Overview of Title VII Cases & EEOC Administrative Process

1. PSY 6430 Unit 2 Legal Issues Continued Schedule Wednesday, 1/23: Lecture Monday, 1/28: Lecture Wednesday, 1/30: 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. SO1&2, NFE: Some statistics • Fewer than 1% of employees who perceive they were discriminated against actually file a charge with the EEOC • Only 15% of EEOC charges lead to a lawsuit being filed • Only 6% of the lawsuits actually make it to trial • When cases do make it to trial, 50% end in early settlements and 8% end in late settlements before a judgment is rendered by the court (while the court structure is very important, I wanted to present some statistics on the complaint process and percentage of cases that actually reach the courtroom – which will lead into why so few cases actually end up in court – which is to a Large degree because of the extensive negotiation process the EEOC has developed – SO2)

4. 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 (One of the reasons very few cases end in court is because of the administrative/negotiation process the EEOC engages in; 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)

5. 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

6. 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)

7. 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 lawsuit 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

8. 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)

9. SO5: 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 SO5; here are some figures - why on earth would companies settle for these amounts?)

10. SO5: 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 embarrassment which really translates into public relations • 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 • Who wants to buy clothes from a store that has unfairly discriminated against blacks, Hispanics, Asians, females and Muslim females in particular (due to head scarves)? (Abercombrie & Fitch)

11. SO3: Some statistics from EEOC • In 2017, there were over 84,000 charges of discrimination filed with the EEOC • Race 34% • Disability 32% • Sex 30% • Age 22% • National origin 10% • Religion 4% • Color 4% • Equal pay 1% • Genetics 0.2% (and remember only less than 1% of individuals file)

12. SO4: EEOC’s Strategic Enforcement Plan, 2017-2021 • Eliminate barriers in recruitment and hiring for all protected classes • Focused on the LGBTQ community, credit and criminal checks which adversely affect blacks and Hispanics, and religious appearance affecting Jewish males and Muslim females • Filed and settled a landmark case involving age discrimination with Texas Roadhouse • $12 million dollars for allegedly refusing to hire individuals who were over 40 years old for front-of-house positions such as hosts, bartenders, and servers • Applicants over 40 years old were referred to as “Old N’ Chubby” among other thins (cases involving selection have increased dramatically over the past 7 years; when I taught this class In 2011, most cases focused on harassment; that shift changed in 2013, when EEOC made recruitment & hiring top priority, which they have retained in their new strategic plan))

13. SO4: EEOC’s Strategic Enforcement Plan, 2017-2021, continued • Protect immigrant, migrant, and other underserved workers • Address emerging issues • LGBTQ, pregnancy, disabilities, and backlash discrimination against those who are Muslim, Sikh or a person of Arab, Middle Eastern, or Southern Asian descent • Enforce equal pay laws for females • Preserve access to the legal system • Prevent harassment (Other priorities; groups not explicitly listed as protected classes under the law; )

14. SO4: EEOC’s Strategic Enforcement Plan, 2017-2021, continued, but this slide NFE • Future trends re harassment • Due to the #MeToo movement, the EEOC filed 66 harassment lawsuits in 2018, up more than 50% in 2017 • The EEOC has recovered $70 million for employees alleging sexual harassment, up from $47.5 million in 2017

15. SO4: EEOC’s Strategic Enforcement Plan, 2017-2021, continued, but this slide NFE • Confusion/downside of #MeToo • Article in the course pack in U2 • Thoughtful article indicating that the #MeToo movement may have some unintended consequences • #MeToo has certainly increased awareness of harassment and made it easier for victims (both male and female) to report it • Made it difficult for men to know what is and what is not harassment and navigate workplace interactions

16. SO4: EEOC’s Strategic Enforcement Plan, 2017-2021, continued, but this slide NFE • Confusion may stem from cultural differences and what is acceptable in one part of the country may not be acceptable in another part of the country • Is it OK to compliment a woman on her dress? • Is it OK to touch or hug a woman colleague? • President of the Society for Human Resources Management who grew up in South Florida – Miami stated • What one does in one culture, in South Florida - Miami – is very different from what’s acceptable in Des Moines, Iowa.

17. SO4: EEOC’s Strategic Enforcement Plan, 2017-2021, continued, but this slide NFE • Increasing reluctance to from men in executive/authority positions to hire or work closely with women • Some managers/supervisors are refusing to hold one-on-one meetings with women • A recent survey by LeanIn.org found that • Nearly half of male managers are uncomfortable participating in common work activities with a woman • Senior-level men are 3.5 times more hesitant to have a work-related dinner with a junior-level woman than with a junior-level male • Senior-level men are 5 times more hesitant to travel with a junior-level woman than a junior-level male for work trip (A difficult issue; we want victims to come forward which has become more difficult in light of the Trump era and Kavanaugh hearings; but we don’t want to make men fear discipline for “innocent comments/actions”; backlash even in our university and department; moving on….).

18. SO6: 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. (now I am switching to the topic of AA, very controversial)

19. SO6: 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.

20. SO7: 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 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

21. SO8: Intro, voluntary AA programs – the controversy • Conflict between wording of Title VII and preference that can be given to 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)

22. SO8: Intro, 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 admissions 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)

23. SO8: Reverse Discrimination • SO8A: 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. • SO8B: 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, but they can still challenge the legality of a voluntary affirmative action program) (Back to SO8A&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.

24. SO9: 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)

25. 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 (interestingly, this is the case I briefly mentioned last unit that set the precedent for courts to rule in favor of transgender individuals)

26. 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

27. 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)

28. 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 lucrative case for a law firm to take on (last slide on this)

29. SO10: 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, with apologies, I am going to change the second reason they give – learn mine, not theirs for the exam

30. SO10: 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 • The second reason the authors give is that they must not have a permanent adverse effect on whites The problem with this reason is that it is really the same as the first

31. SO10: Characteristics that an AA program must have to be legal • They cannot completely bar advancement or hire of the majority group, or in the court’s actual words, They cannot “trammel the interests of the white employees” • What this means is that quota systems are not legal (goals are OK but quotas are not) • This is also one of the main reasons the Supreme Court struck down UM’s undergraduate AA program that added an arbitrary 20 points to the scores of underrepresented protected class members: they felt it did essentially bar the admission of whites (the second reason you should learn for the exam; admissions laws are separate, but follow suit with EEOC laws)

32. SO10: Characteristics that an AA program must have to be legal • They must be designed to correct a manifest imbalance • In other words members of protected classes must be underrepresented and you must be able to prove that • Additionally, if there are goals, they must be connected to the degree of imbalance.

33. SO10: 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

34. SO11: Two things that gave impetus to 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 • This rationale is less common than the first, but was the basis for the Supreme Court decision supporting UT’s AA program in Fisher ll, decided June 2016 • The decision was a surprise, with Kennedy, one of the conservative justices voting in favor of UT • For more about this case, see SO28, which is NFE (giving it credence; there were two other aspects, but this was the rationale for having the AA program; Complicated case, but this was the second time the case made it to the SC, why it is called Fisher II The first time was in 2013)

35. SO12 and 13: Early civil rights acts • Lyndon Baines Johnson brokered the acts, not JFK • First as VP and then as President • Kennedy’s Executive Orders did advance civil rights, but did not have “teeth” and were very limited • NAACP considered the efforts “token” gestures • LBJ was responsible for CRA 1957 and Title VII • Expanded coverage to all employers with at least 25 employees • Established the EEOC • Surprisingly, a 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 Kennedy’s EO was really a concession )

36. SOs 15-20 Arguments for and against AA, intro (and before SO14) • 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)

37. SOs 15-20: 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 and in universities?

38. SOs 15: Two arguments in favor of AA • Example of success of women due to AA • Dramatic increases in percentages 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 for African Americans, Hispanic Americans, Native Americans, and Asian Americans • Cases I talked about earlier show both disparate treatment and impact for all protected classes (Treat these 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)

39. SO 16: Argument of Fair vs. Equal • 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

40. SO 17: Discrimination vs. Inclusion • Advocates see AA not as discrimination (reverse discrimination) but as a way to achieve inclusion • The only way to cure society of prejudicial treatment and exclusionary practices is to make special efforts at inclusion, which is exactly what affirmative action does

41. SO18: Bias against Asians and whites • 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 for top private universities (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 than were Asians • SAT score inequality: Asians needed 1550 (near perfect 1600) to have same chance at admission as whites who scored 1410 and blacks who scored 1100 (Sos 18, 19, & 20 ask you to learn three arguments against AA

42. NFE: Data that fuel concerns (These are in the course pack in U2)

43. Current events NFE: Harvard • Federal lawsuit in district court alleging unfair discrimination against Asians and whites, in favor of blacks • Trial ended November 2 • No decision has been rendered yet • Both sides say they plan to appeal which means AA could once again end up in the Supreme Court (I do have an article about this in the U2 course pack)

44. Current events NFE: Harvard • The Harvard Admissions Dean has stated that if admissions were based solely on academic merit, 43% of the freshmen class would be Asian and less than 1% would be black • The case is particularly important because Harvard’s “holistic” admissions policy, which considers race as one factor among many, has been held up as a model by the Supreme Court since the landmark case of Regents of the University of California v. Bakke in 1978 • In that case, the Supreme Court ruled that UC’s quota system was not legal, and ruled in favor of Bakke, a white male • But added that a holistic admissions policy was legal • The Justice Department, with Trump at the head, favors the plaintiffs, and has filed a statement of interest in the case • It has opened its own inquiries into the complaints at both Harvard and Yale (so it is really going to shake up things if the courts rule against Harvard)

45. Current events NFE: Harvard • The Justice Department, with Trump at the head, has tipped his hand in favor of the plaintiffs by filing a statement of interest in the case • It has also opened its own inquiries into the unfair discrimination complaints at both Harvard and Yale • The current lawsuit is being brought under Title VII, but remember that Harvard and Yale, as government contractors, are subject to oversight by the OFCCP (which is part of the Justice Dept.) as well • In addition, in July, both the Education and Justice Departments withdrew Obama-era guidelines that encouraged the consideration of race in college admissions All I can say about this one is stay tuned – but don’t hold your breath. Regardless of outcome, the Harvard case is probably going to be appealed to the First Circuit Court of Appeals, and then again, regardless of outcome, appealed to the Supreme Court.

46. One more point about preferential admissions • I don’t know how much you know about admissions but it is a common practice for universities to give preferential treatment to legacy students, athletes, children of large donors, and males • One-third of Harvard’s freshmen class is legacy students • If private colleges did not give preference to males, their student bodies would be 60%-75% female • An earlier USA Today article about AA asked what I thought was a reasonable question: Why is affirmative action for race so controversial when no one questions preferential treatment for legacy students, athletes, children of large donors, and males? (About 4 APA site visits ago for our clinical program…OK, moving onto SO 19, 2nd argument against AA)

47. SO 19: Explain The 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 • NFE, but also: 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 This is the argument made by Supreme Court Justice Clarence Thomas along with stigma and aura of victimization

48. SO 20: Explain The Class InequalityArgument • Racial AA benefits middle-class and upper-class blacks and Hispanics at the expense of lower-class European Americans and Asians • Argue in favor of socio-economic class-based AA, rather than race-based AA • America’s poor is disproportionately made up of people of color, so class-based AA would disproportionately help people of color eliminating the need for racial AA and halting the disproportionate benefits for middle- and upper-class racial minorities

49. NFE but other 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 • 60% of MI voters subsequently approved a constitutional ban on AA in university admissions (among other bans), Michigan Civil Rights Initiative

50. Back to SO14: Prop 2 or Michigan Civil Rights Initiative • The MCRI passed as a constitutional amendment, in November 2006 • 14A: Bans public institutions from using AA programs that give preferential treatment to groups or individuals based on race, gender, color, ethnicity, or national origin for employment, education and contracting purposes (Spend some time on this because it is MI 8-year saga, didn’t get resolved until April, 2014; interesting history, Impetus being the two AA UM cases; history, then I will return to 14B, exceptions)