Labor Relations Striking A Balance 4th Edition Test Bank

A federal agency called the National Labor Relations Board (NLRB) has the authority to conduct elections for installing unions at workplaces and to issue rulings.

DISCRIMINATION This entry includes 6 subentries: Age Disabled Race Religion Sex Sexual Orientation Age Age discrimination is what occurs when an employer uses age as a determining (and negative) factor in a job-related decision. For example, age discrimination takes place when an employer denies an applicant a job based on age. Similarly, age discrimination occurs any time an employer denies training, promotions, or any other opportunities based on age. Many factors result in age discrimination, including lack of knowledge, ageist attitudes, and myths and stereo-types about older workers. The most common stereo-types about older workers are that older workers are less productive than younger workers; that older workers are more expensive than younger workers; that older workers are less adaptable and more rigid than younger workers; and that older people want to retire early, that they do not want to work. The United States enacted legislation, the Age Discrimination in Employment Act (ADEA), in 1967 to prohibit age discrimination in employment. Three years earlier, amendments to add age to Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination based on race, gender, religion and national origin) had been rejected.

Several reasons have been offered for excluding age from Title VII. First, Congress worried that it lacked the information necessary to enact age discrimination legislation. Second, many legislators feared that adding a prohibition against age discrimination would overload the civil right measure and lead to its defeat.

Finally, in 1964 members of Congress simply did not understand or believe the magnitude of the age discrimination problem. As a result of the Civil Rights Act of 1964, however, Congress directed the secretary of labor to 'make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected.' The secretary of labor's report confirmed that age discrimination in employment was a pervasive and debilitating problem, particularly insofar as hiring practices, which can result in long-term unemployment, and advised Congress that legislation was needed to address the problem. The federal Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination in all aspects of employment including, hiring, termination, benefits, training, and promotions. As originally enacted, the ADEA protected employees aged forty to sixty-five. In 1978, Congress raised the upper age limit to 70.

In 1986, Congress eliminated the upper age limit on the ADEA's protections. As a result, with very few and narrow exceptions, there is no mandatory retirement in the United States. Groups who are still subject to mandatory retirement include federal, state, and local firefighters and law enforcement personnel, air traffic controllers, and bona fide executives and high policy makers. The ADEA applies to employers with twenty or more employees including employers in federal, state, and local governments. The ADEA also commands that labor organizations with twenty or more members may not exclude or expel members or refuse to refer members for hire based on age. Employment agencies may not fail or refuse to refer an applicant based on age. In addition, employment agencies may be covered as 'employers' under the ADEA if they have the requisite twenty employees.

The United States also has fifty state laws that address age discrimination in employment. While the national statute protects individuals age forty and older, many of the state laws prohibit discrimination at any age. The majority of these laws cover employers with fewer than twenty employees. In addition, many provide broader relief than the ADEA, including allowing a victim to recover compensatory and punitive damages. Legal challenges to age discrimination in employment must commence with a timely charge filed with the Equal Employment Opportunity Commission (EEOC). However, given the fact that the EEOC files suit in less than one half of one percent of the charges it receives, enforcement of the ADEA is left largely in the hands of individuals. For example, in 2001, the EEOC received 17,405 charges but only filed suit or intervened in thirty-four age discrimination lawsuits.

Because of the high cost of litigating an age discrimination lawsuit—in terms of time, money, and emotion—and the increasingly higher evidentiary burdens imposed by the courts on age bias victims, much age discrimination goes unchallenged. While the ADEA may have raised societal awareness regarding age discrimination and eliminated the most blatant forms of it, such discrimination continues to plague the U.S.

One explanation is that historically, Congress, the courts, and society have viewed age discrimination as less malevolent than race or sex discrimination and have treated freedom from age discrimination as something less than a civil right. Stereotypes about age and ability persist, in part, because of society's failure to fully attack and condemn ageist policies and practices. Butler, Robert N. Why Survive?: Being Old in America. New York: Harper and Row, 1975.

Eglit, Howard C. Age Discrimination. Colorado Springs, Colo.: Shepard's/McGraw Hill, 1994. Gregory, Raymond F. Age Discrimination in the American Workplace: Old at a Young Age. New Brunswick, N.J.: Rutgers University Press, 2001.

'Finished at Forty.' Fortune 139, no. 2 (1 February 1999): 50–66. Palmore, Erdman B. Ageism: Negative and Positive. New York: Springer, 1990. Steven, and Cathy Ventrell-Monsees.

Age Discrimination Litigation. Costa Mesa, Calif.: James Publishing, 2000. 'Too Damn Old.' Money (July 1996): 118–120. Worsnop, Richard I.

'Age Discrimination: Does Federal Law Protect Older Workers' Job Rights?' CQ Researcher 7, no. 29 (1 August 1997): 675–695. Laurie McCann.

Disabled The U.S. Congress noted when enacting the 1990 Americans with Disabilities Act (ADA) that the country's 43 million disabled citizens have been 'subjected to a history of purposeful unequal treatment' and politically disempowered because of 'stereotypic assumptions not truly indicative' of their individual abilities 'to participate in, and contribute to, society.' Highly illustrative of this situation was Congress's citation of survey data which indicated that two-thirds of working age individuals with disabilities were unemployed, while two-thirds of nonworking disabled individuals wanted to work. Largely in response to this figure (census data was relatively more sanguine, reporting that 'only' about half of working age disabled individuals were then unemployed), Congress promulgated Title I of the ADA in an effort to increase labor market participation among workers with disabilities. Title I covers entities employing more than fifteen workers, prohibits their discriminating against 'qualified individuals with disabilities' in all aspects of the employment relationship, and requires them to provide those individuals with 'reasonable accommodations.'

These include making existing facilities physically accessible, job restructuring or modification, and reassignments. Accommodations which cause 'undue hardship' to their putative providers are exempted from compliance, as is the hiring or retention of disabled individuals who pose a 'direct threat' to public health or safety. To assert a Title I claim, disabled workers must first demonstrate that they are 'qualified' individuals with disabilities. This requires workers not only to satisfy the ADA's definition of who is disabled, but also to establish the ability to 'perform the essential functions' of a given job either with or without the assistance of a reasonable accommodation. Although the determination of which accommodations are reasonable, and what job functions are essential, in any given dispute may seem at first blush the proper province for a jury, a vast majority of courts have instead deferred to employers' assertions of feasibility and essentiality, and have thus ruled as a matter of law that plaintiffs were unqualified for their positions. As a result, only some 5 percent of Title I plaintiffs prevailed in their federal trials during the period between 1992 and 1997. As of 2002, the overall unemployment statistics of disabled workers remained essentially unchanged, while their employment rate relative to that of nondisabled workers had moderately decreased, leading some economists to assert that the ADA is actually harmful to the group it is intended to assist.

Although issue can be taken with many of the assumptions underlying these analyses, including the metrics utilized, the picture painted remains dismal and should provoke concern and examination. Several factors have contributed to these negative post-ADA employment effects.

First is the unique civil rights chronicle of people with disabilities who, unlike other marginalized minority group members, were empowered by legislation prior to a general elevation of social consciousness about their circumstances and capabilities. Thus, popular opinions about people with disabilities, especially misperceptions regarding their capabilities, do not yet conform to the spirit of the ADA's legislative findings nor to the letter of assertions made by disability rights advocates. Second, although a great deal of rhetoric has surrounded the costs of accommodations, the practical consequences of Title I have been the subject of surprisingly little research.

The few empirical studies that have been conducted, however, indicate that many of the accommodation costs engendered by Title I are generally non-existent or minimal. In fact, they suggest that certain economic benefits, such as increased retention rates and concurrently reduced worker replacement costs, can make many accommodations cost effective for the providing employers. A third factor is that, until 2000, national policymakers overlooked the impact of environmental factors exogenous to the ADA, including the availability of health care and accessibility of public transportation, on increasing disabled workers' labor market participation. Only a decade after the ADA's enactment were a series of policy initiatives passed to allow people with disabilities receiving social security disability-related benefits to earn more income without losing their cash or health benefits. BIBLIOGRAPHY Americans with Disabilities Act (1990), 42 U.S.C. § 12,101 et seq.

'Empirical Implications of Title I.' Iowa Law Review 85 (2000): 1671–1690. 'Employing People with Disabilities: Some Cautionary Thoughts for a Second Generation Civil Rights Statute.' In Employment, Disability, and the Americans with Disabilities Act: Issues in Law, Public Policy, and Research. Evanston, Ill.: Northwestern University Press, 51–67. 'Labor Markets, Rationality, and Workers with Disabilities.'

Berkeley Journal of Employment and Labor Law 21 (2000): 314–334. Michael Stein See also;. Race Racial discrimination, a long-standing issue in American society, has taken many forms and been 'more than black and white' in terms of whom it has affected.

At various times and to varying degrees, African Americans, Asian Americans, Latinos, Native Americans, and other Americans of color have experienced racial discrimination, as have ethnic groups that in the past were regarded by many as a separate 'race,' such as Jews. The type and degree of racial discrimination have also varied in different regions of the country, although historically some of the most egregious discrimination has taken place in the American South. Causes and Effects Immigration has affected racial discrimination in a number of ways. In each wave of immigration, the newest groups to America's shores have often taken or been shunted into the least desirable, lowest-paying jobs. Some immigrant groups went into certain industries for cultural or social reasons, such as Chinese launderers and Jewish garment workers. For the most part, though, these new immigrants were at the mercy not only of 'native' Americans but also of earlier immigrant groups.

In the workplace, immigrants were often pitted against one another by employers and labor unions alike. While employers exploited them for cheap labor and sought to prevent them from becoming a united working class, organized labor unions fanned the flames of prejudice to protect their hard-won gains by limiting entrance to the crafts they represented.

The oppressed immigrant groups themselves rarely remained solely victims. As they became more established in American society, they sometimes discriminated against newer groups in order to distance themselves from their own sense of 'otherness.' Moreover, for white European immigrants, racial discrimination served as a way to become part of white America and therefore superior to more visible minorities, especially (though not exclusively) African Americans. Discrimination in the workplace has had the most profound and lasting impact on the groups it has affected. At the most basic level, it has limited minority groups to low-paying, menial jobs that offered no potential for advancement and were at times even hazardous.

In the past, minority groups were restricted from the skilled trades and occupations, which have been more apt to provide union protection and opportunities for advancement than unskilled jobs. At the professional level, minorities have had to struggle on two fronts: first for admission to the educational programs necessary to pursue a profession such as law or medicine, and then for hiring and advancement within the profession. Even those who have succeeded in obtaining satisfying work have likely suffered from subtler forms of job discrimination, whether in lower wages, lack of advancement, or poor work environment.

Women in minority groups, furthermore, have had to struggle against both racial and sexual discrimination. Combating Discrimination Throughout American history, African Americans and other minority groups, with and without white allies, have combated racial discrimination using a variety of tactics. These have included public protests, such as street picketing and riots; organized publicity campaigns; educational efforts; and litigation. They have also included efforts at economic self-help through voluntary organizations such as the National Urban League. For example, in New York City during the Great Depression, the League sponsored the 'Don't Buy Where You Can't Work Campaign,' picketing and boycotting white-owned businesses that had primarily black customers but discriminated against blacks in employment.

These protests spread to other cities, and in 1937 the Supreme Court upheld the protesters' right to peacefully picket. Political efforts to end racial discrimination were first undertaken in a serious way in 1941.

The African American labor leader A. Philip Randolph threatened to organize a march on Washington to protest racial discrimination, especially in the then-booming military and World War II defense industries. In response, President Franklin D. Roosevelt issued Executive Order 8802 in June 1941, creating the Fair Employment Practices Committee (FEPC). Although at first the FEPC's powers of enforcement were limited and therefore its accomplishments were few, it was the first step in the federal government's role in stamping out racial discrimination in the workplace. Following World War II, President Harry S. Truman issued two executive orders: one that desegregated the U.S.

Armed forces, and one that eliminated discrimination on the basis of race or religion in federal employment and established a Fair Employment Board as part of the Civil Service Commission. In 1955 President Dwight D.

Eisenhower issued executive orders affirming antidiscrimination as a federal government policy and creating the President's Committee on Government Employment Policy to administer it. It was President John F. Kennedy, however, who used the creation of the President's Committee on Equal Employment Opportunity (which also required nondiscriminatory employment practices of government contractors) to send a message to the southern-dominated Congress as he prepared what would under President Lyndon B.

Johnson become the Civil Rights Act of 1964. In 1965, a permanent Equal Employment Opportunity Commission was established, with much greater powers of enforcement than its predecessors. By the time of President Richard M. Nixon's administration, with the passage of the Equal Employment Opportunity Act in 1972, affirmative action, as the policy came to be known, evolved in theory and policy from merely hiring on an equitable basis to actively seeking minorities in order to achieve racial balance in the workplace (and in higher education). Affirmative action subsequently courted new controversy, and in 1978 the Supreme Court rejected the active seeking of hiring quotas but permitted race to be a factor in employment decisions in the landmark case Regents of the University of California v.

Race and Organized Labor Racial discrimination became an issue for organized labor long before it did for the U.S. Organized labor was, for much of its history, more a part of the problem than a part of the solution. Beyond the attitudes of organized workers, racial discrimination was, beginning in the nineteenth century, the established policy of many of the craft unions affiliated with the American Federation of Labor (AFL), as well as the policy of the independent railroad unions.

These policies effectively restricted many blacks to menial, unskilled labor. The AFL craft unions, which also supported the anti-Oriental movement and its official manifestation, the Chinese Exclusion Act of 1882, were motivated partly by simple racism and partly by their desire to restrict the labor supply and ensure that their services would remain in demand. Those craft unions that did admit black workers generally organized them in segregated locals. African Americans as well as nonwhite immigrants, therefore, were often used as strikebreakers by employers.

The labor organizations that seemed most committed to organizing on an inclusive, rather than exclusive, basis—the Knights of Labor and the Industrial Workers of the World—unfortunately also proved to have the least staying power on the American labor scene. Not until the rise of the industrial unions, and with them the Congress of Industrial Organization (CIO), in the mid-1930s did organized labor make a serious effort to eliminate racial discrimination as an official policy.

The CIO unions were not perfect either; even without official segregation in union ranks, contracts often allowed for wage discrimination, and people of color were largely kept out of leadership positions. The unions that proved to be notable exceptions to this rule, such as the United Packinghouse Workers of America, were generally leftist in orientation, making them targets for the McCarthy-era onslaught against organized labor as a source of communist subversion. Even then, by the postwar years, many industrial unions were (at least on paper) emphasizing solidarity among workers across racial lines. Unions that did not move toward equality voluntarily were increasingly forced to do so by state and federal regulations. For example, the Italian Locals of the International Ladies Garment Workers Union, once evidence of the union's commitment to diversity, were by the 1960s an embarrassing source of discrimination when they refused to admit black and Puerto Rican workers.

The changing demographics of the workforce eventually forced a reassessment of labor's stance on issues of race, in matters of organizing and leadership alike. In 1995 the AFL-CIO elected Linda Chavez-Thompson as its first Latina executive vice president. And the AFL-CIO's drive to organize the unorganized was increasingly conducted with a recognition and even a celebration of the diversity of the American workforce. Yet from the beginning, organized labor had to deal with both the popular prejudices of the day and the needs of its predominantly white male constituency. For example, before the Civil War the northern working class opposed the expansion of slavery not so much out of humanitarian concern as concern over its effect on wage labor.

African Americans and other minority groups saw little reason to support the craft unions that excluded them, and their role as strikebreakers created a vicious cycle. Even when unions were willing to actively organize black workers, they undercut their own effectiveness by trying to honor local (usually southern) prejudices.

Free Mp3 Download Whitney Houston One Moment In Time Live. This is what ultimately led to the demise of the effort by the Textile Workers Union of America to organize southern workers during Operation Dixie in 1946. In the 1960s the drive to organize the J.P.

Stevens textile mills (made famous by the 1979 movie Norma Rae) was complicated by the union's effort to recruit white workers without alienating black workers, who were joining out of proportion to their numbers in the industry. McCarthyism also forced many unions to moderate antiracist rhetoric for fear of being thought communist.

Finally, employers would often use race as a wedge against organizing, or use worker prejudices (perceived or actual) as an excuse to delay integrating the workplace. Minorities Organize Despite labor's checkered history in matters of racial discrimination, minority workers struggled to carve out a place for themselves in organized labor almost from its beginnings. Starting in the mid-nineteenth century, before the Civil War, African Americans formed their own labor unions in a number of trades. The best known was the Brotherhood of Sleeping Car Porters.

In the late twentieth century the United Farm Workers built upon a Latino self-help movement, the Community Service Organization, to end the exploitation of migrant farm workers in the American Southwest. Minorities have also formed organizations to work for equality within the structure of organized labor. Among the more radical efforts to eradicate racism in organized labor and ultimately build interracial solidarity was the League of Revolutionary Black Workers, which flourished briefly in Detroit in the late 1960s and early 1970s.

Although the League did not last, it helped raise general consciousness among black workers and strengthened mainstream efforts towards greater inclusiveness. The most successful organization, the Coalition of Black Trade Unionists, was founded in 1972 and continues to work with both labor and civil rights organizations to achieve African American equality in organized labor, the workplace, and beyond. Race Discrimination in History The long history of oppression of nonwhites goes back to America's founding, beginning with the systematic destruction of Native Americans and the importation of Africans for slave labor. Although African American men practiced a variety of crafts and trades during the early decades of the republic, by the time of the Civil War, slavery had become deeply entrenched in the American South, and most were restricted to agricultural labor. Following the Civil War and Emancipation, the Reconstruction did not deliver on most of its promises to freed slaves.

The sharecropping system and the black codes kept most southern blacks working in slavery-like conditions. The men were rarely able to get more than agricultural work and the women, domestic work. Also during the late nineteenth century, the American West was built in large part with the labor of immigrants from China, Japan, Mexico, and the Philippines, who were paid low wages for back-breaking work.

These immigrants were largely reviled by the AFL unions, which viewed them as a threat to white workers. In the opening decades of the twentieth century black migration took many African Americans to northern cities to seek better work and better lives. In the North, these migrants found discrimination and strenuous, lowpaying jobs, for which they competed with a rising number of immigrants from various countries who also suffered discrimination and exploitation. Although during the early twentieth century a number of black business owners and professionals emerged, most African Americans remained part of the economic underclass, as did other peoples of color. Even so, for African Americans the industrial opportunities in the North were a marked improvement over conditions in the South, where industry lagged and the destruction of crops caused by the boll weevil sharply reduced the amount of agricultural work.

When the Great Depression hit, American minorities suffered disproportionately. Those who had previously been the 'last hired' were now the 'first fired,' as whites often took over what had been 'black' jobs. Drought and economic hardship, for example, pushed white farm workers off midwestern farms to compete with nonwhite migrant farm workers in the fields of California. After 1932 most black voters switched from the Republican to the Democratic Party because of Franklin D. Roosevelt, but the New Deal had a mixed record for minorities, who still suffered discrimination in obtaining federal jobs and unemployment benefits. World War II revived the economy to a degree the New Deal had not. However, the FEPC failed to eradicate racial discrimination in wartime industry.

Its main problems were spotty enforcement and a failure to address the kinds of workplace discrimination that went beyond the hiring process, such as workplace segregation. At the same time, desegregation of the United States Armed Forces, the other reason Randolph threatened to march on Washington, was only accomplished after World War II. Although the civil rights movement of the 1950s and 1960s is primarily remembered for gaining voting rights for African Americans and ending legal segregation in the South, its role in ending workplace discrimination with the passage of Title VII should not be underestimated. Although the mainstream civil rights movement ultimately failed to tackle the economic aspects of discrimination, the failure was not for lack of interest among its leaders. Prior to his assassination in 1968, Martin Luther King Jr. Had announced the formation of a 'Poor Peoples' Campaign' to address economic injustices against people of all races. In fact, on the night of his assassination, he was making a public appearance in support of striking garbage workers.

Into the Twenty-First Century Toward the end of the twentieth century, the rising tide of conservatism and complaints about political correctness threatened the gains made in eradicating discrimination. Affirmation action came increasingly under attack, both in the courts and in public opinion, with both its efficacy and its fairness questioned. Many opponents of affirmative action raised the possibility that it perpetuates the very discriminatory attitudes it was designed to eradicate, arguing that when any nonwhite employee is hired, particularly at a higher level, suspicion is aroused that he or she obtained the position unfairly through racial preferences (even if the employee's job qualifications clearly indicate otherwise). Additionally, opponents of affirmative action have argued that the system, designed to correct for past inequities of race (and gender), does not address issues of class, since many of the program's beneficiaries belong to the middle class, with all its educational and economic advantages. Proponents of affirmative action counter that affirmative action, while not eradicating racial discrimination in the workplace, has made enough of a difference in the hiring and promotion of minorities that these small losses to non-favored groups are justified.

At the same time, the fact that discrimination in the workplace has not yet been eliminated has been a key argument that affirmative action is still a necessary tool to promote a more just society in an increasingly diverse America. BIBLIOGRAPHY Burstein, Paul. Discrimination, Jobs and Politics: The Struggle for Equal Employment Opportunity in the United States since the New Deal. Chicago: University of Chicago Press, 1985. Edley, Christopher, Jr. Not All Black and White: Affirmative Action, Race, and American Values. New York: Hill and Wang, 1996.

Edmondson, Munro S. 'Industry and Race in the Southern United States.'

In Industrialisation and Race Relations: A Symposium. Edited by Guy Hunter.

London: Oxford University Press, 1965. Ferriss, Susan, and Ricardo Sandoval. The Fight in the Fields: Cesar Chavez and the Farmworkers Movement. Edited by Diana Hembree.

New York: Harcourt, 1997. Georgakas, Dan, and Marvin Surkin. Detroit: I Do Mind Dying. Cambridge, Mass.: South End Press, 1998. Updated edition on the Dodge Main Revolutionary Union Movement (DRUM).

Honey, Michael K. Southern Labor and Black Civil Rights: Organizing Memphis Workers. Urbana: University of Illinois Press, 1993. Horowitz, Roger. 'Negro and White, Unite and Fight!'

: A Social History of Industrial Unionism in Meatpacking, 1930–90. Urbana: University of Illinois Press, 1997.

Kushner, Sam. Long Road to Delano. New York: International Publishers, 1975.

Marable, Manning. How Capitalism Underdeveloped Black America: Problems in Race, Political Economy, and Society. Boston: South End Press, 1983. Mills, Nicolaus, ed.

Debating Affirmative Action: Race, Gender, Ethnicity, and the Politics of Inclusion. New York: Dell Publishing, 1994. Covers various contemporary views. Minchin, Timothy J. Hiring the Black Worker: The Racial Integration of the Southern Textile Industry, 1960–1980.

Chapel Hill: University of North Carolina Press, 1999. Steinberg, Stephen.

Turning Back: The Retreat from Racial Justice in American Thought and Policy. Boston: Beacon Press, 2001. Susan Roth Breitzer See also;;;; and vol. 9: Pachucos in the Making. Religion Religious discrimination involves the persecution or harassment of a person because of his or her religious beliefs or practices.

Throughout history, many people have been victims of religious discrimination. A primary reason that the Puritans and other groups left Europe and came to America was to escape religious persecution. Freedom of religion—the right to believe in and practice whatever faith a person chooses as well as the right to have no religious beliefs at all—became a defining tenet of the young United States. On 15 December 1791, ten amendments to the U.S. Constitution known as the Bill of Rights became law. The first of these specifically states that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of.

Discrimination Discrimination, in an employment context, can be generally defined as treating an individual or group less well in recruiting, hiring, or any other terms and conditions of employment due to the person's or group's race, color, sex, religion, national origin, age, disability, or veteran's status. These categories are referred to as protected classifications because they are singled out for protection by equal employment opportunity (EEO) laws. Subcategories of people within each protected classification are referred to as protected groups. For example, male and female are the protected groups within the protected classification of sex. EEO legislation affords protection from illegal discrimination to all protected groups within a protected classification, not just the minority group. Thus, employment discrimination against a man is just as unlawful as that aimed at a woman.

The lone exception to this rule concerns the use of affirmative action programs (discussed later), which, under certain circumstances, allow employers to treat members of certain protected groups preferentially. In the, effective federal legislation banning employment-related discrimination did not exist until the 1960s, when Congress passed Title VII of the Civil Rights Act (1964).

In the years since, several other important federal laws have been passed. In addition to the myriad federal laws banning discrimination on the basis of race, color, sex, religion, national origin, age, disability, and veteran's status, almost all states have anti-discrimination laws affecting the workplace. Most of these laws extend the protections in federal law to employers that are not covered by the federal statutes because of their size (Title VII for example, applies only to employers with 15 or more employees). Some state laws also attempt to prevent discrimination against individuals and groups that are not included in federal law. For example, approximately fourteen states have passed statutes protecting all workers in the states from employment discrimination based on sexual orientation, and several other states prohibit public sector employers from discriminating on the basis of sexual orientation. Title VII of the Civil Rights Act (CRA), passed in 1964, covers organizations that employ fifteen or more workers for at least twenty weeks during the year. Specifically, the law states: “It shall be an unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

” Interpretations of Title VII by courts have clarified the specific meaning of the prohibitions against discrimination. In general, it is safe to say that virtually any workplace decision involving personnel is subject to legal challenge on the basis of Title VII, including not only decisions made relative to recruiting and hiring, but also in relation to promotion, discipline, admission to training programs, layoffs, and performance appraisal. Harassment of applicants or employees because of their membership in a protected classification is also considered a violation of Title VII. Title VII is probably the most valuable tool that employees have for remedying workplace discrimination because it covers the greatest number of protected classifications. If a court determines that discrimination has occurred, this law entitles the victim to relief in the form of legal costs and back pay (i.e., the salary the person would have been receiving had no discrimination occurred). For instance, suppose a woman sues a company for rejecting her application for a $35,000 per year construction job because the company unlawfully excludes women from this job.

The litigation process takes two years and, ultimately, the court rules in the applicant's favor. To remedy this discrimination, the court could require the company to pay her legal fees and grant her $70,000 in back pay (two years' salary). Title VII of the Civil Rights Act of 1964 has had an enormous impact on the human resource management (HRM) practices of many companies, as it forced them to take a close look at the way they recruit, hire, promote, award pay raises, and discipline their employees. As a result of this self-scrutiny, many firms have changed their practices, making them more systematic and objective. For instance, most firms now require their supervisors to provide detailed documentation to justify the fairness of their disciplinary actions, and many firms are now more cautious with regard to their use of employment tests that restrict the employment opportunities for certain protected groups. Macklemore Growing Up. A number of Supreme Court decisions in the mid to late 1980s made discrimination claims under Title VII more difficult for employees to substantiate. To put more teeth into the law, Congress amended it by enacting the Civil Rights Act of 1991.

This 1991 amendment expanded the list of remedies that may be awarded in a discrimination case —the employer now has more to lose if found guilty of discrimination. In addition to legal fees and back pay, an employer may now be charged with punitive and compensatory damages (for future financial losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life). The cap for these damages ranges from $50,000 to $300,000 depending on the size of the company. Employees are entitled to such damages in cases where discrimination practices are “engaged in with malice or reckless indifference to the legal rights of the aggrieved individual ” (e.g., the employer is aware that serious violations are occurring, but does nothing to rectify them). Moreover, the CRA of 1991 adds additional bite to the 1964 law by providing a more detailed description of the evidence needed to prove a discrimination claim, making such claims easier to prove.

The CRA of 1991 also differs from the 1964 law by addressing the issue of mixed-motives cases. The CRA of 1991 states that mixed-motive decisions are unlawful. That is, a hiring practice is illegal when a candidate's protected group membership is a factor affecting an employment decision, even if other, more legitimate factors are also considered. For instance, a company rejects the application of a woman because she behaves in an “unladylike ” manner —she is “too aggressive for a woman, wears no makeup, and swears like a man.

” The company is concerned that she would offend its customers. The employer's motives are thus mixed: its concern about offending customers is a legitimate motive; its stereotyped view of how a “lady ” should behave is a discriminatory one. Congress introduced another bill, the Civil Rights Act of 2008, intended to “restore the right of individuals and to challenge practices that have an unjustified discriminatory effect based on race, color, national origin, disability, age, or gender. ” The bill, ultimately defeated, was questioned by some, as it stated that allowing employers to hire illegal aliens “undermine[s] the living standards and working conditions of all Americans. ” The Equal Pay Act of 1963 prohibits discrimination in pay on the basis of sex when jobs within the same company are substantially the same.

The company is allowed to pay workers doing the same job differently if the differences are based on merit, seniority, or any other reasonable basis other than the workers' gender. In 2008, the Lilly Ledbetter Fair Pay Act (the Fair Pay Restoration Act) would have reversed the Supreme Court decision that takes away the ability of women workers to sue for wage discrimination. However, it failed to get the 60-vote majority that it needed for Senate passage. The Age Discrimination in Employment Act (ADEA) of 1967 bans employment discrimination on the basis of age by protecting applicants and employees who are forty or older. The ADEA applies to nearly all employers of twenty or more employees. The ADEA protects only older individuals from discrimination; people under forty are not protected. The act also prohibits employers from giving preference to individuals within the forty or older group.

For instance, an employer may not discriminate against a fifty-year-old by giving preference to a forty-year-old. Except in limited circumstances, companies cannot require individuals to retire because of their age.

The Vocational Rehabilitation Act of 1973, a precursor to the 1990 passage of the Americans with Disabilities Act, requires employers who are federal contractors ($2,500 or more) to take proactive measures to employ individuals with disabilities. This law is limited in application since it only applies to federal agencies and businesses doing contract work with the government. The Veterans' Readjustment Assistance Act, passed in 1974, requires employers who are government contractors ($10,000 or more) to take proactive steps to hire veterans of the Vietnam era. The scope of this law is also limited by the fact that only government contractors must comply. The Pregnancy Discrimination Act of 1978 amended the CRA of 1964 by broadening the interpretation of sex discrimination to include pregnancy, childbirth, or related medical conditions. It prohibits discrimination against pregnant job applicants or against women who are of child-bearing age. It states that employees who are unable to perform their jobs because of a pregnancy-related condition must be treated in the same manner as employees who are temporarily disabled for other reasons.

It has also been interpreted to mean that women cannot be prevented from competing for certain jobs within a company just because the jobs may involve exposure to substances thought harmful to the reproductive systems of women. The Immigration Reform and Control Act (IRCA) of 1986 prohibited discrimination based on national origin and citizenship. Specifically, the law states that employers of four or more employees cannot discriminate against any individual (other than an illegal alien) because of that person's national origin or citizenship status. In addition to being an anti-discrimination law, this act makes it unlawful to knowingly hire an unauthorized alien. At the time of hiring, an employer must require proof that the person offered the job is not an illegal alien. The Americans with Disabilities Act (ADA) of 1990 was designed to eliminate discrimination against individuals with disabilities. The employment implications of the act, which are delineated in Titles I (private sector) and II (public sector) of the ADA, affect nearly all organizations employing fifteen or more workers.

According to the act, an individual is considered disabled if he or she has a physical or mental impairment that substantially limits one or more of the individual's major life activities, such as walking, seeing, hearing, breathing, and learning, as well as the ability to secure or retain employment. In the years since passage of the legislation, the courts have applied a fairly broad definition of disability.

The ADA only protects qualified individuals with a disability. To win a complaint, an individual who has been denied employment because of a disability must establish that, with accommodation (if necessary), he or she is qualified to perform the essential functions of the job in question. To defend successfully against such a suit, the employer must demonstrate that, even with reasonable accommodation, the candidate could not perform the job satisfactorily, or it must demonstrate that the accommodation would impose an undue hardship.

The ADA defines “undue hardship ” as those accommodations that require significant difficulty to effect or significant expense on the part of the employer. An example of an ADA case would be one in which an employee is fired because of frequent absences caused by a particular disability. The employee may argue that the employer failed to offer a reasonable accommodation, such as a transfer to a part-time position. The employer, on the other hand, may argue that such an action would pose an undue hardship in that the creation of such a position would be too costly.

It is clear from the preceding discussion that an employer may not discriminate on the basis of an individual's protected group membership. But exactly how does one determine whether a particular act is discriminatory? Consider the following examples: Case 1: A woman was denied employment as a police officer because she failed a strength test. During the past year that test screened out 90 percent of all female applicants and 30 percent of all male applicants. Case 2: A woman was denied employment as a construction worker because she failed to meet the company's requirement that all workers be at least 5 feet 8 inches tall and weigh at least 160 pounds. During the past year, 20 percent of the male applicants and 70 percent of the female applicants have been rejected because of this requirement.

Case 3: A female accountant was fired despite satisfactory performance ratings. The boss claims she has violated company policy by moonlighting for another firm. The boss was heard making the comment, “Women don't belong in accounting, anyway. ” Case 4: A male boss fired his female secretary because he thought she was too ugly, and replaced her with a woman who, in his opinion, was much prettier.

The Civil Rights Acts of 1964 and 1991 prohibit sex discrimination. Yet, knowing that sex discrimination is unlawful provides very little guidance in these cases. For instance, how important are the intentions of the employer? And how important are the outcomes of the employment decisions? In the first two cases, the employer's intentions seem to be noble, but the outcomes of the employment decisions were clearly disadvantageous to women.

In the third case, the employer's intentions appear questionable, but the outcome may be fair. After all, the employee did violate the company policy. In the fourth case, the employer's intentions are despicable, yet the outcome did not adversely affect women in the sense that another member of her sex replaced the discharged employee. To determine whether an EEO law has been violated, one must know how the courts define the term discrimination. In actuality, there are two definitions: disparate treatment and disparate impact.

Disparate treatment is intentional discrimination. It is defined as treating people unfairly based on their membership in a protected group. For example, the firing of the female accountant in Case 3 would be an example of disparate treatment if the discharge were triggered by the supervisor's bias against female accountants (i.e., if men were not discharged for moonlighting).

However, the employer's actions in Cases 1 and 2 would not be classified as disparate treatment because there was no apparent intent to discriminate. While disparate treatment is often the result of an employer's bias or prejudice toward a particular group, it may also occur as the result of trying to protect the group members' interests. For instance, consider the employer who refuses to hire women for dangerous jobs in order to protect their safety. While its intentions might be noble, this employer would be just as guilty of discrimination as one with less noble intentions. What about Case 4, where a secretary was fired for being too ugly? Is the employer guilty of sex discrimination? The answer is no if the bias displayed by the boss was directed at appearance, not sex.

Appearance is not a protected classification. The answer is yes if the appearance standard were being applied only to women; that is, the company fired women but not men on the basis of their looks.

Disparate impact is unintentional discrimination, defined as any practice without business justification that has unequal consequences for people of different protected groups. This concept of illegal discrimination was first established by the Griggs v. Duke Supreme Court decision, handed down in 1971. Disparate impact discrimination occurs, for instance, if an arbitrary selection practice (e.g., an irrelevant employment test) resulted in the selection of a disproportionately low number of females or African Americans. The key notion here is “arbitrary selection practice. ” If the selection practice were relevant or job-related, rather than arbitrary, the employer's practice would be legal, regardless of its disproportionate outcome.

For example, despite the fact the women received the short end of the stick in Cases 1 and 2, the employer's actions would be lawful if the selection criteria (e.g., the strength test and height and weight requirements) were deemed job related. As it turns out, strength tests are much more likely to be considered job related than height and weight requirements. Thus, the employer would probably win Case 1 and lose Case 2. The EEOC reported that nearly 7,000 racial harassment claims were filed in 2007, making it a record year for such cases. In one such case, Conectiv Energy and three sub-contractors reached a $1.65 million discrimination settlement with four African American employees who, while on the job, were subjected to racial slurs, KKK graffiti, and hanging nooses. However, defense contractor Lockheed Martin holds the record for the biggest individual racial discrimination settlement in U.S. In 2008, the company paid $2.5 million to an African American employee who was the recipient of death threats and racial slurs.

Sex-based discrimination complaints were also high in 2007. That year, the EEOC received 24,826 charges of sex-based discrimination. The Commission resolved 21,982 sex discrimination charges and recovered $135.4 million in monetary benefits for charging parties and other aggrieved individuals. This figure did not include monetary benefits obtained through litigation. As of 2008, most states still did not have laws that protect homosexual people from discrimination in employment, housing, and health care. However, the spring of 2008 ushered in activity surrounding employment discrimination based on sexual orientation. A bill introduced in Congress would have prohibited employment discrimination based on sexual orientation.

In May 2008, the California Supreme Court ruled that same sex couples have a constitutional right to marry, making and Massachusetts the first two states to recognize such marriages. Homosexual employees argue that they are being under-compensated by not being able to provide benefits for their domestic partners. This is a benefit usually granted to spouses and family members. California, since 2005, has had a law that requires employers to grant the same benefits to registered domestic partners as married spouses. Finally, a study conducted about age discrimination revealed that even the use of ageist language has negative effects for companies and employees. Such phrases used in the workplace, like “old goat ” or “let's bring in the young guns, ” are linked to poor health and lower productivity of older workers. These comments can be costly for companies.

In its 2006 fiscal year, the EEOC received nearly 17,000 workplace age discrimination charges and recovered nearly $52 million in monetary benefits. The aim of affirmative action is to remedy past and current discrimination. Although the overall aim of affirmative action is thus identical to that of EEO (i.e., to advance the cause of protected groups by eliminating employment discrimination), the two approaches differ in the way they attempt to accomplish this aim. EEO initiatives are color-blind, while affirmative action initiatives are color-conscious. That is, affirmative action makes special provisions to recruit, train, retain, promote, or grant some other benefit to members of protected groups (e.g., women, blacks).

In some cases, employers are legally required to institute affirmative action programs. For instance, Executive Order 11246, issued by President Lyndon Johnson, makes such programs mandatory for all federal government contractors. Affirmative action can also be court ordered as part of a settlement in a discrimination case.

For example, in the 1970s, the state of was ordered by the Supreme Court to select one black applicant for each white hired as a state trooper. The purpose of this decree was to rectify the effects of past discrimination that had been blatantly occurring for several years. Most firms, however, are under no legal obligation to implement affirmative action programs. Those choosing to implement such programs do so voluntarily, believing it makes good business sense. These firms believe that by implementing affirmative action they can (1) attract and retain a larger and better pool of applicants, (2) avoid discrimination lawsuits, and (3) improve the firm's reputation within the community and its consumer base. Affirmative action implementation consists of two steps. First, the organization conducts an analysis to identify the underutilized protected groups within its various job categories (e.g., officials and managers, professionals, service workers, sales workers).

It then develops a remedial plan that targets these underutilized groups. A utilization analysis is a statistical procedure that compares the percentage of each protected group for each job category within the organization to that in the available labor market. If the organizational Exhibit 1 Affirmative Action Options Always Legal • Do nothing special, but make sure you always hire and promote people based solely on qualifications.

• Analyze workforce for underutilization. • Set goals for increasing the percentage of minorities employed in jobs for which they are underutilized. • Remove artificial barriers blocking the advancement of minorities. • Create upward mobility training programs for minorities. • Advertise job openings in a way that ensures minority awareness (e.g., contact the local chapter of NOW or the NAACP). • Impose a rule that states that a manager cannot hire someone until there is a qualified minority in the applicant pool. Sometimes Legal (depends on the severity of the under-utilization problem) • Impose a rule that when faced with two equally qualified applicants (a minority and non-minority), the manager must hire the minority candidate.

• Impose a rule that when faced with two qualified applicants (a minority and non-minority), hire the minority even if the other candidate has better qualifications. • Set a hiring quota that specifies one minority hiring for every non-minority hiring. Never Legal • Do not consider any non-minorities for the position. Hire the most qualified minority applicant. • Fire non-minority employee and replace him or her with a minority applicant. Percentage is less than the labor-market percentage, the group is classified as being underutilized. For example, the percentage of professionals within the organization who are women would be compared to the percentage of professionals in the available labor market who are women.

The organization would classify women as being underutilized if it discovered, for instance, that women constitute 5 percent of the firm's professionals, and yet constitute 20 percent of the professionals in the available labor market. The second step is to develop an affirmative action plan (AAP) that targets the underutilized protected groups. An AAP is a written statement that specifies how the organization plans to increase the utilization of targeted groups. The AAP consists of three elements: goals, timetables, and action steps. The action steps specify how the organization plans to reach its goals and timetables.

Action steps typically include such things as intensifying recruitment efforts, removing arbitrary selection standards, eliminating work-place prejudices, and offering employees better promotional and training opportunities. When a company initiates an AAP as a remedy for under-utilization, it attempts to bring qualified women or minorities into the workplace to make it more reflective of the population from which the employees are drawn. Practice sometimes involves the use of preferential treatment or giving members of underutilized groups some advantage over others in the employment process. The use of preferential treatment has triggered a storm of controversy, as detractors point to the seemingly inherent lack of fairness in giving preference to one individual over another based solely on that person's race or gender.

Supporters, however, believe that preferential treatment is sometimes needed to level the playing field. Supreme Court has ruled that preferential treatment is legal if engaged in as part of a bona fide affirmative action program that is designed to remedy underutilization. The AAP, however, must be temporary, flexible, and reasonable. Opponents of affirmative action programs argue that reverse discrimination has resulted from some AAPs. For example, programs designed to ensure that women receive a higher education have been very effective; they now outnumber white males in college classrooms and white males are having a much harder time getting accepted. This could have future implications for the workplace.

Some states are considering doing away with affirmative action in government funded projects and public schools. In the 2008 election, voters in,,,, and may get the chance to vote on the initiative: “The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

” Some AAP and diversity programs are considered counterproductive. In a Harvard review of diversity programs data filed by companies to the EEOC in 2006, it was discovered that initiatives aimed at reducing bias at the top levels of a company resulted in a 6 percent decline in the proportion of black women in management. SEE ALSO Affirmative Action; Employee Recruitment Planning; Employee Screening and Selection; Employment Law and Compliance Barnett, T., A. McMillan, and W. “Employer Liability for Harassment by Supervisors: An Overview of the 1999 EEOC Guidelines. ” Journal of Employment Discrimination Law 2, no.

4 (2000): 311 –315. “Preemployment Questions Under the Americans with Disabilities Act. ” SAM Advanced Management Journal 62 (1997): 23 –27. “Religion vs.

Sexual Orientation. ” HR Magazine 49, no. 8 (2004): 54 –59. Human Resource Management. Upper Saddle River, NJ: Prentice-Hall, 2005. Giddens, Brent.

“Same Sex Marriage –What does it Mean for California Employers. ” 19 June 2008. Available from:. “Key Workplace Trends & Impact to Human Resources.

Available from: Kleiman, L.S. Human Resource Management: A Tool for Competitive Advantage. Cincinnati: South-Western College Publishing, 2000. Kleiman, L.S., and R.H.

“Voluntary Affirmative Action and Preferential Treatment: Legal and Research Implications. ” Personnel Psychology 77, no. 1 (1988): 481 –496. Montgomery, Lori. “Senate Republicans Block Pay Disparity Measure. ” Washington Post 24 Apr 2008. Available from:.

Okamura, Angela and Katie McCown. “Congress Introduces Civil Rights Act of 2008.

” civilrights.org 24 Jan 2008. Available from: civilrights.org. “Racial Harassment Cases Continue to Rise After Record Year. ” 8 May 2008. Available from: Rodriguez, Juan. “Ageist Language in the Workplace Impacts Productivity, Employee Health, and the Bottom Line. ” Diversityjobs.com 24 Apr 2008.

Available from:. Royce, Cindy. “Affirmative Action Ban Heads for Ballot in 5 States.

” 7 Mar 2008. Available from:. “Sexuality and Public Policy. ” News Batch June 2008.

Available from:. Smith, M.A., and C. “Title VII of the Civil Rights Act of 1964. ” Georgetown Journal of Gender and the Law 5, no.

1 (2004): 421 –476. Stodghil, Ron. “Is There Room at the Top for Black Executives? ” New York Times 1 Nov 2007.

Available from:. Wolkinson, B.W., and R.N. Employment Law. Cambridge, MA: Blackwell, 1996. Discrimination The online version of the American Heritage Dictionary of the English Language (2000) defines discrimination as, “Treatment or consideration based on class or category rather than individual merit; partiality or prejudice. ” Discrimination is a broad and multidimensional concept that covers all acts of preferring one thing, person, or situation over another (Block and Walker 1982, p.

In this broad sense, discriminatory behavior can occur within many economic or social activities of daily life. For example, the preference of a high school basketball coach for a taller player over a shorter one in selecting a team or an employer paying an African American worker less than a white worker for the same work would both fall under the heading of discrimination. While the latter act carries an unambiguously negative connotation, few people would consider the former act to be malevolent. Thus, discriminatory behavior does not always imply injustice or prejudice.

While understanding this distinction is important, a more relevant discussion of discrimination should emphasize the types of discriminatory acts that are socially and economically unjust, the type of acts that have caused the word discrimination to gain an unambiguously negative meaning. Denying or restricting equal opportunity in housing, education, and employment to members of a certain demographic group, such as African Americ.