Discrimination, Affirmative Action and Equity - Essay Example

Of Discrimination, Affirmative Action and Equity: Looking into the Nuances of Managing Diversity BA claims that it has very clear non-discriminatory practices. It further says that its diversity strategy includes raising awareness on the critical issues of disability, gender equality, racial equality, flexible working, religion or belief, sexual orientation, harassment and bullying, end, and other relevant diversity trends. “We are affiliated with the Employer’s Forum on Disability and also collaborate with the Disability Rights Commission to ensure support for this BA strategy” (British Airways’ diversity strategy, online). The following are words shared by the Richard, an Establishment Services Manager at BA: “Working and traveling with BA as a disabled traveler (paraplegic in a wheelchair) I get to see at first hand the service offered to additional needs customer and staff, good and bad. In most instances the service levels are of high standard but if things have not been right on the day, feedback had been acted upon. I would urge all disabled travelers to tell us about their travel experience in order that we can offer the highest level of service” (British Airways’ diversity strategy, online). The company also espouses a strong culture of respect, for which it has deployed an employee questionnaire. Through responses to the survey, it has crafted the following objectives towards building a culture of equality: 1) To build a culture of respect; 2) To recruit and select fairly; 3) To tackle harassment and bullying. Still towards this thrust, BA has joined Stonewall champions scheme last year (2005). It is a venue that advocates diversity within work settings. The emphasis placed on the management of harassment and bullying is captured by BA Chief Executive Rod Eddington, as follows: “Dignity and respect for other people are basic values we must all adopt.  We should all be aware of the impact of our behaviour on others and be tolerant of people who have different values, religions and beliefs to our own.  This applies to our peers, colleagues and customers.”  On age, the company has already proposed flexible retirement and is watching out for the new government regulations on the matter (British Airways’ diversity strategy, online). Figure 1. Diversity trends in BA. Thus, the article on BA which presents that it discriminates against a religious practice – the wearing of a cross of a Catholic – seems contradictory to all of these publicity regarding diversity. This shall surely have an impact on their image as a fair employer and they must thoroughly ensure that they exercise fair practice and do not ostracize employees on the basis of race, color, gender, national origin, or religion. At first glance, the legal aspects of making employment decisions seem complicated. After all, there are many laws and court cases that apply to employment decisions. However, there are steps that will help ensure that employment practice is sound. The first step in determining the legality of an employment practice is to decide whether it refers to a member of a protected class. A protected class is any group of people for which protective legislation has been passed. A federally protected class is any group of individuals specifically protected by federal law. For instance, in the United States Congress but not anthropologists (Rushton, 1995) concur that there are four races – African American, European American (White), Asian American, and Native American Indian (Smothers, 1993). The equal protection clause of the Fourteenth Amendment mandates that no state may deny any person equal protection under the law. Basically, this implies that a government may not intentionally discriminate or allow intentional discrimination to take place. Because any suit filed under the amendment must demonstrate intent, it is not often used (Leonard, 1998). The Civil Rights Acts of 1964 extended the scope of the Fourteenth Amendment, making it legal for employers with more than 15 employees, labor unions, employment agencies, state and local governmental agencies, and educational institutions to: 1) Fail, refuse to hire, discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment because of the individual’s race, color, religion, sex, or national origin; or 2) Limit, segregate, or classify employees or applicants for employment in any way that would deprive or tend to deprive, any individual of employment opportunities or otherwise adversely affect his stature as an employee because of an individual’s race, color, religion, sex, or national origin (Leonard, 1998). Unlike the Fourteenth Amendment, for an employment practice to be potentially illegal under Title VII, the discrimination does not have to be intentional. Instead, proof of discrimination is determined through statistical analysis of selection rates and by the presence or absence of adverse impact (Leonard, 1998). Title VII has been interpreted by the courts to cover not only employment decisions such as selection and promotion, but also the “atmosphere” of the organisation, which includes such behaviour sexual harassment (Broderick v. Ruder, 1988; Brundy v. Jackson, 1971 in Leonard, 1998), age harassment (Louis v. Federal Prison Industries, 1986 in Leonard, 1998), and race harassment (Hunter v. Allis-Chalmers, 1986). Also protected by the Civil Rights Act of 1964 and 1991 is colour. Though commonly used as a synonym for race, the reference to colour protects individuals within one race against discrimination based on variations in skin colour. For example, in the 1989 case of Walker v. Secretary of the Treasury, a district court found that a darker skinned African American supervisor at the Internal Revenue Service illegally fired a lighter skinned African American employee (in Leonard, 1998). The Civil Rights Acts of 1964 and 1991 as well as the Equal Pay Act of 1963 prohibit discrimination based on gender. The courts have ruled that intentional discrimination against either females or males is illegal (Diaz v. Pan American Airways, 1991) but that discrimination against transexuals is not (Sommers c. Budget Marketing, 1991). National origin is protected under the Civil Rights Acts of 1964 and 1991. Note that Hispanics are protected under national origin, not race. Claims of discrimination based on national origin have increased greatly over the past few years, due primarily to unprecedented immigration (M. Barton, 1993). One of the most common complaints is “English only” or “understandable English” speaking requirements. The courts have generally ruled that language requirements are legal if they are job related (Quinn & Petrick, 1993) and limited to communication during “company time” rather than on breaks. Also protected under the Civil Rights Acts of 1964 and 1991 is religion. It is illegal to use an individual’s religion in an employment decision unless the nature of the job is religious. For example, the Catholic church can require its priests to be Catholic but not its clerical staff. The civil rights acts also require organisations to make accommodations for religious beliefs unless to do so would be an undue hardship. Three areas most involved with the 3000 complaints of religious discrimination filed annually with the EEOC are failure to accommodate days of worship, worship practices, and religious attire (Quinn & Petrick, 1993). Many religions forbid their members from working on particular days. For example, Seventh-day Adventists and Jews cannot work from sundown Friday to sundown Saturday, and Greek Orthodox cannot work on Sunday. Such nonwork requirements should not be confused with preferences for nonwork on days of worship (e.g. Protestants working on Sunday or Christmas). Days of worship are often easily accommodated by scheduling employees without religious restrictions to work on those days. When there are few employees, scheduling rotations can be used to reduce, but not eliminate, the number of days of worship that an employee might have to miss. Accommodation becomes legally unreasonable when there are no co-workers available or when overtime will have to be paid to cover an employee’s day of worship. However, with a little ingenuity and proper explanations of an employee’s religious requirements, reasonable accommodations can usually be made (Robinson, Allen, & Abraham, 1992). If the employment practice does not result in adverse impact, it is probably legal. If adverse impact does not result, then the burden of proof shifts to the employer to demonstrate that the employment practice is either job related or exempt from adverse impact. The burden of proof in employment law is different than in criminal law, a defendant is innocent until proven guilty. In employment law, both the Civil Rights Act of 1991 and the court’s ruling in Griggs v. Duke Power (1972 in Leonard, 1998) shift the burden of proof: once adverse impact is established, an employer (the defendant) is considered guilty unless it can prove its innocence by establishing the job relatedness of the test. That employers are treated more harshly than criminals by Congress and the courts is a constant source of frustration among human resource professionals (Robinson, Allen & Abraham, 1992). An employment practice resulting in adverse impact may still be legal as long as the test is professionally developed and job related (valid) and as long as reasonable attempts have been made to find other tests that might be just as valid but have less adverse impact (Seberhagen, 1996). Recently, the courts have indicated that any form of preferential hiring or promotion must undergo a ‘strict scrutiny analysis’, where the courts use five criteria to ‘strictly scrutinize’ the legality of an affirmative action plan involving preferential hiring. It is always legal to actively recruit minorities and to remove barriers (R.K. Robinson et al, 1992). The first criterion examined is whether there has been a history of discrimination by a particular organisation. If no discrimination has previously occurred, then an affirmative action plan is neither necessary nor legal. The second criterion concerns the extent to which the plan benefits people who were not actual victims of discrimination. If the plan benefits only actual victims, it will probably be considered legal; but if it benefits people not directly discriminated against by the organisation, other criteria will be considered. The third criterion concerns which of the two types of populations was used to statistically determine discrimination and to set affirmative action goals. With area populations, an organisation compares the number of minorities in the general area with the number of minorities in each position in the organisation. If a discrepancy occurs, the organisation sets hiring goals to remedy the discrepancy (R.K. Robinson et al, 1992). An example is the case of City of Richmond v. Croson Company (1989 in Leonard, 1998).). Because 50% of the Richmond population is minority, the city required that contractors receiving city funds subcontract the required 30% because there was not enough minority-owned businesses in the city. The US Supreme Court found Richmond’s plan illegal because the goal of the 30% was based on the area population rather than the percentage of relevant qualified minority-owned businesses ( Read More