- Introduction/Abstract
There are a number of civil rights laws that might apply to a case like Maria’s, which is a case of subtle bias and discrimination against the only female and Hispanic in a department that is otherwise exclusively white and male, and where the others reacted very negatively to certain ethnic and cultural traits as well as her accent and manner of speaking English. Most important among the laws concerning employment discrimination are the Equal Pay Act of 1963, Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008. These laws make it illegal for employers to discriminate against employees in hiring, promotion, pay or termination because of color, religion, gender, pregnancy, age, religion, ethnic origin, genetic information or disability, and to retaliate against employees who complain about discrimination. Employers cannot use any of these criteria when dealing with employees because they do not reflect their basic ability to perform the job, and those who do will face possible lawsuits, investigation by the Equal Opportunity Employment Commission (EEOC), and possible criminal prosecution. Nor can they limit, segregate or classify employees or applicants for employment in any way that would reduce their employment opportunities based on any of these criteria. These standards apply to American citizens, permanent residents and legal immigrants with Green Cards who are entitled to work in the United States, although all employers are also required to submit I-9 forms to confirm such employment eligibility. Under the provisions of the Immigration Reform and Control Act of 1986, it is illegal to employ immigrants who are not eligible to work in the United States (US Immigration Support 2011). Maria is considered too ‘loud and aggressive’ by her supervisors and coworkers, who are all white males, and they also evaluate her job performance. Clear if her accent and manner of speaking made her so difficult to understand, she would not have been employed in this position for seven years. She is also being penalized for having to deal with family responsibilities, which could mean that she is receiving unfair treatment because she is a woman and of Hispanic origin, a culture in which family duties are paramount.
In the past, discrimination against blacks, women, Hispanics and other people of color was extremely blatant and open, while cases like Maria are far more subtle and insidious. Before the passage of the Civil Rights Act, women and minorities were simply not hired at all for many jobs, while blacks and other people of color were openly segregated and excluded from many public services. Test cases in the 1960s brought before the federal courts like that of the Heart of Atlanta Motel, which refused to allow blacks to stay there, and the gun-wielding Lester Maddox who refused to allow blacks in his restaurant, upheld the new law as constitutional. In the end, Title VI did lead to meaningful school desegregation in the South. In 1964, after a decade of massive resistance, only 2% of blacks in the South and Border States attended integrated schools, but 25% did by 1967 (Gold, p. 114). Complete desegregation was achieved by the Justice Department in the early-1970s, despite Richard Nixon’s distinctly unsympathetic attitudes toward blacks. Even today, however, at least one-third of black children still attend schools that are segregated in reality, if not by law. On the other hand, segregated buses, restrooms, train cars, theaters, waiting rooms and restaurants all disappeared after 1964, while it also became illegal to fire women for being pregnant or having small children. These are the most important legacies of the Civil Rights Act. There are still blatant cases of discrimination of course, such as that of the Paragon Inn in Taos, New Mexico, where a supervisor fired all employees who spoke Spanish in his presence. He simply regarded Hispanics as being ‘foreign’ and ‘other’, even when they were born in the U.S. and had American citizenship, as Maria did (Pedrioli 2011).
Like black, Hispanic and Asian males, women of color historically held lower-paying and lower-status jobs than their white peers and have higher rates of unemployment. Even in the past when most married white women with children did not work outside the home, women of color were employed in much larger numbers in various service and blue-collar jobs, dating back to the 19th Century. Frequently they worked as maids, cooks and laundresses in private homes of public institutions, although starting in the 1960s and 1970s, they also began to work in clerical and pink-collar positions in much larger numbers. Even so, they are still far more likely to be employed in blue-collar work than white women, and they are “overrepresented in certain low-paying, low-status jobs” (Malveaux 1984). Their wages are incomes are substantially lower than those of white women, which places increased stress on family life and childcare responsibilities. Maria’s case appears to be one of a lone female and Hispanic employee in a pink-collar ‘ghetto’ job, where she is left isolated and marginalized by her white male coworkers and supervisors, who were naturally inclined to promote a white male rather than her.
Sociological and psychological studies have shown that employees and supervisors in companies tend to place higher value on social cohesion and ‘fitting in’ than on treated all persons equally. This was also true in the job interview process, where applicants perceived as friendly and socially competent were more likely to be hired, especially if there were of a similar racial and ethnic background as the employer. This study investigated a possible mechanism behind employment discrimination. Selection and evaluation were all heavily biased toward social cohesion rather than education, experience and ability and this appears to be the situation Maria has been facing as the only woman and Hispanic in her department (Björklund et al 2012). Other studies have demonstrated that speaking English with an accent can result in highly negative evaluations from coworkers and supervisors, which occurred in Maria’s case. Human resource managers gave the highest evaluations to those whose pronunciation and manner of speaking was most similar to their own, and the lowest to those who accents seemed the most different. This is in conformity with the old rule in psychology and sociology that human beings are most attracted to those who are similar in color, background and culture, and consciously or unconsciously biased against those perceived as ‘foreign’ or ‘exotic’, and in Maria’s workplace she just did not fit the norm expected of her white male coworkers and supervisors in the way she spoke English (Deprez Sims and Morris 2010). As many court cases like Griggs v. Duke Power Co (1971) have demonstrated, even supposedly ‘neutral’ and ‘objective’ test used to hire and evaluate employees can be administered in an extremely discriminatory fashion. According to McDonnell Douglas Corp. v. Green (1973) the burden of proof is on the employer to prove that such tests and criteria for hiring and promotion are being carried out in a non-discriminatory fashion and for legitimate purposes, although it is often difficult to prove discrimination in more subtle cases like Maria’s.
Looking for solutions that will prevent problems like these from occurring in the future, human resource professionals and supervisors should first and foremost be made aware through company guidebooks and written policies of the past history of employment discrimination in the United States, particularly against women, blacks and other ethnic minorities. In the past under the employment-at-will doctrine and before state and federal civil rights laws existed, employers could discriminate in hiring, promotion, compensation and termination for virtually any reason, which is why women, blacks and members of other minority groups were simply never hired at all for certain jobs, or were paid much less than white men and also tended to be the last hired and first fired. This has been illegal since the passage of the Civil Rights Act of 1964, which applies to every employer in the country except certain religious and non-profit organizations, including private clubs and association. In the years since that time, these civil rights protections have also been extended to pregnant women, people over age 40, persons with disabilities, and those with genetic conditions.
All of these groups fall under the protection of the EEOC, which enforces the civil rights laws in regard to employers, especially those receiving federal contracts. In addition, state courts and statues also limit the hiring and termination policies of employers, including rulings in favor of implied or verbal contracts and the public interest in maintaining employment, which basically prevent employers from terminating any employee without just cause. These provisions apply to permanent residents and legal immigrants as well as American citizens, although not to illegal immigrants who have no right to be employed in the United States. In this respect, there has been a ‘rights revolution’ in the United States since the 1960s that limits the traditional powers of employers in many ways in contracts, hiring, firing, promotions and working conditions, and employers who violate these laws can face civil and criminal penalties.
In the past, employment and labor relations law assumed that employers and employees were equal parties to a contact, and the employment-at-will doctrine permitted either party to dissolve it for any reason. This was no longer the case with the passage of laws protecting collective bargaining, such as the national Labor Relations Act in 1935, or the civil rights laws that were passed in the 1960s and afterwards (Employment-at-Will 2011). In addition to these protections, it is also against the law to fire an employee for filing a worker’s compensation claim or for refusing to carry out an illegal act at the request of the employer. State courts have also ruled that employers are bound to follow the policies in the handbooks, including disciplinary procedures, when terminating employees, and also that the state has a public interest in ensuring that employees are not fired for just cause. In 38 or the 50 states, even a statement by a human resources officer that employment will continue as long as performance is satisfactory creates an oral or implied contract to which the company is legally bound (Muhl 2011).
- Conclusion
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