PSY 6430 Unit 2

1. PSY 6430 Unit 2 Legal Issues Continued Schedule Wednesday, 1/28 and Monday, 2/02: Lecture Wednesday, 2/04: Exam

2. Supreme Court 92 District Courts SO1: Court structure, Title VII casesTitle VII cases are tried in the federal court system 9 justices 3 judges 1 judge Eleven Courts of Appeals Corresponding to Eleven Circuits (MI is in the 6th; in most cases, trials heard by judges, not juries: click; CRA1991 permits trials intentional disc when compensatory Or punitive damages. Different laws in different parts of the country until a case reaches the Supreme Court- most liberal, 9th, CA notorious)

3. SO2: EEOC administrative process • Before an individual can pursue redress in court under Title VII(usually followed by OFCCP as well) • File a complaint with the EEOC • Exhaust all internal administrative remedies • At WMU an employee must contact Office of Institutional Equity • EEOC may pursue four negotiation steps • Stakes increase at each step - penalties for the company become more and more severe • EEOC can proceed through all four in order, or skip some and start with the most severe one, depending upon the strength of the individual’s complaint (in 1990, OFCCP decided, based on statistics from WMU, to skip the first two and go directly to third step - conciliation agreement. It was lifted in 1995 - I’ll talk more about that in a few minutes)

4. SO2: First negotiation step • No Fault Settlement • Complaint is filed with EEOC • Before EEOC collects any data, a settlement is attempted • Within 10 days of receipt of the complaint, EEOC sends a copy to the company and immediately gives the company an opportunity to settle it • If unsuccessful, moves to informal fact finding • Informal fact finding, settlement attempted again • If successful, it results in a no fault settlement • Company does not admit any wrong doing, but engages in some sort of compromise • If unsuccessful, moves to the next negotiation step

5. SO2: Second negotiation step: Pre-Determination Settlement • EEOC can and usually does subpoena the company’s records • That is how EEOC gets access to the company’s records • EEOC can subpoena ALL of the company’s records, not just the records related to the specific complaint • If it finds something else it doesn’t like, it can “go for it” as well • EEO data are strongly protected by organizations - national security secrets! • Company is invited to respond, if it does the response can be used by EEOC then or in the future • Most lawyers say organizations should never respond; whatever information/data they give EEOC can be used against them • EEOC, based on data, determines probable cause or no probable cause • If no probable cause, EEOC usually withdraws, but individual can pursue remedy in court - constitutional right (with little chance of success) • If probable cause and company settles, no wrong doing is admitted by the company (NY State Court system, job analysis and needed access to those data so I could develop a representative sample, the AA officer refused to give them to me. I eventually got it, but had to go to Personnel Director and have him fight the battle with the AA office; AA office usually is separate from personnel)

6. SO2: Third negotiation step: Conciliation Agreement • Initiated by finding of probable cause and no settlement • Because the EEOC has found probable cause, at this point things get pretty serious and any settlement is likely to result in some major concessions by the company (WMU’s conciliation agreement) • EEOC, not the Court, oversees this agreement thus it is a private agreement between parties, not a legal agreement • The EEOC administers compliance; if the organization does not comply, EEOC will typically file a law suit or OK a law suit by the plaintiff • No wrong doing is admitted by the company if it settles at this step • If no settlement can be reached, things get REAL serious and move to the Consent Decree step

7. SO2: Fourth negotiation step: Consent Decree • Initiated by a law suit filed by EEOC or the plaintiff • BEFORE litigation, EEOC attempts a settlement again • If settled, costly for the organization • Usually involves lump sum payouts including back payments (for wages lost) • Typically not done in prior negotiation steps (including Conciliation Agt) • Also may involve an AA program • Again, typically not done in prior negotiation steps • Court must approve the settlement because a law suit was filed • Court oversees compliance because the law suit was filed • This is NOT a private agreement between EEOC and the company • If settled at this step, the company still does not admit to any wrong doing • The company has not had its day in court, and thus has not been found to have engaged in unfair discrimination (company has not been proven guilty in court; read some of WMU’s conciliation agreement; Abercombie and Fitch Consent Decree, Home Depot)

8. SO6: Two reasons why a company may opt to settle even if charge is weak (I am going to jump ahead here - because of the relevancy of SO6; here are some figures - why on earth would companies settle for these amounts?)

9. SO6: Two reasons why a company may opt to settle even if charge is weak • Costs and uncertainties of the outcome of litigation (could be worse than the settlement) • Public relations • Who wants to buy clothes from a store that has unfairly discriminated against blacks, Hispanics, Asians and females? (Abercombrie & Fitch, 2005) • Who wants to buy gas from Texaco where “the black jelly beans are stuck to the bottom of the bag?” • In fact, there was a very large, well organized boycott of Texaco before the case was resolved

10. NFE: Difficult issues • David Glenn, former WMU VP of Institutional Equity • Hired in 1988, retired December 2012 • In 1989, WMU faced normal periodic investigations from both EEOC and Dept. of Education (WMU probably knew they were coming, Mr. Glenn did not) • Conciliation agreement arose from those investigations • Never once when Mr. Glenn was here did WMU lose a court case (not as appreciated as he should be - nonevents are not recognized)

11. SO3: Apple, Amazon, & Oracle refusal’s to reveal diversity data • In Dec. 2014, in an investigative report by USA Today, re the lack of diversity in high tech companies Apple, Amazon, and Oracle refused to release EEO data • Nine other high tech companies did release EEO data • This is a very interesting/intriguing issue • If you were employed by Apple, Amazon, or Oracle, given EEOC’s broad powers to file law suits, what you recommend about releasing EEO data? (EEO data are considered state secrets: NYS court system, job analysis)

12. SO4: Some statistics from EEOC • In 2013, over 93,000 charges of discrimination filed with the EEOC • Race 35% • Sex 30% • Disability 28% • Age 23% • National origin 11% • Religion 4% • Color 3% • Equal pay 1% • Genetics .4%

13. SO5: EEOC’s Strategic Enforcement Plan, 2013-2016 • Eliminate barriers in recruitment and hiring for all protected classes • Protect immigrant, migrant, and other vulnerable workers • Address emerging issues • Enforce equal pay laws for females • Preserve access to the legal system • Prevent harassment (SP13 vs. SP15 re relevant cases to this class; harassment vs. recruitment and hiring)

14. SO7: EEO vs. AA • Equal Employment Opportunity Every individual is treated the same and every individual who is equally qualified has an equal opportunity for employment, promotions, etc. • No preferential treatment • Professional selection issue (this is exactly what selection systems are designed to do - hire the best applicants) • Not controversial except for racists, sexists, etc.

15. SO7: EEO vs. AA • Affirmative Action Redresses historical imbalances and increases number of minorities hired in the work place at a faster rate than what would occur simply through EEO • Can result in preference being given to individuals in certain demographic groups • If two candidates are equally qualified, preference will be given to the minority candidate • A less qualified minority may be hired instead of a more qualified majority • Social policy, not a “professional” selection issue • Extremely controversial (pros and cons, I have been on both sides. Denied a job with a very excellent, major company after I had interned there for 2 years in favor of a minority female who had not worked for the company. Boss stupidly told me I was a 1 pointer, she was a 2 pointer. PA - hired into a position that could only Be given to a female or minority. Didn’t tell me, when I found out - I was angry, hurt. Did not want to be hired because. Started in a hole with colleagues Later vindicated - white male I was in competition with - he turned out not to be very good. But before this – AA programs legally.

16. SO8: Three situations in which acompany would adopt an AA program • Organization is a government contractor and thus is required to do so under the laws administered by the OFCCP • Organization has entered into an agreement with EEOC or OFCCP to do so, or has been ordered by the courts to do so (consent decree or lawsuit) • Organization adopts a voluntary AA program • Language in the CRA of 1991 makes the legality of voluntary AA programs questionable* • Lawyers recommend that organizations NOT do this *I expand on this in the next two study objectives

17. SO9: Voluntary AA programs • 9A: Explain why the courts have historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII • 9B: What are white males permitted to challenge in court re voluntary AA programs?

18. SO9: Voluntary AA programs - the controversy • Conflict between wording of Title VII and preference that can be given members of protected classes: It is unlawful to fail or refuse to hire any individual with respect to race, color, religion, sex, or national origin. Further, “nothing in this title shall be interpreted to require any employer to grant preferential treatment to any individual.” • So, what about white males? • Color - white • Sex - male (what about white males who are not hired because a member of a protected class is given preference? It happens)

19. SO9: Reverse Discrimination • Several reverse discrimination cases have been brought under Title VII • “Reverse discrimination:” Members of a majority group claim they have unfairly discriminated against • All of the cases that I am familiar with to date have involved groups of white males • In an employment situation, under Title VII (as opposed to admission to universities/colleges), white males have never been successful in winning a direct challenge under Title VII (they have at times, won disparate treatment cases, and “admission” law suits, but those are different laws: next slide)

20. SO9: Reverse Discrimination • SO9A: Why have the courts historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII? The Supreme Court has ruled that the intention of the framers of Title VII was to protect individuals who have been subjected to unfair discrimination in the past. Because white males do not fall into that category, the Supreme Court ruled that they were not entitled to file a lawsuit under Title VII. • SO9B: What can white males challenge in court? White males can challenge the legality of voluntary AA programs. (CRA of 1991 makes it virtually impossible for white males to challenge court-ordered AA programs, negating an earlier decision of the Supreme Court) (Back to SO9A&B’ last point, imagine the company – the court ordered and approved an AA program – white males challenged it, and the Supreme Court said it was OK for the males to challenge the legality of the AA program – that was corrected in the CRA 1991.

21. Birmingham Dept. of Safety orIt’s difficult to do the right thing • 1972 • Courts ruled selection tests were not job related and unfairly discriminated against blacks • In the 37-year history of the department, a black trooper had never been hired even though 25% of the workforce in the area was black • The department revised its selection procedures Talked about this case before – in the introductory ppt

22. Birmingham Dept. of Safety orIt’s difficult to do the right thing • 1977 • Black troopers challenged the promotional exams to captain • Of the 230 officers at or above the rank of corporal, not one was black • EEOC entered the case on the side of the troopers pressuring the department to change its selection procedures • After several years, the department had failed to do so

23. Birmingham Dept. of Safety orIt’s difficult to do the right thing • Justice Department then entered the case on the side of the black troopers • The department agreed to revise testing procedures • New tests were developed but found to be inadequate • Justice Department asks courts to impose a hiring quota, which the courts did (50% hiring quota)* • Justice Department then switches sides after Reagan is President • Justice Department helps the white troopers appeal the quota system to the Supreme Court on the grounds of “reverse discrimination” *hiring quotas are now illegal; goals are not, but quotas are

24. Birmingham Dept. of Safety orIt’s difficult to do the right thing • Supreme Court rules that the white employees can challenge the court-ordered AA program because they were not “parties” to the original contract • Supreme Court remanded the case back to the Eleventh Circuit Court of Appeals to decide whether the AA program is legal or illegal (cont. on next slide)

25. Birmingham Dept. of Safety orIt’s difficult to do the right thing • Eleventh Circuit Court struck down the AA program, ruling that it was illegal as formulated • Court ruled that the organization was NOT given more protection “just because the program had been approved by the courts as part of a consent decree.” • Court refused to treat the consent decree ordered by the court any differently than a “voluntary” AA program. • Civil Rights Act of 1991 • Makes it virtually impossible for white males to challenge the legality of a court-ordered AA program (all’s well that ends well – this started in 1977)

26. SO10: Legality of voluntary AA, and the CRA of 1991 • CRA of 1991 It is unlawful to use a protected status characteristicas a motivating factor* in selection. You cannot have an AA program without using protected status as a motivating factor, hence the CRA 1991 calls into question the legality of voluntary AA programs. • No court cases have addressed this issue, that I know of, so we just don’t know what the courts would decide. • Nonetheless, legal experts have strongly advised organizations not to adopt a voluntary AA and to abandon their current ones until this is resolved. * “Motivating factor” is an extremely important term here (language of the CRA that poses the problem for AA programs; remember Gatewood, Field & Barrick: we know what is not legal; but not what is legal)

27. NFE: History of that language • CRA language was written to protect members of protected classes • It was in response to the Supreme Court decision involving a mixed motive case • Price Waterhouse v. Hopkins, 1989

28. NFE: Price Waterhouse • Disparate treatment (not adverse impact) case • Hopkins, a female, was denied promotion to partner • The company considered both legal and illegal factors when it denied promotion • Illegal: make-up, hair style, and dress • Legal: poor interpersonal skills • Thus, both legal and illegal factors were motivating factors in the decision: hence, the term, mixed motive case

29. NFE: Price Waterhouse • Supreme Court ruled in favor of Price Waterhouse • Why? Price Waterhouse maintained it would have made the same decision if they had not used gender-related factors as motivating factors • To negate that decision, the CRA language states that “it is unlawful to use a demographic characteristic as a motivating factor in selection.” • That language also calls into question the legality of voluntary AA programs (can’t use it at all; good luck on that one! They meant well; one more slide on this)

30. NFE: Mixed motive cases, an aside • Even under CRA of 1991, the legal remedies for a mixed motive case are severely restricted even if a plaintiff wins • Restricts monetary reimbursement (which does include payment of attorney fees and costs) to costs/expenses directly related to the pursuit of the mixed motive case • The court cannot award damages (monetary compensation) or back pay • The court cannot order the company to admit that it did anything wrong (that it unfairly discriminated against the plaintiff) • The court cannot reinstate an employee or force an employer to hire or promote the employee • Basically an “empty” victory for the plaintiff and not a very lucrative type of case for a law firm to take on

31. SO11: Characteristics that an AA program must have to be legal • Text states that there are three characteristics that voluntary AA programs must have to be considered legal • However, all apply to any AA program, not just voluntary ones • Also, in the SO, I changed the three characteristics for the exam – not quite the same as in the text

32. SO11: Characteristics that an AA program must have to be legal • They must be temporary This is because they are designed to eliminate an historical balance, not maintain a balance • They must be designed to correct a manifest imbalance – in other words minorities must be underrepresented and you must be able to prove that If there are goals, they must be connected to the degree of imbalance.

33. SO11: Characteristics that an AA program must have to be legal • They must not “trammel the interests of the white employees” or as I have said in the SO: They cannot completely bar advancement or hire of the majority group; quota systems are not legal (goals are OK but quotas are not) • This is one reason the Supreme Court struck down UM’s undergraduate AA program that added an arbitrary 20 points to the scores of underrepresented minorities (love the language - trammel!!; 50-50 hiring quota, a white can be completely denied the opportunity for advancement)

34. SO11: NFE: Thought Question Is the fact that AA programs must be temporary inconsistent with the fact that the OFCCP laws require government contractors to have an AA plan? That is, how can a program be both required and temporary? If there is no adverse impact (no manifest imbalance), then there is no AA program, because an AA program must only be used to correct manifest imbalances. Essentially, if there is not a historical imbalance, then an AA program is not required

35. SO12: Two reasons for support of AA • Redress the disadvantages associated with overt historical discrimination • Ensure public institutions, such as universities, police forces, etc. are more representative of the populations they serve (I am going to explore AA more: first time I have done this, so it will be interesting for me to get your Reactions to this material – that is, should I delve into this as much as I do?; universities, recent unrest in Ferguson, MO, NYC)

36. SO13: First group protected using the term “affirmative action” in 1935 • Unionized workers • Wagner Act of 1935 • Not uncommon for employers to blacklist or fire unionized employees • The act did not protect minorities • Except for the Congress of Industrial organizations, minorities were often barred from unions • Little to do with current AA policies • But set the stage for policies designed to compensate or address an individual’s unjust treatment

37. SO14,15,16: Early civil rights acts • Lyndon Baines Johnson • First as VP and then as President • Differences between Title VII and Kennedy’s Executive Order • Targeted to integrate not only public facilities but also private businesses that sold to the public • Motels, restaurants, theaters, gas stations • Very broadly aimed to end unfair discrimination in all businesses with 25 or more employees • Poll of the citizens revealed 70% of citizens approved of the Act • Title VII, remember, however, did not require AA (Often give credit to John F Kennedy, but in fact LBJ, brokered a civil rights act in 1957, then responsible for CRA 1964)

38. SOs 17-22 Arguments for and against AA, intro • EEO is not controversial • The most qualified person is selected/promoted • EEO is a professional selection issue • Affirmative Action which is required by the laws overseen by the OFCCP is very controversial • Because the goal is to redress historic imbalances, preferences are given to protected classes • An particular individual (usually white male) may be treated unfairly in order to advance that goal • AA is a selection issue only as it relates to the laws, but that is big “ONLY” (to review a bit; I am not going to require you to take one side or the other; it is important to understand the arguments on both sides; I have both benefited from AA and also been disadvantaged by it; some extent position is determined by whether and the extent to which an individual believes there is unfair discrimination; not completely, however - EEO)

39. SOs 17-22: Position on AA influenced by a number of things • EEO vs. AA: Difficult issue • Do you believe that you have been unfairly discriminated against? • Do you believe others have been unfairly discriminated against? • Do you believe EEO exists? • Have you been disadvantaged by AA? • How strongly do you value diversity in the work place?

40. SOs 17-19: Arguments in favor of AA • Example of success of women • Educational opportunities opened up new career opportunities • Women are attending college at higher rates than males now, dramatic increase in percentage of women architects, doctors, lawyers, engineers, chemists, college faculty (yay!), business professionals and managers, police officers • Need to counterbalance historic inequalities • Article addresses historic inequalities African Americans • Cases I talked about earlier show both disparate treatment and impact for all protected classes (three here, treat them in the order they are given in the article, reverse the first and second one in terms of importance, emphasis by individuals who support AA; very few female professors, the first tenured associate, 1984, many more)

41. SOs 17-19: Arguments in favor of AA • Fair vs. Equal and Discrimination vs. Inclusion • Advocates recognize AA is inherently unequal but given the inescapable fact that historic inequities exist, they believe the policy is much more fair than one that ignores these inequities • Advocates see AA not as discrimination but as a way to achieve inclusion • AA is an effort to overcome prejudicial treatment through inclusion. • The most effective way to cure society of exclusionary practices is to make special efforts at inclusion. (latter two are direct quotes from the article)

42. SOs 19-22: Arguments against AA • Reverse discrimination: AA requires the very discrimination it is seeking to eliminate • Chung found clear bias against Asians and whites in three highly selective private research universities. Admissions advantage and disadvantages in terms of SAT scores (old 1600 point scale) • Whites: 0 (control group) • Blacks: +230 • Asians: -50 • Recruited athletes: +200 • Legacies (children of alumni): +160 • Espenshade & Radford found (controlled for grades, test scores, legacy status, and athletic recruitment) • Whites were 3x, Hispanics were 6x, and blacks more than 15x as likely to be accepted into a US university as Asians (I don’t think these arguments are well organized – first, bias against Asians and whites, same as the fourth, discrimination, but I also think there are some additional points under “discrimination” that are important”, so maybe I am missing something)

43. SOs 19-22: Arguments against AA • Mismatch Effect • AA causes unprepared applicants to be accepted into highly demanding educational institutions or jobs which result in high drop out rates and eventual failure • Interracial friendships are more likely to form among students with relatively similar academic preparation and thus blacks and Hispanics are more socially integrated on campuses where they are less academically mismatched Conclusion from the above is that the beneficiaries of AA – minorities – do not actually benefit but are actually harmed.

44. SOs 19-22: Arguments against AA • Class Inequality • Racial AA benefits middle- and upper-class blacks and Hispanics at the expense of lower-class European Americans and Asians • Argue in favor of class-based AA, rather than race-based AA • In 1976, a group of Italian American professors at the City University of NY asked to be added as an AA category for hiring and promotion because they were underrepresented

45. SOs 19-22: NFE but miscellaneous arguments against AA • Counter-productive • AA lowers the bar and thus • Detracts from those who strive for excellence on their own merit • Denies a sense of real achievement from those who benefit from AA • AA devalues the accomplishments of minorities and protected classes • AA stigmatizes all minorities, “they only were admitted or got the job because they were female/black/Hispanic/Native American • AA hinders reconciliation and increases racial tension • Article mentions the recent strong push to ban AA in university admissions due to Grutter v. Bollinger (UM Supreme Court case, 2003) • 60% of MI voters subsequently approved a constitutional ban on AA in university admissions (among other bans), Michigan Civil Rights Initiative (Prop 2, 2009) (not sure counterproductive is the right category; law school admission, AA OK; same year, struck down undergrad AA policy – assigned 20 points to the point score of a minority applicant)

46. Wal-Mart: some details about the issues • Managerial jobs were not posted; men were often invited to apply, females were not • Some female managers made $20,000-$25,000 less than male counterparts • Females in every job category have been paid less than men since 1997, even though they have higher average performance appraisals and less turnover • “God made Adam first, so women would always be second to men” (Sos 23-29, NFE, description of cases and admissions law suits; articles in course pack. Hard to the cases without details. Wal-mart cont. on next slide)

47. Wal-Mart continued • One female manager was told she was paid less than a less qualified male because she “didn’t have the right equipment.” • Females were repeatedly told “men need to be paid more because they have families to support” and “men are here to make a career while women are not.” • Some were called “worthless broads” • Some were asked to wear lower cut shirts • And on and on….

48. Texaco – settled in 1996, race • $176.1 million settlement • Class action suit • EEO was investigating the complaints • At an executive level meeting which was secretly taped by one of the individuals, one executive referred to blacks as “black jelly beans that all seem to be glued to the bottom of the bag.” • At the same meeting, executives conspired to alter, withhold, or destroy corporate documents requested by EEOC and plaintiffs

49. Novartis Pharmaceuticals – US, 2010 • $250 million punitive damages • $3.37 million in compensatory damages • Could reach $1 billion dollars • 70% of managers are male, while 66% of sales representatives are female • Management expected female representatives to be amenable to sexual advances from the doctors they called on and criticized them when they complained about inappropriate advances (more Novartis on next slide)

50. Novartis Pharmaceuticals – US, 2010 • Manager told a woman he preferred not to hire young women because: “First comes love, then comes marriage, then comes flex time and a baby carriage.” • Recruiters consistently asked women if they were married or had children but not men • One woman who had children was repeatedly passed over for promotion by men who had inferior sales numbers • One manager encouraged a woman to have an abortion