Chp 8 Dr. Gilmore

Johnson v. Transportation Agency Santa Clara County, California (1987)

Johnson, a white male, was passed over for a promotion. All qualified candidates were given scored interviews. Johnson was tied for 2nd highest score (75), while Joyce, the woman who received the promotion, scored next highest (73). Did Joyce's promotion, based on the agency's affirmative action plan, violate Title VII? The court held that when two people are essentially equal in terms of qualifications, the women/minority may be given preference in hiring. The agency's action was legal and acceptable because it existed to remedy a documented problem of underutilization of women, without unduly burdening males.

Effects of Affirmative Action

Many believe that people hired through affirmative action have lesser qualifications. But, a major study found that: Companies using affirmative action recruited somewhat more women and minorities. Such hires had somewhat lower educational credentials. Job performance levels were equal to or exceeded job performance levels of other comparables in the company. Greater training by such companies appears to counteract any lower educational credentials of people hired.

Role Models Needed

Under financial duress, a school district was forced to lay off teachers. The Business Department of the high school had two female teachers equal in seniority and performance. One of the teachers was African-American and the other white. Unable to resort to its usual procedure of conducting layoffs in reverse order of seniority, and concerned that the Business Department would be left without any African-American faculty, the district invoked its affirmative action plan to retain the African-American teacher and lay off her white colleague. Overall, the percentage of African-American faculty in the school district exceeded the percentage in the surrounding labor market. However, the district pointed to the effect that laying off the African-American teacher would have at the department level and to the need for a highly diverse faculty to serve as role models for a student body that included a high percentage of African-American students. The white teacher who was laid off sued. What should the court decide? (Taxman v. Board of Education of the Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996), cert. dismissed, 118 S. Ct. 595 (1997)). The appeals court found that this use of affirmative action violated Title VII. There was no remedial purpose served by the affirmative action plan and it unnecessarily trammeled on the interests of the white teacher. There was no evidence that African-Americans were underutilized as teachers by the school district. If anything, the percentage of the district's teachers who were African-American exceeded their availability in the relevant labor market. The court rejected the employer's argument that underutilization could be assessed at the department level, rather than for the school district as a whole. Furthermore, even if affirmative action had been warranted, its use in a layoff situation meant that the burden fell squarely on the shoulders of Taxman. The courts have consistently said that affirmative action cannot be used to make layoff and termination decisions.

Required contents of AAP Under E.O. 11246

1.) Quantitative analyses of the workforce: Organizational profile Job group analysis Protected-class composition of job group incumbents Availability of qualified women and people of color Comparison of job group incumbents with available, qualified workforce 2.) Identification of problem areas Problems in minority or female utilization or distribution (e.g., glass ceilings) Personnel activities (e.g., applicant flows, promotions, turnover) Compensation systems—gender or racial disparities Selection, recruitment and referral procedures 3.) Placement goals 4.) Action-oriented programs 5.) Designation of responsibility for implementation 6.) Procedures for periodic internal audits of progress in meeting goals.

Affirmative Action

Affirmative action is defined in the U.S. Code of Federal Regulations as: "Those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity." And, more informally, as: "A management tool designed to ensure equal employment opportunity."

Consent Decrees and Court Orders

Affirmative action is one of the remedies available to courts in discrimination cases. It can be imposed either as a remedy following a determination of discrimination, or As part of a judicially approved settlement between the parties, called a consent decree. Court-imposed affirmative action is not common, but many police and fire departments have operated under such decrees. Discuss Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland (I) and (II)

Affirmative Action Contd...

Affirmative action is required of: Most companies that have contracts to sell goods or services to the federal government. A company when a discrimination suit results in a settlement (with a consent decree) or a court order that includes affirmative action as a remedy. Affirmative action plans may also be voluntarily undertaken by a company. But still must comply with certain legal requirements. Should not be used for disciplinary or layoff decisions.

"Reverse" Discrimination

An employee who was passed over for an employment opportunity alleges disparate treatment. Based upon the employer taking a protected class into account in making its employment decision relying upon an affirmative action plan. The question is whether this use of affirmative action was legal or discriminatory. In deciding that question, courts will consider: The justification for the plan, and The reasonableness of the measures used to implement it.

Government Contractors contd... (3)

As of 2012, the U. S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) was overseeing of some 200,000 federal contractors that employed about a quarter of the U.S. workforce. The OFCCP oversees affirmative action plans required by: Executive Order 11246 The Rehabilitation Act of 1973 The Vietnam Era Veterans' Readjustment Assistance Act of 1974

Government Contractors contd..

Certain companies that contract with the federal government must also comply with the Rehabilitation Act of 1973, which requires that: Companies with contracts or subcontracts worth more than $10,000 must take affirmative action to employ qualified individuals with disabilities. Contractors and subcontractors with at least 50 employees and contracts worth at least $50,000 must prepare and maintain written affirmative actions plans. The regulations require the use of a nationwide utilization goal of 7%.

Government contractors contd...(2)

Certain companies that contract with the federal government must also comply with the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), which requires that: Companies with contracts or subcontracts worth more than $100,000 must provide equal employment opportunity and affirmative action on behalf of covered veterans. The regulations require the establishment of hiring benchmarks based upon the current national percentage of veterans in the workforce (8%) or some other benchmark based upon more localized data.

Government Contractors

Certain companies that contract with the federal government must comply with Executive Order 11246, which requires that: Companies with contracts worth at least $10,000 must include a nondiscrimination clause in their contracts, and abide by it, and Must include that clause in their contracts with subcontractors, who must also abide by it. Contractors and subcontractors with at least 50 employees and contracts worth at least $50,000 must develop and submit to the OFCCP written affirmative actions plans.

Executive Order 11246

Contractors and subcontractors commit they: "...will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during their employment without regard to their race, color, religion, sex, or national origin..."

Reasonable AAP plans

Identifying goals for improvement in the utilization of women and minorities and timetables for achieving those goals. Goals serve as objectives or targets reasonably attainable through good faith effort. Quotas are expressly forbidden.

Underutilization (contd)

Reasonable geographical recruitment area in which the contractor typically recruits or could reasonably do so. Promotable, transferable and trainable - Persons who could with training that the employer could reasonably provide be rendered qualified within the plan year.

EEOC Guidelines for Affirmative Action Plans

Reasonable self-analysis Reasonable basis for concluding that affirmative action is appropriate Reasonable affirmative actions to remedy results of past potential discrimination

Examples of Reasonable Affirmative Actions

Recruitment: Communicate the availability of jobs widely. Use internships and summer jobs to identify qualified women and people of color. Selection Procedures: Eliminate or find alternatives for tests and other requirements that disproportionately screen out women or people of color. Limit reliance on highly subjective criteria. Training and Development : Provide formal mentoring and career planning assistance for employees. Organizational Climate: Actively enforce antidiscrimination and harassment policies. Facilitate support groups for women and people of color. Offer diversity training and programs.

United Steelworkers of America v. Weber (1979) contd...

The Court identified four criteria that make an affirmative action plan valid under Title VII: It is designed to eliminate manifest racial imbalances in traditionally segregated job categories. It does not create an absolute bar to the advancement of non-minority employees. It is a temporary measure to eliminate the imbalance and not maintain racial balance. It does not unnecessarily trammel the interests of non-minority employees.

Legality under the U.S. Constitution

The Equal Protection Clause of the Fourteenth Amendment states: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." In constitutional cases public employers must show: The affirmative action plan serves a compelling governmental interest, and The measures employed are narrowly tailored. Grutter v. Bollinger and Gratz v. Bollinger (2003) Involved student admissions to the University of Michigan. A nonremedial purpose (student body diversity) can be a compelling governmental interest that justifies the use of race in admissions. Diversity in its broadest sense is central to the mission and purpose of a public university. Discuss Lomack v. City of Newark and why its court reached a different result.

United Steelworkers of America v. Weber (1979)

The Supreme Court held that an employer could give preference to minorities in hiring and promoting for "traditionally segregated job categories."

Reasonable basis for concluding that affirmative action is appropriate

Underutilization exists when the percentage of women and persons of color in one or more of an employer's job groups is less than expected based on their availability. The percentage of minorities or women with requisite skills in the reasonable recruitment area. The percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization. Violation of Title VII (adverse impact) is not necessary to support the use of an AAP.

The legality of Affirmative Action Plans Under Title VII

United Steelworkers of America v. Weber (1979) The Kaiser Aluminum and Chemical Corporation and the United Steelworkers of America signed a collective bargaining agreement that contained an affirmative action plan designed to reduce racial imbalances in Kaiser's then almost exclusively white work force (1.83% were black). The plan set hiring goals and established on-the job training programs to teach craft skills to unskilled workers. Under the plan, 50 percent of the openings in the training programs were reserved for blacks. A white employee, denied admission to the program because of his race, brought suit against both the company and union.