Civil_Service_Reforms

Running head: CIVIL SERVICE REFORMS, EEO AND THE CIVIL RIGHTS ACT CIVIL SERVICE REFORMS, EEO AND THE CIVIL RIGHTS ACT Petra R. Wright GLOSSARY Spoils system was a patronage system that was well established as a method of filling government jobs. Civil Service is any administrative service of a government that requires a huge amount of public service to carry out its orders. Civil Servant or public servant is a person who is employed in the public sector. Civil Service Reforms or (The Pendleton Act) became known as the Civil Service Act of 1883 and re-established the Civil Service Commission. The Civil Service Act which set up the first civil service system for federal employees to guard against patronage appointments rendering it unlawful to fill various federal offices by the spoils system. Civil service laws establish employment policies for public employees based on the merit principle, which the purpose to eliminate political considerations in the employment process. Merit system is a method of personnel management designed to promote the efficiency and economy of the workforce and the good of the public by providing for the selection and retention of employees, in-service promotional opportunities, and other related matters, on the basis of merit and fitness. Discrimination is an act or acts which are adverse to the employment or educational opportunities of one or more individuals because of their age, color, disability, national origin, race, religion, gender or veteran's status EEO/AA is an organizational policy of administering all terms and conditions of employment without regard any to age, color, handicap, national origin, race, religion, sex, or veteran status. Equal Employment Opportunity Commission is the federal government agency responsible for enforcing the nation's anti-discrimination laws in the workplace. Title VII of the Civil Rights Act of 1964 prohibits intentional discrimination, as well as practices that have the consequence of discriminating against individuals because of their race, color, national origin, religion, or sex. ABSTRACT Shortly after the Civil War, the abuse of the federal system led to civil-service reforms, which were designed to cut down the number of government posts filled by appointment and to award jobs on the basis of merit. This Act became known as the Pendleton Federal Civil Service Act of 1883, which provided the initial basis for the adoption of the merit system in the recruitment of federal officials. The Office of Personnel Management (OPM) is tasked with ensuring that these agencies implement personnel management policies that are consistent with the merit system principles set forth by Congress (Horowitz & Rubinoff). The replacement of the spoils systems with the merit system presented a variety of key issues such as to regularize the system of recruitment, promotion, and internal organization. Most importantly, the impact on racial inequality of moving from a protected class employment status to an unprotected at-will relationship in the civil service reforms. Today, most civilian federal workers are employed by the late 20th century merit system principles, which are relied upon today. The major elements of a civil service system generally include guidelines for recruiting applicants, testing programs for screening applicants, impartial hiring criteria, job classifications based on duties and responsibilities, and protection against arbitrary discipline and discharge. Employment laws affects almost everything a worker does when on the job. It is illegal to discriminate in any aspect of employment, which includes hiring and firing, compensation, assignment, or classification of employees, transfer, promotion, layoff, or recall, job advertisements, recruitment, testing, use of company facilities, training and apprenticeship programs, fringe benefits, pay, retirement plans, and disability leave or other terms and conditions of employment. Key Word: Civil Servant, Civil Service Reforms, Merit System, Discrimination, EEO/AA, Equal Employment Opportunity Commission, and Title VII of the Civil Rights Act of 1964 CHAPTER 1: INTRODUCTION CIVIL SERVICE REFORMS, EEO AND TITLE VII OF THE CIVIL RIGHTS ACTS BACKGROUND Working people in America have certain basic legal rights to a fair, just, and equal employment, a safe and healthy work environment; even in a down economic crisis that America is now facing. American workers who are qualified, hardworking people are being denied job opportunities, fired, laid-off, reduction in force, or being discriminated against for reasons that does not have anything to do with their job performances and abilities. American’s fundamental values is the right of each individual to do his or her job and contribute to society without facing unfair discrimination is being strike by employment discrimination. Fairness is one of the fundamental rights that have been recognized, which is protected under federal law in the workplace. Presently, federal law provides basic legal protection against employment discrimination on the basis of race, age, sex, gender, ethnicity, religion, national origin or disability, but not sexual orientation or gender identity and gender expression, which is characterized under The Title VII of the Civil Rights Act of 1964. Reinforcing these federal and state Laws is the Equal Employment Opportunity Commission (EEOC), who sets the guidelines for employers. Human Resources employment decisions should be based upon a person’s qualifications and job performance, at times this principle has to be reinforced in employment discrimination lawsuits. There are various state and federal laws and regulations that require employers to provide a safe work environment, to pay a minimum wage, a fair and just wage, to provide fringe benefits and adequate health insurance, to treat employees fairly and equally, promoting gender equality, and prohibits discriminate against potential or existing employees. Thus, allowing people to fulfill their materialistic and recreational needs giving them the capability to provide for their current and long-term security needs, and to create better communities by having certain administrative agencies to observe companies to make sure that they are in compliance with the various employment laws. Employment laws can be complex, and understanding and implementing them can seem very challenging (DOL, 2005). In America today, people want to reduce inequality and discrimination and the government has to be the first to point the way, which the mission should be to recruit, retain and honor a World-Class Workforce to serve the American people. A major civil reform of the 1800's came when the Civil Service Reform Act was set up in 1883, the first comprehensive civil service law since 1883, which fulfilled the campaign promise of President Jimmy Carter to reform the federal civil service. Reinventing the United States government swept the Nation during the 1900's, it carried with it significant civil service reforms in the States. Many states have invested heavily in extensive reforms of their civil service system, during the last 20 years (Nigro and Kellough, 2007). THE PENDLETON ACT Civil service reforms made it so that government workers were to be hired on the basis of merit, and not based upon who they knew, which under the Civil Service Act (The Pendleton Act) pay, job retention, and discipline depend on job performance and through competitive examinations. The Act also made it unlawful to fire or demote covered employees for political reasons or to require them to give political service or payment, and it set up a Civil Service Commission to enforce the law. The civil service reforms were concerned only with how government worked, not with what it actually did. The civil service reform was absolutely vital and a major legislative priority. The civil service reform was necessary to fulfill the promises of government that is efficient, open and truly worthy of the people's understanding and respect. The first initiative was Reforming the federal civil service system along with Reorganization Plan Number 2, consists of abolishing and reassigning the functions to be performed by the Civil Service Commission and creating three new agencies to implement these reforms, which were the United States Merit Systems Protection Board, the Office of Personnel Management (OPM), and the Federal Labor Relations Authority. The reorganization plan provides the organization framework necessary to carry forth the second imitative, the Civil Service Reform Act, which were to restore the merit principle to a system, which has grown into a bureaucratic maze that would provide greater management flexibility and better rewards for better performance without compromising job security. The aspect of personnel administration was affected mostly on re-engineering and streamlining human resource technologies such as recruitment and selection, classification and pay, training and development, privatization or contracting out, deregulation and decentralization of human resources functions. By the late 1900's, key elements of the civil service reform agenda included the following: • Integrating human resource policy making and administration into the executive leadership and management functions of government, • Structural decentralization and delegation of many human resource functions to line organization, • Broad grants of discretion to agencies and departments in such areas as recruitment, selection, hiring and promotion, • Streamlined and simplified job classification and pay systems, • Streamlined reduction-in-force, grievance and appeals process, • Performance management systems using a variety of merit pay systems intended to reward individuals and groups, • Lowering labor costs and achieving other efficiencies through contracting out or privatization and • Moving toward "at will" employment relationships under which public employees do not enjoy the job tenure protections afforded those holding classified positions in traditional merit systems. (Kellough & Nigro, 2007) The biggest concerns of revamping the civil service system were the problems of employees with poor job performance and the protection of federal employees who "blew the whistle" on government misconduct and fraud. It would be in the public interest for federal employees to bring instances of political abuse or of gross waste and inefficiency to public attention yet "blowing the whistle " is not easily done with impunity (Campbell, 1978). The Civil Service Act seeks greater accountability of federal employees for their performance and protection of the rights of federal employees. Today, there are more than 90 percent of the 2.7 million civil servants employed in the Unites States, about one-third are working under the merit system in the local, state and federal government. Until the last decades, the merit system have made but little progress in the various State services as compared with the advances that were made in the national government and in the municipalities. American’s fundamental values is the right of each individual to do his or her job and contribute to society without facing unfair discrimination is being strike by employment discrimination. SPOIL SYSTEMS VERSUS THE MERIT SYSTEM The use of public offices as rewards for political party work is known as the "Spoils System" . When a political party comes to power, its leaders tend to place many of their faithful followers into important public offices, which many consider this practice warranted when capable persons are appointed to high places where policy is made (Byrnes, 2006). Where policies are implemented many consider this practice warranted when capable persons are appointed to high office, which the political party in power must craft policies to meet its constituents' needs. However, it is unwarranted when political leaders dismiss able persons from positions that do not make policies. By doing this it haul aboard others whose merit consists merely of party loyalty, thus compromising governmental effectiveness and efficiencies. It is assumed that the spoils system in the United States came into general use first during Andrew Jackson's presidency. The spoil system has an older history. President Thomas Jefferson, a Democratic-Republican, favored a policy of keeping rival Federalists out of government office (Byrnes, 2006). In the United States, the spoils system was widely used in local, state and federal government by 1840 and fell far behind other nations in civil service standards of ability and rectitude, which the system was popular in numerous nations. The practice had reached groaning proportions until n 1841, when William Henry Harrison became President. In the early years, government work was very simple. There were between 30,000 and 40,000 office-seekers converged on the Capital Hill to scramble for 23,700 jobs that then comprised the federal service. During that time, there were a numerous people who were being hired through the spoils system who were untrained for their work and indifferent to it. As a direct result, as government grew work become complex and chaotic, a serious need for qualified workers developed. Pressure for civil service reform began shortly following the Civil War. Due to the gross scandals of President Ulysses S. Grant's administration lent credence to the efforts of reformers George W. Curtis, Dorman B. Eaton and Carl Schurzt. A merit system is a method of personnel management designed to promote the efficiency and economy of the workforce and the good of the public by providing for the selection and retention of employees, in-service promotional opportunities, and other related matters, on the basis of merit and fitness. In 1871, Congress authorized the current President to set regulations for admission to public service and appoint the oversight Civil Service Commission. However, this merit system ended in 1875 because of Congress's failure to provide the funds to see it through. Nevertheless, the experiment proved the merit system to be both functional and supportive. In addition, President Rutherford B. Hayes was enamored of reform and began to use competitive examinations as a basis for office appointments. In 1881, President James A. Garfield was shot and killed by a spurned office-seeker. His death provoked further public outcry for civil service reform and spurred passage of a bill introduced by Sen. George H. Pendleton of Ohio. Pendleton bill became known as the Civil Service Act of 1883 and re-established the Civil Service Commission. The Civil Service Act rendered it unlawful to fill various federal offices by the spoils system (Byrnes, 2006). Since that time, much has been done to avoid the evils of the federal civil service system and over the years federal civil service legislation has been greatly expanded. While Many municipalities and States made training and experience the prerequisites of appointment to public office. CIVIL SERVICE REFORM In 1829, the United States was in the midst of a profound social, political, and economic transformation while the country was expanding westward, urbanizing, and industrializing. The old socioeconomic and political order that were established during colonial times was being washed away by an emerging industrial and market system which people believed that wealth, power, and position should be and could be achieved rather than inherited (Nigro et al 2007). All that was needed to take advantage of that was equality of opportunity, ambition, intelligence and hard work. By the 1900's, America was a tinderbox. Cities were crowded with millions of poor laborers, and working conditions were appalling. From the local level government to the highest institutions in the land of corruption darkened politics. Something had to be done, and the progressive movement was the nation’s response. Although, the progressive reformers did not fix everything, not much escaped their attention. Since the political powers were unwilling or unable to address the rapid economic and social changes brought about by the industrial revolution in America, the progressive movement grew outside government and eventually forced government to take stands and deal with the growing problems (Sage, 2010). Workers were being treated badly, and politics were rife with corruption. President Theodore Roosevelt stepped in and helped to clean up the mess that had been created during the Gilded Age, which Roosevelt provided the impetus for the progressive movement and oversaw the first phase of America’s rise to world power. Under the leadership of Theodore Roosevelt, Woodrow Wilson and many other political and business leaders, the nation began to clean up its act. By 1916 hundreds of national, state and local laws had begun to make the cities cleaner and healthier, the workplace safer, and businessmen more considerate of their workers and customers. Progressive reform also touched private institutions such as universities, hospitals, and even charitable or religious groups. Although politics remained a rough-and-tumble sport, steps were taken to clean up the political process, especially at the state and local level, and four constitutional amendments advanced progressive causes (Sage 2010). Today, the progressive beat goes on and a few Americans would claim that this country provides a level playing field for all citizens and workers, or that our political system is free from corruption of one sort or another. From the 1890s to the 1920s, the Progressive Era lasted, which was the Age of Reform, the nation’s response to the industrial revolution. All American was virtually touched by its effects and transformed the role of government in American society. Although, during the progressive age some areas of American life, namely, racial issues and women's rights, were neglected, which the groundwork was laid for future reforms in those areas and others. In 1883, as part of a reform movement to root out corruption and political cronyism, Congress created a federal civil service system that based federal work rules on a merit system. At least in theory, the rules were supposed to be colorblind. The federal government, on the other hand, remained largely under the control of liberal northern Republicans, many of whom sought equal opportunity for all. Despite the rise of Jim Crow's law, the merit system remained in place and the federal government became the nation’s largest single employer of African-Americans, most of whom worked for either the Treasury or the Post Office. In addition to manual laborers, clerks, and auditors, there were black postmasters and an assistant attorney general (Guffey, 2006). In the United States during the early the 20th century, public personnel administration emerge as a specialized field of study or practice which organizational functions that are now associated with public personnel administration have been around for thousands of years. Since then government have been recruiting, hiring, firing, training, paying and managing public employees since the founding of the republic. ETHICAL ISSUES The creation of a civil service system provided the basis for a more "businesslike" government. The central principle became machinelike efficiency, which is accomplishing a given task with less money and energy as possible. The three E's are the root of making government run more businesslike is: • Efficiency • Economy and • Effectiveness. The civil service movement influenced government at all levels to establish ethic codes, which distinguished acceptable public employee behavior. These codes of ethics were incorporated into laws. The idea that government services must be delivered without passion or prejudice and that truthfulness and openness were essential to creating a most favorable administrative environment. There are ethical issues in the employment environment, which requires concerns with being in compliance with the various state and federal laws. Employees in the work force environment often experience various types of discrimination. Many employers violates those basic rights by engaging in unethical behavior and practices because they have been doing it for a long time and have gotten away with doing it, think they can get away with it, or no one will learn of their unethical actions; even though they know the moral principles of right and wrong. Today, there are many employers who have learn or is learning that it pays to be ethical because if it is determined that an employer have committed an illegal action it could cost them expensive penalties for violating the statutory laws. While many employers are adhering to all federal and state laws that has been set forth as a guide line by establishing policies to guide their executives, managers, and human resources department to making legal and ethical business decisions. When an employer make an employment decisions there are three questions to be asked; is the action profitable' Is it legal' Is it ethical' WOODROW WILSON AND FEDERAL SEGREGATION President Woodrow Wilson was the first Democrat and Southern-born President who possessed “The finest mind in public life” and instituted many reforms, wrestled with a conservative faculty and put many progressive ideas of education to work. He was often called the Doctor in The White House. In 1913, when Woodrow Wilson assumed the presidency many African Americans believed that he would be on their side for their cause for advancement. In his views, slavery was a part of the civilizing process and was confident in his ability to manage the Negro's problems. While many African Americans had cast their vote for Wilson, risking ostracism or ridicule from other people of their race for departing from the ranks of the Republican party. Discontent with Republican and Progressive candidate Taft and Roosevelt and their platforms nurtured this deviation from the traditional line of Negro support. It was spurred by the stirring assurances of wholehearted support to the Negro race by Woodrow Wilson (Wolgemuth, 1959). In his candidacy speeches Wilson told African Americans that they could count on him for absolute fair dealings, which his promises, got their votes to be President to the whole Nation-to know no color of white or Black. Many people believed that Wilson had adopted the laws of Jim Crow as the United States government policy. As soon as Wilson took office as President of the United States, he replaced African Americans with Caucasians in his administration. What was more troubling was Wilson's push to institutionalize segregation in the federal civil service system (O'Reilly, 1979). The hopes of the advancement of African Americans fell in Wilson's administration, which ultimately led to the introduction of segregation into several of the federal civil service departments. This action raised questions of vital concerns to government-race relations and created a sensation among nearly all elements of the colored world as well as among some of the Caucasians (Wolgemuth, 1959). In Wilson's early writings, he believed that the emancipated slaves had not been prepared for the freedom and that the passage of time would do as much to improve their social and economic conditions. Wilson had approached the question of race from a southern point of view, which implies that his Southern background had taught him to believe in the superiority of the Caucasian race and to regard a paternalistically benign attitude toward colored people as a moral obligation (Blumenthal, 1963). There is a reason to believe that Wilson's education and early impressions in the South naturally influenced his thoughts on public question. As President of the United States, who was subject to political checks and balance and conflicting interests, Wilson was destined to be torn between the ideals and realities of democracy. The race question is one of the historical realities in American life, presented a challenge to his ideals and his leadership (Blumenthal, 1963). DISCRIMINATION Between the 1890s and 1945, the segregationist order was introduced and maintained in the Federal civil service. Racial bureaucracy is defined by two characteristics. First, one group of employees was placed in a subordinate position to others, both formally and informally, as a consequence of their “race.” Second, physical working conditions and daily routines were constructed around the segregation of one group of employees because of their race and, furthermore, advancement and promotion within the bureaucracy was delimited by race. This illustrated how segregation impinged directly upon African American employees in a range of agencies and positions in the federal civil service (King, 1999). Discrimination is an act or acts which are adverse to the employment or educational opportunities of one or more individuals because of their age, color, disability, national origin, race, religion, gender or veteran's status. These factors cannot be considered as a basis for employment or admissions consideration in the decision-making process. Unlawful discrimination may be either intentional or unintentional known as disparate impact and disparate treatment. In the past, the roots of discrimination run deep the American public service along with political, economic, and social trends. Serving as a strong advocate of civil service reform as a part of the progressive agenda was President Woodrow Wilson. Wilson ordered African Americans removed from all but menial jobs in the federal service in an effort to maintain the southern base of the Democratic party. Prior to the civil rights movement of the 1960's, the failure of public personnel systems to ensure genuine equality of opportunity of opportunity or equal employment opportunity (EEO) went virtually unchallenged. Social norms, unequal educational opportunities, the exclusion of minorities from the political process, and the intentional discrimination by personnel administrators played major roles in the exclusion of minorities and women from all but the lowest level of public service (Nigro et al, 2007). The struggle for women’s suffrage was also a product of decades of on going efforts. The Nineteenth Amendment, finally ratified in 1919, at last granted women's suffrage. The struggle for women’s right to vote was one of the key elements in women’s overall fight for greater equality (Sage, 2010). During the 1916 presidential election, women campaigned vigorously against Woodrow Wilson’s, who refuse to support the women’s suffrage amendment. Historically, like ethnic and racial minorities women have always been confined to lower-grade jobs which were restricted to clerical, secretarial and service positions. UNFAIR DISCRIMINATION Unfair discrimination tends to occur when employment decisions are based on race, age, sex, religion, ethnicity or disability rather than on the ability to perform the job, or on job relevant- knowledge, skills, abilities, and other characteristics. It is important for an organization to follow company policy, rules, laws and regulations in employment to achieve workplace fairness. When these important factors are not followed, it results in expensive and time-consuming lawsuits. Employment discrimination lawsuits that were filed in federal court dropped 39.7% in 2006 from a decade ago. The U.S. Department of Justice’s Bureau of Justice Statistics report that were released on August 29, 2008, shows 14,353 employment discrimination lawsuits filed in federal court in 2006, down from a high of 23,800 in 1997. A sharp increase in workplace law claims throughout the 1990s followed by the passage of the Civil Rights Act of 1991. Title VII provided greater relief to plaintiffs suing under the employment discrimination provisions of the Act, most notably, by granting discrimination plaintiffs the right to a trial by jury. The number of claims filed annually reached a high in 1997 before leveling off (still approximately 20,000 each year) through 2004, which declined piercingly thereafter. According to a report to be published by the Harvard Law & Policy Review, “a newly analyzed data from federal court records show that workers bringing employment discrimination lawsuits increasingly fare poorly in the federal courts”. (American Constitution Society for Law and Policy, 2008) The odds of winning a job discrimination lawsuit in federal court are against plaintiffs' and their attorneys. Previously, plaintiffs who brought job discrimination cases to district court won only 15 percent of the time, compared to 51 percent for non-jobs related cases, according to statistical analysis conducted by two Cornell University Law School professors of federal records from 1979 to 2006. (Zemlicka, 2008) Even though there are fewer job discrimination cases being filed in federal court today, there are a number of employees who have credible cases is as high as ever, due to the current economic climate, which has forced many companies to downsize or shuffle its workforce. Employees or applicants under most circumstances are not protected from discrimination, no matter how unethical or unfair it may be. EMPLOYMENT DISCRIMINATION In the United States, employment discrimination is consider to have taken place when an employer or any of his or her representatives singles out any of the employees, a class of, or a group of employees on the basis of their race, age, gender, physical disability, sexual orientation, religion, national origin and many other reasons. Employment Discrimination laws seek to prevent discrimination on those basis. According to the Equal Employment Opportunity Commission (EOCC), all employers in the United States are prohibited from discriminating against individuals for any of the following reasons: • Transfers, layoffs, promotions or recalls • Use of company's facilities • Fringe benefits • Hiring or Firing • Job advertisements • Testing • Pay, disability leave and retirement plans • Compensation, classification and assignment of employees • Apprenticeship and training programs • Recruitment An employer has to be in violation of certain federal or state statutory laws, or even the regulatory and constitutional provisions in order to be 'illegally' discriminatory. In 2007, the Department of Justice fine a company over $174,000 in penalties after it uncovered discriminatory documentation practices during the hiring process. The problem: a lawful work-authorized immigrants, who is a U.S. citizens were subjected to greater scrutiny during the employment verification process than individuals who appeared to be U.S. citizens because she were believed to look or sound "foreign. TYPES OF EMPLOYMENT DISCRIMINATION Although employment discrimination falls up under many categories, the common types of employment discrimination that you may witness or be the victim of at any organization are: • Age Discrimination – Age discrimination comes about when an employee is treated in an unfair or inequitable manner for either being 'too old' or not old enough. However, in most cases it is not considered to be illegal to discriminate against any employee for being very young, there are various federal and state employment discrimination laws that exist to protect and aid employees who are aged 40 and above. Those individuals who are 40 and above are in the protective class under the federal and state law. • Gender Discrimination – Gender discrimination is also known as sexual discrimination or sex-based discrimination, and it occurs when any employer treats a particular employee in an unfair manner or inequitable manner based on the gender of the employee. • Racial Discrimination – The most common form of employment discrimination is racial discrimination, which takes place when an employee or a group of employee's are treated harshly or differently based upon their ethnicity or race. There are laws that prohibit employers from denying a worker an employment opportunity because of his or her racial group, characteristics or even marriage to someone from another race or ethnicity. • National Origin and Language Discrimination – Language discrimination occurs when an employee is neglected or treated badly because of his or her nationality, accent or ethnicity. • Religious Discrimination – When an employer treats a particular employee in a harsh manner because of the employee's religious beliefs and practices. Discrimination generally when there is the refusal to consider the employees religious practices. • Sexual Orientation Discrimination – This type of discrimination takes place when an employee is treated disrespectful because he or she is perceived to be a homosexual, heterosexual or bisexual. • Disability Discrimination – The disability discrimination Act focuses on the specific needs of the blind, partially blind, handicapped (whether physically or mentally) or disabled people. The American Disability Act (ADA) covers those with disabilities. • Pregnancy Discrimination – This takes place when an employee is treated unfairly because she is pregnant. • Equal Pay and Compensation Discrimination – This occurs when a workers wages are not based on his or her performance or job title but instead on the sex, religion, race, nationality, disability or age of the person. Source: Equal Employment Opportunity Commission EMPLOYEE RESPONSIBILITY Employees have a responsibility to report discrimination; many employees fail to do so because of the comparatively low success rate of winning cases, and fewer lawyers are willing to risk taking an employee’s case to the federal level. There are numerous of ways to correct employment discrimination regardless of which path an individual takes, however, they are advised to not delay because of the time constraints. When individuals are seeking relief from employment discrimination, there are certain time limits to report an allegation and file a charge. The time constraints to file a discrimination allegation is up to 180 days after the allege incident has taken place. Employment discrimination is not a joke and if a person feels that he or she have been a victim of any of these types of discrimination, there are many corrective measures that can be taken. Even though plaintiffs only win 15% of job discrimination claims, employees who experience discrimination on the job should still report discrimination to stand for what is right, so that discrimination would not continue on, affect other employees and future employees. Why is it so hard for plaintiffs to succeed in federal court when it comes to job discrimination' That is because some judges have an increasingly narrow interpretation of the federal statues and courts are weeding out frivolous claims, which in turn has prompted plaintiffs to pursue less lucrative avenues for relief. What is happening is the judges are protecting the employers, also know as the honest but mistaken rule, which states that an honest mistake lacks discriminatory intent (unintentional), but that’s not always true. Therefore, Plaintiff's must show evidentiary burden of proof to their allegation. Reports of harassment, discrimination, and retaliation claims have not slowed down; these claims are often settled or dismissed on motion for summary judgment before they even get to a jury. However, lawyers cannot win a discrimination case by telling a judge or jury, "My client didn't mean to do it". CHAPTER 2: The Legal Aspects of Hiring and Recruiting There was a need for a uniform set of principles for the federal government to screen applicants for hire and employees for promotions, which the laws requires that all applicants receives a fair and equal treatment in the hiring process. The Department of Labor is a federal agency within the U.S. government that is responsible for enforcing labor laws. The U.S. Department of Labor has a listing of all recruiting Laws and regulations that is available to employers as well as employees. Some of the things that employers can do to make sure that everyone is aware of the legal guidelines and policies concerning the recruiting process, is having everyone who would be involved in any part of the interviewing process must attend a legal aspects of hiring and training. Organizations should designed and establish a thorough, efficient and proper recruitment process by following all legal guidelines this would help in hiring the right kind of staff, and the most qualified. Employers can conduct periodically training to ensure that HR members are aware of the legal aspects of interviewing, recruiting, selecting and hiring and how to avoid unlawful employment discrimination when making employment decisions. (DOL, 2009) When screening for employee’s employers want to ensure that a fair and efficient screening process will occur. HUMAN RESOURCES Human Resources (HR) plays a vital role in the recruiting, selecting, hiring, staffing, and retaining good talent in the employment practices of obtaining “work force quality”. “Staffing is a critical organizational function concerned with the acquisition, deployment, and retention of the organizations workforce” (Heneman, 2006). Thus, an organization’s workforce is a stock of human capital, which refers to the knowledge, skills, and abilities of employees and their motivation to use them successfully on the job to produce organizational profitability, market share, and customer satisfaction. In order to build an organizations workforce through such systems as staffing strategy, human resource planning, recruitment, selection, employment and retention requires having a good human resource-staffing department. An average workforce employee costs an organizational about 28 percent of its total revenue consisting of wages or salaries and benefits, which is an expensive proposition and cost for doing business. Organizations are valuing employees as human capital, a tangible asset that creates competitive advantages, not just as the cost of doing business. However, not all organizations values employees especially when an organizations starts to view employees as a liability, start doing and making a lot of unlawful discrimination acts and decisions. Organizations are doing a lot of shifting of their views of employees and making adverse decisions that are costing them big legal fines because of their cost-cutting, and reduction in force. While organizations are still trying to examine what today's workforce expects, how to efficiently use the recruitment budget, and all legal steps within the hiring process. In today’s society, there are still challenges that individual faces in employment when it comes to race, religion, national origin, being a minority, being a woman and even being a white male because not all Human Resources have staffing ethics, which involves having moral principles and following the guidelines for acceptable practices. While America is still trying to reach gender equity, society is still dealing with all types of overt discrimination, and various discrimination laws. Over the past four decades, there has been an increased in the number of laws and regulations governing the employment process. The main purpose of employment laws and regulations is to prohibit unfair discrimination in employment, and to provide everyone with equal employment opportunities. Although, employment laws differs for civil service employees versus at will employees. Civil service protection applies to the hiring and firing of most public sector at the federal, state and local level other then elected and some appointed officials. Civil service laws vary from state to state where employees may be subject to the Public Employment Labor Relations Act (PELRA), the state Administrative Procedures Act (APA) and the Veteran's Preference Act. Generally, under most state laws, "no permanent employee in the classified service shall be reprimanded, discharged, suspended without pay or demoted except for just cause." This is a very significant protection that does not exist for the vast majority of private sector employees who are generally considered "at-will" employees (Tanick, 2011). HUMAN RESOURCES ROLE IN THE HIRING PROCESS The elements of the federal civil service system generally include guidelines for recruiting applicants, testing programs for screening applicants, impartial hiring criteria, job classifications based on duties and responsibilities, and protection against arbitrary discipline and discharge. Civil service laws and the role and operation of the commission vary from state to state. Human resource plays an important role in the hiring process. They have a responsible duty to match individual to jobs called job match. Human resources role in the hiring process is: A. Recruitment Process B. Employment Laws C. Job Descriptions D. Job Analysis E. Screening and Selection Process F. Interviewing ESSENTIAL JOB FUNCTIONS A job function is the primary job duties that are intrinsic to the employment position an individual holds or desires. The term does not include marginal or peripheral duties assigned to a position that are incidental to the performance of the primary job functions. A job function may be "essential" to a position if: 1) The reason the position exists is to perform that function, 2) There are a limited number of employees available to perform the function, or 3) The function is highly specialized so that the individual hired for the position must possess the expertise or ability to perform that particular function. JOB DESCRIPTION Job description is a written role description of a vacant position, which accurately represents the current functions, and needs of the available job. Job qualification is the educational background, prior work experiences, necessary skills and abilities, and any other requirements an applicant must possess in order to be hired for the job or promotion consideration for a particular position. Candidates should be selected for an interview based on the degree to which they meet the criteria and demonstrate the skills, knowledge and abilities outlined in the job description. When an employer post a job with a job description that lists the qualifications and requirements, the job requirements cannot be changed once the job notice have been posted. An employer cannot change it because all of the applicants who are applying happen to be a minority, old, or women. That would be discriminatory for an employer to do such a thing; standards have to be applied equally to all applicants and employees. An employer cannot make special provisions for someone who does not meet the posted requirement for the job by passing over qualified minorities or women during the hiring or promotion process in the favor of a male or Caucasian with lesser qualifications. JOB POSTINGS Equal employment opportunity is the law and all employers by law are required to post the Equal Employment Opportunity poster. All private employees are required by law to display certain federal, state, and OSHA labor law posters in their workplace for the intended audience. There are several ways to avoid discrimination lawsuits such as: 1. Accepting applications only when a job is open and ready to be filled. 2. Use written job descriptions Written job description is useful in overthrowing unintentional discrimination charges. Having a reasonable and necessary job requirements will objectively eliminate many applicants and should also eliminate any possible inference that discrimination was involved in narrowing the field of applicants. 3. Collect and maintain applicant flow data An employer should maintain accurate records of who actually applies for each open position, who is chosen, and the reason for the decision on every applicant. It is important to any case of unintentional discrimination is having a comparison of the "qualified available pool of applicants" a long with those who were actually chosen for the position. Unless the employer has an accurate and reliable way to prove who the actual applicants were, a plaintiff will be able to use more generalized workforce statistics and assume that applicants appeared for each job in the same demographic proportions as their general presence within a geographic area around the work location. (Cook, 1992) If the employment decision that was made were later challenged, the employer would be able to go back to the demographic information to determine the actual make-up of the applicant pool for a particular position. However, without specific data on who the real applicant pool was, the employer would lose to a charge of discriminatory hiring. 3. Maintain records of employment decisions It is essential having retention of records. The most dangerous aspect of the unintentional discrimination theory is its tendency to rely on assumptions and inferences drawn from the statistics and the fact that it can shift the burden to the employer to disprove a presumed earlier occurrence of employment discrimination. (Cook, 1992) When an employer can produce accurate and thorough historical record of selection and promotion processes this would allow them to be able to make employment statistics work for them rather than go against them when faced with claims of unintentional discrimination under the Civil Rights Act of 1991. 4. Records of job offers 5. Applications and resumes 6. Interview notes 7. Tests and test results 8. Written employment policies and procedures 9. Personnel files 10. Examine lawful vs. potentially unlawful statements for application forms and pre-employment inquiries Source: U.S. Department of Labor, 2009 SELECTION TESTS In 1978, the EEOC adopted the Uniform Guidelines on Employee Tests Selection Procedures or “UGESP” under Title VII, (EEOC, 2008). Employers should have a policy in place that prohibits discrimination at any stage in recruitment process of employment. In fact, most employer have listed on their employment application that they are an equal employer with equal opportunities and does not discriminate on the basis of race, age, ethnicity, religion, sex, or disability or any other covered basis, except if the employer can defend the test or procedure under the laws. An employer’s equal opportunity policy should be one that is working to benefit the whole staff and future hires. Today, more and more employers are using job aptitude tests to help select employees and research indicates that 40% of people are asked to carry out such tests. (Jones, 2008) Employers often use employment tests and additional selection procedures to screen applicants for hire and employees for promotion. There are various types of tests and selection procedures, which include cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks. All selection tests should be designed for the overall aptitude for the job that the individual is applying for. These tests and other selection procedures is an effective means of determining which applicants or employees are most qualified or a match for a particular job. However, use of these tools can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older) (Equal Employment Opportunity Commission, 2008). Employers should design all test so that it does not discriminate on those basis, ensure that employment tests and other selection procedures are accurately validated for the positions and purposes intended, and the test or selection procedure must be related to the job in question and its outcome appropriate for the employer’s purpose. Therefore, if a selection procedure screens out a protected group or person in a protected group, the employer should seek another effective alternative selection procedure that has a less adverse impact and adopt the alternative method. For an example, if the selection method is a test, the employer should decide whether a different test would predict job performance but not disproportionately exclude the protected group. Because a test or selection procedure can be an effective management tool employers should ensure that managers who only knows a little bit about the processes do not casually adopt employment tests and selection procedures. However, no employment test or selection procedure should be implemented without having an understanding of its effectiveness and restrictions for the organization, its suitability for a specific job, and whether or not it can be appropriately administered and scored. In 2007, there were a significant number of employment discrimination charges raising issues of employment testing, and exclusions based on criminal background checks, credit reports, and other selection procedures. Title VII of the Civil Rights Act of 1964, American with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1967 permits employment tests as long as they are not “designed, intended or used to discriminate on the basis of race, color, religion, sex or national origin”, and imposes restrictions on how to score tests. Employers are not allowed to adjust the scores of, use dissimilar cutoff scores for, or otherwise modify the results of employment-related tests on the basis of race, color, religion, sex, or national origin. An example of an discriminatory selection test is the title VII case of the EEOC v. Ford Motor Co. and United Automobile Workers of America where Ford Motor Company refuse to revise their cognitive test which had a adverse effect on African Americans. In legal terms referred to as systematic discrimination of recurring practice rather than to an isolated act of discrimination, that includes the failure to remedy the continuing effects of past discrimination. However, the intent to discriminate may or may not be involved. In this case the U. S. District court-approved a settlement agreement in a fairness hearing on behalf a private class action racial discrimination case against Ford on behalf of thousands of African American Ford hourly employees nationwide filed on December 27, 2004, in conjunction with the EEOC who were rejected for an apprenticeship program after taking Ford’s cognitive test known as the Apprenticeship Training Selection System (ATSS) for positions. In order to evaluate mechanical aptitude, the ATSS was a written cognitive test that measured verbal, numerical, and spatial reasoning. This written application test had a disparate impact on African Americans because the test used a written test for skilled trades apprentice positions which included positions for electrical, millwright, plumber-pipe fitter, machine repair, and tool and die. The ATSS was validated in 1991, and continued to have a statistically significant disparate impact by excluding African American applicants. Ford did not modify its procedures when a less discriminatory selection procedures were later developed that would have met Ford’s needs. In the settlement agreement, Ford agreed to replace the ATSS with a selection procedure, to be designed by a jointly selected industrial psychologist, that would predict job success and reduce adverse impact that would be constant with the Uniform Guidelines on Employee Selection Procedures and professional standards within the field of industrial organizational psychology. In addition, Ford paid $8.55 million in monetary relief, non-monetary relief was to provide 280 Apprenticeships, and revamp selection method for skilled trade Apprenticeship program. (EEOC, 2008) The monetary relief applies to 13 African American Ford employees who filed charges of discrimination with the EEOC offices in Cincinnati and Cleveland, as well as a class of about 3,400 African Americans nationwide current and former Ford employees who took the Apprentice Training Selection System test between January 1, 1997, and the date of preliminary approval of the settlement (Feb. 9, 2005), and were not placed on a Ford apprenticeship eligibility list. (EEOC, 2005) The Commission General Counsel Eric Dreiband says, "Employers must consider how all aspects of selection processes, including written tests, may adversely impact members of a particular demographic group." When employers do not adhere to the various laws they pay expensive fines like Ford Motor Company who had to pay the 13 charging parties $30,000 each in monetary relief, and approximately 3,400 additional class members $2,400 each, for a total recovery to the class of approximately $8.55 million. In addition, counsel for the private class will receive $1.1 million in fees and expenses for work through final approval of the settlement and $567,000 in fees and expenses for work to be performed in implementing and monitoring the settlement. (Ohio Small Business News, 2009) As of August 2004, Ford Motor Company no longer uses the Apprentice Training Selection System test. The EEOC is concerned with whether or not the overall hiring and selecting process meets the criteria, not every step of the process. Therefore, selection tests must be validated to show connection to job performance. This process is measured by using the 4/5ths rule, known as the 80 per cent rule, which is a test of whether or not an employer is discriminating. In other words, the selection rate for minorities must be 80 per cent that of non-minorities. For example, if 60 percent of Caucasian applicants are hired, the proportion for minorities must be 48 percent (.80x.60 = .48). Agencies and courts are not clear what pool to use in applying the 4/5ths rule asking questions like is it minorities in the local population, or in the local workforce, or who have applied to the agency' TYPES OF SELECTION TESTS The federal civil service hiring guidelines are issued by the Uniform Guideline Employment Selection Procedures (UGESP) along with the Equal Employment Opportunity Commission (EEOC). The use of employment tests and other selection procedures can be a very effective means of determining which applicant or employee are most qualified for a particular position. Although, the use of these selection tests can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based upon race, color, sex, national origin, disability or age (40 and older). Also, these types of selection tests can violate the anti-discrimination laws and raise legal issues, if they disappropriately excludes people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the laws. Title VII of the Civil rights Act of 1964 (Title VII), the American Disability Act of 1990, and the Age Discrimination in Employment Act of 1967 (ADEA) prohibits the use of discrimatory employment tests and selection procedures. There are many types of selection tests (civil service exams) and procedures. Employment tests and other selection procedures in making employment decisions include the following: 1. Cognitive tests assess reasoning, memory, perceptual speed and accuracy, and skills in arithmetic and reading comprehension, as well as knowledge of a particular function or job; 2. Physical ability tests measure the physical ability to perform a particular task or the strength of specific muscle groups, as well as strength and stamina in general; 3. Sample job tasks (e.g., performance tests, simulations, work samples, and realistic job previews) assess performance and aptitude on particular tasks; 4. Medical inquiries and physical examinations, including psychological tests, assess physical or mental health; 5. Personality tests and integrity tests assess the degree to which a person has certain traits or dispositions (e.g., dependability, cooperativeness, safety) or aim to predict the likelihood that a person will engage in certain conduct (e.g., theft, absenteeism); 6. Criminal background checks provide information on arrest and conviction history; 7. Credit checks provide information on credit and financial history; 8. Performance appraisals reflect a supervisor’s assessment of an individual’s performance; and 9. English proficiency tests determine English fluency. Source: Equal Employment Opportunity Commission, 2008 In making employment decisions professionally developed tests can be used as long as the tests are fair and nondiscriminatory. When selecting employees all employers should be aware of the legal requirements that apply when tests and other assessment instruments are used. Employers should consult legal counsel or a Human Resource advisor before instituting and implementing any employment selection tests. In the selecting process, any recorded information about applicants' sex, race, national origin, and age by law, must be kept separate from the written application material used in employee selection. This collection of recorded information about the applicants must be kept isolate and protected from the managers and supervisors who make the hiring decision. Due to the 9-11 attack on the World Trade Center, there has been an increase in employment testing due to security concerns about workplace violence, safety and liability. In addition, the large scale adoption of online job applicants have motivated employers to seek efficient ways to screen a large number of online applicants in a non-subjective way. By 2007, the number of discrimination charges raising issues of employment testing and exclusions based on criminal background check, credit re[orts and other selection procedures had reached a high point at 304 charges of discrimination (EEOC, 2010). TEST VALIDITY MODELS The use of tests for making employment decisions is supported by evidence of the tests' validity consist under one or more of the following models: 1. Content validity: the test is a representative sample of performance in some defined area of job-related knowledge, skill, ability, or other characteristic. 2. Construct validity: the test is demonstrated to be a measure of a job-relevant characteristic (e.g., reasoning ability). 3. Criterion-related validity: the test has to show to be statistically related to some criterion of successful job performance. Test accommodations should be made as to retain the validity of the test for selecting qualified employees. CHAPTER 3 EQUAL EMPLOYMENT OPPORTUNITY & AFFIRMATIVE ACTION LAWS EEO/AA Laws And Regulations and Fair Employment Ways How Company Enforces Employment Laws There are several national agencies that are concerned with EEO/AA which includes the U. S. Civil Rights Commission, the Equal Employment Opportunity Commission (EEOC), the Civil Rights division of the U. S. Department of Justice and the Office of Federal Contract Compliance Programs (OFCCP in the Department of Labor Employment Standards Administration which enforces enforces the Executive Orders ensuring that employers doing business with the Federal government comply with the laws and regulations requiring non-discrimination based upon the principle that employment opportunities generated by Federal dollars should be available to all Americans on an equitable and fair basis. It is very important for employers to know where to go for help in understanding their responsibilities under the various employment laws. All employers are required to post Equal Employment Opportunity poster in a conspicuous place. Any covered employer failing to post the required employment poster may be subject to citation and penalty. EEO is nearly entirely a function of the national government, with states largely duplicating the national laws and programs. Some of the Federal Equal Employment Opportunity (EEO) Laws includes: TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (Amended in 1991) Title VII of The civil Rights Act of 1964 is a major national law that prohibits employment discrimination based on race, color, religion, sex, or national origin. The Civil Rights Act of 1991, among other things, provides monetary damages in cases of intentional employment discrimination. Title VII covers all private businesses and labor unions. The 1972 EEO Act extended it to state and local governments. The US Civil Rights Commission and the EEOC monitor and enforce it. Congress amended Title VII on November 21, 1991; the new law applies to all employers who have 15 or more employees in each of 20 or more calendar weeks per year (Cook, 1992). As amended, Title VII expressly provides a cause of action for unintentional discrimination. In addition, Congress made plain its intent to restore the Court's initial, broader conception of what counts as such discrimination. (Grossman, 2004) The 1991 Civil Rights Act breathes new and vigorous life into the "disparate impact" theory and relabels it, significantly, "unintentional discrimination." Under this theory, an employer who selects workers based solely upon qualifications, without having any information about the race, sex, or national origin of the applicants, can still be found guilty of violating the law. The employer's motive is not an issue. (Cook, 1992) The legality or illegality of the hiring or promotion process can be judged solely upon a statistical analysis or selection test of its employment results, by doing a comparison of the race, national origin, and sex composition of the pool of candidates with that of the workforce selected. The discrimination incidental from such analysis or test may have been unintentional, but it is still illegal. In these selection and statistical tests each qualification is subject to be analyzed to see whether or not it has screened out more minorities or women than Caucasians or males. The legality of the entire process will be in doubt if the statistics show that fewer minorities or women made it successfully through the process, when an employer subjectively weighs a set of qualifications. The compromise in the new enacted law of the Civil Rights Act left several critical definitions to be drafted by the courts but left no uncertainty that statistical data would be essential in the defense of future discrimination lawsuits. (Cook, 1992). TITLE VII OF THE CIVIL RIGHTS ACT AND CIVIL SERVICE REFORM ACT Title VII of the Civil Service Reform Act of 1978 (CSRA) is also referred to as the Federal Service Labor-Management Relations (FSLMR) or the Statute, which governs federal employer and employee labor relations in all matters affecting their working conditions. It specifically declares labor organizations and collective bargaining in the civil service to be "in the public interest." Accordingly, the act provides federal employees with legal rights similar to private-sector workers' Section 7 rights under the NLRA. The CSRA states that employees of the federal government have "the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right" (Hunter 1999). Also, the Statute allows certain non-postal federal employees to organize, bargain collectively, and to participate through labor organizations of their choice in decisions affecting their working lives which is known as the Postal Reorganization Act of 1970, which governs labor-management relations in the Postal Service. The Statute defines and lists the rights of employees, labor organizations, and agencies so as to reflect the public interest demand for the highest standards of employee performance, the efficient and effectiveness accomplishment of Government operations. Specifically, the Statute requires that its provisions "should be interpreted in a manner consistent with the requirement of an effective and efficient Government." The Statue defines the universe of organizations that most directly rely on the FLRA: the Federal agencies that employ workers eligible to be represented by labor organizations and the labor organizations that have been recognized as the exclusive representatives of these employees. The agencies, labor organizations, and Federal employees accorded rights by the Statute, comprise the individual “customers” of the FLRA. Agency employers subject to the Statute include not only the Executive Branch agencies and the Executive Office of the President but also various independent agencies and certain legislative branch agencies, for instance, the Library of Congress and the Government Printing Office (Federal Labor Relations Authority, 2011). As a direct result, The Civil Service Reform Act created this portion of the CSRA U.S. Code (Chapter 71 of Title 5 of the U.S. Code). Also, know as the Federal Labor Relations Authority133 (FLRA) to "establish policies and guidance" for the administration of the labor-management relations provisions of the act, which the scope of mandatory collective bargaining for federal employees is limited to personnel employment practices only. The provisions of the FLRA: • Determines the composition of employee bargaining units; • Supervises or conducts union representation elections; • Conducts hearings to resolve complaints of unfair labor practices; • Resolves issues involving the duty to bargain in good faith and • Resolves any exceptions (appeals) to arbitrators' awards. The unfair labor practice provisions of Title VII are similar to those of the NLRA; however, there are five major differences between private-sector employees under the NLRA and federal employees under the Civil Service Reform Act as follows: • Federal employees are denied by statute the right to strike. • The right of federal employees to picket is limited to informational picketing only. It is an unfair labor practice for a labor organization to picket a federal agency in a labor-management dispute if such picketing interferes with an agency's operations. • The scope of mandatory collective bargaining for federal employees is limited to personnel employment practices only. Basic working conditions such as wages, hours of work, and employee benefits are instead subject to statutory provisions. • Union and agency contract provisions as well as all other forms of compulsory union support are prohibited in the federal civil service. • Recognition of labor organizations as exclusive employee representatives occurs only by a majority vote of employees through a secret-ballot election. • Union and agency contract provisions as well as all other forms of compulsory union support are prohibited in the federal civil service. Source: Hunter, 1999 Other federal laws, not enforced by EEOC, also prohibit discrimination and reprisal against federal employees and applicants. The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as prohibited personnel practices, which are designed to promote overall fairness in federal personnel actions. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions can not be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistle-blowing, or for exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB). Source: Office of Personnel Management Thus, in terms of employment, federal employees have legal protections, but employees does not have collective bargaining rights for strikes, pensions, health insurance, etc. If an Individuals participates in a strike against the government of the United States or the government of the District of Columbia may not accept or hold a position in the government of the United States (5 USC 7311). In addition, the negotiated procedures does not cover prohibited political activities, retirement, life insurance or health insurance, suspension or removal for national security, examination, certification or appointment, position classification, which does not result in loss of grade or pay or any matter the union and agency agrees to exclude in the contract. Source: LII / Legal Information Institute FAIR EMPLOYMENT: EXECUTIVE ORDER President Franklin Roosevelt issued the Executive Order barring discrimination in the federal government and by war industries, which he ordered barred discrimination against African Americans by defense contractors and established the fist Fair Employment Practice Committee. As a direct result, federal compliance programs were routinely understaffed, under-funded and lacked enforcement authority. EXECUTIVE ORDER 10925 In response to the Civil Rights Movement, in 1961, President John F. Kennedy created a committee on Equal Employment Opportunity and issued Executive Order 10925, which uses the term "Affirmative Action" to refer to measures designed to achieve nondiscrimination. Executive Order 10925 requiring non-discrimination in employment within the federal government service as well as for government contractors. Subsequent Congressional passage of the Civil Rights Act 1964 (as amended) and other related legislation as well as a series of Supreme Court decisions further secured Equal Opportunity as a social equity effort providing protections against discrimination on the basis of race, sex, color, age, national origin, religion and disability in employment and service provision. Because the passage of Civil Rights legislation was found insufficient to ensure the full implementation of equal opportunity and access for historically disenfranchised groups, Affirmative Action. Then in 1965, President London B. Johnson issued Executive Order 11246, which required federal co tractors to take affirmative actions ensure equality of employment opportunities without regards to race religion and national origin. Later in 1968, added to the protected category was gender. AFFIRMATIVE ACTION The focus of the Civil Rights movement was desegregation. For most of this century, racial and ethnic minorities and women have confronted legal and social exclusion, which they were segregated into low wage jobs and women were barred by laws in many states from entering occupations. Before the use of affirmative Action efforts, the first significant wave of process in enhancing employment opportunities for African Americans and women came during the labor shortage of World War II and immediately after the war. However, racial separation continued and African Americans were still segregated for the most part into low wage jobs into the 1960's. The dramatic victories of the Civil Rights movement one of which was Brown v. Broad of Education and other court cases striking down segregation. What helped advanced the Constitutions promise of equal opportunity to all minorities and women were the Civil Rights Act of 1964 and the Voting rights Act of 1965. Although, these judicial and legislative victories were not enough to over come the long entrenched discrimination. Even after the passage of the Civil Rights laws beginning in the 1960's, the road to equal employment for minorities and women was difficult and programs were often very slow. While males and Caucasians, public and private institutions were often reminded that court decisions or statutes formally ended discrimination. Affirmative Action came about when the controversial aspect of EEO with the realization that equal opportunity by itself was not effective enough which was amended into Title VII of the Civil Rights Act during President Nixon’s Administration. Affirmative action is the specific action that is taken by an employer in order to eliminate the effects of past discrimination in relation to recruiting, hiring, promoting and training employees, in other words a quota for hiring minorities. The issue of affirmative action arose when African Americans could not get jobs on a Federal funded construction project in Philadelphia simply because the trade union only gave a few African American membership. The Department of Justice sued for force the union to admit more minorities, and the two parties agreed to a court supervised settlement whereby the union set guidelines and a timetable for hiring minorities. (EEO Facts, 2005) Through out the years, most government agencies, large corporations and universities were required by the Department of Justice to work out a affirmative action plans if there was any indication of past discrimination, which means almost always. Some of the most standard arguments against EEO and affirmative action are: 1. White backlash negates most benefits; 2. It undermines Black self-confidence because it is imposed by whites; and 3. Less qualified workers are hired and advanced. Some of the standard arguments in favor of EEO and affirmative action are: 1. It is morally right; 2. It is the law and compliance is mandatory; 3. An agency gets the best employees because it does not pass over them due to prejudice; 4. Minorities are better employees because they believe that they have a future with the agency and will be rewarded; and 5. Minority employees will keep the agency in touch with other minorities who are members of the public or some clientele group. Source: EEO Facts AFFIRMATIVE ACTION PLAN Affirmative Action Plan is generally a written document conforming to certain government regulations in which an employer conducts an analysis of its workforce and ascertains whether, members of protected groups are underutilized in certain job groups. In areas where problems are identified, the employer must set goals and timetables to get rid of the underutilization where minorities are underrepresented in the workplace. Timetables is the numerical projections contained in an Affirmative Action Plan which points out through new hires, the employer's hard work to achieve minority and female representation in its workforce that is proportionate with the availability of women and minorities in the labor market. AFFIRMATIVE ACTION PROGRAM Affirmative Action Program is a generic name that refers to the entire organizational affirmative action effort, of which the written Affirmative Action Plan is one part. GOVERNING EEO LAWS AGE DISCRIMINATION EMPLOYMENT ACT (ADEA) In 1967, Congress enacted the Age Discrimination Employment Act (ADEA) which is the first federal age discrimination statute. ADEA protects working people between the age of 40 and 70 years old, although private firms cannot have mandatory retirement until workers reach the age of 70 years old. Educational institutions can employ Professors until age 70. The EEOC has a requirement for old age pensions to be equal for men and women, even though women live five years longer. Even though the ADEA pertains to people 40 and over, people 40 or over can not file a claim of age discrimination if they feel as though someone 40 or 60 years old are receiving preferential treatment better than for instance pay. They cannot make a claim because they are younger than those groups of people. The ADEA was patterned directly on Title VII. Accordingly, courts often draw on Title VII decisions, in interpreting the ADEA. (Grossman, 2004) Under the ADEA it is unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate on the basis of their age. A plaintiff can file a claim under the ADEA as well as under Title VII when a case pertains to age discrimination. The difference between the ADEA and Title VII is that ADEA has an age limit; the ADEA pertains to people 40 and older. While age discrimination should not be tolerated, the disparate impact of cost-cutting reductions in force does not always imply age discrimination, but because those who are of age are affected by it presents a valid claim. Many cases like the case of Meacham v. KAPL, Lockheed and Martin and Sitko v. Goodyear, where employees filed a lawsuit under the Age Discrimination in Employment Act (ADEA) when they subsequently lost their jobs during company staffing reduction in force cutbacks. In these cases, both plaintiffs are alleging disparate treatment and disparate impact. Disparate treatment claims focus on an employer's discriminatory motive and implies that a company is mistreating employees differently on the basis of a protected class. In contrast, disparate impact claims seek to show that an employer's facially neutral policy has an adverse impact on a protected class. Disparate impact claims are generally accepted under Title VII in cases of race, sex, religious and other types of discrimination prohibited under the statute, but courts have been divided about its applicability in age-related cases. It has been argued in courts that age is different, and that age discrimination claims are different from other types of discrimination lawsuits. However, Congress says, it never intended to extend disparate impact or treatment protections to older workers because age discrimination statutes were not meant to redress long-held institutional biases and barriers to advancement, other than to prevent discrimination based on adverse stereotyping. Also, Congress says that it is the natural course of career development, not discrimination that puts older employees at greater risk of losing their jobs. Stephen Bokat, executive vice president of the Chamber's National Litigation Center says, "All employees will inevitably grow older and, over time, will experience an increase in compensation, pension and seniority because of age, and during layoffs to cut costs, older, more highly-paid workers will almost always be selected disproportionately to younger workers”. However, when people reach a certain age they expect to be able to retire not to be force off the job. Even though cases are decided on a case-by-case basis. There are thirteen United States Courts of Appeal, but, only the Second, Eighth, and Ninth Circuits allow disparate impact claims. Only the Sixth, Seventh, Tenth, and Eleventh circuit does not recognize disparate impact claims. Still today, the Third, Fourth and Fifth circuits have not ruled on the issue of disparate impact claims. Attorney Kurt C. Kobelt of Lawton & Cates, S.C., suggested that the Seventh Circuit is “known for not being very sympathetic towards employees in any kind of discrimination ruling.” AMERICAN DISABILITIES ACT (ADA) Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sectors, in state and local governments. The American Disabilities Act of 1990, which were modeled after the 1964 Civil Rights Act by Congress in order to protects people with a physical or mental impairment as well as a "record of impairment" or those "regarded as having a disability." Under the laws of the ADA, a person is disable if: 1. A person has a physical or mental impairment that substantially limits one or more of his or her major life activities, 2. A person has a record of such impairment, or 3. A person is regarded as having such impairment. Impairment is considered "substantially limiting" if it is likely to cause difficulty in securing, retaining, or advancing in employment. On September 25, 2008, President Bush signed legislation, significantly amending the federal Americans with Disabilities Act, which became effective January 1, 2009. The amendment is a countermeasure to the ADA of 1990. The amended Act incorporates major life activities already found in EEOC regulations (“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”) Adding to the amendment are “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” This would allow a substantial expansion of workers to be considered disabled under federal law, as it could possibly include conditions such as high blood pressure, asthma, and other conditions not traditionally viewed as disabilities. The amendment also expanded the definition of disability to include a condition that is in remission or that is episodic, if it would substantially limit a major life activity when active. Now a disability must “substantially limit” a major life activity and temporary conditions will not qualify as ADA disabilities even though the ADA (and courts) remain very unclear about when a temporary condition “counts” as a disability. When an employer employs a disable individual, they are expected to make reasonable accommodations for those employees. Reasonable accommodations means to make any alterations, adjustments, or changes in the job and/or workplace which will facilitate an otherwise handicapped individual or disabled veteran to take part or to perform a particular job productively, as determined on a case-by-case basis depending on the individual circumstances. This term also refers to any adjustments made by an employer to accommodate an employee whose religious beliefs that prohibits them working on certain days and hours, for instance Jehovah Witnesses. The ADA law also protects those who are rehabilitated alcoholics and drug users, but not those who are currently using illegal drugs. ADA law also protects people who are HIV positive and those with the AIDS virus. An employer must make "reasonable accommodations" for an applicant who’s otherwise able to perform the "essential functions" of the job. Examples of making reasonable accommodations would be to build ramps and elevators, to offer training and to supply readers and interpreters. The only way an employers does not have to make reasonable accommodations is when it cost the organizations a significant amount of money to make accommodations, such as providing a handicap parking space. An employer cannot refuse to hire an applicant because it would increase health insurance costs, for instance not hiring a person who weighs over four hundred pounds because they may have medical issues and future medical problems such as diabetes. An employer cannot require a physical examination until after hiring. The EEOC drafted regulations to implement the law. The ADA also has additional requirement that is not related to personnel covering public accessibility to offices, retail businesses, sports arenas, busses and trains. Prior to 1990 the Vocational Rehabilitation Act of 1973 and 1974 gave some of these protections to the ADA. Most workplace laws apply the same way to all employees, whether or not they have disabilities. (DOL, 2005). EQUAL PAY ACT The Equal Pay Act of 1963 prohibits an employer from using the sex of individuals as a basis for pay. Women and men have to have equal pay in the workplace. A woman cannot be paid less for doing the same job as her male counterparts in the workplace. Basically, the equal pay act protects women and minorities. PREGNANCY DISCRIMINATION ACT The Pregnancy Discrimination Act of 1978, was amended to the Title VII of the Civil Rights Act, which states that an employer must offer health coverage and have to base the required leave time from the job on the individual physical condition. IMMIGRATION REFORM AND CONTROL ACT (IRCA) The Immigration Reform and Control Act of 1986 was enacted to protects citizens and certain classes of aliens who comes into the U. S. legally and illegally in personnel actions against discrimination based on national origin such as Mexicans and Hispanics. REHABILITATION ACT OF 1973 Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government. GENETIC INFORMATION NONDISCRIMINATION ACT of 2008 (GINA), Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee from being treated unfairly because of differences in their DNA that may affect their health, . which GINA would prohibit employers from discriminating against employees on the basis of genetic information. This new law prevents discrimination from employers and health insurers CHAPTER 4 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) The EEOC is the federal government agency responsible for enforcing the nation's anti- discrimination laws in the workplace. The Equal Employment Opportunity is an organizational policy of administering all terms and conditions of employment without regard any to age, color, handicap, national origin, race, religion, sex, or veteran status. The Equal Employment Opportunity is like any other field that has government regulations in which an employer conducts an analysis of its anti-discrimination laws. Typically those who are in the protected class members are: women, minorities, 40 years old and over, and those with disabilities. CHARGE (COMPLAINT) OF DISCRIMINATION When individual file an EEOC charge it is a statement alleging discrimination, sexual harassment or retaliation filed with the organization's Affirmative Action Officer or a governmental agency. Anyone who believes that believes that his or her employment rights were violated has the right to file a claim alleging discrimination. An EEOC charge enforcement proceedings begin when a job applicant or an employee files a charge, the EEOC may also file a charge, or an individual, organization such as the NAACP , union representative or agency on behalf of the charging party. The charge can be file in writing by mail or in person at the nearest EEOC office, and filing the necessary information needed such as the charging party name, address and telephone, as well as the respondents name, address, telephone number, and the number of employees that the respondents have. Knowing the number of employees that the respondent has is very important because different types of discrimination cases requires an agency to employ certain number of employees such as the Title VII of the Civil rights Act which requires all private employers, state and local governments, and educational institutions to employ 15 or more employees. ADEA claims of discrimination requires than an employer have 20 or more employees. Because there is a strict time limit to file a charge, a charge must be file within 180 with the EEOC from the date of the allege discrimination incident occurred in order to protect the charging party right’s. The EEOC then forms an investigation of the allege charge to determine if there is “reasonable cause” to assume if discrimination has taken place. If the EEOC finds that there is no reasonable cause to discrimination then the charge is drop. If the investigation finds that there is reasonable cause to believe that discrimination has taken place then the EEOC attempts to proceed with conciliation of the charge. CONCILIATION Conciliation is a voluntary settlement process that seeks agreement by the employer to stop the practice(s) in question and abide by proposed remedies. (Heneman III & Judge, 2006) This is the method preferred by the EEOC. Conciliation is voluntary, and either party may refuse it for any reason. When an agreement is reached between the parties it is legally enforceable. The charging party has two options to conciliate to reach an agreement or be issue a “right to sue” letter, allowing a private lawsuit to be started against the employer. However, all laws enforced by the EEOC requires an individual to files charge first with the EEOC before a private lawsuit can be filed in court, except the Equal pay Act. RETALIATION After an employee or job applicant files a charge the EEOC prohibits employers from retaliation. Retaliation is an act or acts which intimidate, coerce, or prevent an individual from filing a complaint of discrimination, or cooperating with a complaint investigation, or which otherwise interferes with an individual's right to file or participate. The term also includes any adverse employment or academic decision or action taken in response to or as a result of an individual's filing or participating in the investigation of a complaint. Once an agreement is made both parties agrees that there shall be no discrimination or retaliation of any kind against any person because of opposition to any practice declared unlawful under Title VII, or because of filing of a charge, giving of testimony or assistance, or participation in any manner in any investigation, proceedings, or hearing under the name statues. GENERAL PROVISIONS If the respondent is found guilty of discrimination the EEOC requires the employer to submit to being review in compliance, implement a mandatory training program to inform all employees including managers, of their rights under Title VII of the civil Rights Act of 1964, as part of such review, the EEOC may require written reports regarding compliance, inspect the premises at reasonable times, interview employees and examine and copy relevant documents. The respondent is up for review with the EEOC for a certain length of time after an agreement is made with the charging party, any where from six months to a year. CHAPTER 5: DISPARATE IMPACT INTENTIONAL DISCRIMINATION AND DISPARATE IMPACT It is very easy to understand what intentional discrimination involves. If an employer hires a male instead of a female because they have a preference for male employees, or, if an employer hires a white employee instead of an African-American employee because they are prejudice against African-Americans, they are guilty of sexual discrimination or racial discrimination. (Labor Laws, 2000) Adverse Impact As They Relate To Hiring Adverse Impact occurs when employment decisions such as hiring, promotion, and termination of work go against the disadvantage of members of protected groups particularly African Americans and minorities. Adverse impact tends to focuses on the penalty of employment practices; therefore, an aggrieved party needs only to establish that an employment practice has the negative effect of excluding a significant proportion of women or members of minority groups or the protected class group. According to the Department of Justice (DOJ), Civil Rights Division, a disparate claim of intentional discrimination is one that alleges that similarly situated persons such as co-workers in the same department, employees working under the same supervisor, or employees as a whole, are treated differently because of their race, age, color, or national origin. Often times when people think of discrimination they automatic assume it was intentional, and the discriminating person or organization intended and calculated their behavior. People typically see discrimination when it is most blatant. In today’s cost-cutting environment disparate impact and disparate treatment claims are very important to employers particular with the issues relating to age-related claims, where as, in the united States people are supposed to be past the era of discriminatory practices in the workplace and day to day living. These disparate claims normally arise out of situations in which layoffs suspiciously affect older workers, even though there is no discriminatory intent. Disparate impact is a legal phrase used in employment law to describe when a facially neutral practice that has an unjustified unfavorable impact on members of a protected class. In disparate impact cases, the plaintiff must prove that the challenged practice or selection devices used in the hiring process has a substantial adverse impact on a protected group. Disparate impact applies to specific employment practices such as testing or other selection procedures, which, although applied neutrally, adversely impact on women or minorities as, determined through statistical analysis. The disparate impact theory is typically used whenever there are a large number of disproportionately people being impact based on race, sex, religion, age, or other unlawful factors. To file a claim of disparate impact a plaintiff must show and provide the proof that the challenge action was motivated by the intent to discriminate requiring to show that the decision maker was not only aware of the complainant's race, color, or national origin, but that the decision maker acted, at least in part, because of the plaintiff’s race, color, or national origin. (Wills, 2007) Evidence of discriminatory intent may be direct or circumstantial and may be found in various sources, including in statements made by decision-makers either oral and written, the historical background of events in issue centered around past patterns on executing similar actions, a departure from standard procedure failing to consider factors normally that would have been considered, and past history of discriminatory or segregated conduct of prior bad behavior of illegal conduct. While many employers can offer a pretext explanation to hide their true discriminatory motives. However, if the record can show direct proof of intentional discrimination evidence contained must be able to establish a case of discrimination, the investigating agency must then determine if the employer can give a legitimate, nondiscriminatory reason for the challenged action. When filing a claim that an employer has engaged in a "pattern or practice" of unlawful discrimination, the evidence must show patterns of discrimination based on race, color, or national origin which was the employer's "regular standard operating procedure rather than the unusual practice." When the discriminatory pattern has been proven, it may be assumed that every disadvantaged member of the protected class suffered from the discriminatory policy, except if the employer can show that its action was not based on its discriminatory policy. The plaintiff must be able to show and point out how similarly situated employees other coworkers with the same job classification, title, or salary were treated differently and more favorably than he or she were treated an example could be a fitness requirement that male workers could easily meet, but female workers could not. Title VII of the Civil Rights Act of 1964, prohibits intentional discrimination, as well as practices that have the consequence of discriminating against individuals because of their race, color, national origin, religion, or sex. In August of 2011, the class action civil rights appeals case of Lewis v. Chicago, the U.S. Supreme Court order brought an end to 13 years of litigation of thousands of African Americans who lost a shot at becoming a Chicago firefighter because of a discriminatory test in its evaluation of test scores, which only 11 percent of the African American scored 89 or better. The lawsuit alleged that the city’s written firefighting test was unfair and resulted in discrimination against African Americans each time the test was used because 78 percent of the applicants hired after the test were Caucasians, which the Caucasians scored much higher than the African Americans, the result being that few African Americans landed jobs with the department. African American applicants who scored in the qualified category brought the lawsuit, which alleged that the test disproportionately classified African American as qualified rather than well-qualified and was not a valid test of their firefighting aptitude, which Lewis claim was tests does not mean anything and that there is no evidence that the applicant who scored 89 or better would be a better firefighter than those who scored a 64. A federal judge agreed in 2005, saying in her ruling that the city knew the cutoff point was meaningless and would disproportionately exclude African Americans from the pool of candidates most likely to be hired (Kirkwood, 2011). In July of 1995, the City of Chicago administered a written examination to over 26,000 applicants, which approximately 6,000 were black applicants who lost out on the chance to be placed on the list of potential firefighters because the entrance exam and its well qualifying cut-off score favored Caucasian job seekers. The federal courts first found this adoption of practice of the City of Chicago in the first court case where an employer’s decision to exclude employment applicants who did not achieve a certain score on an examination, which an applicant may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice. In order to file a disparate-treatment claim discriminatory intent is required which means that the plaintiff must demonstrate deliberate discrimination within the limitations period. The fire fighter examination required a scored of 89 or above (out of 100), whom the City deemed “well qualified” candidates, which the test scores were labeled into “well qualified,” “qualified,” and “not-qualified” categories. Those who were drawn from the well qualified group proceeded to the next phase of taking the physical-abilities test, background check, medical examination, and drug test and if they cleared of those hurdles they would be hired as candidate firefighters. On the other hand, those who scored below 65, learned by sent letters that they had failed the test, had not achieved a passing score and would no longer be considered for a firefighter position because they were as deemed not qualified. Also, they would not be contacted again about the examination. The applicants in-between those who scored between 65 and 88, whom the City called “qualified” were notified that they had passed the examination but that, based on the City’s projected hiring needs and the number of “well-qualified” applicants, it was not likely they would be called for further processing because it was not possible to predict how many applicants would be hired in the next few years, (Lewis v. Chciago, 2010). However, the names of each “qualified” applicant’s would be kept on the eligibility list maintained by the Department of Personnel for as long as that list was used. Ultimately, the City officially adopted an “Eligible List". On May 16, 1996, the City selected its first class of applicants to advance to the next stage, which a second one was selected on October 1, 1996, and over the course of six years the process were repeated nine more times. In each selection round the City drew randomly from among those who scored in the “well-qualified” range on the 1995 test. In the last selection round it exhausted that pool, making the petitioners’ lawsuit untimely because the earliest EEOC charge was filed more than 300 days after the only discriminatory act: sorting the scores into the “well qualified,” “qualified,” and “not-qualified” categories. A plaintiff must first file a timely EEOC charge before beginning a Title VII suit. In this case Lewis v. Chicago, the petitioners’ charges were due within 300 days “after the alleged unlawful employment practice occurred.” Thus, determining whether a plaintiff’s charge is timely requires “identifying precisely the ‘unlawful employment practice’ of which Lewis complains. The courts had to make a determination to whether or not the plaintiff establishes a prima facie disparate impact claim by showing that the employer “uses a particular employment practice that causes a disparate impact” on one of the prohibited bases, which petitioners claim satisfied that requirement. Although, Title VII does not define “employment practice,” but that the term encompasses the conduct of which petitioners complain: the exclusion of passing applicants who scored below 89 (until the supply of scores 89 or above was exhausted) when selecting those who would advance. The City “used” that practice in each round of selection. Although the City had adopted the eligibility list (embodying the score cutoffs) earlier and announced its intention to draw from that list, it made use of the practice of excluding those who scored 88 or below each time it filled a new class of firefighters. Lewis alleged that this exclusion caused a disparate impact. What matters is that their allegations, based on the City’s actual implementation of its policy, stated a cognizable claim (Lewis v. Chicago). The hiring decisions down the line were immaterial, it reasoned, because “the hiring only of applicants classified ‘well qualified’ was the automatic consequence of the test scores rather than the product of a fresh act of discrimination” (Lewis v. Chicago). Because the courts have essentially ruled that tests to work for vital public service departments do not matter, taxpayers will shoulder an enormous bill, and the fire department must restructure its hiring practices and retest some of the applicants who did not make it first time around (Kirkwood, 2011). Supreme court Justice Scalia delivered the opinion of the Court. stating that the Title VII of the Civil Rights Act of 1964 prohibits employers from using employment practices that cause a disparate impact on the basis of race (among other bases), which it will now cost the city of Chicago public benefits to at least $45 million to compensate thousands of African Americans. Also, the Chicago Fire Department must hire 111 African Americans pursuant to the lawsuit by March 2012 waiving the age limit of 38 for the 111 candidates, while others who no longer wish to work for the fire department will collect at least $5,000 a piece, and the Chicago taxpayers will also be on the hook for $10 million to $20 million in back pension contributions for those who are hired. “Those who indicate they are still interested in becoming Chicago firefighters will be entered into a ‘jobs lottery’ to identify 750 candidates who will take a physical abilities test in October and undergo background checks, drug tests and medical exams,” (Kirkwood, 2011). Disparate impact theory is an important match to more conventional theories of discrimination and it serves two important purposes: First, it serves as a check against truly accidental discrimination. Example a police department that maintains higher than necessary fitness requirements for its officers one that women and Hispanics might be less likely to meet the requirements because of height and weight which may not have been adopted to produce that adverse effect. However, they operate to deny women of access to desirable jobs for no real reason. Disparate impact theory provides a way for forcing employers either in response to litigation, or to avoid it and to reevaluate their practices to ensure equal opportunities. Second, disparate impact theory polices intentional discrimination at the restrictions. Consider a case in which prior to the passage of Title VII, an employer openly refused to promote African-Americans for certain jobs. This was the Landmark case of Griggs versus Duke Power Company where African American employees were discriminated against because Duke had policy as a condition in order to be hired to work in certain labor departments which paid more, employees had to take two aptitude tests, and registered a minimum score as well as having a high school diploma. Willie Griggs filed a claim on behalf of several other African American Employees. Title VII bans the practices of employers adopting a high school graduation requirement and to require minimum aptitude test scores for certain classes of employees to limit, segregate, or classify employees to deprive them of employment opportunities or adversely have an effect on their status because of race, religion, sex, or national origin; an employer could not insist on these requirements unless they were justified by "business necessity". The not-so-coincidental effect of those requirements was to ensure that African-Americans despite Title VII would still be barred from desirable jobs in that workplace. However, these two aptitude test nor having a high school education did not have anything to do with employees being able to perform the particular jobs nor directed or intended to measure an employee’s ability to learn a particular job or category of jobs within the company. Title VII was intended to achieve equality of employment opportunities; therefore, the court rules that Duke’s standardize testing requirements prevented a large number of African American employees from being hired, promoted, and advancing to higher-paying departments within the company. The court also found that the subtle, illegal, purpose of these requirements was to preserve Duke’s longstanding policy giving job preferential to its Caucasian employees, and that Duke previously followed a policy of overt racial discrimination in a period before the Civil Rights Act, however, such conduct had ceased. But because Duke had financed two-thirds of the cost of tuition for high school training, thus providing special efforts to help the undereducated employees, which shows lack of discriminatory intent. The court ruled that Duke had adopted the high school education and aptitude test requirement without any “ intent to discriminate” against Negro employees. UNINTENTIONAL DISCRIMINATION AND DISPARATE TREATMENT There is a thin line between intentional and unintentional discrimination claims when it comes to employment standards. It is possible, on the other hand, for an employee to prove discrimination "by showing the existence of an employment practice which, although neutral on its face, has the effect of disproportionately affecting a persons in a legally protected group". This is called unintentional discrimination and can be established by the employee proving a pattern or practice that results in a discriminatory environment. For example, if an employer have a predominantly Caucasian work force and primarily hire on the basis of recommendations that they receive from current employees, their work force will most likely remain predominantly Caucasian. An employer may be deemed to be guilty of unintentional racial discrimination. (Labor Law, 2000) Unintentional discrimination can happens out of awareness. Disparate treatment is discrimination by which an employer (supervisor) treats certain people differently because they are women or members of a minority group. Comparative evidence, statistical evidence, and direct evidence of motive may be used to prove disparate treatment. Plaintiff can have a case that contains both disparate impact and disparate treatment. There are prevention guidelines prepared to avoid trouble under The Civil Rights Act of 1991 to avoid unintentional discrimination such as: 1. Advertise for new employees. 2. Post notices about promotion opportunities. 3. Make sure that all job requirements are actually job-related. 4. Establish objective qualifications for specific jobs. 5. If minorities are rarely ever hired or promoted, carefully review all employment practices to see what may be causing this "unintentional" effect. 6. If women are never able to break through the "glass ceiling" of upper management, determine if there is some "unintentional" - yet perhaps unlawful - reason for this. 7. Consider whether pre-employment tests are effectively eliminating a disproportionate number of minority applicants. 8. If it takes minorities or females twice as long to be promoted as white males, find out why. 9. If the age of your workforce is quite young (despite a fair number of employment applications from employees 40 years old and older), ask what gives. Source: Labor Laws, 2000 There have been many cases of intentional discrimination in the court system. Claims of unintentional discrimination frequently arises with regard to promotions and transfers within an organization, which is why it is important for an employer to post promotional opportunities. When an employer makes a promotional decision out of the clear blue, without given any notice to employees who may be interested, and seem to be based on purely subjective criteria, this makes an employer vulnerable to intentional discrimination claims. One simple way to reduce the number of candidates for a promotion (and the number of potential plaintiffs in litigation) is to use job postings with specific qualifying criteria and application deadlines. (Cook, 1992) Thus, making those who do not apply for the job promotion or who do not meet the objective qualifications for the job cannot later complain that they were discriminated against when they do not get the job promotion. CHAPTER 6: FEDERAL BILLS The U.S. court system is hearing many oral argument of employment discrimination claims being brought to Court, while Congress is steadily trying to get certain employment laws passes that will ultimately affect and impact many employers in their employment decisions; offering employers a number of reasons to cheer but even more reasons to jeer. So far in 2009, the U.S. House of Representatives has passed a legislation that could significantly impact employers, if the legislation, the Lilly Ledbetter Fair Pay Act becomes law. The Lilly Ledbetter Fair Pay Act is aimed at overturning the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which limited the time frame for bringing pay discrimination claims to court. The Lilly Ledbetter Fair Paycheck Act would enhance remedies for sex-based discrimination and make it easier for plaintiffs to establish an Equal Pay Act (EPA) violation against their employer. The two bills have been combined (H.R. 11) and sent to the Senate for consideration. (Ford & Harrison LLP ,2009) DISCRIMINATION LAW: GINA Genetic Information Nondiscrimination Act of 2008 ("GINA") came into law by President Bush on May 21, 2008. Discrimination law GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. This new law prevents discrimination from employers and health insurers. Gina becomes effective in November 2009, being added to the anti-discrimination provisions in Title VII of the Civil Rights Act of 1964, which GINA would prohibit employers from discriminating against employees on the basis of genetic information. Employees who violates the GINA law will be subject to employee lawsuits and government agency enforcement actions. (Legal Update, 2009) H.R.2015—EMPLOYMENT NON-DISCRIMINATION ACT Currently, Congress is prepared to consider a bill H.R. 2015 Employment Non-Discrimination Act that would prohibit employers from refusing to hire people based upon their “sexual orientation or gender identity.” Employment Non-Discrimination Act (ENDA) would ban employment discrimination on the basis of sexual orientation or gender identity. The ENDA prohibits public and private employers, employment agencies and labor unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions. A business or organization with 15 or more employees is subject to being barred by federal statutory law from the refusal hiring, firing, promoting, or compensating a person because of the person’s sexual orientation or gender identity as the basis for employment decisions. Employment discrimination that is based upon sexual orientation or gender identity and expression, whether or not such orientation is real or perceived, effectively denies qualified individuals equal opportunity in the workplace. People who experience this form of discrimination have no alternative under current federal law or under the Constitution as it have been interpreted by the courts. The ENDA bill does not affect the "Don’t Ask, Don’t Tell" policy of the armed forces. In 1997, Representative Barney Frank a Democrat of Massachusetts (MA) first introduced the ENDA bill. The current version of ENDA does not provide a strong exemption for religious organizations as the previous versions of ENDA, which eliminates churches but does not exclude Christian organizations or religious organizations such as HSLDA, or private religious schools or colleges. Large home school support groups or co-ops could also be subject to ENDA who employ individuals and who could also be forced to hire an individual whose sexual preference violates the organization’s beliefs. Non-profit groups like the YMCA or the Boy and Girls Scouts, as well as for profit organizations like Christian bookstores, curriculum companies, magazines and radio stations the ENDA would likely also apply to them. The ENDA does not allow • Allow a "disparate impact" claim similar to the one available under Title VII of the Civil Rights Act of 1964. Therefore, an employer is not required to justify a neutral practice that may have a statistically disparate impact on individuals because of their sexual orientation or gender identity. • Allow the imposition of affirmative action for a violation of ENDA. • Allow the Equal Employment Opportunity Commission to collect statistics on sexual orientation or gender identity or compel employers to collect such statistics. Source: Employment Non-Discrimination Act CHAPTER 7: CONCLUSION In 1961, President Kennedy said to the country “Ask not what your country can do for you but what you can do for your country.” During the 1960s and 1970s interest in public service was very high; because people felt that they not only could make a difference but that it was their duty to (Stillman, 2010). Since then times have changed, people began moving to jobs in the private sector for higher pay and government wanted to attract the best minds to fulfill its duties. Civil service reforms was necessary and it was necessary to have a science of administration to straighten out the path of government, making it more business like, to strengthen and purify its organizations, and to crown its duties with dutifulness. Today, civil service members are the bulk of government personnel and the federal civil service work force has stayed fairly constant in size over the past 40 years, but the local and state work force has nearly tripled. In Mahnerd v. Canfield, the Minnesota Supreme Court stated that "one of the purposes of the civil service laws and rules is to eliminate as far as practicable the element of partisanship and personal favoritism in the making of an appointment" (Tanick, 2011). The Civil Service is based on the merit system, where rank is inherent in the job, not the person. It was built on a negative moral reaction to what was perceived as "evil" rather than on a positive and deliberate design. However, members of the general civil service subsystem generally lack the cohesiveness and unity found among professionals, which is due to the lack of mobility within the civil service. In comparison with appointees, civil servants are more realistic and conservative due to worth of incrementalism in decision making of taking small steps at a time. The following were stressed as areas needing attention in civil service, which were poor public image, competence crisis and removing barriers to a high performance work force. The present movement called civil service reform must, after the accomplishment of its first purpose, expand into efforts to improve, not the personnel only, but also the organization and methods of our government offices: because it is plain that their organizations and methods need improvement only less than their personnel (Woodrow Wilson, 1887). It is the duty of public administrators to supply the best practices possible to a federal organization to systems within systems to make town, city, state and federal government live with a like strength and an equally assured healthfulness, keeping each unquestionably its own master and yet making all interdependent and cooperative, combining independence with mutual helpfulness. The task is great and important to attract the best minds (Stillman, 2010). For too long we have fought against inequality and disadvantage as if huge swaths of society - identified by race, gender, disability or sexual proclivity - suffer identical levels of discrimination. In fact "in some instances the variation within the group is much more than the average difference with the rest of society". One of the problems of the broad-brush approach, aside from the error on which it is based, is the "demoralizing sense of victimization amongst disadvantaged groups". 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