Equal Employment Opportunity and illegal employment discrimination

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First, the individual must be a member of a protected class and be qualified for the job for which she or he applied. Second, the position must have remained open with the employer continuing to take applications from people with qualifications similar to the rejected applicant. (p.253)

The third type of proof is based on retaliation. It is a form of disparate treatment that include purposeful punitive actions such as firing demoting, harassing or salary reduction, reduced work responsibilities, transfer to a less desirable job, or otherwise unfair treatment against employees who use their legal right to file discrimination charges or a racial bias suit or to support other employees during EEOC proceedings. According to court rulings, employees whose employer mistakenly believes that they had filed a charge of discrimination or employees whose spouse had actually filed a charge of discrimination must be protected against retaliation. However, employees who suffer from retaliation can seek injunctive and immediate relief from the EEOC (Fisher et al., 1993). In one case, a black woman who was fired in retaliation for filing a racial bias suit with the Indiana Civil Rights Commission (an FEP commission), received a $64,000 award in damages (Atkinson, 1997, p.20 as cited in Bohlander et al., 2001, p.67).

Proving Disparate Impact

Disparate impact is a form of unintentional discrimination that occurs when organizational practices, policies, or requirements that appear to be neutral have a disproportionately negative effect on employment access or outcomes (e.g., selection, promotion, layoffs) of protected groups (Boxall, 2007, p.253). Such actions are not inherently job related. To pursue an adverse impact claim, there are three major pieces of evidence:

The first type of evidence is disparate rejection rates. It involves comparing the rejection rates for a minority group and the remaining nonminority applicants (Dessler, 2005, p.46). Evidence of adverse impact exists when the selection rate of any protected class or minority applicant is less than four-fifths (or 80 percent) of the rate of the majority applicants (Bohlander et al., 2001, p.63). It is called the Four-fifths rule developed by the EEOC to determine adverse impact.

The following table serves as an example:

Group

Applicants

Hires

Selection Rate

White

80

40

40 hires out of 80 applicants = 50%

Asian

20

1

1 hire out of 20 applicants = 5%

Totals

100

41

41 hires out of 100 applicants = 41%

This example shows that 50% of the white applicants passed the test, but only 5% of the Asian applicants passed, the Asian applicant who is a member of a minority or protected group can prove an adverse impact since 5% 80% x 50%). Then, it becomes the employer’s responsibility to prove that the employer’s selection requirement is an indicator of the performance on the job (Colosimo, 2010, p.5). Another example is when 75% of male applicants are hired, in comparison with only 50% of female applicants. Since 50% is less than four-fifths of 75%: 50% 80% x 75%) adverse impact exists.(Dessler, 2005, p.46-47).

The second type of evidence is restricted policy. It is established when the employer’s policy or procedure excludes protected class members, and this policy must be unrelated to the job performance, whether it is unintentional or not. Evidence of a restricted policy is enough to prove adverse impact and to expose an employer to litigation (Dessler, 2005, p.47). Many examples of restricted policies can be provided: only hiring police cadets who are 5 feet, 8 inches and above (such policy has an adverse impact on Asians, Hispanics, and women) (Cascio, 2003, p.80), or only promoting managers who are able to participate in regular early morning golfing outings, (such policy has an adverse impact on women with young school-age children) (Boxall, 2007, p.254), or requiring all salespersons in a new venture pharmaceutical company to be six feet tall (such policy has an adverse impact on Asians and women) (Bohlander et al., 2001). Among the best examples is the case of Griggs v Duke Power Co.: Willie Griggs, a black worker at Duke Power Company had applied for the position of coal handler. His request for the position was denied because he was not a high school graduate, a requirement for the position. Griggs filed a suit against the company claiming that the diploma requirement had nothing to do with a person’s ability to do the job and that it discriminated against blacks, since fewer blacks had high school diplomas than did whites (Bohlander et al., 2001). This case resulted in a Supreme Court ruling that: First, there can be disparate impact even if a policy is equally applied to all employees and is not intentionally discriminating. Second, there is a disparate impact if the employment requirements are not proved to be job-related or to constitute a business necessity (Bohlander et al., 2001).

The third type of evidence is based on population comparisons. It signifies comparing the percentage of a certain minority or protected class member in a given company to the percentage of the corresponding minority in the relevant local population (Fisher et al., 1993). A radical difference in the two percentages would show a case of adverse impact. For instance, there is an adverse impact when minorities consist of 41.7 % of the local population but only 6% of the company’s workforce (Fisher et al., 1993). For some jobs such as computer programmer or engineer, it doesn’t makes sense to compare the percentage of minority employees with the percentage of minorities in the surrounding community, since recruiting may be nationwide or even global (Dessler, 2005, p.47). Hence, the percentage of minorities who were qualified would probably be much smaller; and the general population comparison would be in favor of the plaintiff.

Discrimination is a main legal and social issue. In today’s EEO environment, being aware of employment discrimination is the first step to build a strong defense against it. There are only two