Expert Answer :Personal & Organizational Ethics

  

Solved by verified expert:Prepare: In your first post in this discussion, you will become familiar with the case of Abercrombie & Fitch by means of the relevant material in the Required Resources this week. There is also a specific media feature located at the end of Section 5.3 of the textbook titled Workplace Discrimination: Abercrombie & Fitch. In order to be prepared for this task, you will need to complete the required readings and media listed. Reflect: There are two sides to consider in the Abercrombie & Fitch case. On the one hand, we have the job candidate’s side. She went to the job interview wearing a hijab. The interviewer did not remark on the hijab, and the candidate also did not volunteer that her religious beliefs required her to wear a hijab. She was subsequently not hired based on the perception that her appearance was incongruous with the company’s look policy. For example, caps are not permitted and the male sales associates (referred to as “models” in the company’s corporate language) are often shirtless and in sweatpants in order to create the mood at the stores for the aesthetic for which Abercrombie & Fitch has become known: young, preppy, and hormonally charged. When she was notified that she was not hired for the position, she filed a complaint with the Equal Employment Opportunity Commission that, in turn, filed a lawsuit on her behalf alleging a violation of Title VII.On the other hand, we have Abercrombie & Fitch’s side. As a company doing business in the United States, Abercrombie & Fitch is legally permitted to hire those employees who fit its look policy. This is no different from the look requirements for the Dallas Cowboys Cheerleaders, the Chicago Bulls, the New York City Ballet company, or for jockeys hired by thoroughbred owners to race them at the Kentucky Derby. In all of these cases, there are height, size, and other look requirements for employment that are justified by the particular demands and aesthetics of the position. She was found to be qualified for the job but her dress was clearly in conflict with Abercrombie & Fitch’s look policy. Yet, the job applicant knowingly sought employment at this retailer.According to the law, should a special accommodation be required due to a religious practice, then Title VII dictates that the look requirements give way to the religious requirement in order not to be considered an act of religious discrimination.The EEOC prevailed in the District Court, but this judgment was reversed by the Tenth Circuit on the ground that failure-to-accommodate liability only attaches when a job candidate provides the potential employer with knowledge of the need for an accommodation due to religious practice. Once it reached the Supreme Court, the decision was made in favor of the job candidate. According to Justice Scalia,Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.The only dissenting opinion was that of Justice Thomas who wrote:Mere application of a neutral policy cannot constitute “intentional discrimination.”…I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf… In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices…Resisting this straightforward application of §1981a, the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.”…But contrary to the majority’s assumption, this novel theory of discrimination is not commanded by the relevant statutory text. Write: In the first part of your initial post, you will need to introduce the Abercrombie & Fitch lawsuit. In this introduction, you will also need to (1) articulate the freedoms that companies in the United States enjoy given our relatively-free market system and (2) present the Title VII regulations concerning employment discrimination. These will provide the setting for you to be able to examine how the nation’s laws affect the hiring practices of Abercrombie & Fitch and other companies whose hiring policy includes a particular aesthetic for employees.In the second part of your initial post, present your analysis of this case in a way that identifies which entities (Abercrombie & Fitch as a corporation, the economic system in the USA, the regulatory control of the state, or all of these) have a role in the problem that led to the lawsuit under examination. In your analysis, you must assess the positive or negative effects of the interplay between business activity and one of the following: the free-market system, advertising, hiring regulations, or corporate social responsibility. Your focus must be an ethical analysis of this interplay. Be sure to clearly identify the ethical theory that you are applying in your analysis, and to support your analysis by reliable and/or scholarly sources. Requirements for Your Initial Post:Your initial post should be at least 350 words in length and have citations and references in APA notation. It should address the prompt in its entirety. This means that you should not split your response to the prompt in multiple posts. Your examination should be both thorough and succinct. This is a combination that demands time and thought, so give yourself sufficient time to draft and revise.Please be advised that until you post, you will not see what your fellow students are posting. Once you submit your post, you will be able to view the posts from your other classmates. You can then proceed to reply to at least two different threads based on the required material for this discussion.Your list of references for your initial post should include not only the video and the other required material for this discussion, as well as the Instructor Guidance and any other announcements presented to you by your professor. Use all of the material presented to you in the course and by your professor, in addition to any other sources that you consulted to inform yourself about this case (but not Wikipedia or similar sources).
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5
Discrimination in
the Workplace
iStock/Thinkstock
Learning Objectives
After reading this chapter, you should be able to:
• Define the various types of discrimination.
• Explain the notions of affirmative action, equal opportunity, preferential treatment, individual and group
compensation, and reverse discrimination.
• Describe the different U.S. affirmative action laws and procedures and the major Supreme Court decisions
that have clarified those laws.
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Introduction
Chapter Outline
Introduction
5.1 Discrimination
Features of Discrimination
Social Institutions and Discrimination
Intentional and Unintentional Discrimination
Evidence of Public Accommodations Discrimination
Evidence of Employment Discrimination
5.2 Employment Discrimination and Affirmative Action
Features of Affirmative Action
Preferential Treatment
Compensation for Discrimination
Arguments for Affirmative Action
Arguments Against Affirmative Action
5.3 U.S. Anti-Discrimination Laws
The Civil Rights Act of 1964
Affirmative Action: Two Laws, Two Governmental Agencies
Compliance Guidelines and Plans
Supreme Court Cases on Affirmative Action
Conclusion
Introduction
Racial prejudice has been the source of social conflict and personal suffering for as long as
there have been human records, and quite possibly for tens of thousands of years before that.
Rival ethnic groups wage war upon each other, enslave members of opposing groups, and
even try to exterminate them. The concept of racial equality is a comparatively recent one,
and it has only been a matter of decades that governments have denounced racial prejudice
and made efforts to undo at least some of the damage it has caused.
India is a case in point, with its centuries-old tradition of the caste system, which has splintered
the population into a hierarchy of social classes determined by birth. While the higher castes
have been the holders of the country’s wealth and power, at the very bottom are the “untouchables” who are so low that, in the past, upper castes avoided coming into any contact with them.
Making up 16% of the country’s population, they historically had no meaningful access to education, respectable employment, or political representation. Millions today live on the streets or
in garbage dumps, where they forage for scraps of anything that might have some resale value.
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Section 5.1
Discrimination
While India was a colony, the British government made efforts to elevate the untouchables
into mainstream society, one of the first efforts at what we now call affirmative action. After
independence in 1947, the government of India continued this policy, even writing into the
constitution special protections and opportunities for the untouchables. Among these policies is the reservation of 16% of all government jobs for untouchables, in direct proportion
to their number in the population. A high percentage of student positions in universities are
also reserved for them.
When we look at India’s situation, it
is easy to conclude that the country
chose the right remedy: Dramatic
injustices call for dramatic corrective measures, without which the
untouchables would be forever
locked into a cycle of the most
unimaginable poverty. It is not just
India, however, that has this problem. Many of the world’s countries
have m
­ inority groups that are economically suffering because of a
history of discrimination.
Saurabh Das/Associated Press
The United States is a case in
point. This country has adopted Although Hari Kishan Pippal is an Indian “untouchable,”
solutions like India’s, though not he has prospered despite the odds. He now owns a hosquite as radical. Businesses, in pital, a Honda dealership, and a shoe factory.
particular, are on the cutting edge
of social reforms that aim to elevate historically disadvantaged minority groups. Sometimes companies proactively embrace these efforts, but in most cases the efforts are backed
by government mandates and businesses have no choice but to comply. Discrimination in
the workplace is one of the most important ethical and legal issues for businesses. Social
conscience urges companies to eliminate discriminatory practices, and the law requires them
to do so. In this chapter, we will explore many of the issues connected with discrimination in
the workplace.
5.1 Discrimination
We will begin with a look at the nature of discrimination itself, how it affects businesses and
other social institutions, and the evidence for it.
Features of Discrimination
Two types of discrimination are relevant to businesses:
• Public accommodations discrimination: In this type of discrimination, a business
or some other public access place prejudicially denies services to some customers.
• Employment discrimination: This type of discrimination refers to prejudicial
treatment of people in hiring, promotion, and termination decisions.
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Section 5.1
Discrimination
Consider this simple case of public accommodations discrimination: A White man and a
Black man who are dressed similarly enter a restaurant; the White man is served and the
Black man is asked to leave. In essence, the Black man was asked to leave purely because
of his race. Here is a simple case of employment discrimination: A man and a woman both
apply for the same job; the woman’s qualifications are much stronger, but the employer
hires the man instead. Here, the woman was turned down purely because of her gender, not
because of her abilities.
Thus, we can say that discrimination is the unjust or prejudicial treatment of people on arbitrary grounds, such as race, gender, or age, which results in denial of opportunity, such as in
public accommodations or employment. Key to this definition is the idea that the treatment
is based on arbitrary grounds. With public accommodations discrimination, a person’s gender
or skin color is irrelevant to his or her function as a customer, and it would be arbitrary to
deny that person service. With employment discrimination, a person’s gender or skin color
is also irrelevant to the person’s job performance, and it would also be arbitrary to deny that
person an employment opportunity on that basis.
Of course, it is not always discriminatory to deny opportunities to people because of some
unique feature about them. Suppose that a blind person tried to rent a car from Hertz or apply
for a job as an air-traffic controller. In these cases, having eyesight is a necessary requirement
for driving a car or being an air-traffic controller, and there is nothing arbitrary about denying
those opportunities to blind people.
However, it can at times be a challenge to determine whether a particular physical feature is needed to do the job. For example, a 240-pound woman from San Francisco was
denied work as an aerobics instructor because of her weight. The company in question
was Jazzercise, which advertised itself as the world’s leading dance-fitness program, having 5,000 certified instructors across the country. The company’s stated policy was that
their instructors must have a “fit appearance,” and they turned down the woman when
seeing her in person. After she complained to the San Francisco Human Rights Commission, the Jazzercise company agreed to drop the “fit appearance” criterion and conceded
that “recent studies document that it may be possible for people of varying weights to be
fit” (quoted in Ackman, 2002). This case shows that long-standing stereotypes may be
grounded in little more than prejudice, and this is precisely what makes discriminatory
treatment unfair.
The most commonly acknowledged forms of discrimination today are on the bases of:




race,
gender,
disability, and
age.
Still others include color, creed, political affiliation, national origin, religion, ancestry, pregnancy, medical condition, mental condition, marital status, sexual orientation, and status as a
veteran. The list of discrimination types could be endless: I could discriminate against people
who were fans of a rival sports team, or liked a particular type of music, or drove a particular
model of car. Whatever differences exist between one human and another can potentially
become matters of prejudice and arbitrary treatment.
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Section 5.1
Discrimination
What Would You Do?
In the court case Swartzentruber v. Gunite Corp. (2000), Sheldon Swartzentruber sued his
employer for religious discrimination. Swartzentruber was a member of the Church of the
American Knights of the Ku Klux Klan and had a tattoo on his forearm of a hooded figure
standing in front of a burning cross, one of the sacred symbols of his church. Fellow workers
complained that they found the tattoo offensive and threatening. His supervisor asked him
to keep it covered, which he did inconsistently, but after several reminders from his boss,
Swartzentruber sued for harassment.
1.
2.
3.
4.
If you were Swartzentruber’s supervisor, would you have made him cover the tattoo,
let him expose it, or fire him? Explain your answers.
If you were an African American worker at the company, would you have complained
about Swartzentruber’s tattoo, quit your job, or just tried to ignore it? Explain your
answers.
The court maintained that the alleged harassment “occurred because of his selfidentification as a member of the KKK, not because of his religious beliefs.” Is that
relevant to whether Swartzentruber was discriminated against? Why or why not?
The court concluded that “A company demand that he cover a tattoo that, to many
people, symbolizes racism and hate and company monitoring to ensure compliance
is not harassment and does not contribute to an environment that could reasonably
be viewed as hostile.” Do you agree with the court? Why or why not?
Social Institutions and Discrimination
In combating discrimination, there are three principal social institutions that are targeted for
change: schools, governments, and businesses.
Eliminating discrimination in schools is important because these institutions provide people
with the skills to compete for almost everything else in life. If schools at both the K–12 and
college levels systematically discriminated against certain groups, those individuals would
forever be at a competitive disadvantage and locked into something like a caste system, which
it would be exceedingly difficult to rise above.
Eliminating discrimination in positions of political power is important because it is the government that shapes social policy regarding the equal treatment of groups. Without proper
representation in government, the risk is too great that the interests of White males will prevail over those of other groups.
Finally, eliminating discrimination in the workplace is important because it is the quality of
jobs that determines whether an employee becomes rich or poor. When employers systematically discriminate against certain groups, they turn those groups into a socioeconomic underclass from which, again, it is difficult to break free.
Intentional and Unintentional Discrimination
In the past, discrimination was an integral and acceptable part of doing business; that was a
reflection of the prevailing social order. Women and ethnic minorities, it was felt, should be
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Section 5.1
Discrimination
treated differently as customers and belonged only in specific jobs, typically lower paying
ones, and it was just assumed that the better jobs should go to White males. Not so now. The
law protects women and minority groups from discrimination, and it is a serious blemish on
a business’s moral record to be accused of discriminatory practices. Still, some discrimination
continues today in spite of changing laws and social attitudes.
Sometimes businesses engage in intentional discrimination, when the policies or practices
of a company are shaped by overt racial prejudices of its managers or executives. For example,
in one racially divided town, a family restaurant had a policy of placing a small letter B on the
backs of application forms filled out by Black applicants. They would then overlook these
applications when selecting candidates to interview. The business managers were knowingly
and intentionally discriminating against Black applicants.
Other times, however, businesses engage in unintentional discrimination, when their policies or practices uncritically reflect prejudicial stereotypes. A famous public accommodations example of this was when President Bill Clinton’s 21 secret service agents went to a
Denny’s restaurant for breakfast; while the White agents received their meals, those for six
Black agents arrived only after repeated requests an hour later, just as the group was leaving.
A spokesperson for Denny’s stated that “It’s a service issue, not a discriminatory issue,” which
he said resulted from the quantity of orders and the kitchen backlog. The incident sparked
a $54-million class action lawsuit against Denny’s that revealed a pattern of discriminatory
activity in many of the restaurant’s locations.
The Jazzercise example from before appears to be a case of unintentional employment discrimination in that the company wrongly assumed that only people within a certain weight
range were athletically fit. In addition to those about weight, policies about height, beards,
tattoos, and body piercings can also have a discriminatory effect. Unintentional discrimination of this sort is sometimes referred to as a “facially neutral employment practice,” which is
defined by anti-discrimination law as a practice “that does not appear to be discriminatory on
its face; rather it is one that is discriminatory in its application or effect” (The Free Dictionary,
n.d.). For example, a company can establish a dress code, but it cannot have a discriminatory
impact, either on its face or as an effect.
Some of our personal biases are hidden from us, and, to help reveal them, a research project called Project Implicit has several free online tests that users can take to uncover their
implicit associations about race, gender, weight, sexuality, religion, disability, and age. According to Project Implicit, “Much of perception, thinking, and action occurs outside of conscious
awareness or conscious control. Because of that, judgment and action can be unintentionally
influenced by factors that we do not recognize, and may not value.” By becoming aware of
these unconscious factors, businesses might better achieve “organizational innovation and
change” (Project Implicit, 2011).
Evidence of Public Accommodations Discrimination
When looking for evidence of discrimination within the business world, there are two types:
• Direct evidence of discrimination is overt written or oral statements by employers that display their discriminatory intention. A sign on a restaurant door that
says “No Blacks” would be an example of this in regards to public accommodation
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Section 5.1
Discrimination
discrimination. However, finding direct evidence is often difficult because employers rarely
make explicit discriminatory
statements such as “our policy
is to not serve Black people”
either in writing or verbally.
• It is more likely that there
will be indirect evidence
of discrimination, in which
the behavior of the company
implies discriminatory conduct. An example would be the
Denny’s case of serving White
agents before Black ones.
Everett Collection/Superstock
For 100 years after the Civil War, Jim Crow laws
enforced segregation in public areas with “Whites
only” and “Coloreds only” signs.
Before the Civil Rights Act of 1964,
direct and indirect evidence abounded:
Conduct an Internet image search for
“Whites only” and “no colored” and you will get numerous old photographs of discriminatory signs on restaurants, hotels, restrooms, water fountains, and so on. But what about
now: Hasn’t public accommodations discrimination been eliminated? Unfortunately, it is
alive and well in business. Attorneys specialize in it throughout the country, state governments have offices devoted to it, and complaints are plentiful.
Immediately after the terrorist attacks on September 11, 2001, many businesses overtly
­discriminated against Middle Eastern customers. For example, on the afternoon of the attacks,
a hotel in Des Moines, Iowa, revoked its previous offer to host the annual convention of the
Midwest Federation of American Syrian-Lebanese Clubs, and repeatedly refused to reconsider its decision in the subsequent weeks. In another case, the manager of a nightclub told
a Sikh customer to remove his turban or leave the club, while that same Sikh customer had
been permitted to wear it at the club prior to September 11. A survey of around 1,000 Arabs
and Muslims by the New York City Commission on Human Rights indicated that 69% of the
respondents experienced discrimination after the attacks, one-quarter of which was related
to public accommodations.
But even in less politically charged climates, clear cases of public accommodations discrimination still occur. In 2008, a case was settled against a nightclub in Virginia Beach, Virginia,
that imposed a dress code that targeted hairstyles common among African Americans, such as
dreadlocks, cornrows, and braids, and did so as a pretext for denying African Americans admission. A government spokesperson commented, “It is unfortunate that in today’s society, African Americans and other individuals still must endure discrimination and segregation in public
gathering places such as restaurants and nightclubs” (U.S. Department of Justice, 2008).
In another example, in 2012 the U.S. Department of Justice settled a case against a swim club
in Huntingdon, Pennsylvania, which had contracted with a day camp to have weekly 90-minute use of the club’s pool for the camp’s students. On the first day, 56 campers, predominately
Black, used the pool; some club members complained on the basis of race. The next day the
club enacted a policy barring all summer camps from using the pool, which prevented this
day camp from returning (U.S. Department of Justice, 2012).
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Section 5.1
Discrimination
In 2014, a case was settled against a restaurant owner in Boston, Massachusetts, who on several occasions refused to admit African American, Hispanic, and Cape Verdean patrons. One
staff member allegedly told these patrons that they could not enter the bar because they did
not “know the owner” and that the bar did not want any “trouble” or “problems” (Attorney
General of Massachusetts, 2014). The owner agreed to a $100,000 settlement.
When complaints of accommodations discrimination are brought to the Department of Justice, the agency sometimes uses “testers” to confirm the allegations, which they explain here:
Fair housing testing consists of individuals posing as prospective home seekers (i.e., testers) simulating housing transactions with a housing provi …
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