PSY 6430 Unit 2
Legal Issues Continued
Schedule
Tonight and Monday:
Wednesday, 1/30:
Lecture
Exam
1
SO1: Court structure, Title VII cases
Title VII cases are tried in the federal court system
9 justices
3 judges
Supreme Court
1 judge
Eleven Courts of Appeals Corresponding to Eleven Circuits
92 District Courts
(MI is in the 6th; in most cases, trials heard by judges, not juries: click; CRA1991 permits trials intentional disc when compensatory
Or punitive damages. Different laws in different parts of the country until a case reaches the Supreme Court- most liberal, 9th, CA notorious)
2
SO2: EEOC administrative process

Before an individual can pursue redress in court under
Title VII (usually followed by OFCCP as well)
 File a complaint with the EEOC
 Exhaust all internal administrative remedies


At WMU an employee must contact Office of Institutional
Equity
EEOC may pursue four negotiation steps


Stakes increase at each step - penalties for the company
become more and more severe
EEOC can proceed through all four in order, or skip some
and start with the most severe one, depending upon the
strength of the individual’s complaint
(in 1990, OFCCP decided, based on statistics from WMU, to skip the first two and go directly to third step - conciliation agreement. It was lifted in 1995 I’ll talk more about that in a few minutes)
3
SO2: First negotiation step

No Fault Settlement


Complaint is filed with EEOC
Before EEOC collects any data, a settlement is
attempted



Within 10 days of receipt of the complaint, EEOC sends a
copy to the company and immediately gives the company
an opportunity to settle it
If unsuccessful, moves to informal fact finding
Informal fact finding, settlement attempted again

If successful, it results in a no fault settlement


Company does not admit any wrong doing, but engages in
some sort of compromise
If unsuccessful, moves to the next negotiation step
4
SO2: Second negotiation step:
Pre-Determination Settlement

EEOC can and usually does subpoena the company’s records


That is how EEOC gets access to the company’s records
EEOC can subpoena ALL of the company’s records, not just the
records related to the specific complaint



EEO data are strongly protected by organizations - national security
secrets!
Company is invited to respond, if it does the response can be used
by EEOC then or in the future


If it finds something else it doesn’t like, it can “go for it” as well
Most lawyers say organizations should never respond; whatever
information/data they give EEOC can be used against them
EEOC, based on data, determines probable cause or no probable
cause


If no probable cause, EEOC usually withdraws, but individual can
pursue remedy in court - constitutional right (with little chance of
success)
If probable cause and company settles, no wrong doing is admitted by
the company
(NY State Court system, job analysis and needed access to those data so I could develop a representative sample, the AA officer refused to give them
to me. I eventually got it, but had to go to Personnel Director and have him fight the battle with the AA office; AA office usually is separate from personnel)
5
SO2: Third negotiation step:
Conciliation Agreement



Initiated by finding of probable cause and no settlement
Because the EEOC has found probable cause, at this point things
get pretty serious and any settlement is likely to result in some
major concessions by the company (WMU’s conciliation
agreement)
EEOC, not the Court, oversees this agreement thus it is a private
agreement between parties, not a legal agreement



The EEOC administers compliance; if the organization does not
comply, EEOC will typically file a law suit or OK a law suit by the
plaintiff
No wrong doing is admitted by the company if it settles at this
step
If no settlement can be reached, things get REAL serious and
move to the Consent Decree step
6
SO2: Fourth negotiation step:
Consent Decree



Initiated by a law suit filed by EEOC or the plaintiff
BEFORE litigation, EEOC attempts a settlement again
If settled, costly for the organization

Usually involves lump sum payouts including back payments (for
wages lost)


Also may involve an AA program



Again, typically not done in prior negotiation steps
Court must approve the settlement because a law suit was filed
Court oversees compliance because the law suit was filed


Typically not done in prior negotiation steps (including Conciliation Agt)
This is NOT a private agreement between EEOC and the company
If settled at this step, the company still does not admit to any
wrong doing

The company has not had its day in court, and thus has not been
found to have engaged in unfair discrimination
(company has not been proven guilty in court; read some of WMU’s conciliation agreement; Abercombie and Fitch Consent Decree, Home Depot)
7
SO22: Two reasons why a company may
opt to settle even if charge is weak
Year
Consent Decree
Settlement Amount
Abercombie & Fitch
2005
$50.0 million
Texaco
1996
$176.1 million
Nextel
2000
$176.0 million
Coca Cola
2000
$192.5 million
Company
(I am going to jump ahead here - because of the relevancy of SO24; here are some figures - why on earth would companies settle for these
amounts?)
8
SO22: Two reasons why a company may
opt to settle even if charge is weak


Costs and uncertainties of the outcome of
litigation (could be worse than the settlement)
Public relations

Who wants to buy clothes from a store that has
unfairly discriminated against blacks, Hispanics,
Asians and females?

Who wants to buy gas from Texaco where
“the black jelly beans are stuck to the bottom
of the bag?”

In fact, there was a very large, well organized
boycott of Texaco before the case was resolved
(A&F - equal opportunity discriminator - all but white males)
9
NFE: Difficult issues

David Glenn, VP of Institutional Equity


Hired in 1988, retired December 2012
In 1989, WMU faced normal periodic investigations
from both EEOC and Dept. of Education (WMU
probably knew they were coming, Mr. Glenn did not)


Conciliation agreement arose from those
investigations
Never once since David has been here has the
University lost a court case (not as appreciated as
he should be - nonevents are not recognized)
(How I met David; student came to me describing a situation that clearly suggested harassment, hostile environment, seeking my advice.
Next time, I handled it differently - but at what point and what do you say to a student?)
10
SO3: Some statistics from EEOC

In 2011, over 99,000 charges of discrimination
filed with the EEOC






Race
Sex
Disability
Age
National origin
Religion
(up 25% in the past 10 years)
35%
30%
26%
24%
12%
4%
11
SO4: EEO vs. AA

Equal Employment Opportunity
Every individual is treated the same and every
individual who is equally qualified has an equal
opportunity for employment, promotions, etc.



No preferential treatment
Professional selection issue (this is exactly what
selection systems are designed to do - hire the best
applicants)
Not controversial except for racists, sexists, etc.
12
SO4: EEO vs. AA

Affirmative Action
Redresses historical imbalances and increases
number of minorities hired in the work place at a faster
rate than what would occur simply through EEO

Can result in preference being given to individuals in
certain demographic groups




If two candidates are equally qualified, preference will be
given to the minority candidate
A less qualified minority may be hired instead of a more
qualified majority
Social policy, not a “professional” selection issue
Extremely controversial
(pros and cons, I have been on both sides. Denied a job with a very excellent, major company after I had interned there for 2 years in favor of a minority
female who had not worked for the company. Boss stupidly told me I was a 1 pointer, she was a 2 pointer. PA - hired into a position that could only
Be given to a female or minority. Didn’t tell me, when I found out - I was angry, hurt. Did not want to be hired because. Started in a hole with colleagues
13
Later vindicated - white male I was in competition with - he turned out not to be very good.
NFE: Affirmative Action: Different and
more controversial than EEO

Advocates of AA




EEO often does not exist
Historical imbalances exist from past discrimination
Diversity is important and benefits society/culture
Opponents of AA




Violation of basic principles of justice (fairness)
Brands minorities as inferior
Undermines meritocracy and hurts productivity
Often helps wrong groups: e.g., individuals in middle
class protected classes vs. whites from poor socioeconomic backgrounds
(debate in the course pack – at end controversy AA and admission to universities/colleges)
14
SO7: Why are the Uniform Guidelines on
Employee Selection Procedures important?
1. These guidelines were “hammered” out and approved
by all of the federal agencies involved in EEO and AA
compliance (1978)

EEOC, Civil Service Commission, Dept. of Justice, and Dept.
of Labor
Prior to this, both EEOC and Dept. of Labor (OFCCP)
had issued separate guidelines that conflicted.
Selection specialists could not conform to both with
respect to some procedures.
Imagine the confusion.
(Sos on text: learn full name; I was actually in this situation at PA - we were a semi-private, semi-public organization, subject to both EEOC and
OFCCP guidelines, yet we couldn’t satisfy both. And, remember what the stakes are for violating the law….)
15
SO7: Why are the Uniform Guidelines on
Employee Selection Procedures important?
2.
While not legally binding, the courts give “great
deference” to the guidelines. The courts have
ruled that these guidelines will be used as a
“checklist” for the appropriateness of selection
procedures.
(when we get to the professional development/requirements for selection procedures, particularly the job analysis, they are based on these
Uniform Guidelines).
16
SO8: Selection instruments covered

The EEO laws cover any selection
procedure/instruments used, not just selection
tests:




Application blanks
Academic degree requirements
Job interviews
Performance appraisals used for promotion
decisions
(next few Sos, just some details from the guidelines that are particularly important)
17
SO9: Restrictions on use of skills and
abilities in selection
1. If they can be learned during a relatively
brief training period - within 6 months –
cannot test for them


Makes perfect sense from a selection
standpoint
Has implications for job analysis so we will be
coming back to this, but your job analysis must
identify not only which KSAs are required for
effective job performance, but also which can
be learned on the job (so they can be excluded
from your selection procedures)
18
SO9: Restrictions on the use of skills and
abilities in selection
2.
KSAs from higher level jobs are only acceptable if


The majority of job incumbents actually assume higher
level positions
If they so do within a reasonable period of time - Uniform
Guidelines, within five years


If you are hiring assembly line workers, 40 incumbents, but
only 2 supervisory positions, and only a few ever become
supervisors - NO!
If it takes an assembly line worker more than 5 years to
become a supervisor - NO!

If supervisory position requires a BA, but the assembly line
worker position does not - you cannot require your assembly
line workers to have BAs
(Many companies want to test for higher level skills, particularly if there is a strong hire from within policy. However…political hot potato in orgs)
19
SO10: Three types of cut-off score
procedures

Least restrictive: Minimum cut-off score

Minimum score above which you consider all
applicants equally qualified



Pass/fail system
Type of validity procedure: Empirical or content
Next restrictive: Banding


Establish ranges of scores and group applicants in
those ranges: Every applicant is equally qualified
within each band
Type of validity procedure: Empirical only
(type of cut-off score, major implications for the type of validity procedure you use and hence the type of job analysis; cover this now and again later) 20
SO10: Three types of cut-off score
procedures, cont.

Most restrictive: Rank order applicants based
on scores


Select top person first, then the next one, etc.
Type of validity procedure: Empirical only
(managers have trouble with this one, by the way – even if the systems allows input/interview with respect to who is going to be working for them)
21
SO10: Three types of cut-off score
procedures, cont.

Must use empirical validity to determine job
relatedness of the selection procedure if




Banding
Rank ordering
(and of course, if there is adverse impact)*
Why? Two requirements: Uniform Guidelines state
If you use these approaches not only do you have to (a) show that
your selection procedures are job related, but also (b) that those
who score higher on the exam/procedure will also perform better
on the job
There is only ONE way to do that - statistics, empirical validation
*Remember, the laws are only relevant if adverse impact exists
(often ignored by organizations)
22
SO12: Three situations in which a
company would adopt an AA program



Organization is a government contractor and
thus is required to do so under the laws
administered by the OFCCP
Organization has entered into an agreement
with EEOC or OFCCP to do so, or has been
ordered by the courts to do so (Consent decree
or lawsuit)
Organization adopts a voluntary AA program

Language in the CRA of 1991 makes the legality of
voluntary AA programs questionable*

Lawyers recommend that organizations NOT do this
*I’ll talk about this more next two study objectives
23
SO14: Voluntary AA programs


14A: Explain why the courts have
historically excluded white males from
filing a (reverse) discrimination lawsuit
under Title VII
14B: What are white males permitted to
challenge in court re voluntary AA
programs?
24
SO14: Voluntary AA programs - the
controversy


Conflict between wording of Title VII and
preference that can be given members of
protected classes:
It is unlawful to fail or refuse to hire any
individual with respect to race, color, religion,
sex, or national origin.
Further, “nothing in this title shall be
interpreted to require any employer to grant
preferential treatment to any individual.”
So, what about white males?


Color - white
Sex - male
(what about white males who are not hired because a member of a protected class is given preference?
It happens)
25
SO14: Reverse Discrimination

Several reverse discrimination cases have been
brought under Title VII


“Reverse discrimination:” Members of a majority group claim
they have unfairly discriminated against
 All of the cases that I am familiar with to date have
involved groups of white males
In an employment situation, under Title VII (as
opposed to admission to universities/colleges), white
males have never been successful in winning a direct
challenge under Title VII
(they have at times, won disparate treatment cases, and “admission” law suits, but those are different laws: next slide)
26
SO14: Reverse Discrimination


SO14A: Why have the courts historically excluded white males
from filing a (reverse) discrimination lawsuit under Title VII?
The Supreme Court has ruled that the intention of the framers of
Title VII was to protect individuals who have been subjected to
unfair discrimination in the past.
Because white males do not fall into that category, the Supreme
Court ruled that they were not entitled to file a lawsuit under Title
VII.
SO14B: What can white males challenge in court?
White males can challenge the legality of voluntary AA programs.
(CRA of 1991 makes it virtually impossible for white males to
challenge court-ordered AA programs, negating an earlier
decision of the Supreme Court)
(Back to SO14A&B’ last point, imagine the company – the court ordered and approved an AA program – white males challenged it, and
the Supreme Court said it was OK for the males to challenge the legality of the AA program – that was corrected in the CRA 1991.
27
Birmingham Dept. of Safety or
It’s difficult to do the right thing

1972



Courts ruled selection tests were not job related and
unfairly discriminated against blacks
In the 37-year history of the department, a black
trooper had never been hired even though 25% of the
workforce in the area was black
The department revised its selection procedures
Talked about this case before – in the introductory ppt
28
Birmingham Dept. of Safety or
It’s difficult to do the right thing

1977




Black troopers challenged the promotional exams to
captain
Of the 230 officers at or above the rank of corporal,
not one was black
EEOC entered the case on the side of the troopers
pressuring the department to change its selection
procedures
After several years, the department had failed to do so
29
Birmingham Dept. of Safety or
It’s difficult to do the right thing






Justice Department then entered the case on the side of
the black troopers
The department agreed to revise testing procedures
New tests were developed but found to be inadequate
Justice Department asks courts to impose a hiring
quota, which the courts did (50% hiring quota)*
Justice Department then switches sides after Reagan is
President
Justice Department helps the white troopers appeal the
quota system to the Supreme Court on the grounds of
“reverse discrimination”
*hiring quotas are now illegal; goals are not, but quotas are
30
Birmingham Dept. of Safety or
It’s difficult to do the right thing


Supreme Court rules that the white employees can
challenge the court-ordered AA program because
they were not “parties” to the original contract
Supreme Court remanded the case back to the
Eleventh Circuit Court of Appeals to decide whether
the AA program is legal or illegal
(cont. on next slide)
31
Birmingham Dept. of Safety or
It’s difficult to do the right thing

Eleventh Circuit Court struck down the AA
program, ruling that it was illegal as formulated



Court ruled that the organization was NOT given more
protection “just because the program had been
approved by the courts as part of a consent decree.”
Court refused to treat the consent decree ordered by
the court any differently than a “voluntary” AA
program.
Civil Rights Act of 1991

Makes it virtually impossible for white males to
challenge the legality of a court-ordered AA program
(all’s well that ends well – this started in 1977)
32
SO15: Legality of voluntary AA, and
the CRA of 1991



CRA of 1991
It is unlawful to use a protected status characteristic as
a motivating factor* in selection.
You cannot have an AA program without using
protected status as a motivating factor, hence the CRA
1991 calls into question the legality of voluntary AA
programs.
No court cases have addressed this issue, that I know
of, so we just don’t know what the courts would decide.
Nonetheless, legal experts have strongly advised
organizations not to adopt a voluntary AA and to
abandon their current ones until this is resolved.
* “Motivating factor” is an extremely important term here
(language of the CRA that poses the problem for AA programs; remember Gatewood, Field & Barrick: we know what is not legal; but not what is legal)
33
NFE: History of that language



CRA language was written to protect
members of protected classes
It was in response to the Supreme Court
decision involving a mixed motive case
Price Waterhouse v. Hopkins, 1989
34
NFE: Price Waterhouse



Disparate treatment (not adverse impact) case
Hopkins, a female, was denied promotion to
partner
The company considered both legal and illegal
factors when it denied promotion



Illegal: make-up, hair style, and dress
Legal: poor interpersonal skills
Thus, both legal and illegal factors were
motivating factors in the decision: hence, the
term, mixed motive case
35
NFE: Price Waterhouse

Supreme Court ruled in favor of Price Waterhouse



Why? Price Waterhouse maintained it would have made the
same decision if they had not used gender-related factors as
motivating factors
To negate that decision, the CRA language states that
“it is unlawful to use a demographic characteristic as
a motivating factor in selection.”
That language also calls into question the legality of
voluntary AA programs
(can’t use it at all; good luck on that one! They meant well; one more slide on this)
36
NFE: Mixed motive cases, an aside

Even under CRA of 1991, the legal remedies for a
mixed motive case are severely restricted even if a
plaintiff wins





Restricts monetary reimbursement (which does include
payment of attorney fees and costs) to costs/expenses directly
related to the pursuit of the mixed motive case
The court cannot award damages (monetary compensation) or
back pay
The court cannot order the company to admit that it did
anything wrong (that it unfairly discriminated against the
plaintiff)
The court cannot reinstate an employee or force an employer
to hire or promote the employee
Basically an “empty” victory for the plaintiff and not a
very lucrative type of case for a law firm to take on
37
SO16: Characteristics that an AA
program must have to be legal



Text states that there are three characteristics
that voluntary AA programs must have to be
considered legal
However, all apply to any AA program, not just
voluntary ones
Also, in the SO, I changed the three
characteristics for the exam – not quite the
same as in the text
38
SO16: Characteristics that an AA
program must have to be legal


They must be initiated/designed to correct a manifest
imbalance – in other words minorities must be
underrepresented and you must be able to prove that
In addition, the goals, if there are any, must be
connected in some way to the degree of imbalance.
They must not “trammel the interests of the white
employees” or as I have said in the SO:
They cannot completely bar advancement or hire of
the majority group; quota systems are not legal (goals
are OK but quotas are not)

This is one reason the Supreme Court struck down UM’s
undergraduate AA program that added an arbitrary 20 points
to the scores of underrepresented minorities
(love the language - trammel!!; 50-50 hiring quota, a white can be completely denied the opportunity for advancement)
39
SO16: Characteristics that an AA
program must have to be legal

They must be temporary and have no permanent
adverse impact on whites
This is because they are designed to eliminate an
historical balance, not maintain a balance
40
SO16: NFE: Thought Question
Is the fact that AA programs must be temporary
inconsistent with the fact that the OFCCP laws require
government contractors to have an AA plan?
That is, how can a program be both required and
temporary?
If there is no adverse impact (no manifest imbalance),
then there is no AA program, because an AA program
must only be used to correct manifest imbalances.
Essentially, if there is not a historical imbalance, then an
AA program is not required
41
SO20: Ricci v. DeStefano


New Haven Civil Service Board administered a
promotional exam for lieutenant and captain
fire fighter jobs
After the exams had been administered and
scored, the Civil Service Board


Discarded the exams because their use would have
resulted in adverse impact for black applicants and
Blacks threatened to file a law suit
(sos ask you to learn a few details about/rulings from a coupe of court cases. Griggs vs. Duke Power,
First major case – 1971 – far reaching effects. )
42
SO20: Ricci v. DeStefano
Captain exam
(7 vacancies)
Whites
Blacks
Hispanics
Applicants
25
8
8
Passing score
16
3
3
Top 9 scores
7
0
2
Whites
Blacks
Hispanics
Applicants
43
19
15
Passing score
25
6
3
Top 10 scores
10
0
0
Lieutenant exam (8 vacancies)
Here are the actual numbers:
No blacks were eligible for promotion to captain or lieutenant.
43
SO20: Ricci v. DeStefano


Whites and Hispanics subsequently filed a law
suit
Claimed the decision to discard the exam
violated Title VII because it was based on race
and color
44
SO21: Ricci v. Destefano



2006: District Court upheld the right of CSB to
refuse to certify the results of the test on the
grounds it would result in adverse impact
2008: Three judge panel of the 2nd Circuit
upheld the District Court ruling, stating that the
CSB was “in an unfortunate position of having
no good alternatives.”
2009: Supreme Court ruled 5-4 in favor of the
white and Hispanic plaintiffs, not the CSB
45
SO2O: Ricci v. Destefano


Main reason (and one for the exam)
If there is adverse impact, the threat of a law
suit is not sufficient reason to discard the exam
Court also stated
If the test was job-related, then adverse impact would
be OK (fair discrimination), and it appeared the tests
were job related
46
SO2O: Ricci v. Destefano

What happened next
New Haven reinstated the examination results and
promoted 14 of the 20 firefighters within months of the
decision.
The city settled the lawsuit by paying $2 million to the
firefighters who brought the lawsuit; enhancing their
pension benefits by millions of dollars; and paying their
attorney, $3 million in fees and costs.
47
Wal-Mart: some details about the issues




Managerial jobs were not posted; men were
often invited to apply, females were not
Some female managers made $20,000$25,000 less than male counterparts
Females in every job category have been paid
less than men since 1997, even though they
have higher average performance appraisals
and less turnover
“God made Adam first, so women would
always be second to men”
(Sos 24-33, NFE, description of studies; articles in course pack. Hard to understand
the cases without details. Wal-mart cont. on next slide)
48
Wal-Mart continued




One female manager was told she was paid
less than a less qualified male because she
“didn’t have the right equipment.”
Females were repeatedly told “men need to be
paid more because they have families to
support” and “men are here to make a career
while women are not.”
Others were called “worthless broads”
and asked to wear lower cut shirts.
And on and on….
49
Texaco – settled in 1996, race





$176.1 million settlement
Class action suit
EEO was investigating the complaints
At an executive level meeting which was
secretly taped by one of the individuals, one
executive referred to blacks as “black jelly
beans that all seem to be glued to the bottom
of the bag.”
At the same meeting, executives conspired to
alter, withhold, or destroy corporate documents
requested by EEOC and plaintiffs
50
Novartis Pharmaceuticals – US, 2010






$250 million punitive damages
$3.37 million in compensatory damages
Could reach $1 billion dollars
70% of managers are male, while 66% of sales
representatives are female
Women in sales positions received an average of over
$100.00 less per month than males in same jobs from
2002-2007
Management expected female representatives to be
amenable to sexual advances from the doctors they
call on and have criticized them when they have
complained about inappropriate advances
51
Novartis Pharmaceuticals – US, 2010

A male district manager repeatedly showed female
direct reports pornography and invited them to sit on
his lap.
He referred to women as “b……s and c…s” and said
wives “were only good for washing, ironing, and f… .g.”
Company responded “He wasn’t that bad a manager.
He was just terrible with women.”
Novartis kept him on staff managing women for 2 years
after HR had substantiated these claims and explained
that it just took a long time to get rid of him because the
company was owned internationally.
52
Novartis Pharmaceuticals – US, 2010




Manager told a woman he preferred not to hire young
women because:
“First comes love, then comes marriage, then comes
flex time and a baby carriage.”
Recruiters consistently asked women if they were
married or had children but not men
One woman who had children was repeatedly passed
over for promotion by men who had inferior sales
numbers
One manager encouraged a woman to have an
abortion
(Novartis is going to appeal. Working Woman magazine has ranked Novartis as one of the top 100 companies
to work for in the nation for 10 years in a row….OK, moving on)
53
Back to EEO & AA: MI

EEO vs. AA: Difficult issue





Do you believe that you have been unfairly
discriminated against?
Do you believe others have been unfairly
discriminated against?
Do you believe EEO exists?
Have you been disadvantaged by AA?
How strongly do you value diversity in the
work place?
54
NFE: Affirmative Action: Different and
more controversial than EEO

Affirmative Action

New York Herald article, circa 1900

The poor and illiterate class that is a national menace and
cannot be disregarded with safety




Immigrants from Asia
Immigrants from Southern Europe
Immigrants from Ireland
“The rights of a lot of your foreparents were not
recognized until the government stepped in and
affirmatively lifted them up”
(Kenneth Brown, UM, 2004)
55
NFE: Affirmative Action: Different and
more controversial than EEO

Affirmative Action

Threats to college-diversity programs pose risks for boys



What about AA for boys being admitted to college?
Admissions preferences are being used to maintain a
balance now when more girls attend college than boys, and
have better qualifications
What about other types of preferences?



What about athletes?
What about legacy? (preferences for children of alumni)
Justice Dept. sued Illinois State University for giving
preference to minority and women in a janitorial training
program, but did not address the fact that veterans were
given the same preference
(more uptight about AA based on race than other factors)
56
NFE: Proposition 2, Michigan

Proposition 2, passed as a constitutional
amendment, in November, 2006
Bans public institutions from using AA
programs that give preferential treatment
to groups or individuals based on race,
gender, color, ethnicity, or national origin
for employment, education and
contracting purposes
(controversy occurring now in the state of MI; the fact that it is a constitutional amendment
is important and I’ll talk about that in a few minutes)
57
NFE: Proposition 2, Michigan:
Some history


In Michigan, in 1995, the admissions policies of both
the undergraduate and law school at UM were
challenged because of AA policies
2003: Supreme Court
The law school admission policy was found to be legal,
the undergraduate admission policy was found to be
illegal

Undergraduate policy awarded 20 points on to the
“admission score” for any underrepresented minority


Supreme Court ruled this was an arbitrary approach that did not
allow individual consideration
Law school took race into consideration

Supreme Court ruled this was OK
58
NFE: Proposition 2, Michigan:
Some history


Proposition 2 was sponsored by the same individuals
that sponsored a similar proposition in CA, and the
individuals who challenged UM admission policies but
was broader
To repeat:
Bans public institutions from using AA programs that
give preferential treatment to groups or individuals
based on race, gender, color, ethnicity, or national
origin for employment, education and contracting
purposes
59
NFE: Proposition 2 vs. OFCCP

How does Proposition 2 affect WMU? Seem to have
contradictory laws with OFCCP requiring AA and
Proposition 2 banning it
 Federal laws supersede state laws, thus in situations
where the OFCCP laws require affirmative action for
hiring, they will take precedence (i.e., hiring of staff and
professors at WMU)
 Federal laws do not address admissions or
scholarships (or hiring contractors) based on diversity,
so Proposition 2 takes precedence
(Thurgood Marshall; Chevaz King Scholarships; funding source makes a big difference)
60
NFE: Stay tuned….



2012, Nov. (6th Circuit Court of Appeals): 8-7 vote ruled
that the amendment was unconstitutional because:
“it deprived members of racial minority groups in MI of
their 14th Amendment right to equal protection under
the law by embedding the issue of affirmative action
into the state’s Constitution, where it was prohibitively
difficult for a minority group to challenge.”
2012, same day: The MI state attorney general, Bill
Schuette, announced he would appeal to the Supreme
Court
California, Washington, & Nebraska have similar
constitutional amendments but they are not affected by
the 6th Circuit ruling
61
NFE: Stay tuned….



This issue has to do with the constitutionality of AA
being barred as an amendment to MI’s Constitution
As such, it does not address the legality of AA in
university admissions (or employment and awarding of
contracts in public institutions)
The Supreme Court has, however, agreed to hear a
case that does address that:
Abigail Fisher, a white student, claims she was denied
admission to the University of Texas because of her
race.



Case has aspects that may limit its generality but
Has the potential to eliminate diversity as a sufficient rationale
to justify the use of race in admissions – a ruling that came
from a similar Supreme Court case, decided in 2003
Ruling expected in June of this year
(proves how controversial this is and an issue that is not going to go away any time soon…)
62
Unit 2: The End
Questions?
Comments?
63