Question One
The labor laws outlaw employee discrimination of any nature. It is illegal to practice any form of workplace discrimination. The action by the employer would be deemed unlawful. It can be explained by the theory of affirmative action. The Act outlawed any form of discrimination against any employees and job applicants because of sex. The employers should therefore not make any employment decisions on stereotypical and assumptive attitude. Presuming the ability, personalities, or the productivity of potential employees, on account of their sex is illegal.
The employer can be sued for violating the law. The principle of equality and right to employment has been affected. Section 2000 (703) (a) under ‘employer practices’, provides “it is unlawful employment practice for an employer”. Sub section 1 (a) provided that employers can be charged if they practice any discriminative act towards an applicant on the basis of sex and other traits.
The law also deals with the issue of preferential treatments. However, there are some preferential treatments that cannot be applied just on the basis of an “existing number or percentage imbalance”. The employer therefore went against the law. The affirmative action theory requires that the disadvantaged in the society are supported to get access to economic opportunities and climb the social ladder. However, achievement of the affirmative action goals should not deter the other gender from accessing the same opportunities. Specifically, the employers are not required to offer any form of preferential treatment because of sex just to cure an imbalance in workplace. The Act identifies the possible sources of imbalance as situations that may occur with regards to the overall number or disproportionate percentages of employees of either gender.
The theory of reverse discrimination is evident in the case. The theory postulates that when implementing affirmative action laws and policies, it is possible that the members of the groups that are historically advantaged by end up being victimized. In the case, the employer attempted to correct the gender imbalance so as to achieve the desired percentage. However, the action of the employer has no justification at all. The action can be linked to the United States v. Brennan case. In the case, the court of appeal established that the district court erred in skipping the compulsory case analysis process to determine the impact of an affirmative action plan to other parties. Brennan together with other white males who worked in a school were denied consent to intercede in a settlement consent decree. In the decree, the plaintiff sought to remedy violations Title VII provisions by the school. The school was accused of failing to employ a member of racial minority groups and female custodians. The school was also accused of implementation retroactive seniority policies. In the case, the court ruled that the action of the school did not demonstrate implementation of any affirmative action plan. According to the court, the settlement plan did not constitute affirmative action as it was individualized. Therefore, any action that does not benefit the protected class or disadvantaged sections of the population as a whole is deemed illegal and discriminative.
The action shows that the affirmative action principle that was designed to level the employment playing field, if not implemented well, may lead to breakage of the discrimination laws. Any affirmative action plan must therefore demonstrate a clear existence of “make whole relief” as opposed to individuation of the plan. The employer’s action is not justifiable. It shows reverse bias sex-discrimination . The employer window dressed the affirmative action policy by narrowing down the act to short-listed applicants only as opposed to the entire male population. Similarly, the perceived affirmative action plan was not extended to the entire female population, but to a select few. The relief is therefore discriminative and can be termed as an act of reverse affirmative action. To effectively prevent discrimination in an organization, the employer must be made aware of the policies against gender discrimination. Based on the law, the employer become individually responsible, and employees can report any discriminative or harassment act they come across.
Question two
“Attitude to language” program should be broadcasted on the radio. Selective perception theory states that people have a right to listen selectively to what does not conflict with their beliefs. Selective perception affects the decisions that people make because of views and beliefs that they have. If a program containing taboo words will be broadcasted on the radio, the audience will have a choice to make whether to listen to it. The case can be linked to freedom of information theory and right of broadcast acts. The country passed the Freedom of Information Act bill and makes it a law to protect the citizens from actions that may curtail access to information and broadcast. This act has since promoted openness, particularly concerning data on networks. Freedom of speech and other laws allow the public to have a legal tight to ask as well as receive any information. Every person has a right to expression as long as he or she does not defame a person. If there are no defamatory statements in the program, it should be broadcasted. The audience will be in the position to know if it is right for them to listen to the program. The media in this case the program should not affect their stand or their way of life. Supporting other people’s creative ideas is crucial.
In any sector communication is an important aspect. The diction one uses to express him or herself clearly portrays your character. The mass media is an important channel of communication that has different functions. One of the main functions of the mass media is passing information to the members of the public. Secondly, the mass media entertains its public. Entertainment varies depending on the type of the audience. Before starting the program, the mass media checks on the target audience. The program “Attitudes to language” should be broadcasted on the radio.
The program is preceded by a warning that the language to be used will be sensitive. The audience will have a choice to make whether to watch the program. Additionally, a warning opens up a platform for the audience to be ready for anything. It does not come as the shock to them. Selective perception theory also illustrates clearly that one has the right to select what is favorable for him or her.
In the societal setup, people get exposed to various forms of entertainment. However, one has a choice to choose what is best for him or her depending on his beliefs. The idea of selective perception aims at creating equilibrium between the environment and the person’s mental representation. Thus, to ensure that one maintains his or her beliefs has to ensure that whatever he or she listens to does not affect his beliefs negatively.The censorship infringes the freedom and rights of speech. It is the right of all people to have the right to voice their opinion . Therefore, censorship is argued would be viewed as the violation of the first amendment. Any form of censorship besides bleeping or blanking would defeat the logic and everything that the freedom fighters fought for. As much as governments and moral authorities are right in the context of trying to ensure that its citizens improves their well-being and social psychology, they have no right to decide for individuals what they should or cannot listen to. In this respect, the basic argument is that people are civilized enough to choose what is right from the wrong. It beats the logic to ban a program just because of a few ‘dirty ‘words or phrases. The program also promotes creativity, as a work of art and the literal meaning of the content may be poetic. This is subject to the fact that people have different perspectives of the same issue. Banning program would be like taking away the language of hard metal artists and enthusiasts. The censorship of the program is objected in the sense that the practice encourages curiosity about the banned or censored material. In the same light, artists and fans would argue that the practice resists the logical questioning of conventional ideas. For example, hard metal music may be used to channel health opposition based on valid or sound premises. People who support these points usually do so, on the grounds of exceptional cases that object hard music censorship.
Although airing the program may have the negative impact to the society, it is important for the people to understand that they have a right to choose what to listen to. The media should not lure one to compromise with their beliefs and practices. The theory of selective perception and retention clearly explains the phenomenon. Even before airing the program on the television there is a warning that the program will use sensitive language. Thus, the audience should be in position to choose whether they will listen to the program or not.Question Three
Some controversial cases draw public concern and attention. The cases are normally about emerging jurisprudence where limited or no reference can be made to past cases, in the state, national or international jurisdictions. Reasonably, lawyers and judges would disagree on some legal rights. However, the legal disagreement should not disfranchise the parties’ rights. On such complex situations, Dworkin argued that the judge has a duty to use all the available legal instruments to discover the rights of the parties to the case. Further, Dworkin argued that the creativity of the judge is limited to the discovery of the rights. The judge, therefore, should not invent nonexistent rights. The argument by Dworkin demonstrated that rights cannot be invented by a judge. Rather, the judge has the power to device a constitutionality accepted legal maneuver to discover such rights.
However, those opposed to Dworkin argue that in some jurisdictions, no legal procedures exist to help in the perceived rights discovery. The opponents of Dworkin thinking believe that the justice system may have some limitations. In hard cases, none of the party’s rights may have a legal reprieve. The school of thought argues that in such cases, the judges’ hands are tied. The discovery of the rights can therefore not be achieved. if the discovery is achieved it cannot be the truth, since , in principle, the judge has no capacity to demonstrate the truthfulness of the applied reasoning.
The argument by Dworkin demonstrates the principle of separation of powers. By arguing that retrogressive invention of rights is illegal, Dworkin attempts to draw the parallel line between the judiciary and the legislature. Arguably, there is a close connection between Dworkin’s view and the separation of powers theory. Dworkin is thus a strong supporter of the theory. This was deduced in the Massachusetts v. Oakes case. In the Massachusetts v. Oakes it is evident that a judge must carry out an in-depth analysis in cases and come up with an objective rationale to avert the chilling of constitutionally threatened expressions However, the supporters of the theory of judicial activism hold different view from Dworkin, under the principle of separation of powers. Those against Dworkin arguments would support the outcome of the Marbury vs. Madison. The case gave rise to in the most significant Supreme Court judgment in history. The court's decision recognized the authority of judicial review, hardened the Constitutional structure of checks and balances. This moved the balance of government authority to the judiciary, upset the federalist system projected by the initiators, and allowed federal law court, comprising of unelected officers, to control public procedure through their judgments. Marbury v. Madison brought in the idea of judicial review, or what can be termed as the authority of the Supreme Court to choose whether actions of the executive or legislative divisions are illegitimate . While this authority was not given to the Supreme Court in the Constitution, Marshall maintained that it required to be added so that the Court could grow into an equivalent branch of administration with the executive and legislative branches. Further, those against Dworkin argued that the concepts of judicial discretion, Judicial activism, and judicial review, judges can legislate from the bench. For example, the Supreme Court has the power to review actions of Congress and decide whether they are unlawful as per the constitution and therefore invalid. It is categorically the duty of the justice department give the meaning of the law. Those who employ the law to specific cases must, of obligation, explain and understand the law. If two laws contradict with each other, it is the mandate of the Court to decide on the action of each. If courts are to respect the Constitution which is greater to any standard law of the legislature, the Constitution must oversee the situation to which they both apply. However, those who hold contrary view support the concept of judicial restraint. They argue that the Supreme Court does not have original authority to issue injunctions of mandamus. To allow Supreme Court then to give a mandamus, it must be shown to be an exercise of the appellate authority or to be essential to allow them to employ appellate authority .
Similarly, the argument denotes the “Hard Cases" theory. According to the Hard Cases theory espoused by Dworkin, the discovery principle free the judgments from any objection to a judicial originality. That is, the judge is simply discovering parties’ rights that they have .
However, the opponents of the Hard Cases theory and discovery principle argue that the action may be counterproductive. They argue that the parties who lose cases judged under a particular statute may have strong have grounds to re-litigate their claims on similar arguments. The situation occurs when the appeal courts equally ‘make new discoveries’ on a right existent on the very statutes in a later ruling. Similarly, the doctrine of finality would not stop a party from seeking litigating on the first instance over a discovered right that was available originally but the litigant was not aware of.
Bibliography
Anhang George, “Separation of powers and the rule of law: on The role of judicial restraint in
securing the blessings of liberty”, (2008) 24 (2) Aikron Law Review.
EEOC. Title VII of the Civil Rights Act of 1964 (21 November 2014)
<http://www.eeoc.gov/laws/statutes/titlevii.cfm>.
Ellis Robert & Newton Nicholas, Consciousness & emotion: Agency, conscious choice, and
selective perception ( John Benjamins Publishers, 2004).Garner Ronald , Social theory: A reader ( University of Toronto Press, 2010).
Nuzum Eric, Parental Advisory: Music Censorship in America (Perennial, 2001).Leonard Jonathan , ‘Anti-Discrimination or Reverse Discrimination’ (1998) 19 (2) Journal of
Human Resources 145, 174.
Mountjoy Shane. Marbury v. Madison: establishing Supreme Court power. (Chelsea House,
2007).
2005).
Oakes v. Massachusetts, 401 Mass 602, 605,618 N.E.2d 836, 838 (1988 )
Sargeant Malcolm, Age Discrimination: Ageism in Employment and Service Provision. (MPG
Books Group, 2011).United States v. Brennan, 650 F.3d 65 (2d Cir. 2011).
