PSY 6430 Unit 2
Legal Issues Continued
Schedule
Wednesday, 1/28 and Monday, 2/02: Lecture
Wednesday, 2/04: 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
SO6: Two reasons why a company may
opt to settle even if charge is weak
Year
Consent Decree
Settlement Amount
Merrill Lynch
2013
$160 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 SO6; here are some figures - why on earth would companies settle for these
amounts?)
8
SO6: 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? (Abercombrie & Fitch, 2005)

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
9
NFE: Difficult issues

David Glenn, former WMU 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 when Mr. Glenn was here did WMU
lose a court case (not as appreciated as he should
be - nonevents are not recognized)
10
SO3: Apple, Amazon, & Oracle
refusal’s to reveal diversity data




In Dec. 2014, in an investigative report by USA
Today, re the lack of diversity in high tech companies
Apple, Amazon, and Oracle refused to release EEO
data
Nine other high tech companies did release EEO
data
This is a very interesting/intriguing issue
If you were employed by Apple, Amazon, or Oracle,
given EEOC’s broad powers to file law suits, what
you recommend about releasing EEO data?
(EEO data are considered state secrets: NYS court system, job analysis)
11
SO4: Some statistics from EEOC

In 2013, over 93,000 charges of discrimination
filed with the EEOC









Race
Sex
Disability
Age
National origin
Religion
Color
Equal pay
Genetics
35%
30%
28%
23%
11%
4%
3%
1%
.4%
12
SO5: EEOC’s Strategic Enforcement Plan,
2013-2016






Eliminate barriers in recruitment and
hiring for all protected classes
Protect immigrant, migrant, and other
vulnerable workers
Address emerging issues
Enforce equal pay laws for females
Preserve access to the legal system
Prevent harassment
(SP13 vs. SP15 re relevant cases to this class; harassment vs. recruitment and hiring)
13
SO7: 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.
14
SO7: 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
Later vindicated - white male I was in competition with - he turned out not to be very good. But before this – AA programs legally.
15
SO8: 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 expand on this in the next two study objectives
16
SO9: Voluntary AA programs


9A: Explain why the courts have
historically excluded white males from
filing a (reverse) discrimination lawsuit
under Title VII
9B: What are white males permitted to
challenge in court re voluntary AA
programs?
17
SO9: 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)
18
SO9: 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)
19
SO9: Reverse Discrimination


SO9A: 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.
SO9B: 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 SO9A&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.
20
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
21
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
22
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
23
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)
24
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)
25
SO10: 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)
26
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
27
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
28
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)
29
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
30
SO11: 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
31
SO11: Characteristics that an AA
program must have to be legal

They must be temporary
This is because they are designed to eliminate an
historical balance, not maintain a balance

They must be designed to correct a manifest
imbalance – in other words minorities must
be underrepresented and you must be able to
prove that
If there are goals, they must be connected to the
degree of imbalance.
32
SO11: Characteristics that an AA
program must have to be legal

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)
33
SO11: 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
34
SO12: Two reasons for support of AA


Redress the disadvantages associated
with overt historical discrimination
Ensure public institutions, such as
universities, police forces, etc. are more
representative of the populations they
serve
(I am going to explore AA more: first time I have done this, so it will be interesting for me to get your
Reactions to this material – that is, should I delve into this as much as I do?; universities, recent unrest in Ferguson, MO, NYC)
35
SO13: First group protected using the
term “affirmative action” in 1935


Unionized workers
Wagner Act of 1935


Not uncommon for employers to blacklist or fire
unionized employees
The act did not protect minorities


Except for the Congress of Industrial organizations,
minorities were often barred from unions
Little to do with current AA policies

But set the stage for policies designed to
compensate or address an individual’s unjust
treatment
36
SO14,15,16: Early civil rights acts

Lyndon Baines Johnson


First as VP and then as President
Differences between Title VII and Kennedy’s Executive
Order

Targeted to integrate not only public facilities but also private
businesses that sold to the public



Motels, restaurants, theaters, gas stations
Very broadly aimed to end unfair discrimination in all
businesses with 25 or more employees
Poll of the citizens revealed 70% of citizens approved
of the Act

Title VII, remember, however, did not require AA
(Often give credit to John F Kennedy, but in fact LBJ, brokered a civil rights act in 1957, then responsible for CRA 1964)
37
SOs 17-22 Arguments for and
against AA, intro

EEO is not controversial



The most qualified person is selected/promoted
EEO is a professional selection issue
Affirmative Action which is required by the laws
overseen by the OFCCP is very controversial



Because the goal is to redress historic imbalances,
preferences are given to protected classes
An particular individual (usually white male) may be
treated unfairly in order to advance that goal
AA is a selection issue only as it relates to the laws,
but that is big “ONLY”
(to review a bit; I am not going to require you to take one side or the other; it is important to understand the arguments
on both sides; I have both benefited from AA and also been disadvantaged by it; some extent position is determined by
whether and the extent to which an individual believes there is unfair discrimination; not completely, however - EEO) 38
SOs 17-22: Position on AA influenced
by a number of things

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?
39
SOs 17-19: Arguments in favor of AA

Example of success of women

Educational opportunities opened up new career
opportunities


Women are attending college at higher rates than males
now, dramatic increase in percentage of women architects,
doctors, lawyers, engineers, chemists, college faculty
(yay!), business professionals and managers, police
officers
Need to counterbalance historic inequalities


Article addresses historic inequalities African
Americans
Cases I talked about earlier show both disparate
treatment and impact for all protected classes
(three here, treat them in the order they are given in the article, reverse the first and second one in terms of importance,
emphasis by individuals who support AA; very few female professors, the first tenured associate, 1984, many more)
40
SOs 17-19: Arguments in favor of AA

Fair vs. Equal and Discrimination vs. Inclusion


Advocates recognize AA is inherently unequal but
given the inescapable fact that historic inequities
exist, they believe the policy is much more fair than
one that ignores these inequities
Advocates see AA not as discrimination but as a
way to achieve inclusion


AA is an effort to overcome prejudicial treatment through
inclusion.
The most effective way to cure society of exclusionary
practices is to make special efforts at inclusion.
(latter two are direct quotes from the article)
41
SOs 19-22: Arguments against AA

Reverse discrimination: AA requires the very
discrimination it is seeking to eliminate

Chung found clear bias against Asians and whites in three
highly selective private research universities. Admissions
advantage and disadvantages in terms of SAT scores (old
1600 point scale)






Whites: 0 (control group)
Blacks: +230
Asians: -50
Recruited athletes: +200
Legacies (children of alumni): +160
Espenshade & Radford found (controlled for grades, test
scores, legacy status, and athletic recruitment)

Whites were 3x, Hispanics were 6x, and blacks more than 15x as
likely to be accepted into a US university as Asians
(I don’t think these arguments are well organized – first, bias against Asians and whites, same as the fourth, discrimination, but
I also think there are some additional points under “discrimination” that are important”, so maybe I am missing something)
42
SOs 19-22: Arguments against AA

Mismatch Effect


AA causes unprepared applicants to be accepted into highly
demanding educational institutions or jobs which result in
high drop out rates and eventual failure
Interracial friendships are more likely to form among students
with relatively similar academic preparation and thus blacks
and Hispanics are more socially integrated on campuses
where they are less academically mismatched
Conclusion from the above is that the beneficiaries of AA –
minorities – do not actually benefit but are actually harmed.
43
SOs 19-22: Arguments against AA

Class Inequality

Racial AA benefits middle- and upper-class blacks and
Hispanics at the expense of lower-class European
Americans and Asians


Argue in favor of class-based AA, rather than race-based AA
In 1976, a group of Italian American professors at the City University of
NY asked to be added as an AA category for hiring and promotion
because they were underrepresented
44
SOs 19-22: NFE but miscellaneous
arguments against AA

Counter-productive

AA lowers the bar and thus





Detracts from those who strive for excellence on their own merit
Denies a sense of real achievement from those who benefit from AA
AA devalues the accomplishments of minorities and
protected classes
AA stigmatizes all minorities, “they only were admitted or got
the job because they were female/black/Hispanic/Native
American
AA hinders reconciliation and increases racial tension


Article mentions the recent strong push to ban AA in university
admissions due to Grutter v. Bollinger (UM Supreme Court case, 2003)
60% of MI voters subsequently approved a constitutional ban on AA in
university admissions (among other bans), Michigan Civil Rights
Initiative (Prop 2, 2009)
(not sure counterproductive is the right category; law school admission, AA OK; same year, struck down undergrad
AA policy – assigned 20 points to the point score of a minority applicant)
45
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 23-29, NFE, description of cases and admissions law suits; articles in course pack. Hard to
the cases without details. Wal-mart cont. on next slide)
46
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.”
Some were called “worthless broads”
Some were asked to wear lower cut shirts
And on and on….
47
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
48
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
Management expected female representatives to be
amenable to sexual advances from the doctors they
called on and criticized them when they complained
about inappropriate advances
(more Novartis on next slide)
49
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
50
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 “bitches” and “cunts” 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 two
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.
(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)
51
SO28: NFE: Michigan Civil Rights Initiative

The MCRI 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
(MCRI, proposition 2, just got resolved in April, 2014; interesting history, with its impetus being
the Grutter v. Bollinger, UM law school case ruling in favor of AA; WMU is a public institution)
52
NFE: MCRI history


In Michigan, in 1995, both the undergraduate and law
school admissions policies at UM were challenged
because of AA policies
Supreme Court heard both cases in 2003
The undergraduate admission policy was found to be
illegal; the law school policy was found to be legal

Undergraduate policy awarded 20 points on to the
“admission score” for any underrepresented minority


Law school took race into consideration


Supreme Court ruled this was an arbitrary approach that did not
allow individual consideration
Supreme Court ruled this was OK
Note these decisions are similar to selection law
decisions: quotas vs. goals
(undergraduate: Gratz v. Bollinger; law school : Grutter v. Bollinger – Bollinger was the President of UM at the time)
53
NFE: MCRI history


MCRI was sponsored by the same individuals that
sponsored a similar proposition in CA and the
individuals who challenged the UM admission policies,
particularly the law school admission policy that was
upheld
To repeat, the MCRI is a constitutional amendment
that:
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
54
NFE: MCRI history




2008: District Court for the Eastern District of MI
upheld the constitutionality of the MCRI
2011: Sixth Circuit Court of Appeals ruled MCRI was
unconstitutional (by three judges)
2011: Michigan State Attorney General, Bill Schuette,
appealed for an en blanc hearing by the Sixth Circuit
Court of Appeals (en blanc = all judges of the court)
2012: Sixth Circuit Court of Appeals ruled 8-7 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.”
(at issue was the constitutionality of having it be an amendment to the MI constitution)
55
NFE: MCRI history


2012, same day: MI State Attorney General, Bill
Schuette, announced he would appeal to the Supreme
Court
2014, June: Supreme Court in a 6-2 decision upholds
the constitutionality of the MCRI


Ballot initiative is legal
MCRI does not violate the equal protection law of the 14th
Amendment of the US Constitution
56
NFE: MCRI vs. OFCCP and WMU

How does the MCRI affect WMU? Seem to have
contradictory laws with OFCCP requiring AA and MCRI
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)


MCRI: “This section does not prohibit action that must be taken
to establish or maintain eligibility for any federal program, if
ineligibility would result in a loss of federal funds to the state.”
MCRI: “If any part or parts are found to be in conflict with the
United States Constitution or federal law, the section shall be
implemented to the maximum extent that the United States
Constitution and federal law permit.”
(one more slide on this)
57
NFE: MCRI vs. OFCCP and WMU,
cont.

Federal laws do not address admissions or
scholarships (or hiring contractors) based on diversity,
so MCRI applies
(Thurgood Marshall; Chevaz King Scholarships; funding source makes a big difference; last slide in unit)
58
Unit 2: The End
Questions?
Comments?
59
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)
60