Anti-Discrimination Laws and Their Shortcomings

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The Civil Rights Act of 1991

The Civil Rights Act of 1991 is an Amendment to the Civil Rights Act of 1964, which was primarily based upon the award of damages. The act allows compensatory and punitive damages against the employer, up to $300,000 per person. The punitive damages are awarded only when there is intentional conduct or disparate treatment by the employer.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

Under GINA, and employer cannot discriminate against employees based on genetic information acquired or learned about the employee. It implies to employers under the same context as Title VII, but it does not cover this type of discrimination. An employer cannot discriminate based upon any genetic information about the employee, information about past family members, or request genetic verification on the employee, for hiring, or for taking negative action against the individual if they somehow learn about genetic information about the individual. The genetic information could be evidence of race, national origin, ethnicity, genetic diseases, etc. According to GINA, it is illegal for an employer to ask that information of the employee, to purchase it, or otherwise require the genetic information of an employee in order to gain, maintain, or advance in employment.

Impactful Law Principles

Importance of Diversity in the Workplace

Diversity encompasses all of the traditional aspects of diversity; race, gender, ethnicity, and sexual orientation, but diversity truly goes beyond that. Diversity is about ensuring that every single person goes to work, every day, and feels free to bring their full self. Diversity in the workplace is not just welcoming, but embracing and harnessing the diversity of thought, background, experience, and education. A diverse and inclusive environment is critical to engaging employees, attracting and retaining the workforce of the future, and meeting the needs of customers.

Impacts of Discrimination in the Workplace

Discriminatory practices can affect a company positively or negatively. A company that has very little diversity and hires individuals to increase the level of diversity amongst its employees could benefit from fresh ideas, a new approach, or a more creative way of completing an assignment or task. Discrimination in favor of hiring minorities is not, usually, seen as wrong, although it is technically illegal according to Title VII. Society is in favor of discrimination when it increases diversity, rather than reduces it. Discrimination in the workplace can also lead to a poor work environment and the company may have a high employee turnover rate. Companies with a high turnover rate spend more money on recruiting and hiring new employees than if they had a low turnover rate. When companies are sued for discriminatory practices, very expensive trials ensue and they can have a negative impact on the organization’s financial stability. There are several cases that have been instrumental in creating the laws that are now in place to deal with issues relating to Title VII.

Case Law Examples of Discrimination

In the case of Price Waterhouse V. Hopkins (1989), Hopkins was nominated by her peers to be considered for partner. Her nomination was placed on hold, and later, denied. She filed a suit again Price Waterhouse under the Civil Rights Act of 1964. At the time, there were a very small number of female partners, and very few women were nominated for partnership. Hopkins had an outstanding record at the company, and played an instrumental role in securing a multi-million dollar contract for the company. Other partners in the company made comments about Hopkins’ “unladylike” behavior and many stated that she was difficult to work with.

The Supreme Court found that Hopkins was denied partnership due to other circumstances and ruled in favor of Price Waterhouse. The court could not find evidence that Hopkins’ denial of partnership was specifically related to her gender and that she would have received the promotion had she not been a woman. In cases of disparate treatment, the court looks to Aikens, 460 U. S., at 715 and Burdine, 450 U. S., at 255 as precedent.

In Texas Dept. of Community Affairs v. Burdine (1981), Burdine was passed over for a promotion due to her gender and subsequently fired. The Supreme Court (1981) believes that:

The employer should hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination (p. 1).

In Postal Service Bd. of Governors v. Aikens (1983), Louis Aikens filed a suit against the U.S. Postal Service claiming that he had been passed up for a promotion due to his race. The courts originally made a decision in favor of the Postal Service, but the Supreme Court overturned that decision. The case of Texas Dept. of Community Affairs v. Burdine (1981) was referenced to make a decision on Aikens’ claims.

Distrust of the Law and Misconceptions

Many people believe that businesses are required to hire a certain percentage of women and minorities, due to the legislation mentioned above, however that is not true. Businesses simply cannot discriminate against the protected classes when it comes to employment practices. Some companies are not located in areas with a diverse population, such as small towns in Middle America. If a company does have a policy to increase diversity in their company, they may end up expending more resources to find candidates that fulfill all of the job qualifications and have a diverse background.

However, some organizations do discriminate against individuals despite the extensive framework of anti-discrimination laws, even when there are sophisticated diversity policies in place. Age discrimination can start to take place as early as the mid-thirties. Businesses might choose to hire someone with less experience so they do not have to provide the same salary and benefits as someone with more experience. After the 9/11 attacks, the EEOC