Equal Employment Opportunity and illegal employment discrimination

Equal Employment Opportunity and illegal employment discrimination

Hajar Erkik

Al Akhawayn University

Abstract

As we all know, the workforce is a diverse lot, there is a vast array of demographic backgrounds that often influence the employer’s policies and decisions. Therefore, it is important for any employee or candidate to be aware of the types of discrimination he or she might face and differentiate among the evidences he or she can demonstrate in a discrimination lawsuit. The present research focuses on providing various examples and cases to prove employment discrimination and transgressions of equal employment opportunity law. We have come to an overall of six pieces of evidence, half of which shows a purposeful type of discrimination and the other half shows an unintentional type of discrimination. These findings can apply to any job situation and will surely help employees or candidates defend themselves. The main goal is to simultaneously combat job-related discrimination and promote equal employment practices in the majority of organizations.

Equal Employment Opportunity and illegal employment discrimination

In the past few years, considerable attention has been given to the dilemma faced by employers who intend to obtain an optimally qualified workforce, but at the same time want to avoid employment discrimination which is prohibited by the Equal Employment Opportunity (EEO) Law in Title VII (Bohlander, Snell, & Sherman, 2001). Employers should implement and promote Equal Employment Opportunity policies that provide for all applicants and employees an equal opportunity to compete for jobs for which they are qualified and an equal treatment in employment. Thus, the overall goal of these policies is to prevent employment discrimination, which can be viewed as unjust actions against the members of a particular group in comparison with the members of other groups. The group members that are currently protected by Equal Employment Opportunity legislation are those excluded on the basis of: national origin, race, color, religion, sex, age, pregnancy and disability. Such bases are prohibited, unlawful and unrelated to the job. (Bogardus, 2004, p.24)

The courts defined discrimination in two main ways (Wolkinson 2000): disparate treatment and disparate impact (Boxall, Purcell, & Wright, 2007).  In EEO cases; to prove either one, the court system relies on the concept of burden of proof: At first, it’s the plaintiff who has the burden of proving that the employer, in some way, overtly discriminated against a member of a protected class. That’s to say, the plaintiff has to demonstrate a prima facie case of discrimination which means that at first sight, the employer had discriminated. Once a prima facie case has been demonstrated, it’s the employer who has the burden of proving that its actions were not illegal and are justified by valid business reasons (Fisher, Shoenfeldt, & Shaw, 1993).

To prove a case of employment discrimination, the protected class member should provide evidence to indicate the existence of a disparate treatment (intentional discrimination) or a disparate impact (unintentional discrimination). Accordingly to the type of discrimination the applicant or the employee was subject to, there are various types of evidence available, as we will see in what follows.

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Proving Disparate Treatment

Disparate treatment is a form of purposeful discrimination that occurs when minority members of a protected class receive different or unequal treatment in comparison with majority members or other individuals. This intentional discrimination is motivated by their minority status on the basis of their race, age, gender, national origin, religion, disability or pregnancy (John Moran, 1997, p.166 as cited in Dessler, 2005, p.46). There are three basic ways to show the existence of disparate treatment:

The first type of proof is based on direct evidence. It is a pure bias that relies on an obvious and direct expression of inequality towards a particular employee within a protected class. It may be statements or job advertisements that expressly select a candidate on the basis of his demographic background (age, gender, origin…) as being one of the qualifications or requirements to do the job. In such a case, many examples can be provided such as statements by the employer such as “We do not hire blacks as managers” (Fisher et al., 1993), or job advertisements such as “Management trainee position: women need not apply”.(Fisher et al., 1993). Similarly, when hiring only men for craft jobs such as carpentry or electrical work. (Bohlander et al., 2001), or requiring only women to pass a physical ability test. (Bogardus, 2004, p.25) or even rejecting a disabled employee (a financial analyst unable to walk) who applied for a job for which he has all the qualifications and requirements. (Cascio, 2003, p.80). The case of Weeks v Southern Bell Telephone Co. perfectly illustrates the existence of direct evidence against discrimination: Ms. Weeks and one other male employee of Southern Bell Telephone Co. applied for a job as a switchman. The employer told Ms. Weeks that this position is only for men and the other employee was placed in it although he had less seniority than Ms. Weeks., knowing that there was a clause requiring seniority as a deciding factor for selecting employees in the job-bidding process. Ms. Weeks filed a complaint with the Equal Employment Opportunity Commission (EEOC) and then filed a lawsuit against Southern Bell. (Bogardus, 2004, p.26). This case resulted in a ruling saying that it is illegal to restrict women from performing some job duties by assigning requirements that are not related to job performance.

The second type of proof is based on circumstantial evidence, which means that the employer seeks a pretext for illegal discrimination. The case of McDonnell Douglas v. Green exemplifies a circumstantial evidence against discrimination: Green, a black employee was laid off by McDonnell Douglas Corp. as a consequence of a massive work force reduction. He then protested for racial discrimination by blocking the highway accesses to the company, an action for which he got arrested. Afterwards, he applied for the same job but was rejected. That’s why he filled a case of racial discrimination against the company. McDonnell Douglas defended itself by stating that the rejection of Green was only due to his illegal action against it (the blocking of highways to the plant). On the other hand, Green failed to prove that his rejection was actually just a cover-up for a racially discriminatory decision (Fisher, Shoenfeldt, & Shaw, 1993). Boxall et al. (2007) reports the ruling that resulted from this case saying that in order for an employee to establish a prima facie case of disparate treatment:

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