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

Importance for employers: -legal fees and settlements -negative image created

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

Important Laws & Concepts Related to Diversity

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

More recent BFOQ case:

Hooters (video)

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