Stetson Law -- The Law of Employment Discrimination (Spring, 1999 -- Professor Bickel) (includes EEOC related materials)

ADDITIONAL READING

Donohue, Chapter 8: Are Antidiscrimination Laws Effective?

     On April 19, 2006, the U.S. EEOC, Office of Legal Counsel, at the direction of its Chair, Cari M. Dominguez, issued a revised Section 15 of the Commission's Compliance Manual, on the subject of Race and Color Discrimination - to provide guidance in the analysis of charges of race and color discrimination under Title VII of the Civil Rights Act of 1964, and to facilitate the establishment of best practices by employers subject to Title VII:

See http://www.eeoc.gov/policy/docs/race-color.html

     The guidance is comprehensive, covering race and color, national origin, religion, and "intersectional discrimination." It also revisits the analytical paradigm applied in disparate treatment and disparate impact cases, and "pattern and practice" cases. Equal access to jobs and opportunity for job success is discussed in the context of recruiting, hiring and promotion, with specific attention directed to job advertisements, word of mouth referrals, discriminatory screening of applicants, and job-related standards. Race-motivated conduct which interferes with job success is analyzed, in all of its contexts, including racial harassment displayed in the conduct of ownership, management, supervisors, co-workers and third parties, and race-influenced work assignments or assessments of worker performance, compensation, discipline or discharge, and retaliation.

     The new guidance reveals an increase in the significance of race discrimination in the workplace. The Commission observes that, while equal opportunity for Black workers has resulted in employment gains in virtually every field - charges alleging race discrimination in employment accounted for 35.5% of the Commission's 2005 charge receipts, making race still the most-alleged basis of employment discrimination under federal law. Moreover, the Commission notes, "...several private studies conducted in the early 2000's provide telling evidence that race discrimination in employment persists." The guidance emphasizes that the prevention of future discrimination based on race is dependent upon a commitment to best practices, i.e., practices which comply with applicable law, demonstrate managerial commitment and accountability, and ensure management and employee communication. See www.eeoc.gov/abouteeoc/task_reports/practice

     The newly promulgated guidance is significant, and explains, with reference to all significant case law, how the Commission approaches and evaluates claims of race and color discrimination. The Commission's view of the law governing race cases is relevant in the attorney's analytical approach to individual or group claims of discrimination, preventative efforts by employer counsel, and human resource managers seeking to establish and administer "best practices."

CHAPTER 16
REMEDIES

(1 Class) Prepare Section A, Introduction, and B, Basic remedial principles, pp. 842-843, Albermarle Paper Co. v. Moody, and Franks v. Bowman Transportation Co., and Notes 1-3, pp. 844-852; then briefly review the Note materials in the balance of the Chapter, focusing on the following: (1) An employee's right to re-instatement, if she has been the subject of retaliation; (2) So-called "front pay" as an alternative remedy to re-instatement; (3) "Back-pay" as a traditional remedy for prohibited discrimination; (4) The entitlement to compensatory and punitive damages under Section 1981 of the Civil Rights Act, and the Civil Rights Act of 1991; and (5) the attorney's entitlement to fees in federal employment discrimination cases.

CHAPTER 17
AFFIRMATIVE ACTION

(1 Class) There are two types of "affirmative action." The first, a part of the federal court's remedial powers, allows the court to order race-conscious (injunctive) relief as a remedy for proven discrimination (See Section 706(g) of the statute). The second form of affirmative action -- popularly described as "voluntary" affirmative action - connotes the voluntary assumption of an affirmative duty to compensate for the present effects of past discrimination by taking account of race in hiring, advancement, or the award of contracts. Each of these concepts is presented in Chapter 17.

Read the chapter once through, with the following questions in mind:

DISCUSSION QUESTIONS: AFFIRMATIVE ACTION AND EMPLOYMENT DISCRIMINATION LAW

Does the Court properly balance the obligation of the government to further the principle of equal employment opportunity with Constitutional guarantees of equal protection of the laws and a statutory nondiscrimination principle? How does the Court see the moral argument that employment opportunity is still limited by historical societal discrimination and the intentional, historical segregation of workers because of race and gender bias? Does the court protect and enforce a private employer's freedoms where the employer recognizes an affirmative duty to remedy past systemic discrimination in employment? Is Linda Hamilton Krieger correct in her observation that our perspective of affirmative action and the so-called meritocracy principle has failed to give attention to the biases inherent in the construction of merit? What relationship, if any, do you see between employment law and education law regarding the advancement of the principle of equality? Is Gunnar Myrdal's observation that everything that brings black and white workers to experience cooperation and fellowship will break down racial prejudice still important? What conclusions do you draw from the course regarding the comparative status and economic advancement of people of color, women, older workers, individuals with disabilities, and workers whose religious beliefs may affect employment opportunity or the terms and conditions of their employment?

CHAPTER 18
ALTERNATIVE DISPUTE RESOLUTION