C233 - Employment Law (Lesson 7 & 8)

2003 : $100,000 From the text, amendments to The Vietnam Era Veteran Readjustment Assistance Act of 1974 "require that federal contracts entered into after 1 December, 2003, and worth more than $100,000 require contractors and subcontractors to undertake AA for specified categories of veterans."

Amendments to The Vietnam Era Veteran Readjustment Assistance Act of 1974 require that federal contracts entered into after 1 December, ______, and worth more than _____________ require contractors and subcontractors to undertake AA for specified categories of veterans.

Difficulty walking or climbing stairs Over 30 million Americans have a difficult time walking or climbing stairs.

According to the U.S. Census Bureau, the largest claim for disability comes from:

True In other words, a technology system provided in a visual format would also have to be provided in audio, or other format, for a disabled federal employee or for public use.

Section 508 of the Rehabilitation Act requires federal information and technology platforms to be accessible to people with disabilities, including employees and the public.

True From the text, "There is no precise method for determining underutilization, but the Supreme Court uses the "manifest imbalance" test, which implies a substantial underrepresentation."

There is no precise method for determining underutilization.

A government contractor's formal plan establishing employment placement goals and timetables for hiring more women and minorities. The goal is to reach out to underrepresented groups, not to hire unqualified persons to meet a class quota.

What is an Affirmative Action plan?

Organizational display or workforce analysis From the text, "There are two main approaches to preparing a profile: an organizational display or a workforce analysis."

What are the two main approaches to preparing an organizational profile?

Affirmative action applied to private parties in discrimination lawsuits. From the text, "When private parties in a discrimination lawsuit end up in court, one of the remedies which may be applied is known as judicial affirmative action."

What is Judicial Affirmative Action?

Reasonable accommodation From the text, "Under the ADA, a covered employer must modify or adjust a job application process, work environment, job duties, or conditions or physical facilities to enable an otherwise qualified disabled employee to perform the essential function of a job."

A covered employer must modify or adjust a job application process, work environment, job duties, or conditions or physical facilities to enable an otherwise qualified disabled employee to perform the essential function of a job. This is known as:

The position exists to perform the function. There are a limited number of workers among whom the function may be distributed. From the text, "A job function may be considered essential for any of several reasons, including: 1) the position exists to perform the function; 2) there is a limited number of workers among whom the function may be distributed; and 3) the task is highly specialized."

A job function may be considered essential for any of several reasons, including:

Seniority rules or collective bargaining agreements Seniority rules or collective bargaining agreements; this is the general rule mentioned in the text.

Employers have wide latitude in disregarding usual company policy in favor of the disabled employee without running afoul of other anti-discrimination statutes, but generally may not make exceptions to:

At least one The ADAAA provides that a disability need not limit all major life activities, merely one.

How many life activities must an impairment limit to be considered a disability?

Require a certain number of minorities be hired by a certain date. From the text, "The Department of Labor may cancel a contract or debar a contractor from participating in bidding for future contracts. Additionally, the DOL may ask the attorney general to seek equitable relief to enforce orders, seek that the department of justice pursue criminal penalties where fraud is involved, publish the names of offending contractors, and/or recommend to the EEOC that judicial proceedings be commenced under Title VII."

If a federal contractor is not following AA regulations, the Department of Labor can do all of the following except:

OFCCP The Office of Federal Contract Compliance Programs (OFCCP) within the Department of Labor oversees the regulation of AA.

Regulation of Affirmative Action is overseen by:

Reasonable Self-analysis From the text, "The adoption of a voluntary plan must be supported by a reasonable self-analysis."

The adoption of a voluntary affirmative action plan must be supported by a(n):

Evaporates once the problem has been addressed. From the text, "The duty to comply with imposed AA plans evaporates once the problem has been addressed."

The duty to comply with imposed AA plans:

Appearing in public From the text, "The city of Chicago, as late as 1973, repealed an 1880's law that forbade a person who was diseased, maimed, or unsightly from appearing in public."

Traditional views of disabled people have been changing. In 1973, the city of Chicago repealed a law created in the 1880's that forbade disabled people who were diseased, maimed, or unsightly from:

The employer will have violated the ADA if he/she chooses not to hire the disabled person because of the disability or the requirement that an accommodation be made. Based on the information in the text, the employer will have violated the ADA if he/she chooses not to hire the disabled person because of the disability or the requirement that an accommodation be made.

Under the ADA , if an employer is considering two qualified applicants for a job, one disabled and the other not, then:

The employee It is the employee's responsibility to seek accommodation if needed.

Which group has the duty to seek accommodations if needed?

High salary expectations for a specific task to be completed. Evidence of whether a particular task is essential may be found in: 1) formal job descriptions prepared before the job is announced and filled; 2) the percentage of time spent on the job performing a function; 3) the consequences of the task not being done; 4) the elements of a job deemed essential in a collective bargaining agreement; 5) work and educational experience required to undertake the task; and 6) work experience necessary.

Which of the following is not evidence of a task being essential?

Affinity orientation Affinity Orientation is not covered under the federal contractor nondiscrimination clause

Which of the following is not included as a protected group in a federal contractor's mandatory nondiscrimination clause?

Has the skills, talents, education, and other abilities necessary to carry out the essential functions of the job. From the text, "A qualified individual is one who has the skills, talents, education, and other abilities necessary to carry out the essential functions of the job."

A qualified individual is one who:

120 A written AA plan must be prepared within 120 days of the contract start date.

AA regulations require that federal contracts worth over $50,000 must prepare a written AA plan within ______ days of the contract start date.

Increase In recent years there has been almost a 17% increase in disability discrimination claims.

Across the United States there has been a(n) _________ in workplace disability discrimination claims.

False Affirmative action applies to only about 20 percent of the workforce.

Affirmative action applies to the majority of the workforce.

Past imbalances : the status quo From the text, "AA may only be used to remedy past imbalances and not to maintain the status quo."

Affirmative action may be used to remedy _________ and not to maintain _________.

When it would cause undue hardship Under the ADA, an employer may refuse to implement what would otherwise be a reasonable accommodation if it represents an undue hardship to the business.

An employer can refuse to implement what would otherwise be a reasonable accommodation:

True The employer cannot, however, use rigid quotas or reserved positions.

An employer is entitled to set a preference for a particular race or gender where there is a serious imbalance or a long history of bias.

True: Consequently, a disabled person must be qualified to carry out the essential functions of the job, before the protections of the ADA may be invoked.

An employer may discriminate in employment on qualifications.

Essential and marginal From the text, "The ADA does not require employers to engage in empirical job function analysis. However, from an efficiency and risk management point of view, employers should be able to defend an interpretation of essential job function. Therefore, an employer, before advertising a job and beginning the process of external hiring or internal promotion, should create a job description that details the essential and marginal functions of the job position."

An employer, before advertising a job and beginning the process of external hiring or internal promotion, should create a job description which details the ______ and _______ functions of the job position.

Voluntary Affirmative Action Plan From the text, "Best practices indicate that a large private employer should adopt a voluntary affirmative action plan as a preventative measure against liability under Title VII."

Best practices indicate that a large private employer should adopt a:

An employer to lower job standards. The ADA does not require an employer to lower job standards, alter production goals, modify the essential job functions for a disabled employee, change a job from full to part-time, exclude an employee from discipline procedures, or create a new job altogether.

Contrary to some misconceptions, reasonable accommodation under the ADA does not require:

Essential : marginal From the text, "Determining what constitutes the essential, and not marginal, functions of the job is an important task for an employer to undertake for both practical and risk management considerations."

Determining what constitutes the ________, and not _______, functions of the job is an important task for an employer to undertake for both practical and risk management considerations.

Permanent or temporary The ADAAA "provides that impairments which last only a short period of time qualify for protection under the ADAAA for the duration of the disability. In other words, the disability may be temporary."

Disabilities that are covered by the ADAAA are:

False Only 41 percent of disabled persons between the ages of 21 and 64 were working at a job, while 79 percent of non-disabled persons were working.

Disabled persons have a higher employment rate than non-disabled persons.

False According to the 2010 Census data, about nineteen percent of the U.S. population has a disability.

Disabled persons in the United States are not very common, with less than 5% of the population being afflicted with a disability.

$10,000 The order sets $10,000 as the minimum. However, in today's dollars it is hard to imagine a federal contract for less.

Executive Order 11246 requires that any federal contract for services with a value over __________ must include the standard nondiscrimination clause.

Essential job functions From the text, "From an efficiency and risk management point of view, employers should be able to defend an interpretation of essential job functions for open positions."

From a risk management point of view, an employer should be able to defend an interpretation of:

Take a reasonable action to remedy the imbalance From the text, "If a contractor determines underutilization is occurring, it must take reasonable action to remedy the imbalance in the form of goals and time frames."

If a contractor determines underutilization is occurring, it must:

True Employers have a legitimate interest in making sure work gets done, and if an accommodation has a substantially negative effect on that, it may be an "undue hardship."

If the accommodation would be highly disruptive to the workplace, as in the case of a significant shift of duties to another employee or a diminution of service or performance by other workers, there may be a claim of undue hardship.

True Employers are free to lawfully discriminate against an employee whose medical condition poses a threat to others. However, a reasonable accommodation must still be sought.

If the disabled person's condition constitutes a direct threat to the safety of others at work, he or she is considered not qualified for the job.

The courts held that the teacher was protected under The Rehabilitation Act of 1973 because allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of the Act. The Supreme Court held that the teacher was protected under the Act because "[a]llowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of the Act."

In School Board of Nassau v. Arline, a school board fired a school teacher who had recently recovered from a documented third bout of tuberculosis for fear that the disease would return and pose a risk to school children. Which of the following statements is true?

Judicial affirmative action Affirmative action may be applied in the private sector either voluntarily or as part of a remedy following a private lawsuit.

In a private lawsuit, one of the remedies a court may impose to correct imbalances in hiring practices is known as:

The Supreme Court agreed that the AA method used by the university was unlawful, as it gave an unwarranted advantage to minority applicants. From the text, "The Supreme Court agreed that the AA method used by the university was unlawful, as it gave an unwarranted advantage to minority applicants."

In the Regents of the University of California v. Bakke (Bakke) case, a white medical school applicant challenged the University of California at Davis' policy of setting aside 16% of admission spots for "disadvantaged" minority applicants who could also compete in the standard applicant pool. Mr. Bakke was qualified to be admitted, and argued that the strict 16% standard was an impermissible quota and unfair. Which of the following is correct?

$50,000 From the text, "The OFCCP requires that contractors provide detailed information and reports regarding employment practices and employee composition, and mandates that the OFCCP be provided access to firm records during an investigation. Additionally, the regulations require that for contracts over $50,000, the contractor must prepare a written AA plan within 120 days of the contract start date."

OFCCP regulations require that for contracts over $________, the contractor must prepare a written AA plan within 120 days of the contract start date.

This took the effort to eliminate employment discrimination from the passive to the active. This order moved anti-discrimination efforts to active instead of passive.

On March 6, 1961, Kennedy signed Executive Order 10925, which mandated that managers of federally-funded projects "take affirmative action" to eliminate bias in employment practices. Which of the following statements is true?

False: Federal government and federal contractors doing over $10,000 in business have to take affirmative action to hire qualified disabled persons.

Only federal contractors doing over $50,000 in business have to take affirmative action to hire qualified disabled persons.

The slowness of employers to modify negative stereotypical thinking about disabled employees. The slowness of employers to modify negative stereotypical thinking about disabled employees causes more inappropriate discrimination situations.

Part of the increase in disability discrimination complaints to the EEOC is caused by:

Contractors and subcontractors working with the federal government From the text, "President Johnson issued Executive Order 11246, which required that contractors and their subcontractors doing business with the federal government have a nondiscrimination clause in contracts and abide by its terms."

President Johnson issued Executive Order 11246, which required that _________ have a nondiscrimination clause in contracts and abide by its terms.

Affirmative Action From the text, "President Kennedy in 1961 introduced the term "affirmative action" (AA) for the concept of redressing the effects of persistent discriminatory employment practices in spite of civil rights laws and constitutional guarantees."

President Kennedy in 1961 introduced the term ___________ for the concept of redressing the effects of persistent discriminatory employment practices in spite of civil rights laws and constitutional guarantees.

Impairment : major life activity From the text, "The ADA did not initially define the terms "impairment" or "major life activity." This created some difficulty for employers and courts alike in determining the parameters of the statute."

The ADA did not initially define the terms _______ or _______. This created some difficulty for employers and courts alike in determining the parameters of the statute.

Reasonable accommodations From the text, "like the Rehabilitation Act, the ADA required employers take affirmative steps to provide reasonable accommodation for qualified disabled workers, absent undue hardship."

The ADA required employers to take affirmative steps to provide ________ for qualified disabled workers, absent undue hardship.

Particularly simple and straightforward : not require extensive analysis The ADAAA requires that the determination of whether an employee has a disability be "particularly simple and straightforward" and "not require extensive analysis."

The ADAAA requires that the determination of whether an employee has a disability be ___________ and _____________.

Since the employer cannot show significant disruption to its operation, there is no undue hardship. In the EEOC's example, since the employer cannot show significant disruption to its operation, there is no undue hardship.

The EEOC provides the following example: An employee with breast cancer is undergoing chemotherapy. As a consequence of the treatment, the employee is subject to fatigue and finds it difficult to keep up with her regular workload. So that she may focus her reduced energy on performing her essential functions, the employer transfers three of her marginal functions to another employee for the duration of the chemotherapy treatments. The second employee is unhappy at being given extra assignments, but the employer determines that the employee can absorb the new assignments with little effect on his ability to perform his own assignments in a timely manner. Which of the following is true?

Nominal From the text, "The EEOC reports that 30 percent of accommodations cost nothing, while almost 20 percent cost the employer under $50, and 50 percent involve expenses of $500 or less. Even for the smallest employer, these expenses are nominal."

The EEOC reports that the majority of accommodations made by employers are:

False The OFCCP may perform audits on contractors to see if the firms are engaged in good faith efforts to remove discrimination's effects.

The Office of Federal Contract Compliance Programs (OFCCP) may not perform audits on contractors unless a discrimination claim is made.

True: The Rehabilitation Act of 1973 governs the authorization of grants to states for vocational rehabilitation services to those with severe disabilities, and it expanded previous federal responsibilities for research and training programs with respect to disabled persons.

The Rehabilitation Act of 1973 expanded previous federal responsibilities for research and training programs with respect to disabled persons.

Federal agencies Those receiving federal assistance Federal contractors Federal agencies, those receiving federal assistance, those in employment with the federal government, and federal contractors are all prohibited from discriminating on the basis of disability.

The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by:

Take affirmative action to employ qualified individuals with disabilities. From the text, "This act requires that contractors, including subcontractors, with fifty or more employees and contracts valued at $50,000 or more, must take "affirmative action to employ qualified individuals with disabilities.""

The Rehabilitation Act of 1973 requires federal contractors and subcontractors to:

50 : $50,000 From the text, "This act requires that contractors, including subcontractors, with fifty or more employees and contracts valued at $50,000 or more must take "affirmative action to employ qualified individuals with disabilities.""

The Rehabilitation Act of 1973 requires that contractors, including subcontractors, with _______ or more employees and contracts valued at ________ or more must take "affirmative action to employ qualified individuals with disabilities.

Governs the authorization of grants to states for vocational rehabilitation services to those with severe disabilities Expanded previous federal responsibilities for research for disabled persons Expanded training programs with respect to disabled persons The Rehabilitation Act of 1973 governs the authorization of grants to states for vocational rehabilitation services to those with severe disabilities, and it expanded previous federal responsibilities for research and training programs with respect to disabled persons.

The Rehabilitation Act of 1973:

Undue hardship The text clarifies that an employer would not need to make an accommodation if it would require "an undue hardship based upon business needs and cost."

The Rehabilitation Act requires all employers to make reasonable accommodations for employees unless the accommodation would cause:

A person who has a physical impairment A person with a mental impairment which substantially limits one or more of his or her major life activities A disabled person with a record of such impairment and/or perceived as having such an impairment. A person who has a physical or mental impairment which substantially limits one or more of his or her major life activities, has a record of such impairment, and/or is perceived as having such impairment qualifies as an individual with a disability.

The Rehabilitation act of 1973 defines an "individual with a disability" as:

The firm and the job. Because each job, firm, and employee are unique, the determination of what task is "essential" is made on a case-by-case basis.

The calculation of whether a task is essential to a job is relative to:

Both public and private From the text, "The effect of the ADA was to standardize and nationalize employment protections for the qualified disabled employee in both the public and private sector and to back up those protections with the enforcement power of the EEOC."

The effect of the Americans with Disabilities Act was to standardize and nationalize employment protections for the qualified disabled employee in the _________ sector.

Actual costs of accommodating A claim of undue hardship must be based upon real data.

The employer must show how the ___________ will create an undue hardship and may not merely speculate on the issue.

Employment discrimination From the text, "To combat injustices, there arose what has become known as the independent living movement, which has worked to take disabled persons out of isolation and institutions and place them squarely in the mainstream community of school and employment."

The independent living movement was instrumental in pushing for federal legislation to protect disabled persons from:

Unilateral Unilateral, meaning individual or one-sided

The law prohibits the employer from making ________ decisions about what job functions a disabled employee may not be able to undertake.

Discrimination is discrimination when it is directed at anyone From the text, "The phrase "reverse discrimination" is a misnomer because discrimination is discrimination when it is directed at anyone because of a protected class characteristic."

The phrase "reverse discrimination" is a misnomer because:

The individual meets the definition of disability From the text, "The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability."

The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether:

15 From the text, "Under the ADA, it became illegal for any firm with 25 (now 15) or more employees to discriminate in employment against a qualified person with a disability."

Under the Americans with Disabilities Act, it is illegal for a company with ____ or more employees to discriminate in employment against qualified persons with disabilities.

Imposed an AA plan remedy upon the union which required a fund be set up, and other action taken, to assist in reaching the goal of 29 percent nonwhite membership in the union. The courts "imposed an AA plan remedy upon the union which required a fund be set up, and other action taken, to assist in reaching the goal of 29 percent nonwhite membership in the union."

What action did the courts take in the Sheet metal workers v. EEOC case?

Seek external government funding From the text, "Congress intended that an employer seek external government funding, apply for tax incentives, and see if the disabled employee could bear some of the accommodation costs before claiming undue hardship."

What did Congress intend employers to do before claiming undue hardship?

It declared that full participation in national defense programs by all U.S. citizens, regardless of race, creed, color, or national origin was federal government policy. The order set the policy that all persons should participate in employment opportunities in national defense.

What did Executive Order 8802, issued by President Franklin D. Roosevelt, entail?

Size and nature of the business Extent and cost of the accommodation The overall resources of the business All three of the options are considered when determining undue hardship on a business.

What factors are considered when determining undue hardship?

Response to several United States Supreme Court cases that narrowly construed the definition of disability. From the text, "In response to several United States Supreme Court cases which narrowly construed the definition of disability, in 2008 Congress passed the ADA Amendments Act."

What factors drove Congress to pass the ADA Amendments Act?

Any action taken by an employer to overcome discriminatory effects of past, or current, practices or policies which create barriers to equal employment opportunity. The underlying principle of affirmative action is that those doing work for the government should be representative of the population.

What is Affirmative Action?

A review of what the contractor's workforce looks like. While no mandated form is required, EEOC guidelines suggest that the "objective of self-analysis is to determine whether employment practices do, or tend to, exclude, disadvantage, restrict, or result in adverse impact or disparate treatment of previously excluded or restricted groups, or leave uncorrected the effects of prior discrimination, and if so, to determine why."

What is a "reasonable self-analysis" as it pertains to an AA plan?

Grouping jobs within an organization by function, responsibilities, and potential, and then rendering an analysis on the characteristics of each employee in the job group. From the text, "Job group analysis is a procedure involving grouping jobs within an organization by function, responsibilities, and potential and then rendering an analysis on the characteristics of each employee in the job group. The EEOC has established a standard set of job groups that may assist employers in this task."

What is a job group analysis?

When an employee alleges disparate treatment under Title VII in cases where an employer, subject to an AA plan preference, impermissibly considers race and gender in an employment practice in favor of another. Reverse discrimination is "when an employee alleges disparate treatment under Title VII in cases where an employer, subject to an AA plan preference, impermissibly considers race and gender in an employment practice in favor of another."

What is reverse discrimination?

The fundamental duties of the employment position the individual with a disability holds or desires. From the text, "The ADA defines essential functions of the job as meaning the fundamental duties of the employment position the individual with a disability holds or desires."

What is the ADA's definition of an essential function?

Independent living movement The independent living movement works to provide the benefits of education and employment to disabled persons.

What is the name of the movement which has worked to take disabled persons out of isolation and institutions and place them squarely in the mainstream community of school and employment?

Cancel contracts Debar a contractor from bidding on future contracts Ask the attorney general to seek equitable relief From the text, "The Department of Labor may cancel a contract or debar a contractor from participating in bidding for future contracts. Additionally, the DOL may ask the attorney general to seek equitable relief to enforce orders."

What steps can the Department of Labor take against contractors that don't follow Affirmative Action guidelines?

A plan requiring contractors to establish specific goals and timetables for correcting imbalances in employment practices. The Philadelphia Plan required contractors to establish specific goals and timetables for correcting imbalances in employment practices.

What was President Nixon's Philadelphia Plan?

Placement goals for underrepresented classes The law allows for a firm to set a placement goal in employment practices for underrepresented groups.

Which of the following are approved methods for utilizing affirmative action plans?

Being able to pass the national impairment proof test. The Rehabilitation Act defines a disability as: (1) a physical or mental impairment that substantially limits one or more major life activities; or (2) a record of such impairment; or (3) being perceived as having such an impairment.

Which of the following definitions was not adopted by the ADA from the Rehabilitation Act's definition of a disability?

Quotas Affirmative action prohibits quotas. No employer is ever required to hire an underqualified employee.

Which of the following does AA prohibit?

Reasonable-self analysis Reasonable rationale for taking corrective action Reasonable action An AA plan must contain three basic requirements

Which of the following is a basic AA plan requirement?

Reasonable amount of time before taking action. An AA plan must contain three basic requirements: (1) reasonable self-analysis; (2) reasonable rationale for taking corrective action; and (3) reasonable action.

Which of the following is not a basic requirement of an AA plan?

Caucasians From the text, "The focus of AA is to assist historically disadvantaged groups in employment, which include, women, African Americans, Asians, Pacific Islanders, disabled persons, and veterans."

Which of the following is not a historically disadvantaged group?

Exceptions to seniority rules Employers generally may not make exceptions to seniority rules or collective bargaining agreements.

Which of the following is not a reasonable accommodation?

The employee determines which accommodation is reasonable and effective. The employer is the one to decide if an accommodation is reasonable or not.

Which of the following is not a step in determining what accommodations are required for a job?

Sitting Major life activities included walking, seeing, hearing, speaking, breathing, working, learning, thinking, standing, lifting, caring for oneself, interacting with others, and sexual reproduction.

Which of the following is not considered a "major life activity" by the EEOC and the Supreme Court's definition?

Gender Identity The ADAAA provides that sexual orientation, gender identity, and compulsive gambling are not disabilities.

Which of the following options is not considered to be a disability?

Cosmetic The EEOC expanded its guideline's definition of impairment to include: "[a]ny physiological disorder or condition affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, or any mental or psychological disorder."

Which of the following was not added to the EEOC's definition of impairment? Any physiological disorder or condition affecting one or more of the following systems:

True The use of sanctions for noncompliance is the difference between Title VII and AA.

While Title VII also applies to federal government contractors, AA provides for sanctions and enforcement by way of administrative action - which Title VII does not do.

True This is very important, because makers of rockets or tanks must rely on selling to the government, as there are few other buyers for these products.

Without having to file lawsuits, the federal government may suspend or cancel contracts with contractors that are not in compliance with (AA) or debar them from bidding on future government contracts.

Affirmative action From the text, "Affirmative Action includes an emphasis on recruiting or promoting qualified individuals from a class which may have been or is underrepresented."

_______ includes an emphasis on recruiting or promoting qualified individuals from a class that may have been or is underrepresented.

Underutilization Underutilization is defined as "the discrepancy between women and minorities in a particular position and how many qualified women and minorities exist in the constituent market."

___________ is the discrepancy between women and minorities in a particular position as a function of how many qualified women and minorities exist in the constituent market.