women and/or minorities that must be met. Quotas are only required as a remedy under the most serious circumstances of discrimination. 10. What is the proper comparison to determine if there is an underrepresentation of women or minorities in the workplace? The proper comparison for underrepresentation is between the percentage of qualified women or minorities in the area from which employees are drawn vs. their percentage in the workplace.