Diversity, disparate impact, and discrimination pursuant to Title VII of US civil rights laws

Abstract

Purpose While the words diversity, disparate impact, and discrimination are commonly read and heard by working adults and professionals, they can at times be confusing and fearful to some managers. The purpose of this paper is to provide an overview of a specific aspect of US civil rights laws – the disparate impact theory. The authors provide an analysis based on the statute, case law interpreting, and applying the statute, administrative guidelines from the Equal Employment Opportunity Commission, as well as legal and management commentary. The paper illustrates the requirements of a plaintiff employee’s initial case based on the disparate impact theory. The challenging causation component which requires some degree of statistical evidence is given particular attention. Limitations to the paper are stated at the beginning; and recommendations to managers are explored and provided toward the end of the paper. Design/methodology/approach It is a legal paper which covers all the laws related to discrimination based on disparate impact and disparate treatment theories. Actual court cases up until this month and Americans laws related to this concept are reviewed and critically discussed. Findings The salient feature of disparate impact is that this legal theory allows a plaintiff job applicant or employee to sustain a case of illegal discrimination without providing any evidence of a discriminatory motive. As opposed to the disparate treatment liability is imposed based on disproportionate adverse results and not discriminatory intent. Research limitations/implications This paper deals with the disparate impact theory pursuant to Title VII of the Civil Rights Act. However, it must be pointed out that the disparate impact theory is also applicable to claims arising under the Americans with Disabilities Act and the Age Discrimination in Employment Act. Since the focus of this paper is Title VII federal and state constitutional issues, such as the applicability of the 14th Amendment’s Equal Protection clause that may arise in disparate impact cases involving government entities will not be addressed. Practical implications Managers and employees can protect themselves in the workplace from illegal discriminatory practices. Initially, employers and managers must be aware of the distinction between a disparate impact case and a disparate treatment case with the latter requiring evidence of intentional discrimination. Evidence, of course, can be direct or circumstantial or inferential. Whereas in a disparate impact case there is no intentional discrimination; and as such proof of discriminatory intent is not required. Rather, the employee has to present evidence that the employer’s neutral on-its-face employment policy or practice caused an adverse disproportionate impact on the employee as a member of a protected class. Social implications Human resources professionals and managers must become educated in diversity laws in order to provide an inclusive workplace for all employees and candidates. Employers have legitimate areas of concern in hiring and promoting employees; and the courts are cognizant of employer responsibilities; and thus the employers must be able to show how specific knowledge, skills, education, training, backgrounds, as well as height, weight, strength, and dexterity are legitimate qualifications that directly relate to successful job performance. Originality/value This is an original paper by the authors.

Workplace romance and sexual favoritism in the #MeToo workplace: legal and practical considerations for management

“…Initially, before discussing recommendations, it is important to note that one federal district court clearly advised employers as well as employees that the employment laws have neither vested the federal courts to sit as "super-personnel departments" nor to determine the "wisdom and fairness" of employer business decisions (Morris v. Acadian Ambulance Servs., 2015). Accordingly, it is the principal function of a company's top management and Legal and Human Resources departments to ensure that business decisions, especially those affecting the employees, are wise, fair, moral and, of course, legal (Cavico and Mujtaba, 2017). Employers, therefore, must be keenly aware of the legal and practical implications of workplace romance and sexual favoritism and be ready and able to promulgate appropriate policies.…”

“…The love contract, for example, can require that the employees refrain from displays of affection at work and work-related functions and events, thereby mitigating any adverse effects based on sexual favoritism or perceived sexual favoritism (6) The "love contract" can specifically and explicitly state that either romantically involved employee can terminate the relationship without fear of retribution and retaliation (7) The "love contract" can state that the employees waive their rights to sue for sex discrimination and sexual harassment for any actions or activities that occurred prior to or during the duration of the romantic engagement (8) The contract also can state that each participant will seek arbitration rather than file sexual harassment lawsuits if the relationship ends (9) The contract, moreover, can state that each party to the workplace romance can end the relationship without fear of work-related retaliation (10) The "love contract" can be used not only for senior executives but also managers and supervisors as well as all romantically involved employees (11) The contract typically will state that the romantically involved coworkers have read the company's sexual harassment policy, particularly those provisions dealing with the reporting of complaints and the firm admonition against retaliation; and also that they are free to end their romantic relationship without any adverse impact to their jobs (12) The parties are to be given an opportunity to review the contract with an attorney first (13) In the contract the parties must affirm that they were not coerced into signing the agreement, and that if any disputes arise under the agreement the matter will be subject to arbitration. The signed original "love contract" is usually filed with the company's Human Resources department Workplace romance and sexual favoritism surveillance, the employer may risk, as previously underscored, a lawsuit for the intentional tort of invasion of privacy, thereby subjecting the employer to liability (Cavico and Mujtaba, 2021;Cavico and Mujtaba, 2017;Cavico et al, 2012a). Moreover, as Kreis (2020) emphasizes, in any situation a "cardinal caveat" of workplace romance policy and practice is that ".…”

“…There is no defense. The only "solution" in such a scenario is sexual harassment insurance (Cavico and Mujtaba, 2017).…”

“…Employers today, should be especially sensitive to workplace romance due to the potential of workplace sexual discrimination and sexual harassment claims, particularly since the US Supreme Court has ruled that an employer may be absolutely liable for the sexual harassment of an executive, manager or supervisor who sexually harasses a subordinate employee in the managerial hierarchical chain (Cavico and Mujtaba, 2017). Sexual harassment is premised on a workplace environment that is hostile, offensive or abusive sexually.…”

Ethical Analysis of Office Romance and Sexual Favoritism Policies in the #MeToo Workplace and “Cancel Culture” Era

“…In the modern sensitive era of the #MeToo movement, a "canceled culture" simply refers to a form of shunning or public exclusion in which someone is pushed out of cliques, as well as social and/or professional circles, through asynchronous online publications on social media, in the day-to-day workplace, or both. Those who are subject to such consistent forms of ostracism, bullying, workplace mobbing, or harassment due to specific inappropriate behaviors or politically incorrect statements are said to be "canceled" (Middlemiss, 2019;Syaebani & Rachmawati, 2017;Mujtaba and Senathip, 2020;Cavico and Mujtaba, 2017;Scovell, 2009;Gomes, Owens, & Morgan, 2006). Of course, managers and employers must make sure that all employees and customers are treated fairly to have a healthy workplace for all and to avoid any unnecessary lawsuits.…”