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The Benefits and Detriments For Affirmative Action and Employment At Will

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Introduction

Affirmative action and employment at will are topics of legitimate concern, especially for employers and employees. Previously, but more imperatively, managers and companies should be mindful of the legal ramifications that may happen if they neglect to properly understand the importance of discrimination in the workplace. Albeit union affiliations, Congress did not have a hand in many cases for discrimination until 1963, where Martin Luther King Jr. led the civil rights March on Washington. This march encompassed people of all color who peacefully marched to gain and enact proper legislation regarding job equality for all (‘Civil Rights Movement’, 2019). Previously, employers could discriminate based on age, gender, race, disabilities, religion, and any other categorical reason possible. Businesses were not the only face of discrimination, as other institutions also used these lines of reasoning for not accepting or hiring people.

In 1961, President John F. Kennedy signed an Executive Order that introduced affirmative action law in the workplace because this only applied to federal jobs; however, 38 states recognized the potential impact and passed laws of their own to avoid litigation under the federal equal employment statute (Kurtlus, 2013). Affirmative action law handles people that have not been hired or considered for employment due to a plethora of personal characteristics; while employment at will is a completely different logistic, as it is under the pretext that employees can terminate their employment with said employer, while the employer can terminate said employee at any time. The exceptions to this law are when employers fire employees for reasons such as refusing to violate a law or exercising a legal right (Mayer, Warner, Siedel, Lieberman & Martina, n.d.). Lastly, positive solutions and less bias are means behind affirmative action, while employment at will is a unique relationship between employers and employees, unless a contract has been signed. Education is vitally important between corporations and universities to achieve a sense of balance and equality for all.

The Benefits of Affirmative Action Cases

Affirmative action is an asset inside and outside the confines of the workplace. This law was enacted to bring people together, not tear them apart due to inequality calculations. Within company’s and a universities confines, it challenges and defines unity, diversity, strength, purpose, and the ability for those to be treated fairly and with respect. The first official case for affirmative action was in 1974 where Marco DeFunis, a white man was denied admission to the University of Washington Law School because at the time they were only accepting people who were less qualified or minorities (Kramer, 2019). However, not all cases are subjected to university boundaries; in fact, inequality transpires behind business structures.

In the late 1990’s, a new form of discrimination was recognized. Title VII of the Civil Rights Act was descriptive, but originally lacked the word sex as a gregarious form of wording in the pretext of the discrimination adage (Bible, 2006). Many forms of sexual discrimination have been determined from people not being hired due to their actual gender, and even those that have been hired and harassed due to the sexual orientation preference or gender traits (Bible). Important people have paved the way for the Civil Rights Act to be amended or firmly upheld. One such case was Price Waterhouse v. Hopkins. Hopkins was a senior manager at Price Waterhouse and was asked because she had secured more contracts than that of her other coworkers to be a partner with the company; nevertheless, partners praised her for being outstanding as a professional and having “strong character, independence and integrity’ (Bible). Consequently, her partners also found that she was too harsh, she over compensated for being a woman and used foul language; they advised she would make partner easier if she enrolled in charm school to dress and appear more feminine in nature (Bible). All in all, she managed to continue working with the company for a year; she was denied for partnership and ultimately resigned and sued for sexual discrimination (Bible). Hopkins won her case where the court found that she was unlawfully discriminated against due to partners comments that “resulted from sex stereotyping” (Bible). Without a multitude of cases being filed and granted serious consideration under Title VII, the landscape for today might have a different appearance.

Detriments of Affirmative Action

There are also negative connotations with laws in support of affirmative action. One disadvantage is that of a created stigma for those who are hired (Quain, 2019). Companies that hiring women, minorities, or other unqualified people to justify a certain ratio or balance instead of hiring based on the persons true qualifications meet this stigma (Quain). If this happens, it causes other employees or students to feel that they were not qualified, excepted, or hired based on their gender or cultural background. Another disadvantage is reversed discrimination, this happens when a specific dominant group is ostracized such as white males (Quain).

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Hindrances to this law encompasses companies that hire or fire applicants of a younger statute, rejecting an applicant based on race over other qualified applicants, harassment due to culture diversity, or not allowing leave after the birth of a child (‘Reverse Discrimination | UpCounsel 2019’, n.d.). One case of ration unbalance was with Cynthia Williams that received $850,000 from her employer because they stated she was not a team player and was fired (Goldsmith, n.d.). The jury found that there was collusion for “setting up a demographic situation” at First Cash and awarded punitive damages of $650,000 to deter future issues (Goldsmith). The case of General Electric vs. Gilbert was over tuned by Congress stating that if a company did not have benefits that were outside those of a standard disability, then women requesting time off after a birth should have their job reserved because it was considered discrimination based on sex (Nowlin & Sullivan, 1988). The Pregnancy Discrimination Act in 1978 was later added under Civil Rights Act (Nowlin & Sullivan).

Benefits of Employment At Will

As there have been advantages for affirmative action, there are also benefits to employment at will in the workplace. Employment at will under common law refers to the employer being able to fire an employee for any reason without notice (‘At-Will Employee FAQ’s – FindLaw’, n.d.). However, there ae advantages for being an at will employee or employer. Examples include small business owners that might anticipate fluctuating requirements or simply do not want to hire someone who may be a poor fit (Lovering, n.d.). Employees also have the right to leave a job without notice and may be able gain employment quickly with another entity. This type of employment leaves both the employee and the employer without legal ramifications, along as no documents have been signed such as an employment contract (Lovering).

The case of Franco v. Liposcience, Inc. was brought to court when Franco, Vice President of Marketing was terminated and claimed he had a contract with Liposcience Inc. (‘FindLaw’s Court of Appeals of North Carolina case and opinions.’, 2009). After further consideration, the court found that Lipscience Inc. was not at fault as Franco was an at will employee (“FindLaw’s Court”). The case of Francis v. National Accrediting Commission of Career Arts & Sciences, Inc. was initiated due to Francis receiving threats at work, filing a restraining order against another employee and after the restraining order was issued was terminated immediately for not “fitting the vision of the organization” (‘FindLaw’s Supreme Court of Virginia case and opinions.’, 2017). While this appears extreme on the employee’s behalf, a company once more was justified because Francis was considered an at will employee. Employment at will under common law, refers to the employer being able to fire an employee for any reason without notice (‘At-Will Employee FAQ’s – FindLaw’, n.d.). Benefits for at will employment range from small business owners that might anticipate fluctuating requirements or simply do not want to hire someone who may be a poor fit (Lovering, n.d.). Again, employees have the ability to leave a job without notice and regain employment quickly with another entity. This type of employment leaves both the employee and the employer without legal ramifications, along as no documents have been signed such as an employment contract (Lovering).

Detriments of Employment At Will

Laws have their own limitations and employment at will is one area where filed suits were determined in favor of the plaintiffs. The case of Swindol v. Aurora Flight Sciences Corp. was filed by the plaintiff because as he brought a firearm onto the premise by parking the vehicle in the parking lot of the employer, even though it was locked inside the vehicle; per Aurora Flight Sciences Corp. policy, employees were not allowed to bring firearms on the workplace premise, even if it is stored in their vehicles (Lawless, 2016). Mississippi has a state law that prohibits most businesses from enforcing this policy; however, Swindol was terminated and in turn, pushed back that he had a right to carry the firearm per the statute (Lawless). The Fifth Circuit reviewed the case and found that at will employees fall under the public policy statute and were therefore protected. The case of Godwin v. Rogue Valley Youth Correctional Facility presented their stance that even though Godwin was employed at the correctional facility, he was affiliated with a motorcycle club that was suspected of criminal activity and wore the club’s regalia to work (Lawless). Godwin was terminated on the premise that he was merely associated with the club, even though he himself did not engage in any type of criminal behavior (Lawless). The court ruled in favor of Godwin and found that while he was affiliated with the club, that in no way determined or interfered with his job performance or facility, relationship with others, or fueled any disruptions (Lawless). These are merely two employment at will cases where the courts sided with the plaintiffs and based their decisions on the sole fact that the employees were fired for unlawful reasons.

Promoting Training, Networking And Mentoring

Management must continue to educate their company to avoid legal complications or presenting bias. They need to be proactive by providing transparency in the hiring process with an action plan policy, setting goals not quotas, removing barriers to entry, providing representation to employees, and reviewing and updating their legal knowledge (Thompson, 2019). Both universities and corporations that assume leadership by reviewing their policies, enact training, networking, mentoring, and evaluations may accomplish more positive results (Kalev, Dobbin & Kelly, 2006). This allows for a stronger foundation and permits companies to increase their margin of profit, while promoting job fairness, equality, and growth across the board.

Conclusion

In the 21st century, companies need to evaluate the importance of equality within the scope of the Civil Rights Act, along with understanding the exclusive relationship of employment a will. Recognizing that problems can arise and will arise in any of these areas is crucial for the success and longevity of the company. Being proactive instead of reactive will help them to diminish any potential issues. Understanding that discrimination under the pretext of many variables is harmful, not only for the employees, but the for reputation of the business withstanding. Having clear expectations, valuing education and training will pave the way for further disparage in the future and eliminate any probable barriers for success.

References

  1. At-Will Employee FAQ’s – FindLaw. Retrieved from https://employment.findlaw.com/hiring-process/at-will-employee-faq-s.html
  2. Bible, J. (2006). Disorder in the Courts: Proving Same-Sex Sex Discrimination in Title VII Cases Via “Gender Stereotyping.” Employee Relations Law Journal, 31(4), 42–72. Retrieved from http://search.proquest.com/docview/194226628/
  3. Civil Rights Movement. (2019). Retrieved from https://www.history.com/topics/black-history/civil-rights-movement
  4. FindLaw’s Court of Appeals of North Carolina case and opinions. (2009). Retrieved from https://caselaw.findlaw.com/nc-court-of-appeals/1381463.html
  5. FindLaw’s Supreme Court of Virginia case and opinions. (2017). Retrieved from https://caselaw.findlaw.com/va-supreme-court/1850239.html
  6. Goldsmith, L. $855,000 Jury Verdict Is Upheld In Race Discrimination Case Is Upheld; Retail Chain Was Guilty of “Setting Up a Demographic Situation” By Denying Black Managers Assignments to Stores in White Areas. Retrieved from http://www.goldsmithfirm.com/resources/articles/article-10/
  7. Kalev, A., Dobbin, F., & Kelly, E. (2006). Best practices or best guesses? assessing the efficacy of corporate affirmative action and diversity policies. American Sociological Review, 71(4), 589-617. doi:http://dx.doi.org.ezproxy2.apus.edu/10.1177/000312240607100404
  8. Kramer, M. (2019). A Timeline of Key Supreme Court Cases on Affirmative Action. Retrieved from https://www.nytimes.com/2019/03/30/us/affirmative-action-supreme-court.html
  9. Kurtlus, F. (2013). The Impact of Eliminating Affirmative Action on Minority and Female Employment: A Natural Experiment Approach Using State-Level Affirmative Action Laws and EEO-4 Data. Retrieved from http://gap.hks.harvard.edu/impact-eliminating-affirmative-action-minority-and-female-employment-natural-experiment-approach
  10. Lawless, L. (2016). Two Recent Federal Court Decisions Explore the Limits of the At-Will Employment Doctrine | Employment Law Worldview. Retrieved from https://www.employmentlawworldview.com/two-recent-federal-court-decisions-explore-the-limits-of-the-at-will-employment-doctrine/
  11. Lovering, C. Good Things About At-Will Employment. Retrieved from https://smallbusiness.chron.com/good-things-atwill-employment-34594.html
  12. Mayer, D., Warner, D., Siedel, G., Lieberman, J., & Martina, A. Business Law and the Legal Environment. Retrieved from https://resources.saylor.org/wwwresources/archived/site/textbooks/Business%20Law%20and%20the%20Legal%20Environment.pdf
  13. Nowlin, W., & Sullivan, G. (1988). Legal Trends In Affirmative Action And Employee Rights. Industrial Management, 30(1), 26. Retrieved from http://search.proquest.com/docview/211588057/
  14. Quain, S. (2019). Advantages and Disadvantages of Affirmative Action in the Workplace. Retrieved from https://smallbusiness.chron.com/advantages-disadvantages-affirmative-action-workplace-18141.html
  15. Reverse Discrimination | UpCounsel 2019. Retrieved from https://www.upcounsel.com/reverse-discrimination
  16. Thompson, J. (2019). Examples of Affirmative Action in a Workplace. Retrieved from https://smallbusiness.chron.com/examples-affirmative-action-workplace-12019.html

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