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Over the decades, America’s increasingly diverse labor market has been a strong driving force behind constitutional affirmative action shaping HR policies in both public and private employment. This paper aims to explain how the components of affirmative action, as applied to public and private sector employers, intersect with Title VII requirements of the Equal Opportunity Act, 1964.
It will further address recurring public concerns such as the types of employers subjected to affirmative action and the rationale behind it, their obligations and responsibilities and, most prominently, what happens when these employers fail to demonstrate a positive commitment toward affirmative action policies.
As a result of the 1960s civil rights movement, Congress set up the Equal Employment Opportunity Commission (EEOC) with an aim to promote fair employment practices. The provision called Title VII authorizes the EEOC to enforce these statutory requirements, even authorizing it to initiate litigation with employers who refuse to end discriminatory employment practices (Ong, 1999).
The protected classes include “national origin, race, color, religion, sex, age, pregnancy and disability” (Ong, 1999, p. 22). The EEOC also protects employers and unions from charges of reverse discrimination when they actively formulate plans to eliminate minority underrepresentation (Ong, 1999).
Title VII further delineates unlawful employment practices as those that discriminate in terms of “recruitment, selection, compensation, benefits, and training/mentorship programs” (Ong, 1999, p. 24). However, some exceptions are appropriately recognized as in cases where companies reward employees for seniority, merit and long years of loyalty.
In the same vein, it is understood that certain employment roles can only be performed by members of a specific religion, race or sex, which consequently does not violate equal employment guidelines (Ong, 1999).
The priest appointed in a Catholic church would always be a Catholic male, the actor performing the role of Martin Luther King on television or film would logically be a black man, and a social club in Las Vegas would preferably hire young females to serve as dancers and entertainers.
Currently, both public and private employers are required to comply with Title VII when they sponsor 15 or more employees in their payroll (Bennett-Alexander & Hartman, 2007). This applies to educational institutions, state and local governments, employment agencies, consultancy practices, unions and small retail establishments (Bennett-Alexander & Hartman, 2007).
The reason behind keeping this number so low is to maximize opportunities for minority groups that would require affirmative action policies. Federal agencies must regularly create affirmative action roadmaps for their workers and spend on minority staffing programs to ensure adequate representation for target employees in various job segments.
Both public and private employers, in turn, have to follow a substantial set of obligations in meeting Title VII guidelines. First, there has to be a system in place to spell out employment goals for underutilized groups in order to meet statutory goals (Griffin, 2012).
This has to be clearly communicated to all the rank and file and senior employees, and especially those who would affect long-term hiring decisions. Cases of “persistent and egregious discrimination” have to be brought to the notice of the management and resolved without any unwarranted delays (Griffin, 2012, p. 227).
Secondly, employers must adhere to statutory guidelines prescribed under different time periods of the Civil Rights movement. In 1990, Congress passed the Americans with Disabilities Act (ADA) which forbids discrimination against qualified handicapped individuals. The Age Discrimination Act, first passed in 1967, and then ratified in 1978, prohibits organizations from discriminating against older workers (Griffin, 2012).
Finally, the Pregnancy Discrimination Act prevents employers from discriminating against pregnant women (Griffin, 2012). Also, it’s helpful to note that race-conscious affirmative action remedies are sufficiently flexible, temporary in duration and narrowly tailored to avoid transformation into rigid quotas.
In the event of employers ignoring the EEOC requirements of fair employment practices, the EEOC can enforce Title VII through reconciliation, if possible, or through courts, if necessary (Griffin, 2012). Any claims made through this medium permit monetary compensation for damages, back pay, lost pay, lost benefits and attorney’s fees. The plaintiff is at liberty to sue the employer and not the harasser.
Claims can further be made through common law torts which can be even more expensive because such suits take punitive damages into account (Griffin, 2012). It is strongly believed that judicial decisions are a constitutionally valid government response to discrimination against employees in various industries.
The above trends appeared when in April 1974, just two years after the EEOC guidelines had been issued, the commission filed maternity suits against 11 big companies, hoping to maximize the impact of litigation by going after high profile firms (Griffin, 2012).
The vast majority of genuine cases are pursued by the commission to send a strong message to the industry so that they keep things fair for their present and future employees. Companies need to have an internal screening process which can promote business fair practices, and allow them to adhere to the highest code of conduct.
In summary, EEOC has created a feasible set of guidelines for public and private companies to promote best practices in employment under Article VII. Businesses need to make employment decisions in a manner that maximizes their growth but not at the costs of undermining affirmative action efforts which create a level playing field for all workers irrespective of their race, age, sex or religion.
References
Bennett-Alexander, D., & Hartmann, L. (2007). Employment Law for Business. New York, NY: McGraw Hill/Irwin.
Griffin, R. (2012). Fundamentals of Management. Mason, OH: South-Western Cengage Learning.
Ong, P. M. (1999). Impacts of Affirmative Action: Policies and Consequences in California. Walnut Creek, CA: Rowman Altamira.
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