MGMT 417 Test 2

Equal Protection Clause of the 14th Amendment to the US Constitution provides

"No state shall... deny to any person within its jurisdiction the equal protection of the laws." The equal protection requirement applies to the federal government through the 5th Amendment.

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:

"placement goal" (quotas) to correct the problem.

Local 28, Sheet Metal Workers v. EEOC (US, 1986)

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.

Scenario: After an applicant is hired, the employer discovers that the applicant provided false information on his/her application. That is a valid reason for firing the employee. Question: What if employee was fired for another (improper, discriminatory) reason?

After-acquired evidence of false information or other wrongful conduct is a valid defense to a wrongful termination suit.

Not "illegal" but NOT Acceptable Questions (must be job-related): Application Phase

Age DOB gender religion marital status "are you a US citizen?" nationality ethnicity children education (if not business justified) arrest record *→ Disparate Impact Discrimination!*

Just Cause, Progressive Discipline & Documentation

All discipline and termination decisions must be applied without discrimination and objectively administered. Despite "employment at will," if the discipline or termination was for "just cause," then the employer may be able to defend itself against an EEOC charge.

What if the old employer refuses to provide any information, or provides incomplete information? In Jerner v. Allstate Insurance Co., No. 93-09472 (Fla. Cir. Ct. Aug. 10, 1995), families of five office workers shot by a co-worker were allowed to proceed to trial against the defendant insurance company, the killer's old employer. After being hired, then fired, by his new employer, the individual shot the five workers, killing three of them, before turning the gun on himself. The victims' families argued that the old employer (Allstate) should be held liable for monetary damages because it had written a letter of recommendation for the killer to his new employer, but provided incomplete information - the letter did not mention that the killer had been fired from the insurance company for carrying a gun in his briefcase.

Allstate settled the case with the plaintiffs for an undisclosed amount.

Jennifer is hired as a financial analyst at ABC Co. and is told at the interview that after three months, she will receive a pay raise of 10% and stock options. However, after working for the company for five months, the company fails to give her the pay raise and stock options. Jennifer may have a cause of action for: A. non-statement of material facts B. negligent hiring C. fraud or misrepresentation D. defamation

C. fraud or misrepresentation

Information Gathering: Sources of Information

Credit report DMV driving record for driving-related jobs Military service & discharge (DD 214) Criminal record Google searches and Social Media

In the context of employment discrimination, which of the following is true of the various recruitment practices? A. An employer can create the most diverse workplace by obtaining its new employees from referrals from within its own workforce or through word-of-mouth recruiting. B. An employer can completely eliminate employment discrimination by promoting from within the company. C. A job advertisement that requests "recent college grads" is a neutral solicitation. D. A process that could avoid a finding of disparate impact would be to post a job notice in a break room that is used by all employees.

D. A process that could avoid a finding of disparate impact would be to post a job notice in a break room that is used by all employees.

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

D. Affirmative Action

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

Disparate Treatment

Disparate treatment occurs when one set of evaluation criteria is used for one group (i.e., white males) and another set of evaluation criteria for another group

Documentation

Documentation of appraisals, warnings, commendations and discipline needs to be maintained in an employee's file.

Don'ts for Employee Termination

Don't spring a termination on an employee as a total surprise. Don't start a meeting unprepared, causing the terminated employee to wait awkwardly while you find answers or call in an HR representative. Don't beat around the bush; state the termination simply and briefly. Don't get caught up in responding to the employee's emotions or views about fairness; focus on practical realities and the need to move on. Don't argue with the employee or apologize. Don't offer to help the employee find another job, assuming you cannot honestly give a glowing reference.

Venue Recruiting

Example: Job fair at a certain location (university or high school) Does the venue attract a diverse population?

Affirmative action can arise thru:

Executive Order 11246 (pertaining to government contractors) Imposed by a judge as a result of a Title VII lawsuit "Voluntarily" implemented by employers as required by DOL Regulation 29 CFR §1608.1, et. al.

Placement Goal (Quotas)

The "placement goal" is the number of women and minorities that must be hired to eliminate the under-representation in the employer's workplace

2 factors that the government uses to determine "availability"

The % of women and minorities with the requisite skills in the employer's geographic area (in other words, actually qualified for the job), plus The % of women and minorities who are "trainable" within the company (in other words, lesser-skilled workers who are capable of becoming qualified for the job with sufficient training).

AA plan requirements

The AA Plan must be in compliance with OFCCP's extensive regulations set forth in 41 CFR Part 60-2. 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. For example, the government'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").

42 USC §2000e-2(m) provides:

42 USC §2000e-2(m) provides: "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."

In 2011, ____% of employers required all job candidates to submit to pre-employment drug tests.

57

Potential Problems: Interview Phase

Interview procedure must not discourage women and minorities from continuing the hiring process. All-white or all-male interviewers → Discriminatory Interviewers should be properly trained to avoid biased questions. The post-interview evaluation must be consistent and objective.

Employer's substance abuse program should incorporate:

A written drug/alcohol policy A supervisory training program An employee education and awareness program Access to an employee assistance program A drug testing program: -Mandatory (all employees tested) -"Probable cause" (employees tested based on reasonable suspicion) -Random testing *With regard to which drug testing program an employer might use, it would depend on what goals the employer wants to achieve.

Voluntarily Implemented Affirmative Action

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.

Federal Drug-Free Workplace Act of 1988

authorizes drug testing for federal employees. No federal statute prohibits private employers' use of drug tests on private sector employees

second prohibited category in Title VII

color

EO 11246 increases the burden on the

contractor based on the $ amount of the contract

E.O. 11246 also 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

Daniels v. WorldCom Corp. (N.D. Tex.,1998) The plaintiff said she was the victim of racial harassment because she was one of many recipients of 4 jokes with "racial undertones" sent via email from another non-supervisory employee. The Court....

dismissed the case, finding that the defendant took prompt remedial action: The employer issued verbal and written reprimands to the employee who sent the email, It held 2 meetings where employees were directed not to use company email for non-business purposes, It established a written email policy.

If Direct evidence is proven, then the burden shifts to the

employer to prove that the same decision would have been made regardless of the discriminatory reason (i.e., LNDR - "legitimate non-discriminatory reason") If LNDR is proven, then the burden shifts back to employee who is given opportunity to prove that employer's reason is a "mere pretext."

Direct evidence:

employer's statements or documents (i.e., an email) which show an improper, discriminatory reason. It can be very subtle and is very often fact-specific.

Title VII provides "If the court finds that the [employer] has intentionally engaged in or is intentionally engaging in an unlawful employment practice . . ., the court may

enjoin the [employer] from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate . . ." 42 USC §2000e-5(g)(1)

quantitative aspect

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

EO 11246 requires contractors 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

The Interview Phase

has the same concerns regarding acceptable questions as the Application Phase: Does the employer really have a "need to know?" The interview must be nondiscriminatory not only with regard to questions asked but also how it is conducted.

The Department of Labor 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)).

Criminal record

keep in mind Title VII Disparate Impact! Is the conviction job related?

2 employer defenses to disparate treatment:

legitimate, non-discriminatory reason, and BFOQ (but BFOQ is only available as a defense with regard to gender, religion and national origin; it is not a defense in a race-discrimination case).

Disparate Impact

occurs when employment practices that seems neutral on the surface adversely affect one group of people more than another. 80% rule- a group's employment selection rate should be at least 80% of the group with the highest selection rate. A selection rate less than 80% will be presumed as discrimination

Quantitative aspect also has 2 parts:

organizational profile job group analysis 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.

VA Code §40.1-28.7:1

prohibits an employer from requiring an employee or applicant to submit to a genetic test, or taking any adverse action against the person solely on the basis of a genetic characteristic

Employee Polygraph Protection Act of 1988

prohibits employer's use of polygraph tests on private sector employees with a few industry exceptions. ***Not applicable to federal, state and local employers. provides that an employer may not discharge, discipline, discriminate against or deny employment or promotion to (or threaten to take such adverse action against) any applicant or current employee who refuses, declines or fails to take or submit to a lie detector test or who fails such a test.

qualitative aspect

sets forth a course of action as to how to fix the problem (under-representation of women and minorities)

​Executive Order 11246

signed by Pres. Lyndon Johnson on Sept. 24, 1965 "The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin [sexual orientation and gender identity were added later by Pres. Obama]. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation/;"{;, gender identity, or national origin."

Disparate treatment requires

that the employer must have the intent to discriminate, which is defined as a desire for the discriminatory results to occur

The Executive Order 11246 is enforced by

the Office of Federal Contract Compliance Programs (part of the U.S. Department of Labor)

Affirmative action

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. Although originally designed to benefit women and blacks, affirmative action has evolved into benefiting other minority groups as well.

In negligent hiring cases:

the significant factual issues concern the adequacy of the employer's pre-employment screening--what information was learned, or should have been learned, as a result of an effective screening prior to the applicant coming to work for the company. An employer may successfully defend against negligent hiring claims if it can prove the company took adequate steps to conduct criminal background checks and dutifully checked employment references, and no information from its screening processes reasonably placed the employer on notice of the applicant's violent tendencies.

What is "Color"?

Title VII does not define "color" but it is commonly understood to mean skin shade, tone or pigmentation. Historically, lighter-skinned blacks received preferential treatment compared to darker-skinned blacks. Color discrimination occurs when someone is treated differently based on the shade of their skin. Often, color discrimination occurs by people of the same race (i.e., a darker-skinned black discriminating against a lighter-skinned black).

What is Ethnicity

Title VII does not define "ethnicity." The EEOC has also not defined "ethnicity." Per Federal OMB, ethnicity includes: 1. Hispanic or Latino - A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race. 2. Not Hispanic or Latino *Hispanics and Latinos may be of any race. Title VII prohibition of discrimination based on race includes discrimination based on ethnicity.*

T/F While promoting from within an organization may raise employee morale and encourage loyalty, the practice can lead to a charge of disparate impact discrimination in violation of Title VII.

True

Wendy Swan is asked to fill two new positions at her company. The first requires complicated engineering knowledge; the second has no prerequisites and no opportunity for advancement without a college degree. Wendy wants to hire young workers so they will be more likely to have a long tenure at the firm. The advertisement for the positions placed in a newspaper for general circulation requests resumes from "recent college graduates", engineering degrees preferred. Is Wendy's firm subject to any liability based on this advertisement?

Yes

Harassment can also be found by "piecing together" several acts:

although they may be individually insignificant and may not qualify as harassment, when taken together, may be sufficient to establish harassment.

affirmative action plan

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 goalsz

Civil Rights Act of 1964 Title VII: (a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 USC §2000e-2 *Remember, Title VII applies to all companies that employ 15 or more employees.*

Pre-Employment Testing

*2 Types of Tests:* Eligibility (achievement) tests ​ Ineligibility tests *As a general rule, a test can only be required AFTER the job offer has been made (to ensure that the employer does not use the test results in a discriminatory manner) and PRIOR to the applicant starting work.

McDonald v. Sante Fe Trail Transportation Co. (US, 1976 comparison United Steelworkers of America v. Weber (US, 1979)

*Professor is stuck on this...* please remember that he finds it unfair/crazy that in the Mcdonald case reverse discrimination applied to title VII *and did not apply* in the US steelworkers case even though they were 3 years apart

A plaintiff must prove the following factors for a prima facia case for disparate treatment:

1. Employee belongs to a protected class under Title VII 2. Employee applied for and was qualified for a job for which the employer was seeking applicants 3. Employee was rejected and, after the rejection, the position remained open 4. Employer continued to seek applicants with the same qualifications that the rejected applicant has

Job advertisements in newspapers

A general circulation newspaper or one that targets a particular group or geographic area? Even if no intent to discriminate, the effect is disparate impact!

An affirmative action plan has 2 parts:

A quantitative aspect A qualitative aspect

Reverse Discrimination

A reverse discrimination claim is 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. Most reverse discrimination charges filed with EEOC result in "no reasonable cause," and most reverse discrimination lawsuits are dismissed. 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 McDonald v. Sante Fe Trail Transportation Co. (U.S., 1976). However, the court seemed to overturn this decision in the Weber case in 1979.

Recruitment "rules"

An employer must recruit from a diverse audience AND design employment announcements that will encourage a diverse group of people to apply.

Word of mouth (current employees refer others)

Benefits: The cheapest method to recruit, current employees perform initial screening, long-term service is likely, loyalty to company. Cons: Title VII Discrimination!

Federal Government Definitions of Affirmative Action Categories

Black or African American (Not Hispanic or Latino) - A person having origins in any of the black racial groups of Africa. Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) - A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands. Asian (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. American Indian or Alaska Native (Not Hispanic or Latino) - 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. White (Not Hispanic or Latino) - A person having origins in any of the original peoples of Europe, the Middle East, or North Africa. Two or More Races (Not Hispanic or Latino) - All persons who identify with more than one of the above five races. Hispanic or Latino - A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.

Zhu is the owner of Orchid Cleaning Services. He never hires or promotes a black applicant to the position of supervisor because he believes that his predominantly Asian crew will not follow instructions from a black supervisor. Thus, Zhu is liable for: A. Reverse discrimination against an individual because of others' perceptions about the individual. B. Constructive discharge, but he can use the business necessity defense to avoid liability. C. Disparate treatment, and he cannot use the bona fide occupational qualification defense to avoid liability. D. Employment discrimination against an individual because of his or her association with someone of a particular race.

C. Disparate treatment, and he cannot use the bona fide occupational qualification defense to avoid liability. Racial discrimination may be by way of disparate treatment or disparate impact. Disparate treatment may be shown by direct or indirect evidence of discrimination. Race cannot be used as a bona fide occupational qualification.

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

C. Placement goal

Which of the following is the first of the prohibited discriminatory categories in Title VII of the Civil Rights Act of 1964? A. Economic class B. Gender C. Race D. Language

C. Race

An employer may be able to avoid liability for racial harassment by showing that the: A. employer did not directly perpetrate the harassment. B. employee is not a member of a protected group. C. employer took prompt, corrective remedial action to address the situation. D. employee was not subjected to physical abuse.

C. employer took prompt, corrective remedial action to address the situation.

Which of the following can cause an employer to be subject to a claim of negligent hiring? A. failure to provide a reference about a former employee. B. failure to use word-of-mouth recruiting to obtain new employees. C. failure to conduct a reasonable and responsible background check on an employee. D. failure to correct an employee's mistaken belief about a job position or the organization.

C. failure to conduct a reasonable and responsible background check on an employee.

Walk-in Applicants

Company's "reputation" may only attract a certain type of employee

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.

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 Eatery, a 5-star restaurant, advertises for a job in the local newspaper as "Waiters needed. Experience required. Must look good in tuxedo." Ella has experience working in a 5-star restaurant and believes that she would look good in a tuxedo. However, when she applies for the job, she is rejected. Which of the following is true? A. Ella has no basis for a cause of action against The Eatery because Title VII of the Civil Rights Act does not cover discrimination in recruitment or hiring practices. B. Ella has no basis for a cause of action against The Eatery because it is a private-sector employer. C. Ella has a cause of action against The Eatery for imposing restrictions that are not job related. D. Ella has a cause of action against The Eatery because the advertisement contains language that indicates a preference based on sex.

D. Ella has a cause of action against The Eatery because the advertisement contains language that indicates a preference based on sex.

Harold, a black man, worked for Alegius Financial Services as a sales representative. On three separate occasions over a period of six months, an anonymous co-worker left racist literature on the desks of all of the employees, including the supervisors'. Harold did not complain of this to his manager. Instead, he filed a claim with the EEOC and later sued Alegius for racial harassment. Which of the following is true? A. Harold will lose his case because he was not directly subjected to the racial harassment. B. Harold will lose his case because he did not give his employer an opportunity to investigate the incident. C. Harold will win his case because the employer has violated a bona fide occupational qualification. D. Harold will win his case because the employer was aware of the racially harassing behavior, yet no discipline was imposed.

D. Harold will win his case because the employer was aware of the racially harassing behavior, yet no discipline was imposed.

Jesus, an Hispanic employee at Bluerock Tire Co., contacted the plant manager to inform him that his supervisor, Bill, treated him badly because he is Hispanic. After Bill learned that Jesus had complained, Bill told other supervisors that Jesus was lazy and irresponsible, and he made jokes about Jesus' accent. Which of the following is true? A. Bluerock Tire Co. will not be liable because it is a personal problem between Jesus and Bill. B. Jesus can file a disparate impact claim against Bluerock Tire Co. under 42 USC § 1983. C. Bluerock Tire Co. is not liable because Jesus was not actually harmed. D. Jesus is a victim of discrimination based on race, and he has a valid racial harassment claim against the employer.

D. Jesus is a victim of discrimination based on race, and he has a valid racial harassment claim against the employer.

Case: EEOC v. Consolidated Service System (7th Cir., 1993) The defendant was a small janitorial company owned by a Korean immigrant with mostly Korean employees. The owner relied mostly on word of mouth recruiting. In a 4-year period, 73% of applicants, and 81% of hires were Korean; however, less than 1% of the workforce in the surrounding community was Korean. EEOC claimed Title VII discrimination. Issue: Does using word of mouth recruiting result in disparate treatment (intentional) discrimination in violation of Title VII?

Defendant's annual gross revenue: $400k People would approach the defendant at work, social events or in the community and ask if he was hiring. Sometimes the defendant would ask his employees if they knew anyone who wanted a job. This was a "passive" practice. The defendant purchased job ads in newspapers 3 times which resulted in 0 hires. The defendant ran an ad once in a Korean newspaper and twice in the Chicago Tribune, a newspaper of general circulation. The EEOC argued that the one ad in the Korean newspaper was evidence of discrimination! Legal Analysis & Holding: If the employer is a member of ethnic immigrant community, then word of mouth is likely to perpetuate an ethnically imbalanced workforce, but that does not prove intentional disparate treatment discrimination. There was no evidence that defendant was biased in favor of Koreans or prejudiced against any other group. EEOC assumed discrimination based on the workforce imbalance. "Bottom line" does not prove disparate treatment. The EEOC litigated this case in federal court for over 7 years, and the judge suggested that the defendant should sue the EEOC to recover its attorney fees! Held: Dismissed

What are the penalties for non-compliance?

Department of Labor can recommend to EEOC or Department of Justice that a civil lawsuit be filed against the employer under Title VII. Department of Justice can file a civil lawsuit against the employer to enforce the Executive Order. Department of Justice can file a criminal lawsuit 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 failure to comply. Department of Labor can prevent the employer from receiving any future government contracts.

Promoting from Within the Company

Depending on the process → Title VII Discrimination! With regard to promoting from within the company, if the process is secretive (in other words, not all employees are informed of a job opening, or after the "preferred" candidate is selected, then an announcement is posted), then such process is discriminatory. If women & minorities are not well represented in the company → Disparate Impact

Just Cause:

Did the employee receive due process? Was the employee provided adequate notice of a disciplinary proceeding and an opportunity for a fair hearing and a formal appeal process? Did employer conduct an investigation and have adequate evidence of the misconduct? Was the penalty (discipline or termination) appropriate (proportional), taking into account the employee's length and quality of service?

Illegal Questions (violation of ADA of 1990): Application Phase

Disability health questions worker's compensation history

EEOC v. Chicago Miniature Lamp Works, Inc. (7th Cir., 1991):

EEOC held that the defendant discriminated against black applicants with regard to recruitment and hiring of entry-level employees because it recruited primarily through an informal word-of-mouth process (current employees would tell their family and friends about job openings). The defendant did not tell or encourage its employees to recruit in this manner. In a 3-year period, 146 entry-level workers were hired, but only 9 (6%) were black. -US District Court: Ruled disparate treatment and disparate impact in violation of Title VII. The defendant appealed. -7th Circuit: Ruled there was no disparate treatment because there was no employer intent, and there was no disparate impact because there was no employer practice or policy. Also, with regard to disparate impact, the 7th Circuit said that simply showing a racial imbalance at the bottom line does not prove disparate impact.

"Voluntary" affirmative action is required by the

EEOC in 29 CFR §1608.1 and is usually implemented as a proactive measure to avoid a potential lawsuit.

Negligent Hiring:

Employer can be liable for injuries that the employee causes to others if those injuries could have been prevented if the employer had conducted a reasonable background check (i.e., driving record)

Racial Harassment

Employers can also be held liable for racial harassment under Title VII, if the employer engaged in the harassment or if it was permitted by the employer or a supervisory employee.

Credit report:

FCRA requires employers to notify applicants if it will obtain a credit report; must obtain applicant's written authorization; if adverse decision, must notify applicant which CRA, can obtain free report, can dispute contents, etc.

T/F According to the federal government, the only 2 races are white and black.

False

T/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

T/F prompt remedial action by an employer will always result in the employer avoiding liability for racial harassment

False In EEOC v. Scientific Colors, Inc. (N.D. Ill, 2002), after discovering "racist graffiti" at the employer's facility, the employer quickly called the police, photographed the graffiti, offered rewards for information leading to the identification and arrest of those responsible for the graffiti, placed undercover employees in the facility, hired handwriting analysts, sent employees to mandatory diversity training, increased plant security and sought help from the FBI. Nevertheless, such prompt remedial action was apparently not satisfactory to the EEOC, and as a result, the employer settled the case by "agreeing" to pay over $1.8 million in damages to the plaintiffs.

T/F The Drug-Free Workplace Act of 1988 applies to private-sector employers

False The Federal Drug-Free Workplace Act of 1988 authorizes drug testing for federal employees

T/F old employers take advantage of the above mentioned privilege (VA Code §8.01-46.1) and release as much job related info about the employee to the new employer as possible

False despite this conditional privilege, most old employers only confirm the applicant's name, the position held, the dates of employment & salary

T/F Federal statutes require that employers document the reasons for failing to hire any specific applicant.

False While no federal statutes require documentation of why an applicant was not hired, it may be a good business practice

McKennon v. Nashville Banner Publishing Co., (US, 1995): Employer's subsequent discovery of wrongful conduct by the employee mitigated (reduced) the employer's liability for discharging the employee in violation of the Age Discrimination in Employment Act. Plaintiff McKennon, who was 62 years old when she was fired, alleged that she was fired as a result of age discrimination in violation of the ADEA. The employer argued that her discharge was due to a company-wide workforce reduction. At her deposition she stated that during her final year of employment she had photocopied several confidential financial documents bearing upon the company's financial condition. She had access to these documents because she was the secretary to the company's comptroller. When she became concerned about losing her job, she copied the documents for "insurance" and "protection." A few days after the deposition, the employer sent McKennon a letter stating that copying the company's records was a violation of her job responsibilities and advised her (again) that she was terminated. The employer's letter also stated that had it known of McKennon's misconduct earlier, it would have discharged her at once for that reason. The employer then filed a motion for summary judgment asking the court to dismiss her case on the basis that she had engaged in a breach of confidentiality (which was only discovered after she was actually fired). What occurred next?

For purposes of the summary judgment motion, the employer conceded it had discriminated against McKennon in violation of the ADEA. The Supreme Court held that although she admitted that she had engaged in improper conduct that would have resulted in her immediate firing, nevertheless she is entitled to receive back-pay for the period starting from the date of her discharge through the date the new information was discovered. Q: Does this make sense? Should the employee, who admittedly engaged in improper conduct that was sufficient to justify her firing, nevertheless be able to recover back-pay for the period starting from the date of her discharge through the date the new information was discovered, especially considering that she concealed her wrongful conduct and the employer had no way of discovering it other than thru her admission at the deposition?

Common Law Recruitment Violations

Fraud or Misrepresentation -A false statement of "fact" made by the employer during the recruiting process (i.e., the interview) pertaining to job terms, salary, promotions, etc. -Employee must have relied on the false statement. -Can include employer's silence or active concealment. Other common law recruitment violations may include: -breach of the implied covenant of good faith and fair dealing, -breach of some other implied contract term (i.e., stated in an employee handbook) -violation of promissory estoppel

Genetic tests

Genetic testing is the analysis of chromosomes and genes to determine whether a mutation is present that is causing or will cause a certain disease or condition. i.e., the test reveals that the person might be more likely to develop cancer, and as a result, the employer does not hire the person.

Case: Johnson v. Transportation Agency, Santa Clara, CA (US, 1987) similar facts to United Steelworkers of America v. Weber, (U.S. 1979), except this case involved a public-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. What happens next?

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.

Bradley v. Pizzaco of Nebraska, Inc. (8th Cir.,1993) The defendant, a Domino's Pizza franchisee, established a "no beard" policy for all it's employees. The plaintiff, a black male pizza delivery driver, informed the employer that he suffered from a condition where he could not shave without having severe discomfort (a condition which affects 50% of the black male population). The plaintiff failed to shave and was fired. The plaintiff filed a Title VII racial discrimination disparate impact suit.

Held: The defendant's "no beard" policy had a disparate impact on black males. The defendant would have to prove the policy was a "legitimate business necessity." The defendant could not do so because being clean shaven is not necessary to be able to drive a pizza delivery truck. Remember the employer defense to disparate impact: the employer's policy is a legitimate business necessity.

Qualitative Aspect of Affirmative Action Plan

How does the employer achieve the placement goal? Advertise for applicants with minority organizations (NAACP, National Urban League, La Raza, NOW). Preferential 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 consideration (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

Scenario: An applicant lists an old employer on the job application. The new employer contacts the old employer to verify and gather information regarding the applicant. Based on information provided by the old employer, the new employer does not hire the applicant. Question: Can applicant sue the old employer for defamation?

It depends on what information the old employer provided. If the information is true, then truth is a complete defense to a defamation claim.

Judicially Imposed Affirmative Action

Judicially imposed affirmative action arises when an employee or the EEOC sues an employer for violating Title VII, and affirmative action is ordered by the court.

Vaughn v. Edel (5th Cir, 1990) the Plaintiff, a black female attorney, was hired as a contract analyst with Texaco. her supervisor (Edel) counseled her with regard to her "low volume of work" and the "excessive number of black people who visited her office." Plaintiff complained to the department manager (Keller) about Edel's criticism, and Keller told her she was becoming a "black matriarch within Texaco" and that "that role was preventing her from doing her work" and "that it must stop." Plaintiff was offended by Keller's comments, so she discussed this with an attorney in the company's legal department. Keller learned of the meeting, so to avoid a race discrimination lawsuit, he instructed Edel "not to have any confrontations with Vaughn about her work." He also told Edel that if he was dissatisfied with her work, he should "let it ride. If it gets serious, come back to see [Keller]." Between 1985 and 1987, Edel did not criticize her work. Written annual evaluations rated her work as "satisfactory." She also received a minimum pay raise in 1986. Keller testified that he had overstated her evaluations as "satisfactory" because he "did not have the time" to go thru the procedures required for a lower rating. In 1987, as part of a company-wide cost-cutting initiative, the department fired the 2 lowest rated employees, Vaughn and a white male. Vaughn filed a complaint with the EEOC alleging racial discrimination in violation of Title VII. EEOC found "no reasonable cause" and dismissed the complaint. Vaughn filed suit in US District Court, which found as a matter of fact that she had excessive visits and her work volume was down. It held that the failure to criticize her work, and her termination, were not the result of racial discrimination. The court dismissed the suit. Vaughn appealed.

Legal Analysis & Holding: The Plaintiff presented direct evidence (statements or documents) that a discriminatory reason was "a factor" in her termination. The direct evidence was the desire to avoid a racial discrimination lawsuit, the desire to have no confrontations, not to criticize her work, the comment that she was becoming a "black matriarch." These actions and comments were taken because the Plaintiff is black. The Plaintiff therefore satisfied her prima facia case. The court held that Texaco's LNDR defense (that it fired the 2 lowest-rated employees as a cost-cutting initiative) was a "mere pretext." Not criticizing her work when unsatisfactory and not counseling her on how to improve her performance was discriminatory. Although the defendant ignored its procedures (to give her a lower rating) due to "convenience" rather than racial hostility, nevertheless it was still racially motivated. *Held: Reversed. The court said, "This circuit will not sterilize a seemingly objective decision to fire an employee when earlier discriminatory decisions have infected it."*

Do's for Employee Termination

Make termination the last step in a clear and fair process, being certain you have the facts. Be sure the person terminating the employee is the employee's direct supervisor. Be prepared with answers to basic questions such as the official end date and any severance benefits. Consult with the human resource department to identify any benefits available; give the employee a written list of information about benefits and policies. Invite a trained HR representative to attend the meeting. Listen respectfully.

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.).

Acceptable Questions: Application Phase

Name (but not "what type of name is that?") and address (?) Education (but only if business justified)

The Application Phase

Once the employer has recruited a group of applicants, the next step is to gather additional information about each applicant. An employer runs a risk of disparate impact liability by asking for the applicant's address during the application phase. ex: if the applicant states that he or she resides on 16th Street in Newport News, is there the potential for the employer to make an assumption regarding the applicant's race because of that address? Does the employer really have a "need to know" the applicant's actual address, at this stage in the process, or is it sufficient to simply ask in which city/county the applicant resides?

​Appraisals & Evaluations

Periodic assessments of an employee's performance are used by employers to identify employees for promotion, demotion, retention, termination, transfers, training, bonuses and raises. The potential for discrimination exists, depending on how they are conducted (subjective) and how they are used by the employer.

Amendments to EO 11246

Pres. Reagan 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 Congres

Employer exceptions under the EPPA

Private sector employers whose primary business is to provide security services Employers involved in the manufacture, distribution or dispensing of controlled substances Federal, state and local government employers

Progressive Discipline

Progressive discipline involves a set of graduated steps in attempting to correct an employee's workplace behavior. Whatever the steps, they need to be implemented across the board and nonarbitrary in manner.

Benefits of Ineligibility Tests (i.e., random drug testing)

Reduce workplace injury Provide safer work environment Predict employee performance Deter poor employee performance Financial benefits to employer: -Reduce absenteeism -Increase employee productivity -Reduce employer's cost of workers' compensation insurance Employee's refusal to submit to test is a valid reason for termination under the employment at will doctrine. VA Code §65.2-813.2 requires every workers' compensation insurance company to provide a premium discount of up to 5% to every employer instituting and maintaining a drug-free workplace program.

Case: Ricci v. DeStefano (U.S., 2009) The Fire Deptartment for the City of New Haven, CT administered a test for promotion to Lieutenant and Captain.A minimum score of 70% was required for passing. The city contracted with a private-sector company that specialized in designing initial-entry and promotion tests for police and fire departments across the country. Passing Rate for Captain/Lieutenant exam: 64% of the whites passed the Captain test; 58% of the whites passed the Lieutenant test Applying the 80% Rule we MUST have at least 51% of the blacks passing the Captain test and 46% of the blacks passing the Lieutenant test only 38% of the blacks passed the CPT test and only 32% of the blacks passed the LT test. Fearing that the blacks would sue the City for disparate impact, the City discarded the test results and did not promote anyone The lead plaintiff was Frank Ricci who spent a lot of time and $ preparing for the test 18 firefighters (17 white and 1 Hispanic) who had passed the test filed suit against the City for disparate treatment racial discrimination in violation of Title VII and in violation of the Equal Protection clause of the 14th Amendment. Lt. Ben Vargas, the lone Hispanic petitioner, was allegedly attacked by unknown black assailants in 2004 and had to be hospitalized afterwards. He stated that he believed the attack was orchestrated by the black firefighters in retribution for joining with the 17 white plaintiffs in this case. The City's defense was that if it had certified the results and promoted the eligible individuals, it could have been sued for disparate impact What occurs next?

The Supreme Court cited examples of the steps taken by IOS Solutions, Inc. (the private-sector company that designed the test), which included: interviews observations education test format compliance and independent assessors With that information IOS produced a test that reduced adverse impact to the protected class. Despite the poor performance by the black firefighters, there was no evidence that the tests were flawed (because either they were not job-related or because other, equally valid and less discriminatory tests were available to the City). Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Because of the politically volatile nature of the case, the court refused to discuss the Equal Protection claim. This was a 5-4 decision. The 5 justices in the majority were Kennedy, Roberts, Scalia, Thomas and Alito. The 4 justices in the dissent were Ginsberg, Stevens, Souter and Breyer.

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

How does the government determine if the contractor is complying with the AA plan?

The contractor must develop and implement an internal auditing system that measures the effectiveness of the affirmative action plan. OFCCP 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. OFCCP performs audits of contractors to determine if they are complying

3rd Element of a Prima Facia case: "Employee was rejected [for a discriminatory reason] . . ."

The employee can prove discrimination (adverse employment action) through direct or circumstantial evidence that a discriminatory reason was "a factor" in the adverse employment decision42 USC §2000e-2(m) provides: 42 USC §2000e-2(m) provides: 42 USC §2000e-2(m) provides:

Job Group Analysis

The employer must list the % of minorities and the % of women it employs in each of the following job groups (note that several job titles that have similar content, wage rate and opportunities are combined and included in one job group): 01 - Officers and Managers 02 - Professionals 03 - Technicians 04 - Sales Workers 05 - Office and Clerical 06 - Craft Workers (Skilled) 07 - O peratives (Semiskilled) 08 - Laborers (Unskilled) 09 - Service Workers % of women in each job group = the number of women in each job group divided by the number of total employees in each job group % of minorities in each job group = the number of minorities in each job group divided by the number of total employees in each job group

Organizational Profile

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. It must show: Job title, gender, race, and ethnicity of the unit supervisor Total number of male and female employees in each unit Total number of male and female employees in each unit, broken down by the various minority categories.

availability

The number of women and minorities in the employer's geographic area that the federal government says is "qualified" for the particular job

What if the Eligibility Test has a disparate impact on a protected class? For example, the employer requires an English language test be administered to all applicants for customer service positions.

The test is exempt from claims of Disparate Impact if: Test is professionally developed and not designed, intended or used to discriminate, or Test is job-related and a legitimate business necessity, but is there a less discriminatory screening device? -The employer must produce scientific evidence ("job analysis") that an applicant's test score has a significant correlation to her ability to perform the job.

Note the scenario Mark-Jonathan is the supervisor of 12 employees, ,most of whom generally perform adequate work in conformance with company job descriptions and standards. However, he has had problems in completing the performance appraisals of two employees. The first employee is Gordie, a young man who went through a divorce during the past year. He was awarded custody of his children and has had a difficult time throughout this past year balancing his increased familial responsibilities with his job requirements. He has missed several important meetings as a result. Gordie has received two written warnings about his inadequate performance, and a poor year-end performance appraisal would mean an automatic dismissal. However, Mark-Jonathan is confident that Gordie will be able to successfully manage these two priorities in the coming year, if only given the chance. Does Mark-Jonathan draft an honest appraisal of his past performance with the knowledge that it would mean Gordie would lose his job according to company policy, or does he decide to use his discretion and offer a less-than-truthful assessment, knowing that it is in the company's best interest to retain this employee? ​​Marl-Jonathan's dilemma is accentuated by the fact that he is to review Julio, an Argentinean worker who holds a position similar to Gordie's. Julio is consistently late for work and also has received two written warnings about his inadequate performance. Mark-Jonathan has no idea why Julio arrives late, and, when asked, Julio offers no sufficient justification. If Mark-Jonathan writes a performance evaluation that highlights this poor behavior, similar to Gordie's, and terminates Julio but not Gordie (a white male), he is concerned about the potential for discrimination implications.

There is no intent to discriminate, but should the supervisor take into account the personal difficulties and life events of Gordie? If so, he must do that for all employees

What is Race?

Title VII does not define "race" but it was "understood" at the time it was enacted to mean white and black. The EEOC has also not defined "race." However, according to Federal Office of Management and Budget (OMB), race includes: 1. Black or African American (Not Hispanic or Latino) 2. Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) 3. Asian (Not Hispanic or Latino) 4. American Indian or Alaska Native (Not Hispanic or Latino) 5. White (Not Hispanic or Latino) 6. Two or More Races (Not Hispanic or Latino)

Federal Statutory Regulation of Recruitment

Title VII of the Civil Rights Act of 1964 -"Unlawful for an employer to print or publish any advertisement indicating any preference based on race, color, religion, sex or national origin," except for BFOQ. Age Discrimination in Employment Act of 1967 -"Unlawful for an employer to print or publish any advertisement indicating any preference based on age." Immigration Reform and Control Act of 1986 -All employers must determine the eligibility of each applicant to lawfully work in the US. Vocational Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 -Prior to extending a job offer, employer cannot ask disability-related questions or require any medical exams.

What is Racial Discrimination?

Title VII prohibits racial discrimination based on one's: Ancestry: i.e., Asian, European Physical characteristics associated with race: i.e., hair, facial features, color, height, weight Race-linked illness: illnesses that primarily affect a certain race (i.e., sickle-cell anemia) Cultural characteristics and perception: i.e., name, dress, accent Association with someone of a particular race: i.e., white person who is married to a black person or who has multi-racial children Subgroup: i.e., black women with children

T/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

Ineligibility tests

To ensure applicant is free of certain problems (i.e., drug and alcohol abuse). This may be a violation of Employee's Privacy Rights

Eligibility (achievement) tests

To ensure that the potential employee is capable and qualified to perform the requirements of the job (i.e., typing test, vision exam, physical stamina, personality test). *This may result in Title VII Disparate Impact!

Purpose of the Background and Reference Check:

To verify if the information provided in the application and during the interview is true. Is there any information that, if discovered, would disqualify the applicant or could subject other employees, customers or the public to a dangerous situation (i.e., workplace violence, poor driving)?

Case: United Steelworkers of America v. Weber (U.S., 1979): Legal Analysis & Holding

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).

T/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

T/F Although no federal statute requires that an employer document why an applicant was not hired, it is advisable that the employer do so in order to overcome the presumption that the applicant, if a member of a protected class, was not hired for a discriminatory reason.

True

T/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

T/F One way that race and color discrimination can occur in the workplace is if an employer discriminates based on physical characteristics associated with race, such as a person's hair.

True

T/F People of the same race can discriminate against each other based on color.

True

However, what if the information provided was not true, but the old employer believes it to be true? For example, assume the applicant was employed as the old employer's bookkeeper and the old employer suspected that the applicant had stolen money from the company. As a result of those suspicions, the old employer fired the applicant (which the old employer can do, since the applicant is an employee-at-will) but did not tell the applicant why she was fired. The applicant then applies for another bookkeeping position with new employer and discloses on the application that she had previously worked as a bookkeeper for the old employer. In order to verify the applicant's previous work history, the new employer contacts the old employer and asks the old employer about the applicant's job performance. The old employer responds that he fired the applicant because he suspected she had embezzled funds. Based on this information, the new employer does not offer the applicant the job. Assume further that the applicant learns of the information the old employer provided to new employer. The question is: Can the applicant sue the old employer for defamation?

VA Code §8.01-46.1 provides a conditional privilege to the old employer. The statute provides that if an "old employer," upon request by a "new employer," furnishes information about the "applicant's" job performance and reasons for separation, then, provided the "old employer" was not acting in bad faith, the "old employer" shall be immune from civil liability. The statute further provides that the "old employer" shall be presumed to be acting in good faith. So, as long as the old employer had a reasonable basis for suspecting that the applicant had embezzled funds (even if that were not true), then the applicant cannot sue the old employer for defamation.

Google searches and Social Media

Virginia state statute: VA Code §40.1-28.7:5 prohibits an employer from requiring an employee or applicant to disclose his or her username and password of the person's social media accounts, adding the employer as a "friend" on the account or taking any adverse action against the person for refusing to disclose his or her username and password. Google and social media searches are legal, but Title VII means a potential employer can't screen based on age, race, marital status, etc. Note the graphic below showing potential employer's use of social media to screen job candidates and the reasons for not hiring.

Case: United Steelworkers of America v. Weber (U.S., 1979): Facts and arguments the defendant union and the employer (Kaiser Aluminum) entered a collective bargaining agreement which included a voluntary affirmative action plan to eliminate 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. Due to 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 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

Weber's 2 arguments: Plain Meaning Rule ("any" individual means any individual) The Plain Meaning Rule is 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. McDonald v. Sante Fe Transportation Co. (U.S., 1976), which held that Title VII protects whites as well as blacks from discrimination. McDonald v. Sante Fe Trail Transportation Co. (U.S., 1976) 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, the EEOC, US district court, court of appeals and they were all dismissed. Upon appeal to the Supreme court the judgement was reversed on a unanimous 9-0 decision as title VII protects all persons from racial discrimination regardless of race.

At what point does the Ineligibility Test violate the employee's right to privacy?

When the employee's invasion of privacy is "substantially and highly offensive to a reasonable person."

VA Code §40.1-51.4:3:

With regard to the few industry exceptions, this state statute restricts the types of questions that may be asked and requires that the test results must be kept confidential.

The OMB states that these categories (race) are "social-political constructs

they should not be interpreted as being genetic, biological or anthropological in nature." In other words, an individual should select whichever one or more races he or she "identifies" with (on any particular day?), regardless of whichever race he or she was born into. Rachel Dolezal, former president of the Spokane, Washington chapter of the NAACP is biologically white because her biological parents, although Rachel "identifies" as black. in 2015 she was forced to resign after allegations that she lied about her race. However, how can one "lie" about one's race if one "identifies" as being a member of that race? US Senator Elizabeth Warren (D-MA) identifies as American Indian. During the early 1980s, Warren was a law professor during which time she identified as white. However, she aspired to be a law professor at Harvard University, and when she applied for a vacancy at Harvard in 1992, she identified, at that time, as American Indian. Did the fact that Harvard actively pursued a diversity in hiring program have any bearing on Warren's sudden self-identity with American Indian?

Employee must prove that the harassment was:

unwelcome, based on race, so severe that it altered the conditions of employment and created a hostile or abusive work environment, and there is a basis for holding the employer liable (i.e., if the harassment was permitted by a supervisory employee).

E.O. 11246 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.