MGMT 417 Campolongo Test 2 Chapter 5
"Voluntary" affirmative action is required by the ___________ in 29 CFR §1608.1 and is usually implemented as a proactive measure to avoid a potential lawsuit.
EEOC (equal employment opportunity commission)
Name that case: This case had similar facts to United Steelworkers of America v. Weber, (U.S. 1979), except this case involved a public-sector employer rather than a private-sector employer, and gender rather than race. A female employee was promoted over an equally qualified male employee; gender was one factor taken into account in accordance with the employer's voluntary affirmative action plan. Male employee filed suit arguing violation of Title VII. Johnson, the male employee, had scored the second highest on the promotion test with a score of 75 (the range of scores was 70 - 80). Joyce, the female employee, had scored the third highest on the promotion test with a score of 73. Three supervisors who conducted the interviews recommended that Johnson be promoted; however, the agency director promoted Joyce. Johnson filed a charge with the EEOC, which found no reasonable cause to believe that discrimination had occurred. It issued a 90-day letter, and Johnson filed suit against the employer. Held: Title VII does not prohibit 'all' gender discrimination, only discrimination against women. The affirmative action plan is permissible since it only discriminates against males. The court also upheld the employer's affirmative action plan because the plan did not go so far as to require that male employees be fired and replaced with female employees, it did not create an absolute bar to the advancement of male employees, and the plan was intended to remedy past gender imbalance.
Johnson v. Transportation Agency, Santa Clara, CA (US, 1987)
arises when an employee or the EEOC sues an employer for violating Title VII, and affirmative action is ordered by the court.
Judicially imposed affirmative action
Name that case: After the court found that the union had excluded minorities from union membership, the court ordered a 29% minority membership quota to be met by a certain date, and a $150,000 fund to be established to train minorities so that they become "available" (i.e., qualified) to perform the job, and held that the individuals who benefit from the affirmative action plan need not be the actual victims of discrimination, but rather they only need to be members of the protected class.
Local 28, Sheet Metal Workers v. EEOC (US, 1986)
T or F: The government's position is that if there is no discrimination, then an employer's workplace will reflect the gender, racial and ethnic profile of the labor pool from which the employer recruits and hires.
True
T or F: The information gathered from the quantitative aspect (the organizational profile and the job analysis) identifies if there is an under-representation of women and minorities in the employer's workplace compared to the "availability" of women and minorities in the labor pool from which the employer recruits and hires.
True
T or F: Under Executive Order 11246, employers who contract with the federal government to provide goods and services of $10,000 or more per year must agree not to discriminate on the basis of race, color, religion, gender, or national origin.
True
All persons who identify with more than one of the above five races.
Two or More Races (Not Hispanic or Latino)
What are the penalties for non-compliance? Department of Labor can recommend to EEOC or Department of Justice that a __________ be filed against the employer under Title VII. Department of Justice can file a civil lawsuit against the employer to enforce the ___________. Department of Justice can file a ___________ against the employer if the employer provided false or misleading information to the Department of Labor. Department of Labor can cancel (terminate) the contract for _________________. Department of Labor can prevent the employer from receiving any future government ___________.
civil lawsuit Executive Order criminal lawsuit failure to comply contracts
EO 11246 requires _____________ to furnish all information and reports required by the Executive Order, and permit access to the contractor's books, records and accounts in order to investigate and determine compliance with the Executive Order.
contractors
If the % of women and minorities employed in a particular job group is less than the % of women and minorities who are "available" in the employer's geographic area, then the employer must establish a _____________ to correct the problem.
"placement goal" (quotas)
an EEOC complaint, or a lawsuit, usually filed by white males who are adversely affected as a result of the intentional preference given to women and minorities in accordance with an affirmative action plan.
A reverse discrimination claim
A person having origins in any of the original peoples of North and South America (including Central America), and who maintain tribal affiliation or community attachment.
American Indian or Alaska Native (Not Hispanic or Latino)
A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
Asian (Not Hispanic or Latino)
The number of women and minorities in the employer's geographic area that the federal government says is "qualified" for the particular job.
Availability
A person having origins in any of the black racial groups of Africa
Black or African American (Not Hispanic or Latino)
Which US president amended Executive Order 11246 by adding "sexual orientation and gender identity"? A. Bill Clinton B. Jimmy Carter C. Lyndon Johnson D. Barack Obama
D. Barack Obama
The ______________ regulations permit, but do not require, a contractor to hire an unqualified person to perform the job, or hire a less qualified person over a more qualified one, in order to achieve the placement goal (41 CFR 60-2.16(e)(4)).
Department of Labor
prohibits private sector employers who provide goods & services to the federal govt. of $10k or more annually, from discriminating with regard to employment decisions on the basis of race, color, religion, sex or national origin as well as requires federal contractors with 50 or more employees and contracts of $50k or more to develop written "affirmative action plans" to increase the number of women and minorities in the workplace.
Executive Order 11246
T or F: The quantitative part of an affirmative action plan sets out a course of action for how to address the problem of under-representation of women and minorities in an employer's workplace.
False
A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.
Hispanic or Latino
Name that case: involved a situation where a white employee and a black employee stole goods that were being transported by their employer (the defendant railroad company). The black employee was reprimanded, but the white employee was fired. The white employee filed a grievance with the company and the union, pursuant to a collective bargaining agreement, but that did not result in any relief. The white employee then filed a complaint with the EEOC, arguing a violation of 42 USC §1981 (Post-reconstruction Civil Rights Act) and Title VII. The EEOC dismissed the complaint. The white employee then filed a lawsuit in US District Court, and the court dismissed the case, holding that §1981, which prohibits racial discrimination, does not apply to whites, and the facts alleged by the white employee (including the fact that he was fired) did not rise to the level of a valid claim under Title VII. The Court of Appeals agreed with the District Court and affirmed. On appeal to the US Supreme Court, in a unanimous 9-0 decision (how often does that happen?!) the Court reversed the judgment of the Court of Appeals and held: (1) Title VII, which prohibits racial discrimination against "any individual" regardless of race, applies to white people upon the same standards as it applies to black people, and (2) §1981 prohibits racial discrimination and applies to "all persons" regardless of race.
McDonald v. Sante Fe Trail Transportation Co. (U.S., 1976)
For an example of a reverse discrimination lawsuit that was dismissed by the EEOC, the US District Court, and the US Court of Appeals, but was reversed by the US Supreme Court, see __________________. However, the court seemed to overturn this decision in the _____________ case in 1979.
McDonald v. Sante Fe Trail Transportation Co. (U.S., 1976) Weber
Arguments for affirmative action
Minority oppression occurred for hundreds of years There is evidence that disparity still exists (i.e., with regard to pay, promotions, etc.)
A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino)
_____________ conducts an annual Equal Opportunity Survey and contractors are required to submit data pertaining to number of applicants, hires, promotions, terminations and compensation, by race and gender. They perform audits of contractors to determine if they are complying
OFCCP
The AA Plan must be in compliance with __________ extensive regulations set forth in 41 CFR Part 60-2
OFCCP's (office of federal contract compliance program)
T or F: One acceptable affirmative action plan would be for the employer to create positions that are to be filled only by women or minorities, whether or not those positions are actually needed by the employer.
True
_____________ was opposed to the affirmative action requirement of the Executive Order and the use of quotas, and in 1986 he wanted to amend it by adding that no contractor shall "discriminate against, or grant preference to, any person on the basis of race, color, religion, sex, or national origin" but was never implemented because of opposition in Congress
Pres. Reagan
T or F: Under Executive Order 11246, employers with 50 or more employees and who contract with the federal government to provide goods and services of $50,000 or more per year must develop a written affirmative action plan.
True
Arguments against affirmative action
The anti-discrimination statutes, enforced by the federal government's EEOC, are achieving their goals All discrimination is wrong; negative stigma attaches to those who benefit from affirmative action.
Which of the following refers to the number of women and minorities that must be hired to eliminate the under-representation in the employer's workplace. A. Job depth B. Capital reserve C. Placement goal D. Organizational profile
The correct answer is C. Placement goal.
Which of the following refers to the intentional preference of women and minorities, and the intentional rejection of white males, in college admissions, the workplace, and the granting of government contracts, to "remedy" the past discrimination of women and minorities. A. Disparate impact B. Due process C. Disparate treatment D. Affirmative Action
The correct answer is D. Affirmative Action.
Riverhill University has identified a racial imbalance in its workforce where 85% of its department chairs and deans are white male. Fearing a lawsuit, it voluntarily implements an affirmative action plan that mandates that future selections for department chairs and deans will be on a one-for-one basis until an appropriate ratio is achieved. Paul, a white male professor with the university, applies for the position of a dean and is rejected. He subsequently discovers that an equally qualified black female, also with the university, is selected for the position. In this scenario, Paul: A. Does not have a valid discrimination claim because reverse discrimination lawsuits are prohibited by Title VII of the Civil Rights Act of 1964. B. Has a valid claim because Executive Order 11246 prohibits voluntary race-based affirmative action plans. C. Has a valid claim because all discrimination is wrong. D. Does not have a valid claim because affirmative action plans are permitted to remedy past or present racial imbalance, based on the United Steelworkers of America, AFL-CIO v. Weber case.
The correct answer is D. Does not have a valid claim because affirmative action plans are permitted to remedy past or present racial imbalance, based on the United Steelworkers of America, AFL-CIO v. Weber case.
The quantitative aspect of affirmative action plans has 2 parts:
The organizational profile and the job group analysis
Name that case: In 1974, the defendant union and the employer (Kaiser Aluminum) entered into a collective bargaining agreement which included a voluntary affirmative action plan to eliminate a racial imbalance in Kaiser's skilled (craft) workforce. At one plant, 2% of craft workers were black, even though the local geographic area was 39% black. Pursuant to the agreement, Kaiser established a training program where it would recruit "trainees" from its unskilled workforce and enroll them in the training program, so that they would become craft workers. Trainees were to be selected on the basis of seniority, with the condition that 50% of the trainees were to be black, until the % of black craft workers equals the % of blacks in the local geographic area. During Year 1, 7 black and 6 white trainees were selected from Kaiser's unskilled workforce, however, the most senior black trainees had less seniority than several white workers (including Weber) who were rejected for the training program. Weber filed suit in US District Court alleging that the AA plan, which resulted in junior black employees receiving preference over more senior white employees, violated Title VII. D's arguments were the plain meaning rule ("any" individual means any individual) and Mcdonald v sante fe transportation co. Trial Court: "Any" means any; affirmative action plan violates Title VII Court of Appeals: Affirmed; all preferences based on race, including those part of an affirmative action plan, violate Title VII US Supreme Court: Reversed; Title VII does not prohibit 'all' racial discrimination, only discrimination against minorities. The affirmative action plan is permissible since it only discriminates against whites. The court also said that if Congress meant to prohibit all racial discrimination, it would have been more clear (although the court didn't explain how Congress could have been more clear than "any"). The court also upheld the employer's affirmative action plan because the plan did not go so far as to require that white craft employees be fired and replaced with black employees, it did not create an absolute bar to the advancement of white employees (since half of the trainees selected for the program would be white), and the plan was intended to remedy past racial imbalance. So again, the Court clearly understood the Plain Meaning Rule in 1976 when it decided the McDonald v. Sante Fe Trail Transportation Co. case, but apparently lost its understanding 3 years later. This was a 5-2 decision by the Court (2 justices did not take part in the decision).
United Steelworkers of America v. Weber (U.S., 1979)
Affirmative action can arise through: "___________" implemented by employers as required by DOL Regulation 29 CFR §1608.1, et. al.
Voluntarily
arises when an employer voluntarily implements an affirmative action plan, even though the employer is not subject to E.O. 11246 and is not subject to a Title VII lawsuit.
Voluntarily implemented affirmative action
A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
White (Not Hispanic or Latino)
An affirmative action plan has two parts:
a quantitative aspect and a qualitative aspect
the intentional preference of women and blacks, and the intentional rejection of white males, with regard to college admissions, the workplace, and the granting of government contracts, to "remedy" (or, some might say, to punish white males for) the past discrimination of women and blacks.
affirmative action
an employer's plan to remove gender and racial imbalance in the employer's workplace that includes "placement goals" (i.e., quotas) for women and minorities, and timetables for achieving the goals.
affirmative action plans
There are 2 factors that the government uses to determine "availability": -The % of women and minorities with the requisite skills in the employer's _______________ (in other words, actually qualified for the job), plus -The % of women and minorities who are "trainable" within _____________ (in other words, lesser-skilled workers who are capable of becoming qualified for the job with sufficient training).
geographic area the company
the ______________'s position is that if 70% of the population in Newport News, VA is black, then 70% of the workforce of an employer located in or near Newport News should also be black, and if the employer's workforce is less than 70% black, then the quota ("placement goal") requirement of the AA plan will fix the problem ("address this underutilization").
government
Affirmative action can arise through: Executive Order 11246 (pertaining to ____________)
government contractors
EO 11246 increases/decreases the burden on the contractor based on the $ amount of the contract.
increases
How does the government determine if the contractor is complying? The contractor must develop and implement an______________ that measures the effectiveness of the affirmative action plan.
internal auditing system
01 - Officers and Managers 02 - Professionals 03 - Technicians 04 - Sales Workers 05 - Office and Clerical 06 - Craft Workers (Skilled) 07 - Operatives (Semiskilled) 08 - Laborers (Unskilled) 09 - Service Workers these are
job groups used in job group analysis
How does the employer achieve the placement goal? -Advertise for applicants with ______________ (NAACP, National Urban League, La Raza, NOW). -______________ lay-offs: If the employer must layoff employees, the employer may retain women and minorities, even if they have less seniority, and lay off white males, who may have more seniority. -Extra __________ (additional points) given to women and minorities simply because they are women and minorities. -Lower standards: Women and minorities may be held to lower standards so that they qualify for the position. -Women or minority-only positions: Whether needed or not.
minority organizations Preferential consideration
Most reverse discrimination charges filed with EEOC result in "____________________," and most reverse discrimination lawsuits are dismissed.
no reasonable cause
The employer must prepare a diagram that shows the staffing patterns within the workplace. It is similar to an organizational chart, but in addition to simply showing each organizational unit (department) and their relationship to each other, it must also show the gender, race and ethnic composition of each unit.
organizational profile (quantitative aspect of affirmative action plan)
Although originally designed to benefit women and blacks, affirmative action has evolved into benefiting ________________ as well.
other minority groups
quotas, aka
placement goals
a rule of statutory construction (in other words, a rule that helps judges determine what the words in a statute mean). The rule requires that words in statutes are to be interpreted according to the usual and ordinary meaning of those words, unless the statute explicitly defines some of its terms otherwise or unless the application of the rule would produce an absurd result. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable. So, for example, if a statute pertains to a "single-family house," a judge is not supposed to twist the meaning of that phrase to have the statute also apply to a factory or warehouse; a single-family house is a single-family house.
plain meaning rule
aspect of AA plan which sets forth a course of action as to how to fix the problem (under-representation of women and minorities)
qualitative
aspect of AA plan which examines the employer's workplace to determine who works there and in what capacity (with regard to women and minorities). In other words, it identifies the problem.
quantitative
E.O. 11246 is enforced by
the Office of Federal Contract Compliance Programs (part of the U.S. Department of Labor).
After grouping jobs, the employer must find ____________ of women and minoritites in each job group
the percent
The "placement goal" is the number of women and minorities that must be hired to eliminate the ___________ in the employer's workplace.
under-representation
An organization profile in an affirmative action plan must show: -Job title, gender, race, and ethnicity of the ______________ -Total number of _______________ employees in each unit -Total number of male and female employees in each unit, broken down by the various __________ categories.
unit supervisor male and female minority
