Racial harassment: Case characteristics and employer responsibilities

This article examines the socio-business issue of racial harassment in the workplace. For two decades, the federal judiciary has been defining and refining the elements of the offense within the parameters of Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. The Supreme Court’s decision to hear arguments for the first and only time on one of the important aspects of the developing doctrine focused considerable attention on this workplace problem in 1989. The Civil Rights Act of 1991 provides limited money damages to victims of discrimination under Title VII of the Civil Rights Act of 1964, whereas Section 1981 of the Civil Rights Act of 1866 provides unlimited damages to the victims of discrimination and race harassment. The authors discuss the legislative and judicial foundations of race harassment with respect toPatterson v. McLean, provide a profile and analysis of racial harassment cases (1971–1987), and conclude with a discussion of employer liability and recommendations for management.     

Dissection and Analysis of the Recent Cases on Employment Discrimination Under Title VII of the Civil Rights Act of 1964

This article begins with an overview of the existing law of employment discrimination under Title VII of the Civil Rights Act of 1964, within which it explains disparate treatment discrimination, disparate impact discrimination, pregnancy discrimination and sexual harassment. This article then dissects the recent U.S. Supreme Court and U.S. Courts of Appeal cases that have interpreted and provided specificity to various concepts used in the application of Title VII. This article then analyzes the details of the new substantive aspects of the law of employment discrimination, the philosophical positions within the cases, and how the intricacies of employment discrimination law are applied.     

Major EEO issues relating to personnel selection decisions

This paper examines recent EEO (Equal Employment Opportunity) case law precedents relating to personnel selection, most notably hiring, training, promotion and downsizing. The statutes referenced include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, the Americans with Disabilities Act (ADA) of 1990 as amended by the ADA Amendments Act of 2008 (ADAAA), Constitutional claims, the Civil Rights Act of 1991 (CRA-91), and Executive Order 11246 on Affirmative action. Seven topics are featured, including: (I) disparate treatment theory, (II) adverse impact theory in the ADEA, (III) adverse impact theory in Title VII, (IV) affirmative action based on operational needs, (V) key ADA rulings and the ADA amendments Act of 2008 (ADAAA), (VI) retaliation, and (VII) mandatory binding arbitration agreements. The case law surveyed reveals costly mistakes employers and HR managers can make, but which can be avoided with proper methods and policies. Some issues may require professional help (e.g., developing and validating selection tests), whereas others (e.g. retaliation), can be addressed in-house with knowledge of policies and procedures recommended by the EEOC to prevent problems from occurring, and to quickly correct them if they occur.     

The legal history of work-related sexual harassment and implications for employers

Over the years, the courts have come to consider sexual harassment as a kind of sex discrimination under Title VII of the Civil Rights Act of 1964. Employers are held liable for sexual harassment, and have an affirmative action obligation to eliminate sexual harassment from the workplace. The courts and the EEOC Guidelines have defined sexual harassment as tangible employment consequences or behavior that creates a hostile or offensive working environment. Employers can limit their liability by creating a system to detect sexual harassment and to remedy it promptly. Suggestions to wards developing a strong policy to eliminate sexual harassment from the workplace are given.     

Legal Protection From Discrimination Based on Sexual Orientation: Findings From Litigation

Since 1964 with the enactment of Title VII of the Civil Rights Act, the courts have held that although Title VII prohibits discrimination because of sex, sex has been construed to mean gender, but gender and sexual orientation are different. Traditionally sexual discrimination has been interpreted to protect women in male/female encounters. Thus protection for homosexuals based on sexual orientation has not been covered. However, there are some interesting aspects to the concept of discrimination due to sexual orientation, including defining same-sex harassment as being harassment, equal opportunity harassment, and sexual stereotypes. In addition, how homosexuals may be protected under state laws, unions, company policy, and the constitution is discussed as well as protection for public sector employees. An analysis of 98 litigated cases alleging discrimination based on same sex or sexual orientation harassment led to the development of a logit model predicting future case outcomes based on case characteristics. These are type of harassment, physical contact, type of employees, and whether there was equal opportunity harassment. Implications from the study are that the issues of protection from discrimination are complex and one cannot necessarily assume that this type of discrimination is not protected. Recommendations for more effective managerial actions are provided.     

Defining the Problem and Problems of Definition: Legal Standards for Expanding Issues in Sexual Harassment

Sexual harassment has been a difficult area of legal interpretation. Legal frameworks used in other areas of Title VII of the Civil Rights Act have not been used in the development of standards by which to judge on the job harassment. Specific difficulties analyzed are the status of group versus individual protection, the notion that harassment is a correctable violation, problems of defining a hostile environment and determining harm, adverse effects on third parties, harassment without sexuality, and same sex harassment. Disagreements between the Circuit Courts and the EEOC are highlighted and effects on individuals and organizations are discussed. Suggestions for organization policy are made.     

Disciplining sexual harassers: What’s fair?

To avoid liability for hostile environment sexual harassment under Title VII of the Civil Rights Act, and to minimize the negative effects of such conduct on victims’ morale and perhaps their performance, employers must implement remedial measures that are capable of ending the harassment or even preventing it. Determining what constitutes adequate remedial action is difficult, and employers may administer excessively severe disciplinary penalties to ensure legal compliance. But such a response would contravene the tenets of just cause and industrial due process. This investigation examines relevant arbitration decisions to determine how labor arbitrators have balanced these competing interests. That is, it delineates the criteria that should be used to ensure that the disciplinary penalties levied against employees who sexually harass others are both adequate and fair.     

Compromising the Uncompromisable: Discrimination

ABSTRACT The market system contains fail-safe mechanisms to help those who are subjected to discrimination. A consistent libertarian political philosophy must come out for total repeal of the Civil Rights Act of 1964. The law either is unnecessary or irrelevant. Efforts to claim that special legal privileges for minorities are reparations for years of enslavement or the equivalent are unconvincing. These "solutions" punish innocent people for the evil doings of others. This essay concludes with some thoughts about the forced transfer of some property now owned by whites to some blacks. A problem of social justice exists but it is not the problem addressed by the Civil Rights Act of 1964.     

Resolving the conflict between clients’ privacy rights and employees’ equal employment opportunity rights

It is unlawful under Title VII of the Civil Rights Act for employers to discriminate against applicants or employees because of their sex unless sex is a bona fide occupational qualification (BFOQ). During the past two decades, a number of courts were asked to decide whether sex is a BFOQ for the purpose of protecting clients’ privacy rights (i.e., whether employers could insist that employees be of the same sex as their clients for those jobs which required employees to touch or view clients’ bodies in various stages of undress). This investigation examined relevant judicial opinions rendered throughout the United States to determine how the courts resolved this conflict between clients’ privacy rights and employees’ equal employment opportunity rights.     

Same-Sex Sexual Harassment: A Legal Assessment with Implications for Organizational Policy

The legal debate over sexual harassment (SH) has taken an interesting turn concerning the controversial issue of same-sex sexual harassment (SSSH). Disagreement among circuit courts' decisions propelled the U.S. Supreme Court to grant full review to the SSSH case of Oncale v. Sundowner Offshore Services, Inc., et al. (1996) [83 F.3d 118 (5th Cir. 1996) [online]. Available: http://laws.findlaw.com/5th/9530510cvl.html]. In a unanimous decision, the Justices indicated that (a) SSSH not only violates Title VII of the Civil Rights Act of 1964 and (b) that the law does not exclude the idea that one heterosexual male can sexually harass another heterosexual male [Oncale v. Sundowner Offshore Services, Inc., et al., S. Ct. 96-568, Lexis 1599 (1998)]. This paper reviews the history of SSSH law and discusses the implications of the Oncale decision for SH policies and procedures.     

The limits of the wage impact of discrimination

In spite of almost 40 years of active enforcement efforts by the EEOC, as well as the strong intervention by the plaintiff bar, the most popular benchmark by which we measure the influence of prejudice on wages paid to female and minority workers has changed very little. This paper maintains that to a large extent this seeming immunity of discriminatory wage gaps to the legal remedies provided by Title VII results from the mismeasurement of those effects. An alternative to the standard Oaxaca decomposition of the wage gap is offered which allows us to put plausible ranges around the true impact of antidiscrimination laws. Not only does this reduce the residual impact of the discrimination that appears to withstand Title VII remedies, it also suggests that the pre‐Title VII impact of discrimination on wages accounted for little of the gap observed at the time of its passage. Copyright © 2005 John Wiley & Sons, Ltd.     

Employee appearance and the Americans with Disabilities Act: An emerging issue?

The recent passage of the Americans with Disabilities Act (ADA), considered the most far-reaching civil rights legislation since the Civil Rights Act of 1964, promises to raise demanding new challenges for employers. This article alerts readers to one example of what may prove to be a long list of unanticipated, but potentially onerous, repercussions from this legislation. Specifically discussed is the role of the ADA in the likely emergence of the issue of employee physical appearance. In addition to the role of the ADA, we explain how other legal forces, as well as organizational and economic forces, may propel physical appearances to the level of a formidable social issue.An earlier draft of this paper was presented as a symposium at the 1989 Employee Responsibilities and Rights Conference, Orlando.     

Explaining cross-racial differences in teenage labor force participation: Results from a two-sided matching model

White teenagers are substantially more likely to search for employment than black teenagers. This differential occurs despite the fact that, conditional on race, individuals from disadvantaged backgrounds are more likely to search. While the racial wage gap is small, the unemployment rate for black teenagers is substantially higher than that of white teenagers. We develop a two-sided search model where firms are partially able to search on demographics. Model estimates reveal that firms are more able to target their search on race than on age. Employment and wage outcome differences explain half of the racial gap in labor force participation rates.     

Twin Data vs. Longitudinal Data to Control for Unobserved Variables in Earnings Functions – Which Are the Differences?*

This paper compares two different approaches empirically to control for unobserved characteristics when estimating the effect of marriage on male and female earnings: the longitudinal and the twins approach. The estimates were obtained by exploiting the longitudinal dimension of a large sample of Swedish twins, so that longitudinal and twin‐based estimates could be obtained in the same sample. The two approaches lead to different conclusions both regarding the role of unobserved characteristics in the cross‐sectional earnings–marriage relationship and the effect of marriage on earnings. The paper investigates three potential explanations of this difference.     

New Insights into Unemployment Duration and Post Unemployment Earnings in Germany*

Building on non‐stationary search theory ( Mortensen, 1977 ; Van den Berg, 1990 ), this article estimates the effects of UB on unemployment durations and future earnings using unique administrative data in Germany. We apply censored Box–Cox quantile regression. Our results imply that the length of entitlement shows only a weak effect on unemployment duration for entitlement lengths up to 12 months and no effect on post unemployment earnings. There are noticeable effects on exits from unemployment for entitlement lengths above 12 months. A high wage replacement rate for low‐wage earners is associated with a longer duration of unemployment and higher post unemployment earnings.     

Sexual Harassments: Criteria for difining hostile enviorment

Sexual harassment in the workplace continues to be one of the most controversial and complex legal and ethical issues facing empolyers. The U.S. Supreme Court's June 1986 decisiion inMeitor Savings Bank v. Vinson, which applied Title VII of the Civil Reights Act to situations involving sexual harassment, is discussed. The Court's definition of hostile environment is reviwed, and federal court cases interpreting the Supreme Court's pronousncements are examined. The cases provide guidance on the kinds of situations that result in employer liability for sexual harassment. A primanry conclusion is that employers may easily avoid liability by exercising learned judgment and sound management practices.     

Employment Discrimination and the International Workplace: A Review of Recent US Court Rulings

The extraterritoriality clause in the Civil Rights Act of 1991 amended Title VII and the ADA to include employment discrimination protection for US citizens working abroad for US employers. A review of recent court rulings demonstrates an absence of lawsuits involving alleged violations of the extraterritorial provision. Instead, recent cases show that Americans working outside of the US are filing charges against foreign employers rather than US employers and applying state level employment statutes rather than federal legislation. In addition, non US citizens are exhibiting a trend toward invoking US federal and state statutes against US employers. These cases are reviewed and implications discussed for managing employment relations in an increasingly international workplace.

How Does Education Affect the Earnings Distribution in Urban China?*

It is widely believed that investing in education could be an effective strategy to promote higher standards of living and equity. We empirically assess this claim by estimating returns to education across the whole earnings distribution in urban China and find supporting evidence. In particular, we find that returns to education are more pronounced for individuals in the lower tail of the distribution than for those in the upper tail and that returns to education are uniformly larger for women than men. We also find that returns to education increased over time across the whole earnings distribution.     

Impact of Same-Sex Harassment and Gender-Role Stereotypes on Title VII Protection for Gay, Lesbian, and Bisexual Employees

When victimized in the workplace, gay, lesbian, and bisexual (GLB) employees often find themselves without recourse as Title VII does not recognize sexual orientation to be a protected class. We suggest that recent court decisions that have expanded Title VII to protect individuals from discrimination based upon violations of gender norms can be used to provide a basis for protection of GLB individuals under this statute. Using a review of the role of gender norms in the workplace as well as an analysis of recent court decisions and the Congressional debates on the Federal Marriage Amendment as well as the wording of the Defense of Marriage Act [Defense of Marriage Act (DOMA), Pub. L. 104-199, Stat. 2419 (September 21, 1996)], this paper provides the theoretical background and conceptual argument (but does not attempt to make the legal argument) to suggest that same-sex harassment and discrimination are considered violations of societal gender norms and should therefore be protected under the expanded coverage of Title VII.