Equal Employment Opportunity

SITUATION 1 The personnel manager of a local plant of the National Motor Co. Inc. reads through his notes on applicants for a job as foreman:
Paul Dworski—20 years' experience, good references, white, aged 45, male.
Harvey Lincoln—5 years' experience, great references, African American, aged 25, male.
Joan Finch—10 years' experience, good references, white, aged 32, female.
Ed Winston—4 years' experience, fair references, white, aged 25, male.

The personnel manager thinks there is only one candidate for the job. He feels the position should go to a younger white man. He offers the position to Winston. Is this decision fair? Is it legal?

Starting in the 1960s, laws were passed in the United States to prevent unfair hiring decisions based on employers' personal preferences. Under President Lyndon B. Johnson, the Civil Rights Act of 1964 was passed prohibiting hiring, promoting or demoting, or firing an individual on the basis of race, sex, color, religion, or national origin. Businesses that engage in interstate commerce and that have at least 15 employees were made subject to this law. In 1972, amendments extended the coverage to government employers. They also added enforcement powers. The Civil Rights Act of 1991 added new remedies for violations of Title VII and provided for jury trials. The Civil Rights Act also created the Equal Employment Opportunity Commission to enforce Title VII. This commission can take action on charges of discrimination made by an individual or a group of individuals or based on its own investigations.

The Civil Rights Act was followed by other federal laws. The Age Discrimination in Employment Act of 1967 prohibits putting older workers (age 40 or above) at a disadvantage with respect to employment opportunities. The Rehabilitation Act of 1973 makes it illegal for some employers to deny people jobs (for which they are otherwise qualified) because of physical, mental, or emotional handicaps. The act applies to employers who do work for or receive funds from the federal government.

What kinds of handicaps does the Rehabilitation Act cover? Would the handicap described in the following situation apply?

SITUATION 2 A school teacher was fired because she had tuberculosis, a contagious disease. She sued, saying that her dismissal violated the Rehabilitation Act. At issue was the question of whether a contagious disease was a handicap under the act.

In 1988, the U.S. Supreme Court ruled that a teacher could not be fired solely because of having a contagious disease that his or her employer feared might be spread. In the ruling, the Court extended the definition of handicapped in this act to include persons with infectious diseases. What if the teacher did pose a risk to students? That question, the Court felt, should be decided locally, as a matter of meeting the general qualifications of the job.

Congress later amended the Rehabilitation Act to clarify that point. Now, an individual with a contagious disease who does not pose a direct threat to others and who is able to perform his or her job is covered under the Rehabilitation Act.

The Americans with Disabilities Act (ADA) extended protection for qualified disabled persons. Unlike the Rehabilitation Act, it is not limited only to employees who do work for or receive funds from the federal government. It applies to employers, government agencies, and labor unions that have more than 15 employees.

The ADA requires employers to make reasonable accommodations for qualified applicants and employees with a disability if the accommodations will help the applicant or employee perform the essential functions of a particular position. Such accommodation must not cause undue hardship to the company, however, nor can it create a direct threat to the health and welfare of other employees or the public.

What is a "reasonable accommodation"? It might be making facilities accessible, buying special equipment, reassigning the employee, providing the employee with a leave of absence, or modifying policies. It could mean providing qualified readers or interpreters. What is "undue hardship" to the company? The courts look at the employer's budget, the number of employees, and the number and cost of facilities. The nature and cost of the accommodation itself are also weighed.

The ADA covers individuals who test positive for HIV (Human Immunodeficiency Virus). However, in 1994, a federal district court in Philadelphia dismissed the claims of an HIV-positive surgeon who brought suit under the ADA and the Rehabilitation Act. The court found that the surgeon posed "a significant risk" and a "direct threat" to the health of patients who undergo surgical procedures. As a result, the surgeon was not protected by these acts. The ADA also protects employees from discrimination based on their association with an individual with a disability. For instance, an employer is prohibited from terminating an employee because the employee associates with an individual who has AIDS (Acquired Immune Deficiency Syndrome).

All of the people covered by these acts are in "status categories." People are in status categories because of events beyond their control; for example, a person cannot "control" his or her age or ethnic origin. Exclusion on the basis of status categories is called discrimination. It is illegal. Courts look closely at the rules and practices of employers that are said to discriminate. One thing they consider is how related these rules and practices are to performing the job. For example, a company might have a rule that all electrical engineers must have college degrees. This requirement might be said to discriminate against African Americans because fewer blacks than whites have college degrees. However, the rule is clearly relevant to the job. Therefore, a court would allow such a rule to stand.

How do you think the court ruled in the real case described in situation 3?

SITUATION 3 Sprogis, a flight attendant, was discharged by United Airlines after being married. She sued because male flight attendants could be married and keep their jobs. United Airlines claimed that their rule had a reasonable basis. It said husbands of female attendants would complain about the hours. The airline claimed that male passengers preferred single flight attendants.
The court ruled in favor of Sprogis. The company had clearly set up a rule discriminating on the basis of sex. The court also said that marital status was not relevant to the job. Generally, courts have found discrimination on the basis of marital status to be illegal unless it is somehow relevant to the job. Sprogis v. United Airlines, Inc., 444 F. 2d 1194 (7th Cir. 1971)

Affirmative Action

Affirmative action is a process to correct inequalities in employment that have typically occurred in the past. That is, affirmative action provides opportunities to those who have previously been denied opportunities. It has been used mostly with government employers and employers that have federal contracts (that is, those who do work for or receive funds from the federal government). However, other employers often have voluntary affirmative action programs.

Courts sometimes order affirmative action to correct past discrimination. Suppose a large company has only a few women employees. That company could be required by the court to advertise job openings so that more women can compete for jobs. Or it could be required to hire enough women to match the percentage of females in the general population.

Situation 4, a real-life example of affirmative action under the Civil Rights Act, illustrates further:

SITUATION 4 A trucking company in Atlanta had two types of drivers: over-the-road and in-town. Over-the-road drivers carried truckloads of goods from Atlanta to Houston, Texas, and back. In-town drivers made local deliveries. Over-the-road drivers started at a lower rate of pay than did the in-town drivers. After a few years of experience, the over-the-road drivers made more money. Only white men were hired as over-the-road drivers. Most of the in-town drivers were African American. After complaints arose, the Equal Employment Opportunity Commission told the company to make some black drivers over-the-road drivers. The company refused.

Eventually, the U.S. Supreme Court made the company transfer some blacks to the over-the-road group. Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). The company also had to hire new drivers to balance the ratio of blacks and whites in both groups of drivers. Several black drivers had been denied the chance to become over-the-road drivers. The employer was also required to pay them the higher wages they would have received. Because the union was responsible as well, it had to pay some lost wages. The contract between the union and the company had to be rewritten to prevent future discrimination.

Keep in mind that affirmative action was designed to help offset unfair treatment of women and minority workers in the workforce. How, then, does affirmative action apply in situation 5?

SITUATION 5 Allan Bakke, a white male, applied to medical school and was not accepted. The school had an affirmative action policy that reserved a certain number of places for minority applicants. Several minority students with lower qualifications were accepted over Mr. Bakke. He sued on the basis of what has been called reverse discrimination.  

In 1978, the Supreme Court found that Mr. Bakke's equal protection rights had been violated. University of California Regents v. Bakke, 438 U.S. 265 (1978).  When workers are laid off, the Supreme Court has in several cases protected the seniority rights of workers (that is, those who have been working for a company the longest) over those hired under affirmative action. In a 1988 decision, the Court majority said that taking away jobs can seriously disrupt lives. Such action puts "the entire burden of achieving racial equality on particular individuals." The Court felt that the burden was too great.

Affirmative action has been controversial. Those in favor of the policy say that lack of an affirmative action policy will lead to continued discrimination. Opponents argue the unfairness of reverse discrimination. Affirmative action has also been threatened by increasing political pressure to limit or abolish it. The outcome of this controversy is unclear, but we can expect to see changes in the area of affirmative action in the future.

Although the Supreme Court has continued to uphold affirmative action hiring plans, many of its decisions have weakened affirmative action. For example, the Court has put more of the burden of proving on-the-job discrimination on minorities and women. In 1989, the Court overturned an affirmative action plan favoring minority contractors in Richmond, Virginia. Similarly, the Georgia Supreme Court soon after rejected an Atlanta ordinance that favored minority and women contractors. These decisions have made claims of violation of affirmative action more difficult to prove.

Drug Testing and Privacy

Requiring tests for substance abuse as a condition of hiring or continued employment is also controversial. Opponents argue that drug testing without suspicion of wrongdoing violates an important constitutional right. The Fourth Amendment provides protection against government search and seizures without reasonable suspicion of wrongdoing. Drug testing is a type of search. In determining whether to test for drugs, the courts must balance conflicting interests. Should testing take place only if there is a reasonable suspicion of drug use? Which is most important: preserving a constitutional right or efforts to limit drug use?

In general, testing by private employers is legal because the Constitution applies only to government action. However, drug testing is a subject for mandatory negotiation in union contracts. As of 1990, the Supreme Court had generally approved testing by public employers of employees in jobs in which there was a compelling interest in public safety. For example, it had upheld testing of railroad employees involved in accidents that resulted in fatalities. It had also upheld testing of U.S. Treasury Department employees seeking positions in which they would carry firearms or act to control drugs. Random testing of justice department workers, railroad employees, and truck drivers, on the other hand, has not been upheld.

In 1990, Georgia laws authorized random testing of employees in high-risk jobs, and a 1995 Georgia law now requires drug testing for certain state positions. It also mandates that applicants for those positions submit to drug testing as a prerequisite to employment.