The phrase to discriminate has two interpretations: (a) to display prejudice toward members of a group through unjustified negative actions, and (b) to meaningfully differentiate between people on the basis of their characteristics. Discrimination of the second form involves the ability to ascertain the presence and degree of characteristics that distinguish one person from another. For example, a classical music critic should discriminate among pianists on the basis of technique and interpretation. This interpretation holds that it is meaningful to differentiate an exceptional performer from an average performer on the basis of relevant factors. In contrast, discrimination of the first form invokes notions of preference and social injustice. Meaningful differentiation is decidedly absent as people are distinguished based on demographic, nonrelevant factors. Because individuals differ on the basis of many characteristics, organizations must regularly discriminate between individuals when hiring, allocating resources, and rewarding to effectively manage a workforce. When organizations differentiate individuals based on job-relevant or organization-relevant factors, this discrimination is meaningful and warranted. When organizations instead differentiate individuals on the basis of stereotypes and allow that differentiation to influence decision making, the organization has engaged in workplace discrimination.
Adverse Impact Perceptual Forces behind Discrimination
The approximately 80,000 complaints filed annually with the Equal Employment Opportunity Commission (EEOC) indicate that employment discrimination is common. Sex and racial biases influence performance appraisals and promotion decisions. Black and Hispanic applicants tend to receive less favorable evaluations during interviews. Interpersonal discrimination— avoiding, distancing, and excluding members of a group—regularly limits minority group members’ access to developmental mentors and networks and interferes with workplace productivity. Further, reports continue to document the presence of a “glass ceiling” that blocks women and racial minorities from gaining leadership positions in organizations.
The perceptual processes theorized to produce discriminatory behavior explain part of why discrimination at work persists. For individuals, discrimination originates with the need to sort people into personally meaningful categories as a means of efficiently processing the myriad perceptual stimuli encountered each day. This social categorization is often based on whether a person is perceived by the individual to be similar or different, and it is facilitated by stereotypic beliefs that a person categorized within a specific group possesses certain traits purely because he or she is a member of that group. For example, a female candidate for a management-level position may be passed over for promotion if the stereotype held by evaluators leads them to assume that she will become emotional when under stress. As illustrated, the categorization process influences how individuals evaluate and feel about other people. Persons categorized as members of one’s own group invoke more favorable reactions, whereas persons categorized as members of another group invoke less favorable responses.
However, the tendency to categorize others does not necessarily translate into discriminatory actions. Various individual and contextual variables, such as the social composition of the workplace, the salience of group membership, and the presence of organizational and local norms, will either facilitate or impede the emergence of discriminatory behavior.
Adverse Impact Employment Discrimination Law
The legal environment also plays an important role in managing the occurrence of discriminatory behaviors. Federal, state, and municipal statutes, as well as various constitutional amendments and executive orders, afford individuals rights and protection in the event that they are discriminated against in an employment setting or are involved in any way in an employment discrimination suit. The three primary pieces of federal legislation responsible for regulating discrimination at work are the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.
The Civil Rights Act
The Civil Rights Act (Title VII, 1964, and as amended in 1978 and 1991) prohibits organizations with 15 or more employees from discriminating against individuals on the basis of race (e.g., Caucasian, African, and Asian), ethnicity (e.g., Hispanic), color of skin, national origin (e.g., Mexican), sex (and pregnancy or pregnancy-related medical conditions), and religion in all aspects of employment (e.g., hiring, compensation, training, performance management, discharge). The act defined a protected group as a class of individuals who are similar on one of these bases. However, protected group membership is context-specific. For example, a male applicant for an accountant position may not be considered a minority group member in that context, but he would likely be considered a protected group member if he applied for a flight attendant position. Thus, the appropriateness of identifying certain individuals as minorities depends on the demographic makeup of the applicant pool, current jobholders, and the relevant labor market.
Title VII explicitly allowed for discriminating between individuals on the basis of a job-related, meaningful reason or in response to a bona fide seniority system. The act also required organizations to provide reasonable accommodation for employees to engage in religious practices, unless doing so would pose an undue hardship. The act created the EEOC, the federal agency charged with enforcing the provisions of employment discrimination legislation. As amended, the act banned the adjustment of assessment scores, whether gathered for purposes of promotion, training, or selection, on the basis of protected class status; lessened the impact of a mixed-motive defense for organizations wherein legitimate reasons in justification of a discriminatory action are rendered in conjunction with unlawful reasons; and limited the ability of individuals to allege reverse discrimination in the context of judicially approved affirmative action plans.
The Americans with Disabilities Act
The Americans with Disabilities Act (Title I, 1990) prohibits organizations with 15 or more employees from discriminating against disabled individuals, individuals who have a record of a disability, and individuals perceived to be disabled in all aspects of employment. Disabled individuals are defined as those persons who suffer from a physical or mental impairment that is not correctable and substantially limits at least one major life activity, such as thinking or standing. For example, a legally blind individual who requires the assistance of a seeing-eye dog would be considered disabled, but a legally blind individual whose vision can be corrected by wearing glasses would not. Essentially, the verification of a disability must go beyond a medical diagnosis to consider how that condition affects an individual’s daily life.
Organizations are required to provide reasonable accommodation to disabled individuals who are otherwise qualified to perform the essential (i.e., most integral or critical) functions of the job. This may mean, for example, adjusting break times so that a diabetic may stop work to conduct necessary insulin tests. An accommodation that would involve excessive expense relative to an organization’s resources, dramatically alter the job or business in question, violate current organization systems or policies (e.g., seniority systems), or represent a direct threat to the health and safety of other workers may be viewed as an undue hardship for the organization and hence deemed unreasonable. Thus, the reasonableness of a given accommodation is individual-, organization-, job-, and context-specific. Although the disabled individual is initially responsible for requesting accommodation, the organization and the individual are encouraged to work together to identify possible accommodations.
The Age Discrimination in Employment Act
The Age Discrimination in Employment Act (1967) prohibits organizations with 20 or more employees from discriminating against individuals age 40 and older in all aspects of employment. Similar to Title VII, the act explicitly allowed for discriminating between individuals in the presence of a rational, job-related reason. In addition, the act identified a series of policy exemptions wherein an age requirement would be viewed as lawful. These include (a) organization policies that identify a mandatory retirement age of 65 for bona fide executives, (b) state or local statutes that establish a mandatory retirement age for police officers and firefighters, and (c) various age restrictions in the commercial airline industry. The act also prohibits age-based discrimination even when the individuals involved are both within the age-based protected class; for example, an individual who is 60 can allege discrimination in favor of an individual who is 45.
Adverse Impact Types of Employment Discrimination
When these laws are violated, an individual may seek legal redress by filing a claim of discrimination with the EEOC. Assuming the claim has merit, the EEOC will pursue conciliation with the offending organization to settle the dispute. If attempts at conciliation fail, the suit will proceed to the court system. The overwhelming majority of complaints are resolved before reaching federal court. Complaints that do reach a courtroom proceed through a series of phases in which the burden of proof is shifted back and forth between the plaintiff (the individual allegedly discriminated against) and the organization. The process through which that burden is met depends on the type of discrimination alleged.
Disparate Treatment
Disparate treatment occurs when an individual suffers intentional discrimination on the basis of his or her membership in a protected group. For example, after September 11, 2001, the EEOC experienced an increase in the number of complaints filed by Arab Americans and Muslims who experienced harassment or discharge allegedly on the basis of their national origin or religion. Proving that the organization had intent or motive to discriminate is a central aspect of a disparate treatment lawsuit. Because intent can rarely be known, disparate treatment must often be inferred on the basis of circumstantial evidence. To establish a prima facie case of discrimination, the plaintiff must prove that he or she was differentially treated because of membership in a protected group. This may be accomplished by demonstrating that members of a specific protected group consistently received disproportionately unfavorable actions.
Under a pattern-and-practice claim, this may be accomplished by demonstrating that members of a specific protected group consistently received disproportionately unfavorable actions. Under the McDonnell Douglas/Burdine framework, this may be accomplished by showing that the plaintiff was adversely treated relative to an individual of a different group who was otherwise similarly situated in terms of qualifications and job-related circumstances.
In response, the organization must provide a legitimate, nondiscriminatory reason for its actions. The organization may argue that the plaintiff did not have the necessary job-related qualifications or display the expected level of performance. In a case of disability discrimination, the organization may argue that the requested accommodation was unreasonable. Or the organization may defend the action by stating that the decision was based on a bona fide occupational qualification (BFOQ). Through BFOQs, organizations may overtly exclude individuals on the basis of sex, age, religion, or national origin when such exclusion is required for business survival and/or public and personal safety. A BFOQ assumes that most individuals within a given protected group will be unable to execute a central job requirement and that failure to do so will risk the health of the organization and the broader public. For example, air traffic controllers may not be older than age 49. In the event that the organization successfully puts forth an acceptable justification, the plaintiff may establish that the proffered reason is merely a pretext and that discrimination was the true reason behind the action.
Adverse (Disparate) Impact
Adverse (disparate) impact is discrimination that occurs when members of a protected group are systematically excluded based on an employment policy or practice that is neutral on its face. Disparate impact lawsuits do not require proof of intent. Instead, to establish a prima facie case, the plaintiff must provide statistical evidence that a particular minority group is being adversely affected by a specific employment practice. This evidence may come in three different forms:
- Documenting that pass rates for a decision making hurdle do not fulfill the four-fifths rule. This EEOC rule of thumb states that if the pass rate of a minority group for a particular hurdle is less than 80% of the pass rate for the group with the highest pass rate, the comparative rates are different enough to warrant a conclusion of adverse impact. For example, in Griggs v. Duke Power Co. (1971), the plaintiff provided evidence that the organization requirement to complete a cognitive ability test as part of the selection process had a pass rate for White applicants of 58% (the highest pass rate) relative to a pass rate for Black applicants of 6%. The pass rate of the minority group was 10% of the majority group rate, and thus far below the 80% criterion.
- Providing evidence of a restricted policy whereby individuals are excluded on the basis of a required characteristic that is associated with membership in a protected group. For example, instituting a minimum weight requirement of 130 pounds for a given position will disproportionately exclude females, in that females as a population weigh proportionately less than males.
- Conducting a workforce utilization analysis comparing the percentage of minority group members within an organization and within a job to the percentage of minority group members in the relevant labor force for this organization and this job. If protected group members are being consistently screened out, they should be underrepresented in the organization relative to their availability in the labor market.
In response to statistical evidence documenting a disparity, the organization must prove that the employment practice is consistent with business necessity and/or is necessary for the safe operation of the business. In most cases, this amounts to demonstrating that inferences drawn based on the employment practice are valid in that the practice allows the organization to meaningfully differentiate among individuals on the basis of job-relevant knowledge, skills, or abilities. Should the organization be successful in offering evidence of business necessity, the plaintiff may argue for the substitution of an employment practice that is equally relevant to the job but less discriminatory.
References:
- Covington, R. N., & Decker, K. H. (2002). Employment law in a nutshell (2nd ed.). St. Paul, MN: West-Thomson.
- Dipboye, R. L., & Colella, A. (2005). Discrimination at work: The psychological and organizational bases. Mahwah, NJ: Lawrence Erlbaum.
- Landy, F. J. (2005). Employment discrimination litigation: Behavioral, quantitative, and legal perspectives. San Francisco: Jossey-Bass.
- Player, M. A. (2004). Federal law of employment discrimination in a nutshell (5th ed.). St. Paul, MN: West-Thomson.