Affirmative Action

This Seminar will take an in-depth look at the purposes of affirmative action, along with the bases for supporting affirmative

action and the bases for objections.

What Do You Know About Affirmative Action?

• Affirmative action attempts to achieve equal employment opportunity by actively selecting minorities and women where they have been

underrepresented in the workforce.

When is Affirmative Action Needed?• To determine whether an affirmative action program is needed, a number of

factors must be considered: the minority population of the area and their percentage of the total population in the area; the number of minorities employed and unemployed, together with their

respective percentages; the skills of the minority; the labor pool; the amount of training the employer can reasonably undertake; and the availability of other minorities in the organization who can be promoted or transferred.

• The same criteria are considered in determining the need for an affirmative• action program for women. After procedures are in place, the• goals must be achieved following reasonable timetables. The rate of• success must be measured.

History of Affirmative Action

• In 1940, President Roosevelt issued Executive Order 8587, which prohibited the denial of public employment based on race.

• The beginning of a transformation from passive to active programs began in

1955.• Equal employment opportunity was formally

recognized and confirmed by President Kennedy in 1961; Executive Order 10925 called for “. . . positive measures for the elimination of any discrimination, direct or indirect, which now exist.”

History Continued• In 1965, President Johnson, through Executive Order

11246, placed the responsibility for equal employment opportunity with the Civil Service Commission.

• Johnson followed that in 1967 with Executive Order 11375, which added sex discrimination.

• President Nixon’s Executive Order 11478 issued in 1969 provided that equal employment opportunity “. . . applies to and must be made an integral part of every aspect of personnel policy and practice in the employment, development, advancement and treatment of civilian employees of the Federal Government.”

• The executive order resulted in the Equal Employment Opportunity Actof 1972.

The Employer has the Burden

• The employer must make every effort to locate potential candidates through advertisements in newspapers that are likely to be read by minorities. The employer must also contact employment agencies that service minority jobseekers.

Title VII Violators

• Those employers who have intentionally discriminated or who have been guilty of creating an employee environment where a disparate impact exists against a class of people of race, color, religion, sex, or national origin may receive a court order to establish an affirmative action plan to remedy the discrimination.

Intentional Discrimination

• Those employers who have intentionally discriminated or who have been guiltyof creating an employee environment where a disparate impact exists against a

• class of people of race, color, religion, sex, or national origin may receive a courtorder to establish an affirmative action plan to remedy the discrimination.

What’s Your Opinion?• Fredericks Meat Packing in Kansas City has 150 managers

and 500 workers. Minority employees consist of 400 workers and no managers, although the population of Kansas City is approximately one-third minority

• A claim is registered with the EEOC against Fredericks for discrimination. The EEOC files suit in federal district court and secures a judgment. How will the court remedy this injustice? The district court will issue a court order mandating Fredericks to establish an affirmative action plan to increase the number of minority managers to reflect more adequately the percentage of minorities in the Kansas City population. This plan may be achieved either through recruitment or promotion.

What Do You Think About Quotas?

• Rather than wait for potential lawsuits to force the correction of Title VII violations, many employers created their own voluntary plans. In many instances, quotas were instituted to increase the number of women and minorities;

• the quotas required a set number of women and minorities to be hired

What is the Key?

• Affirmative action plans require that qualified women and minorities have tobe hired, unlike quotas, where the hiring is done without regard to qualification.

• Affirmative action plans are designed to address manifest imbalances in the racial makeup of the workforce. Once the imbalance is eradicated, the affirmative action plan will be discontinued

Title VII of the 1964 Civil Rights Act

• This was the first major amendment to Title VII of the 1964 Civil Rights Act. The act provided the Civil Service Commission with the power to address all federal employment issues and to remedy injustices with reinstatement and back pay. Each agency director was required to apply the law

How Successful is Affirmative Action?

• Management must commit for the plan to be successful.

• management can emphasize its importance and lead by example. An assessment must be made

of the number of women and minorities and their current status within the organization. This data will prove invaluable as a benchmark against which the program’s progress can be measured

Other Positive things to Promote Affirmative Action

• Job categories, job descriptions, promotional materials, and in-house rules and regulations must be redrafted to be gender-neutral, both in written communications and pictorials.

Taxman v. Board of Education of the Township

of Piscataway• The Issue in this case was:• whether Title VII permits an employer with a racially balanced work force to grant a non-remedial racial preference in

order to promote “racial diversity.”Two Prong Weber Test applied:• Prong 1: to show that its affirmative action plan was adopted to remedy past discrimination or as the result of a manifest imbalance in the employment of minorities• Prong 2: This second prong requires that we determine whether the Board’s policy “unnecessarily trammels . . . Nonminority iinterests• The Piscataway Board of Education’s plan failed in both respects. There

were a sufficient number of minorities employed; therefore, remediation was unnecessary, and a white employee, Sharon Taxman, suffered

• the loss of her job because of the implementation of the plan

Human Resource Dilemma• Starbright Computers voluntarily instituted an

affirmative action policy 15 years ago. Every June, during its primary hiring season, 30% of its new employees must be minorities. This reflects the percentage of minorities in the surrounding community. Anthony Mazzaro, who is white, applies for a position, but he is refused. After learning of Starbright’s policy, Anthony brings a lawsuit claiming violation of Title VII. Starbright says their policy is justified and argues that Anthony is not protected under Title VII because he is a white male.

Occupational and Safety Health Act• OSHA• The Occupational Safety and Health Act of 1970

(OSHAct) was designed to set forth a standard that would provide for the safety and health of employees while on the job. Employers are required to provide

a place of employment free from occupational hazards. Employees are required to follow rules and regulations established to promote their safety and to use equipment designed to ensure their safety.

Provisions of OSHA• The OSHAct created three administrative agencies.

The first is the Occupational Safety and Health Administration, also known as OSHA. Its purpose is to set health and safety standards and see to it that these standards are implemented by employers through plant and office inspections

• OSHAct was enacted to reduce safety and health hazards, thereby preventing injuries, loss of wages, lost production, and incurrence of medical and disabilityexpenses. Employees must be provided with a safe environment free of toxic substances, asbestos dust, and cotton dust.

Role of the Secretary of Labor

• The addition or deletion of occupational health and safety standards is promulgated

by the Secretary of Labor.• In establishing standards, the Secretary of

Labor must set forth standards to prevent employees from suffering substantial harm to their health even if the employee worked at this job for most of his or her adult life

Employers Must Comply

• Employers are required to comply with certain mandates of the Department of Labor regarding safety and health. Furthermore, the employment environment must be a safe and healthy place in which to work without hazards

Permanent Standards• Permanent standards are the standards originally

introduced when OSHA was created as well as standards promulgated thereafter. The latter are referred to as National Consensus Standards. When OSHA develops a new standard, it is published in the Federal Register. The public, especially employees, has 30 days to request a hearing. If requested, notice of a public hearing will be made. After

the hearing, OSHA must publish the standard incorporating the changes, if any, and the date of its commencement, within 60 days. The Secretary of Labormust explain the need for the new standard, or else it will be null and void

Where Are the Ethics?

• The Case of Taking Your Breath Away• John Pauley worked in the coalmines for 30

years when he began to cough, feel tired, and have difficulty breathing. Pauley filed for black lung disability benefits.Subsequently, he had a stroke.

Did Cigarettes preclude his recovery?

• Beth Energy, Pauley’s employer, admitted that Pauley suffered from coalmine’s pneumoconiosis. It denied responsibility contending that Pauley’s ailments and stroke were caused by his smoking cigarettes for 34 years. The secretary of Labor passed regulations permitting coalmine companies to introduce evidence that working in the coalmine is not the primary cause of the black lung disease. Pauley insisted that working day in day out in the coalmines was t dominating factor. He argued that his cigarette use should not preclude his recovery. Pauley v. Beth Energy Mines, Inc. 501 U.S. 680 (1991).

• ISBN 0-558-41646-2

Appropriate Practices

• The occupational safety and health standard requires the employer to adopt appropriate practices necessary to ensure that the place of employment is a safe and healthy environment.

• The national consensus standard is an occupational safety and health standard designated by the Secretary of Labor after its formulation by a nationally recognized safety and/or health organization that has conducted hearings.

Tufariello v. Long Island Railroad Company

• Tufariello testified that while working at the Patchogue railroad yard he endured repeated exposure to train horns that caused him physical pain. He also offered evidence that

he and others complained of the loud volume of the horns. And he testified that he specifically asked his superiors for hearing protection but was denied it

Tufariello (cont’d.)

• It is indisputable that the LIRR had a duty to provide its employees with a safe workplace.” The question is whether it breached that duty. Under FELA, the LIRR did so if “it knew or should have known of a potential hazard in the workplace, and yet failed to exercise reasonable care to inform and protect its employees,” including Tufariello.

Court’s Holding in Tufariello Case

• Tufariello has adduced sufficient evidence to establish a prima facie case under FELA

that the LIRR breached its duty of care to Tufariello by exposing him to hazardous noise and that such exposurecaused him permanent hearing loss.

What would you do?

• If you were asked to work in an environment where asbestos was being removed, what would you do? Further, if you were told that it was safe to work there and all precautions were being taken as per OSHA?

Citations and Penalties

• If an employer has committed a violation, an OSHA director will issue a citation

• The employer, upon receipt, has 15 business days to contest the citation or it will become a final order not subject to judicial review.

• Penalties may be assessed between $5,000 and $70,000 for each violation of an occupational safety and health standard. These penalties may be made in increments of up to $7,000 per day per violation

4 Designated Industries for OSHA Standards

• When the Secretary of Labor brings an action against an employer, he or she must set forth the OSHA standard held to be violated. Standards vary among the four designated industries: general, maritime, construction, and agriculture.

Employer Defenses• The greater hazard defense is applicable where the

imposition of a safety standard while remedying one hazard actually has caused a greater hazard in its place. The

employer should request a variance for noncompliance;• Another defense exists where compliance with the

safety standard requires a device that is not available on the market. Finally, an employee’s negligence or

refusal to comply with an OSHA safety standard does not justify the employer’s inaction. The employer will still be held in violation

Worker’s Compensation

• Workers’ compensation originated under the Master/Servant Doctrine, where a master was liable for the death or injury of his servant. Master/Servant evolved into Employer/Employee. Originally the liability of the employer was not absolute. If the employee was

contributorily negligent, assumed the risk, or was injured by another employee, he or she would be barred from recovery

What’s the Purpose of Worker’s Compensation?

• In return for absolute liability for injury or death, employers are immune from lawsuits for unintentional torts. When an injury occurs on the job, the employer is liable without regard to fault.

What do Employers and Employees get Out of Workers Compensation?

• Workers’ compensation affords employers and employees the following benefits. Employers save the time and expense of defending a lawsuit. Employees, in turn, receive immediate medical benefits, continued wage earnings, retraining, and death or disfigurement benefits, if applicable

Slip & Fall while on the Job

• Tom Woodstock was working on the third floor of a new office building. While walking along a beam, his attention was distracted when two waitresses came out of the Masters Restaurant across the street. Tom slipped off the beam and fell 30 feet. As a result, he became quadriplegic. Tom filed a claim with the Workers’ Compensation Board for permanent disability. His employer, Build-Rite, claimed that Tom should

• have watched where he was walking.

Will Tom Recover?

Yes! Although Tom was clearly negligent, he will recover because his injury occurred on the job

Employee Entitlement

The employee’s entitlement to compensation depends on whether the injury was in the scope of employment. If the employer provides health and disability benefits, this will compensate the employee for medical expenses and loss of earnings while temporarily or partially disabled because of an injury or illness that occurred outside the scope of employment. The employee must make up the difference.

A case for you to think about

• Marissa Campbell injured her lower back while working in the shipping department for her employer, Venus Cosmetics. Marissa is out on workers’ compensation. Venus is also requiring FMLA leave to run concurrently. After 6 months, Marissa’s physician has authorized Marissa to return to light duty. Under FMLA, Venus inquires as towhether she is entitled to the job she previously held. How would you advise her?