making diversity count: a teaching approach using legal decisions related to diversity chester spell...
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Making Diversity Count: A teaching approach using legal decisions related to
diversity
Chester Spell
Rutgers University
August 2015
Examples: Discrimination cases Federal EEO (Equal Employment Opportunity)
individual charge filings:2005 75,4282006 75,7682007 82,7922008 95,4012009 93,2772010 99,9222011 99,9472012 99,4122013 93,727
Significant cases:
1989- Shoney’s 9 employees brought
case pencil in the “O” result: $105 million
settlement
Denny’s Numerous problems -discrimination Result- aggressive positive image campaign $54 million settlement Now do millions in business with minority-owned
firms
1994- Texaco taped conversations of racial slurs Result: $176 million in back pay, etc.
Price Waterhouse case: gender discrimination-- not feminine enough?
“you need a course in charm school."
Sexual Harassment
What is the problem?
90% of Fortune 500 companies have had complaintsTailhook scandal Air Force scandal
Addressing sexual harassment
Apply reasonable woman (or man) standard Promote policy, don’t just post on wall or in
memo Test believability of policy (ask employees!) Enforce sanctions, remedies that match the
offense
1: BFOQs (Bona Fide Occupational Qualification)
Example: Diaz vs. Pan American Airways
Can an airline employ only women as flight attendants? Is gender a BFOQ for this job?http://www.youtube.com/watch?v=TR7JApjgIGw
2: Disparate impact
Griggs vs. Duke Power case Company used high school diploma and
IQ tests Excluded most African-Americans Had disparate impact and not related to
job
Significance of disparate impact: Even if discrimination is not intentional, consequences of employment practice must not have adverse impact
The 4/5 Rule: impact if selection rate for protected groups is less than 4/5 (80%) of selection rate for majority
More recent related case Ricci v. DeStefano (2009) New Haven firefighters (19 white, one
Hispanic) passed test, city threw test out since no African-Americans were eligible for promotion
Supreme Court said should not have thrown out test
3 million in legal fees + other payments
Contemporary Cases and Laws
Employment Non-Discrimination Act Congressional Action on workplace
legislation
Affirmative Action(AA)What is it? Difference between Equal Employment (EO)
and AA: EO is an obligation AA is generally voluntary EO prohibits, AA promotes EO is neutral with respect to protected
characteristics, AA gives preference
More on AA:Firms with 50+ employees and government
contracts of $50,000+ must have AA Plan Many other employers do this anyway
Important AA Case:Hopwood vs. State of Texas (1994) Law school applicants to U of T Found reverse discrimination (separate
committees reviewed applicants) California law on AA in admissions to UC
schools
Summary:Discrimination can come in different forms intentional discrimination practices that have disparate impact on
protected groups•BFOQs important consideration when judging
whether a practice allowed•EEO and AA are not the same thing•Court cases and interpretation of laws show
students how far we have come, but how much more is still in question
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