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Date: 01.02.2018

The Guilty Party (2003)

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The restaurant fires Jamal, one of its African American drivers, for failing to remain clean shaven. The severity of the condition varies, but many of those who suffer from PFB effectively cannot shave at all. If Jamal or EEOC were to challenge the no-beard policy as unlawful because it has a significant negative impact on Blacks, the employer would have to prove the policy is job-related and consistent with business necessity. Accordingly, Title VII forbids not only recruitment practices that purposefully discriminate on the basis of race but also practices that disproportionately limit employment opportunities based on race and are not related to job requirements or business needs.

Job Advertisements and Employment Agencies Title VII specifically forbids job advertisements based on race, color, and other protected traits. Word-of-Mouth Referrals While word-of-mouth recruiting in a racially diverse workforce can be an effective way to promote diversity, the same method of recruiting in a non-diverse workforce is a barrier to equal employment opportunity if it does not create applicant pools that reflect the diversity in the qualified labor market.

Homogeneous Recruitment Sources Title VII is violated by recruiting persons only from largely homogeneous sources if the recruitment practice has a racial purpose, or if it has a significant racial impact and cannot be justified as job related and consistent with business necessity. For example, Title VII might be violated if a municipal employer with an overwhelmingly White population and workforce abuts a major city with an overwhelmingly Black population, but the municipality only hires its own residents and refuses to advertise its jobs in newspapers that circulate in the abutting major city.

Discriminatory Screening of Recruits The process of screening or culling recruits presents another opportunity for discrimination.

Race obviously cannot be used as a screening criterion.

Nor may employers use a screening criterion that has a significantly disparate racial impact unless it is proven to be job related and consistent with business necessity. The executive tells the recruiter that in addition to excellent secretarial skills, she wants only to interview candidates who will relate well with high level executives inside and outside the company. This violates Title VII. This means that employers cannot treat persons of different races differently in the hiring or promotion process.

Nor may employers use selection criteria that have a significant discriminatory effect without being able to prove that the criteria are job-related and consistent with business necessity. Uniform and Consistently Applied Standards When making hiring and promotion decisions, employers must apply the same selection criteria to persons of different races, and apply them in the same way, giving the same weight to each criterion for each person.

The reasons given for selection decisions should be credible and supported by the evidence. The following are examples. Malcolm is well qualified; he has a B. The employer interviewed Malcolm and eight other candidates.

Malcolm was one of two finalists brought back for a final round of interviews.

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The investigation reveals that, based on objective qualifications, Kai was deemed one of the top candidates but the job ended up going to Ted, a similarly qualified White candidate from outside the company. However, the investigation reveals that although Ted did work for another company in the industry, it was not really a competitor. The witnesses also tell the investigator that, until now, the company practice had been to prefer qualified internal candidates over similarly qualified external candidates.

There is reasonable cause to believe that Kai was discriminated against based on his race or national origin. She consistently has received outstanding performance evaluations. Each of the last four years, Rita has applied for openings for jobs in her office in a higher grade.

The agency has rejected Rita each time. After the fourth rejection, Rita initiated EEO counseling, and then a formal complaint, because she believed she had been repeatedly discriminated against.

She stated that four White employees were promoted over her, each time for a different reason. The investigation reveals that the agency actually did apply the same promotion criteria during each selection.

Importantly, however, witness interviews and documentary evidence e. In other words, it appears that when a job-related qualification favored Rita it was deemed less important than when a qualification favored a White candidate. Moreover, statistics reveal that Whites are promoted more often than similarly qualified African Americans. There is reasonable cause to believe Rita was discriminated against based on her race.

Title VII provides that, if a selection standard is shown to have a significant impact based on race, the employer must demonstrate that the standard is job-related and consistent with business necessity. For example, graduation from medical school is required to practice medicine. However, employers often impose educational requirements out of their own sense of desirable qualifications.

Such requirements may run afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job.

The Guilty Party? In New Haven, It Had a Candidate - The New York Times

Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality. She took the job right after college and now is departing after three years to go to graduate school. Sylvia, an African American, applies for the job. Sylvia is a successful graduate of the local business institute, and has spent the last five years working as a secretary for a regional bank, rising a year ago to become the Executive Secretary in one of its major departments.

Statistical evidence shows that in the local labor market African Americans and Hispanics in the pool of administrative and clerical workers are significantly less likely to have college degrees than Whites.

Most importantly, the employer presents no evidence that a college degree is more predictive of, or correlated with, job performance than a degree from a business institute plus significant relevant experience i.

The evidence establishes that the employer has violated Title VII because the college-degree requirement screens out African Americans and Hispanics to a significant degree but it has not been demonstrated to be job related and consistent with business necessity.

Employment Testing Employment testing is another practice to which the disparate impact principle frequently is applied. This does not mean an employer cannot change the way it grades employment tests. For example, an employer may go from a straight ranking system to a grade banding system i. For example, an employer cannot reject Black applicants who have conviction records when it does not reject similarly situated White applicants. Generally, employers will be able to justify their decision when the conduct that was the basis of the conviction is related to the position, or if the conduct was particularly egregious.

Arrest records are treated slightly differently. While a conviction record constitutes reliable evidence that a person engaged in the conduct alleged i. Diversity and affirmative action are related concepts, but the terms have different origins and legal connotations. Workforce diversity is a business management concept under which employers voluntarily promote an inclusive workplace.

Title VII permits diversity efforts designed to open up opportunities to everyone. For example, if an employer notices that African Americans are not applying for jobs in the numbers that would be expected given their availability in the labor force, the employer could adopt strategies to expand the applicant pool of qualified African Americans such as recruiting at schools with high African American enrollment.

Bollinger that attaining a diverse student body can justify considering race as a factor in specific admissions decisions at colleges and universities without violating the Equal Protection Clause or Title VI of the Civil Rights Act of Liability can result from the conduct of a supervisor, coworkers, or non-employees such as customers or business partners over whom the employer has control.

While there is not an exhaustive list, examples include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.

To determine if a work environment is hostile, all of the circumstances should be considered. Incidents of racial harassment directed at other employees in addition to the charging party are relevant to a showing of hostile work environment.

Unwelcome Conduct The conduct must be unwelcome in the sense that the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive.

When the conduct involves mistreatment or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged harasser and victim are of the same race. The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact, a willing participant.

Severe or Pervasive To violate Title VII, racially abusive conduct does not have to be so egregious that it causes economic or psychological injury. Relevant factors in evaluating whether racial harassment creates a sufficiently hostile work environment may include any of the following no single factor is determinative: The more severe the harassment, the less pervasive it needs to be, and vice versa. Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of offensive racial conduct or remarks generally do not create an abusive working environment.

After a racially charged dispute with a White coworker, the coworker told Tim: After her first day on the job, a small group of young male coworkers starts making fun of her when they see her by slanting their eyes, or performing Karate chops in the air, or intentionally mispronouncing her name. This occurs many times during her first month on the job.

Steven approaches his supervisor, White, with the idea of creating a section in the stacks devoted to books of interest particularly to African Americans, similar to those he has seen in major bookstore chains. This statement alone, while racially offensive, does not constitute severe or pervasive racial harassment, absent more frequent or egregious incidents. Whiteboys like you might get all the breaks in your world, but not here. For example, the manager would assign Patrick the majority of the uninteresting and routine work, and would set artificial and unrealistic deadlines.

The manager would yell at Patrick when he made a mistake due to having to rush. The manager also frequently failed to inform Patrick of important meetings, or ignored Patrick when he spoke at meetings he did attend. The totality of the evidence supports the conclusion that Patrick suffered from race-based harassment sufficient to alter his working conditions. She is the first African American, and the first woman, to be hired by the company.

All of the other employees are White or Asian American men. During her first few weeks on the job, several employees made insensitive comments to her.