Employment Law Essay

Part One

  1. An employer might be reluctant to provide references to an employee because he/she thinks that without good references this employee will not be able to find a decent job and will be forced to return to current employer. This reluctance might also be a sign of anger shown by the employee at the fact that someone wants to leave his company. In reality, such behavior does not benefit anyone. An employee will leave with references or without them if he/she is not satisfied with the current job; and it will not really matter to the employer what kind of job his/her former employee will find.
  2. I do not think that unions are appropriate in today’s workplace. They were appropriate long ago, when the work done by people was somewhat routine and really the same within one occupation. However, on the contemporary labor market, people’s approach to job is much more individualistic than it used to be. Unions are simply not capable of defending the rights and desires of diverse employee force, even within the same occupation. Therefore, it is much more appropriate for individual employees to fight for their rights by means of signing the employment contract than by joining a union and trying to have someone else argue for their rights.
  3. It sure is possible that an employee might be oversensitive or simply overreact. However, the manager’s job in this situation is not to say it right away, but to thoroughly analyze the situation first. While a person might have simply overreacted, it is also possible that true discriminatory action had taken place; in this case, the manager should show that he/she cares about it and is willing to help resolve the situation. It is also possible that an employee is overreacting in order to get some benefits out of the situation for him/herself; but, again, it is not a right thing for the manager to dismiss the issue right away.
  4. Racial discrimination can actually occur within any race and within the representatives of that very race. People who are more successful than others might behave in a discriminatory manner towards people of the same race (for instance, telling them that they are not worth to represent this race at issue). Moreover, it is a well known fact that a lot of people tend to discriminate against people of their own race, showing by doing so their superiority and trying to humiliate the opponent. In order to avoid this type of situation in the workplace, there should always be more than one person who will be able to settle the dispute or solve some particular problem involving a couple of employees.

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Part two

Workplace assimilation is best challenged under Title VII’s disparate impact doctrine. Disparate impact already provides some protection against workplace policies that target mutable characteristics, but it has not been an effective tool for challenging workplace assimilation because of a flaw in the doctrine that can be referred to as the “immutability requirement.” (2)

Eliminating this little-understood flaw would enable disparate impact to apply scrutiny to a wide range of assimilative policies. Although Yoshino’s disparate treatment approach would provide stronger protection to plaintiffs, the disparate impact approach developed here has the crucial advantage of not requiring the essentialist equation of traits and statuses.

Currently, in order to make out a case under disparate impact, the plaintiff must show that the employer’s policy has an adverse effect on her. If there is no adversity, the disparity of the impact is irrelevant. The Ninth Circuit clearly articulated this adversity principle in its landmark English-only case involving bilingual employees, Garcia v. Spun Steak Co.: “The crux of the dispute between Spun Steak and the Spanish speaking employees, however, is not over whether Hispanic workers will disproportionately bear any adverse effects of the policy; rather, the dispute centers on whether the policy causes any adverse effects at all, and if it does, whether the effects are significant.” (1)

Unfortunately, courts have read an immutability requirement into the meaning of adversity. According to this requirement, if a workplace policy burdens a mutable trait, it will normally not be considered to have an adverse impact, as the law assumes that one can easily choose to comply with such a policy or that any difficulty in doing so will be de minimis. It turns out that the key struggle in the grooming and English-only cases is over these issues of adversity and immutability.

Correctly interpreted, one of central claims is that, even if the grooming policy had a racially disparate effect, it produced no cognizable harm because cornrows are easily shed. This reasoning appears more clearly in the court’s dismissal of gender-discrimination claim: “An even-handed policy that prohibits to both sexes a style more often adopted by members of one sex does not constitute prohibited sex discrimination. This is because this type of regulation has at most a negligible effect on employment opportunity.” (1)

The immutability requirement can be traced to Garcia v. Spun Steak Co. but that opinion displays a telling ambivalence about its nature and scope. The bilingual employees in that case were prohibited from speaking Spanish during work time (including in conversations between each other) unless they were helping Spanish-speaking customers. The Fifth Circuit rejected Garcia’s disparate impact claim, reasoning that there is no disparate impact if the policy in question is “one that the affected employee can readily observe and nonobservance is a matter of individual preference.” (3) The court stated that Garcia had a free choice as to which language to speak, and contrasted him with a monolingual Spanish speaker.

Earlier, the court noted the uncertain scope of the immutability requirement upon which it was relying. The distinction the courts are motioning towards is not really one between mutability and immutability, strictly understood. The problem, put simply, is that mutability does not negate adversity. For example, a person could, though with some difficulty, change neighborhoods (as in Gloor’s example above) or acquire a high school diploma.

Through the vocabulary of mutability and immutability, volition and constraint, courts are groping for a standard for the necessary amount of burden or adversity a policy must cause in order to merit further judicial scrutiny. While the physical difficulty involved in complying with a workplace requirement is a privileged indicator of adversity, Gloor displays ambivalence even about this in choosing the smoking example as its reductio ad absurdum in the quotation above. Abstaining from smoking, if one is addicted, exacts an obvious physical and psychological price. (2)

The smoking example suggests that courts assess adversity through a normative lens, such that a no-smoking rule is not regarded as creating an adverse impact, despite the physical difficulty involved in complying. This, in turn, suggests that the courts exercise discretion–likely shaped by the norms of privileged groups–in deciding which harms are cognizable and thus remediable under Title VII.
Upon reviewing the grooming and English-only cases, one is struck by the lack of citation to precedent on the proper standard for measuring adversity. For example, the court in Spun Steak emphasized, without citation or further clarification, that the English-only policy’s impact on terms, conditions, or privileges of employment must be adverse and “significant.” (3)

Additionally, courts sometimes overlook claims of stress and physical discomfort in order to conclude that a policy produces no adverse impact. For example, the Rogers court noted that American Airlines allowed Rogers to keep her cornrows as long as she used a hair piece. (1) In response to her claim that the hairpiece caused severe headaches, the court dryly noted that “a larger hairpiece would seem in order,” and that “even if any hairpiece would cause such discomfort, the policy does not offend a substantial interest.” (1)

Bibliography
1. Chavez, Linda. Out of the Barrio : Toward a New Politics of Hispanic Assimilation. (New York: Basic Books, 1992).
2. Taylor, Charles. Multiculturalism: Examining the Politics of Recognition. (Princeton: Princeton University Press, 1994).
3. Zack, Naomi. American Mixed Race: the Culture of Microdiversity (Lanham: Roman and Littlefield, 1995).

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