What Employment Counselors Need to Know About Employment Discrimination and the Civil Rights Act of 1991

Under Title VII of the Civil Rights Act of 1964 there are two theories of liability for employment discrimination: disparate treatment and disparate impact. While disparate treatment deals with the adverse treatment of a specified employee, disparate impact deals with discrimination against a class of individuals. The Civil Rights Act of 1991 modified the law to allow plaintiffs to more readily bring a discrimination case. This article reviews the major components of the Civil Rights Act of 1964, the Civil Rights Act of 1991, and a proactive approach to using equal opportunity law in employment counseling.     

The Origins and Legacy of the Civil Rights Act of 1964

Purpose

This paper provides a historical review of the origins and legacy of the 1964 Civil Rights Act through the lens of the African American Civil Rights and the Women’s Rights Movements.

Design/Methodology/Approach

The historical narrative was developed using psychological, historical, and legal source material.

Findings

While the Civil Rights Act did not immediately change the landscape of equality in the American workplace, it signaled a fundamental shift in the treatment of racial and gender diversity. In concert with other social, legal, and political shifts, it paved the way for progress on issues like affirmative action, pregnancy discrimination, and sexual harassment.

Implications

Without an understanding of the historical development and consequences of the Civil Rights Act, it is easy to lose sight of how the act has shaped the understanding of equality in the American workforce. Further, the way in which rights movements evolved alongside each other illuminates a need to focus not only on equality between majority and minority groups but also on issues of equality among minority groups.

Originality/Value

Previous reviews of the Civil Rights Act and rights movements tend to focus narrowly on one issue or group, and approach that concern from a single academic discipline. In contrast, we provide a review of the roots and consequences of the Civil Rights Act based on the developments of two rights movements, and draw from sources in psychology, history, political science, and legal perspectives to provide a broader picture of this landmark legislation.     

Equal Opportunity Programs: A Case for Counseling

The Civil Rights Act of 1964, under Title VI, requires that institutions of higher education submit enrollment figures according to ethnic breakdown for federal monies to be allocated. Such requirements are indicative of efforts to diversify student populations. The Higher Education Act of 1965 also incorporates a number of related programs—Supplemental Opportunity Grants, College Work Study, Talent Search, Upward-Bound—which are designed to provide direct or indirect assistance to disadvantaged students. (Gordon, 1975)     

The Historical and Political Context of the Civil Rights of Persons With Disabilities: A Multicultural Perspective for Counselors

The authors provide a useful historical link between the civil rights movement in the 1960s and the disability rights movement. The origins of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973 are discussed from the sociopolitical context at the time of their passage. Important links are drawn between these laws, affirmative action, cultural diversity, and multiculturalism. The authors address the role of the counselor with respect to becoming advocates for persons with disabilities in the face of injustice.     

LEGAL CONCERNS IN THE USE OF WEIGHTED APPLICATIONS1

The use of the standard weighted application procedure relies on strictly empirically derived keys for validity. While weighted applications are generally valid in terms of the correlation between score on the application and position on the criterion, the empirical scheme may weight items that can not be shown to be relevant to the job for which they predict. To the extent that employment decisions are based on non-job-relevant weighted applications, such decisions may be contrary to the letter or the spirit of the Civil Rights Act. Alternative methods incorporating job relevance into the weighting procedure via job analysis inject the “hand of reason” into the process. Such rational-empirical approaches ensure job-relatedness as well as validity.     

NEW DEVELOPMENTS IN THE USE OF MEASURES OF HONESTY INTEGRITY, CONSCIENTIOUSNESS, DEPENDABILITY TRUSTWORTHINESS, AND RELIABILITY FOR PERSONNEL SELECTION

This paper is the fourth in a series of reviews of the use of measures of honesty, integrity, conscientiousness, dependability, trustworthiness, and reliability for personnel selection (see Sackett & Decker, 1979; Sackett & Harris, 1984; Sackett, Burris, & Callahan, 1989). New developments reviewed include an examination of professional and congressional inquiry into this area of testing, rapid growth of the validity data base, new insight into similarities and differences between different tests, and links to the Big Five personality dimensions. Inquiries into relationships with other constructs, including cognitive ability, moral reasoning, and social desirability are reviewed, as are applicant reactions to these tests. The effects of the Civil Rights Act of 1991 and the Americans with Disabilities Act are considered.     

EVIDENTIARY STANDARDS IN EMPLOYMENT DISCRIMINATION: A VIEW TOWARD THE FUTURE

This article reviews recent changes in evidentiary standards in employment discrimination litigation as they relate to disparate impact theory. Precedents established in Watson v. Fort Worth Bank and Wards Cove Packing Co. v. Atonio , altering the employee's and the employer's responsibilities in discrimination cases are analyzed. In reaction to these and other Supreme Court rulings, Congress introduced a civil rights bill which was eventually signed into law after numerous compromises. The debate surrounding the development of the 1991 Civil Rights Act and the legislation itself are reviewed. With respect to disparate impact, the Act addresses the criteria for establishing a prima facie case (causation), burden of proof standards, and a definition of business necessity. However, a close reading of the Act and a review of recent disparate impact cases suggest the causation and business necessity issues are not fully resolved. Potential implications for managing personnel decision systems in this new environment are discussed.     

SEXUAL HARASSMENT: CRITICAL REVIEW OF LEGAL CASES WITH GENERAL PRINCIPLES AND PREVENTIVE MEASURES*

Fifty-two court cases were reviewed to determine the standards set by the courts for establishing a claim of sexual harassment under Title VII of the Civil Rights Act of 1964. Twenty-nine are discussed. Three major issues were examined in Part I of the review: (1) the gender-based nature of sexual harassment at work, (2) the direct and indirect employment-related consequences that result from the harassment, and (3) the extent of employer liability for the sexually harassing acts of their employees. Part II discussed the general principles that were distilled from the court cases and examined future trends and preventive measures, as well as the role of professionals in future research. A plan of action to combat sexual harassment at the workplace consistent with court interpretations was presented.     

Personnel Selection with Top‐Score‐Referenced Banding: On the Inappropriateness of Current Procedures

The method of selecting among job applicants using statistically based banding has been proposed over the last 10 years as a way to increase workforce diversity. The method continues to be reviewed by academics and considered by practitioners. Although the goal of increasing workforce diversity is important, statistical banding of scores remains controversial. We present a set of unique, statistically and theoretically based criticisms of a form of banding (top‐score‐referenced banding) that is widely used in hundreds of jobs in the public sector throughout the United States. We suggest that even within the premises of such banding, the wrong formula is used to estimate the standard error of measurement and standard error of the difference. One consequence is that too many individuals are labeled as essentially equal with respect to test scores. A related consequence is that test scores within a single band are statistically different and should therefore be treated as such for selection purposes. A more logically and statistically defensible procedure for responding to diversity concerns is to continue to attend to adverse impact issues at each step of the recruiting and test development process.     

Feminist Perspectives on the Human Rights Act: Two Cheers for Incorporation

This paper considers feministperspectives on the Human Rights Act. Itdiscusses the reasons why many feminists aresceptical regarding the impact the Act willhave on women's lives, including theimplications for anti-discrimination law,problems with the framework of rights in theEuropean Convention and deeper difficulties facingfeminism in negotiating rights discourse. Whileacknowledging these problems, it is argued thatthere are grounds for a more positiveinterpretation of incorporation. Questions arethen raised about the nature and scope of rightsand the role of the state in challenging genderinequality.     

Contemporary Title VII Enforcement: The Song Remains the Same?

Equal employment opportunity (EEO) law is constantly evolving and many changes can happen in 50 years. Title VII of the Civil Rights Act of 1964 has always been the most comprehensive law related to workplace discrimination. Like all laws, Title VII has matured over time, including amendments by Congress, refinement by the courts, and creation and updates of regulations by enforcement agencies. However, there are several controversies that have endured during this maturation process, and this article focuses on four of them: (1) adverse impact theory, (2) reverse discrimination, (3) sexual harassment, and (4) retaliation. There are common issues across these controversies. However, for purposes of exposition, each one is treated as a separate entity. For each of the four controversies, we review historical context, recommend compliance strategies and share best EEO practice recommendations for practitioners and employers.     

Compensation for pain,suffering, and other psychological injuries: The of Daubert on employment discrimination claims

The Daubert standard for admitting expert testimony places increased emphasis on the scientific basis for professional opinions. This article identifies factors mental health professionals should consider to meet that standard and Federal Rule of Evidence 702 when evaluating claims of psychological injuries as authorized by the Civil Rights Act of 1991, in cases of sexual harassment, retaliation, and other forms of employment discrimination. First, the contribution experts can make by presenting a framework to assess and understand the nature, duration, intensity and severity of emotional injuries is outlined. Specialized knowledge helpful in assessing these claims is reviewed in light of the scientific literature on stressors, anxiety disorders, somatoform disorders, depression, posttraumatic stress disorder, and ways in which related symptoms manifest regarding events in the workplace or following loss of employment. Second, the role of qualified experts to facilitate determinations of causation is discussed, highlighting factors that bear on preexisting harm, intervening injurious events, the exclusion of alternate sources of mental distress, emotional harm and humiliation, and mitigation of damages.     

The Failure of the Bona Fide Occupational Qualification in Cross‐Gender Prison Guard Cases: A Problem beyond Equal Employment Opportunity

Knowing the theory of gender that a court is using to understand and assess the issues in a case is vital to ensuring that women are afforded their full rights under the law. Unfortunately, courts often do not explicitly state what understanding of gender is informing their decisions. An exception is found in employment law: specifically, the bona fide occupational qualification (BFOQ) exception to Title VII of the Civil Rights Act, which allows employers to engage in sex‐based discrimination in those instances in which the sex of the employee is a reasonably necessary qualification for the job. In these cases, because the court must analyze how “manness” or “womanness” impacts one's qualification to hold certain kinds of employment, the court must articulate its understanding of gender. This paper examines two BFOQ cases in the cross‐gender prison guard context, those cases in which an individual of one sex seeks to guard inmates of the opposite sex. In these cases the courts created a theory of gender that posits men and women as different in kind. The theory developed in this line of cases is an attack on Title VII protections and a potential barrier to women's equality under the law.     

Editorial: Three Perspectives of Employment Discrimination 50 Years After the Civil Rights Act—A Promise Fulfilled?

Purpose

In recognition of the 50th anniversary of the Civil Rights Act of 1964, this paper reviews contradictory perspectives of the status of employment discrimination.

Design/Methodology/Approach

Arguments are derived from psychology, management, law, and political science to contrast perspectives that civil rights legislation has (a) done its job, (b) gone too far, and (c) not gone far enough.

Findings

We determine that disagreement is inevitable and that no unified conclusion can be drawn. Recognition of the viewpoints embedded in opposing perspectives, however, offers direction for the future of organizational science and practice.

Implications

Consideration of these disparate views of civil rights legislation enables thoughtful reflection on the past, present, and future of civil rights legislation.

Originality/Value

This paper offers a variety of lenses through which to consider employment discrimination in the organizational sciences and underscores the value of the papers collected in the special issue.     

Cultural myopia: The need for a corrective lens

The Office for Civil Rights on May 25, 1970, issued a Memorandum to school districts designed to prohibit discrimination against national origin minority children which results from a failure school districts to the recognize the differing linguistic characteristics and cultural identify of such children in the planning and operation of education programs. Specifically, the Memorandum prohibits the assignment of children to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skkills. A task group was appointed by the Secretary of Health, Education, and Welfare to develop educational policy to implement this antidiscrimination provision.

This task group recommended that additional policies be developed by the Office for Civil Rights to notify adequately school districts and members of the general public of the types of discriminatory practices that might be occuring and to set forth model procedures which school districts could follow in an effort to eliminate discriminatory practices which might currently exist. This paper discusses those procedures recommended by the committee.     

MULTI-STAGE SELECTION STRATEGIES: A MONTE CARLO INVESTIGATION OF EFFECTS ON PERFORMANCE AND MINORITY HIRING

This study explores alternative selection strategies available when a firm has two valid predictors that differ in the magnitude of subgroup differences. We examine 14 different selection rules (e.g., select on a composite of the two predictors versus screen on the first and then select on the second versus screen on the first and then select on a composite of the two), and document through a Monte Carlo simulation that the various selection rules can produce markedly different consequences in terms of the level of job performance achieved and the level of minority representation achieved. The selection rules examined include the use of within-group norming, whichwas restricted by the Civil Rights Act of 1991, and the study examines how selection rules that do and do not include within-group norming fare in terms of the tradeoffs between performance and minority representation. The study shows that the preferred selection strategy will depend on the relative value the firm places on performance and on minority representation, and that the effects of different screen-then-select selection strategies vary as a result of the selection ratios at the screening and selection stages, thus precluding simple conclusions about the merits of each selection strategy.     

Cultural myopia: The need for a corrective lens

The Office for Civil Rights on May 25, 1970, issued a Memorandum to school districts designed to prohibit discrimination against national origin minority children which results from a failure school districts to the recognize the differing linguistic characteristics and cultural identify of such children in the planning and operation of education programs. Specifically, the Memorandum prohibits the assignment of children to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skkills. A task group was appointed by the Secretary of Health, Education, and Welfare to develop educational policy to implement this antidiscrimination provision.This task group recommended that additional policies be developed by the Office for Civil Rights to notify adequately school districts and members of the general public of the types of discriminatory practices that might be occuring and to set forth model procedures which school districts could follow in an effort to eliminate discriminatory practices which might currently exist. This paper discusses those procedures recommended by the committee.     

The Way It Is and the Way It Could Be: Fear,Lessness and the Quest for Fearless Dialogues™

“Fearless Dialogues? is the Civil Rights Movement of the 21st century,” says Dr. Bernard Lafayette, an original Freedom Rider and internationally renowned human rights activist. This article examines the history and philosophy of a burgeoning movement called Fearless Dialogues?, which seeks to alter the perspective of how we see and hear those who are perceived to be marginal. Drawing wisdom from a hard, heartfelt conversation documented in Ralph Ellison’s essay, “The Way It Is,” this interdisciplinary article utilizes resources from 20th and 21st century mystics to examine four primary fears that stifle dialogue and introduces an attitude of “lessness” that is necessary to create perspectival change.     

African-American Partisanship and the Legacy of the Civil Rights Movement: Generational, Regional, and Economic Influences on Democratic Identification, 1973–1994

We explore the importance of generational effects and the changing economic circumstances of Blacks to explain variations over time in the partisan attachments of African Americans. More specifically, we explore whether generational differences have caused the cohorts that came of political age following the Civil Rights movement to be less Democratic than generations that lived through the Civil Rights movement and its aftermath. We find that while life-cycle effects explain a portion of the movement away from the two major parties, generational effects account for the small but significant increase in Republican party identification in the youngest generation. Additionally, living in the South accounts for the steepest gains in political independence. Finally, changing economic influences over time appear to have led poorer Blacks to change from the most likely to the least likely to identify with a major party.     

Federal civil rights policy and mental health treatment access for persons with limited English proficiency

As noted in the supplement to the U.S. Surgeon General's report on mental health (U.S. Department of Health and Human Services, 2001), overcoming language access barriers associated with limited English proficiency (LEP) should help to eliminate racial and ethnic disparities in mental health care access and quality. Federal policy requires remedial action to overcome language barriers: Under Title VI of the Civil Rights Act of 1964, Medicaid and other federally funded programs must provide assistance to LEP persons. Some state-level public and mental health authorities have responded by instituting "threshold language" policies. The history and terms of federal civil rights policy, and of threshold-language-policy-inspired initiatives, should be understood by everyone concerned with overcoming ethnic disparities in mental health services use. Concerned parties should promote implementation of required measures for language assistance and help to evaluate their implementation and effectiveness.