Making Diversity Count:
A teaching approach using
legal decisions related to
diversity
Chester Spell
Rutgers University
August 2015
Examples: Discrimination
cases

Federal EEO (Equal Employment Opportunity)
individual charge filings:
2005
2006
2007
2008
2009
2010
2011
2012
2013
75,428
75,768
82,792
95,401
93,277
99,922
99,947
99,412
93,727
Importance for employers:
 -legal fees and settlements
 -negative image created
Significant cases:
1989- Shoney’s
 9 employees brought
case
 pencil in the “O”
 result: $105 million
settlement
Denny’s
 Numerous problems discrimination
 Result- aggressive
positive image campaign
 $54 million settlement
 Now do millions in
business with minorityowned firms
1994- Texaco
 taped conversations of racial slurs
 Result: $176 million in back pay, etc.
Price Waterhouse case: gender
discrimination-- not feminine enough?
“you need a course in charm school."
Sexual Harassment
What is the problem?



90% of Fortune 500
companies have had
complaints
Tailhook scandal
Air Force scandal
Addressing sexual
harassment




Apply reasonable woman (or man) standard
Promote policy, don’t just post on wall or in
memo
Test believability of policy (ask employees!)
Enforce sanctions, remedies that match the
offense
Important Laws & Concepts
Related to Diversity
1: BFOQs (Bona Fide
Occupational Qualification)
Example: Diaz vs. Pan American Airways
Can an airline employ only women as
flight attendants? Is gender a BFOQ for
this job?
http://www.youtube.com/watch?v=TR7J
ApjgIGw
More recent BFOQ case:

Hooters (video)
2: Disparate impact



Griggs vs. Duke Power case
Company used high school diploma and
IQ tests
Excluded most African-Americans
Had disparate impact and not related to
job

Significance of disparate impact: Even if
discrimination is not intentional, consequences of
employment practice must not have adverse impact

The 4/5 Rule: impact if selection rate for protected
groups is less than 4/5 (80%) of selection rate for
majority
More recent related case




Ricci v. DeStefano (2009)
New Haven firefighters (19 white, one
Hispanic) passed test, city threw test
out since no African-Americans were
eligible for promotion
Supreme Court said should not have
thrown out test
3 million in legal fees + other payments
Contemporary Cases and
Laws


Employment Non-Discrimination Act
Congressional Action on workplace
legislation
Affirmative Action(AA)
What is it?
 Difference between Equal Employment (EO)
and AA:
 EO is an obligation AA is generally voluntary
 EO prohibits, AA promotes
 EO is neutral with respect to protected
characteristics, AA gives preference
More on AA:
Firms with 50+ employees and government
contracts of $50,000+ must have AA Plan

Many other employers do this anyway
Important AA Case:
Hopwood vs. State of Texas (1994)
 Law school applicants to U of T
 Found reverse discrimination (separate
committees reviewed applicants)
 California law on AA in admissions to UC
schools
Summary:
Discrimination can come in different forms
 intentional discrimination
 practices that have disparate impact on
protected groups
•BFOQs important consideration when judging
whether a practice allowed
•EEO and AA are not the same thing
•Court cases and interpretation of laws show
students how far we have come, but how much
more is still in question