Workplace Discrimination in Recent Years

Workplace Discrimination

In recent years preferential hiring has become an issue of great interest. Preferential hiring, which was devised to create harmony between the different races and sexes, has divided the lines even more. Supporters on both sides seem fixed in their positions and often refuse to listen to the other group's platform. In my case, being an African-American woman, there have been times in which I believe I was not hired due to my gender and race. In this essay, though, the hypothetical will be a position of professorship at the university level, facing roughly equal candidates. The hiring in question are cases that involve several candidates, all roughly equal in their qualifications (including experience, education, people skills, etc.), with the only difference being race and/or gender (Nelson, 2009). Buttressing the argument, we will focus on the Civil Rights Act of 1964 as a broad basis for the admonishment of discrimination in the workplace.

In our scenario, we have a case of predetermined preference. The two candidates in question are equal in all ways, except race. The black applicant is selected, not because of skills or qualifications (in that case the white man would have provided the same result), but for his skin color. This seems to be blatant discrimination, but many believe it is justified. Some feel retribution for years of discrimination is reason enough, which we will address later in the essay.

First, let us focus on why this is not a solution to creating an unbiased society. Martin Luther King Jr. had a dream: "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." He desired a world without discrimination, without prejudice, and without stereotypes. The fundamental lesson years of discrimination should have taught is that to give anyone preference based on skin color, sex, or religious beliefs is, in one word, wrong. As Martin Luther King Jr. stated, judgment based on skin color must not exist. All preferential hiring does is keep judgments based on skin color alive. Race and gender should not be issues in today's society, yet preferential hiring continues to make these factors issues by treating minorities as a group rather than as individuals (King, 1863; Colaiaco, 1989).

More importantly preferential hiring may actually fuel, rather than extinguish, feelings of racial hostility. Applying the concept of preferential hiring to another situation may help elucidate its shortcomings. A party of white men and a party of black men both arrive at a restaurant at the same time and only one table is free. The headwaiter can only seat one party and must make a decision. According to preferential hiring theory it is necessary to seat the black party first, since historically blacks have been discriminated against when seated in restaurants. In another situation, a white man and a black man are both equidistant from the last seat on the bus. Both men are the same age, have no medical problems, and are equal in all ways except skin color. Should the black man get the seat since in the past black men have been discriminated against? We could continue this practice for several centuries before the debt we owe for depriving blacks of a seat on the bus would be paid. Perhaps these examples are invalid. It could be said that jobs are a different issue. They help define social status and provide economic well being. They might even boost self-confidence; something that discrimination has stolen. Two points must be considered before moving any further. First, blacks may learn better from a black, and women may learn better from a woman. Second, hiring women and blacks will provide role models for others. Discussion about the second point however is required, and will, in effect, serve to negate the first point as well. Too, we must remember that discrimination in hiring goes both ways -- discrimination is indeed, colorblind (Rushevsky, 2002; Uhlmann, 2005). Thus, in the academic case, the African-American was hired; the woman was not -- bringing issues of bias to the hiring committee.

Title VII of the Civil Rights Act of 1964 "bans discrimination, including sex-based discrimination, by trade unions, schools, or employers that are involved in interstate commerce or that do business with the federal government" the Civil Rights Act of 1964 prohibits discrimination in a broad array of private conduct including public accommodations, governmental services and education. One section of the Act, referred to as Title VII, prohibits employment discrimination based on race, sex, color, religion and national origin. The Act prohibits discrimination against the aforementioned protected classes in the areas of recruitment, hiring, wages, assignment, promotions, benefits, discipline, discharge, layoffs and almost every aspect of employment (Loevy 1997).

Employers under Title VII's jurisdiction include trade unions, schools, or employers that are involved in interstate commerce or that do business with the federal government (Britannica 1)." The EEOC law also specifically covers employment agencies. Evolution of Title VII the origins of the passage of Title VII can be considered to have begun in 1787 with Article VI of the U.S. Constitution which prohibited religious discrimination. Then, in 1864, the 13th and 14th Amendments were added which prohibited slavery and provided equal protection to all U.S. citizens. In 1883, the Civil Service Act substituted merit for politics which thereby eliminated the "spoils system." In 1938, the Fair Labor Standards Act (FLSA) was enacted which covered minimum wage, overtime compensation, child labor protections, and other provisions of employment (but did not cover Federal employees as enacted). In 1940, Executive Order 8587, issued by President Roosevelt, stated the principle that public employment could not be denied by reason of race, creed or color. Also, in 1940, the Ramspeck Act provided a ban on discrimination in the Federal Service based on race, color or creed (Ibid).

In 1948, Executive Order 9980, issued by President Truman, established a Fair Employment board within the Civil Service Commission. In 1955, Executive Order 10950, issued by President Eisenhower, directed that equal opportunity be afforded to all persons in employment in the Federal Government. In 1955, an Executive Order issued by President Kennedy, introduced the concept of affirmative action by directing "positive measures" for the elimination of any discrimination, direct or indirect, which now exists. In 1961, the Equal Pay Act amended the Fair Labor Standards Act outlawing discrimination in wages based on sex. (This did not apply to Federal, state, or local governments) (Dierenfield, 2008).

The EEOC's primary responsibility is to receive and investigate charges of unlawful employment practices, determine if reasonable cause exists to believe the charge is true, and if the agency determines there has been a violation of law, voluntary settlement is attempted through conciliation (Player, 2004). In the eyes of the EEOC, some of the Congressional compromises left Title VII as a toothless tiger initially EEOC officials initially noted that there was virtually no legislative history explaining Congress's intent in outlawing sex discrimination (Casenotes, 2003). This lack of Congressional insight and lack of public consensus result in the Commission initially struggling with the issue of whether sex segregated classified advertising -- separate "help wanted" advertisements for men and women -- was unlawful under Title VII, (it is unlawful for newspapers to have separate classified job advertising sections for white and blacks) (Milestones 3). The Commission eventually ruled that it is unlawful under Title VII to have separate "help wanted" sections for men and women, despite some strong protests. The Commission's first determination on a charge held that any corporate policy requiring firing of female employees because they got married violates Title VII. More than half the states already had some form of fair employment practices laws outlawing discrimination based on race, sex or national origin (Powell 1988).

Title VII of the Civil Rights Act of 1964 is a major law that was enacted amid lengthy debate and amendment in Congress. As it has evolved, it has been buttressed and further amended by passage of additional laws such as the Civil Rights Act of 1991. Employers should proactively seek to follow the law not only because it is the right thing to do, and the law of the land, but also to insulate themselves from punitive damages, should litigation arise (Casenotes).

Returning now to our hypothetical hiring and discrimination scenario. First, lets create a character, Bill. Bill is grossly overweight and unattractive. Studies have shown that many employers discriminate (whether subconsciously or not), against both overweight and unattractive individuals. Unfortunately for Bill, he fits into both categories. His inability to land a job reflective of his abilities, coupled with years of public humiliation through jokes made at his expense, has destroyed his self-esteem. This has caused him to accept as fact the notion that he will never be able to reach his goals. Few "Bill" success stories exist, only further plummeting his self-confidence.

This example sounds strikingly similar to a common argument for preferential hiring. I have been discriminated against, which has caused my self-esteem to fall, and now I am stuck, with few role models to follow. Bill's success has probably been thwarted by more sources than the today's average black or female, but there is no provision in preferential hiring for him. Just like no one can control his or her race or skin color, Bill's obesity is caused by a medical problem beyond treatment. Selective preferential hiring won't work. Even if one doesn't accept the fact that preferential hiring discriminates against the white male, one must accept the fact that preferential hiring discriminates against Bill (Cordes, 1994).

Now let's assume that this argumentation is invalid for one reason or another. Let's assume the lack of self-confidence and self-respect that today's blacks and women are suffering from may deserve some compensation. But before continuing, it seems necessary to narrow the range of who qualifies for compensation for suffering. The issue at hand concerns today's blacks and today's women. Today's society is not responsible for incidents preceding its own existence. Other opinions may not coincide with this belief, but I do not feel any responsibility for the positive or negative actions of my grandfather or my father. However, as a member of society I will take responsibility for the positive or negative actions of society today. For example, today's society is not responsible for blacks or women's lack of voting rights years ago. If for some reason we were responsible, how could this possibly be repaid? Make a black or female vote count two or three times? No, this is preposterous. We have canceled our debts, simply by giving them a right to vote and a say in the election of their representatives. Now that is not to say that today's society is not responsible for the discrimination of blacks and women in recent years. but, even prior to the lifetime of those that would be most affected by preferential hiring: both blacks and women have had the right to vote; discrimination based on race, color, religion, or sex has been illegal; segregation has ended; and the civil rights movement has taken place. Clearly, we live in a different United States than our predecessors. Today's blacks and women may still experience some repercussions of discrimination, but for decades laws have been enforced prohibiting discrimination. The bottom line - if someone discriminates against a black today, charges could easily be filed. Preferential treatment cannot be given to victims of all crimes. It would become chaotic trying pin the level of preference a victim should get for different crimes (Rutherglen, 2007; Rooth).