The main aim of
this literature review is to discuss how sexual discrimination process is
significant in employment. The review looks at the relationship between sexual discrimination and employment. And
the analyzing if there is any relationship, if yes what is the cause of
relationship, and who is responsible for that cause, and how can one change the
relationship. The paper reviews and analyzes some relevant articles, which
outline the problem and finally suggest solutions to the problem. The paper
will also look at the historical context of American civil movement struggle
and the role of great civil right fighters like Dr. Martin Luther King Jr. In the
course of discussion the paper looks at how Title VII of Civil Right Act of
1964, has solved the problem of sexual discrimination or has widened the gap of
discrimination.
The literature review has
identified three research questions related to the problem, as shown below, and
for this discussion this literature review will answer the first assumption/
hypothesis.
Research
questions:
1. Is the
employer’s Policies fluid sexual discrimination in employment?
2. Is a
relation at will between employees and employers a positive step in minimizing
sexual discrimination in employment?
3. How can
indirect discrimination affect negatively the protected groups?
Is the employer’s policies fluid sexual discrimination in employment?
My research question looks
at the relationship between employers polices and how it relates to sexual
discrimination in employment
“Employers’ policies” is an
independent variable and “sexual discrimination” is dependent variable. The
relationship between these two variables is so clear that the whole process of
discrimination depends very much on the employer’s policies. The employer’s
policies are a determinant of sexual discrimination. Once you have good
employment policies you can minimize the chances of discrimination for 99
percent, and the relationship between these two variables will be significant.
Definition of variables:
According to Tammy J. Lees
(2004) “Titled VII defined employer
as a person engaged in an industry affecting commerce who has fifteen or more
employees … and any agent of such. Under Washington’s anti discrimination law,
section 49.60 of the revised code of the Washington definition of employer to
include any person acting in the interest of an employer, directly or
indirectly who employs eight or more persons. And Ohio’s employment
discrimination stature section 4112 of the Ohio Revised code defined employer
includes any person employing four or more persons within the state and any
person acting directly in the interest of an employer.”
According Mosley (2005) Policy is
defined as “a guide to decision making – a sort of boundary on a supervisory
freedom of action. That is, it is a way to provide consistency among the
decision makers… Also, they often form the basis for legal proceedings against
the organization and its management.” (47-48) From this definition policy
formulation is the responsibility of top management through five management
activities that is planning,
organizing, leading, staffing and coordinating.
A simple definition of employment is a state of being
employed or haring in a job it is a service, which you render, and you expect
to receive payment in cash in return. A more advanced definition of employment
is a contract between two parties which is well written and showing what to do
and what not to do and employee sign it as a signal binding between the two
parties.
“Sexual discrimination is simply defined as treating
people unequally on grounds of their sex, in the process of hiring, promotion
and benefits.” (www.apesma.asn.qu.
Retrieved on 09/29/05)
According to Tomei, M. (2003) “discrimination in work refers
to a difference in treatment based on personal characteristics of an
individual, such as race, sex, irrespective of whether that individual’s
profile matches the requirements of the particular job.” It means that you are treated less fairly
than someone else for reasons that are unrelated to your ability to do a
job.
Discriminatory actions in employment can
happen at any stage in the employment cycle where the employer makes any personnel
decision according to outline policy, including the decision whether to hire an
employee. If the employer's decision is based upon race, color, sex, national
origin, religion, age, marital status, family status or mental or physical
disability, a claim for discrimination may exist. OR despite having all the
qualifications required for a job BUT because you are a woman or protected
group and you are denied jobs or promotion, this is considered as sexual discrimination.
Discussion
Having defined variables let
us move to the major part of the literature review, which is a critical
analysis. Let us look a short history of sexual discrimination and employment
in America context, and the role of an employer’s policies in sexual
discrimination historical and why Title VII of CRA was formed in 1964?
Macdonald J.E., Dudley C.L
(2001) highlighted that “ the change in the employment relationship in the
United States followed a quite tumultuous path, beginning with the abolition
movement, civil war and the adoption of the 13th amendment of prohibiting
slavery and involuntary serviced. The current century brought, again in a
somewhat tumultuous fashion, the fair labor standards Act, labor laws, civil
rights law, a vast collection of erosion of the employment at will doctrine.”
According to Gate wood R., Field
H.S (2001) showed that “discrimination complaints can be pursued on the basis
of the Fifth and Fourteen Amendments to the constitution and the Civil Right
Acts of 1866 and 1871, which were part of reconstruction after the Civil War.
Both amendments prohibit the deprivation of employment rights without due
process… Sexual religious, and other forms of discrimination are not considered
to be appropriate” (pp. 42)
Yuracko K. A (2004) argued “
before the passage of the civil right act of 1964, many jobs in America were
formally sex segregated. Employer’s openly and unabashedly excluded women from
desirable high paying jobs that were reserved for men. Take the example of
justice Sandra Day O’Connor’s inability to find a law firm job other than as a
legal secretary after graduating third in her class from Stanford law school in
1952.
These three articles authors
show that sexual discrimination in employment in the American context has a
long history and there is no any scholar who dines this analysis. The
constitution amendments so far aimed at changing the employment policies, based
on discrimination especially against women and protected groups. It is obvious
that it is not easy to change the discriminatory environment which has well
established roots at once, a good example is the Civil Right Act of 1886
specified openly that ‘ all persons shall have right … as enjoyed by whites’
focus here is based on emancipation for all, but the problem is that the
culture and working environment of that time treated women differently and,
constitutional amendments aimed to eradicated discrimination in employment.
Given the fact that
employment relations were based on capitalism, employment policies insisted on
private ownership of production, which based on profit maximization. The
employer’s policies on this environment facilitated sometimes-sexual
discrimination because women were excluded from employment because they were
regarded as a profitable and cannot bring high profits to the company. This was
a creed to discriminate women and giving more power to men. In this view, men
themselves seen as superior than women and this facilitated the society to
change the culture and view man as primary labor market participants and wage
earners while woman seen as a periphery market participant who depends on man.
In emphasizing what has been
said above Yuracko K. A (2004) argued, “ By the mid 1960s 26 states prohibited
women from working in certain jobs and 19 states had hours regulations for
women working for statutory excluded from jobs that required heavy lifting.”
From this context of
widespread and violent resistance throughout America and the effort of civil
right movement and Dr. Martin Luther King Jr to eradicate racial segregation
the civil rights act of 1964 was passed, which aimed at dismantling totally
discrimination in employment.
What is Title VII of the
Civil Right Act of 1964 “ section 703. (a) It shall be an unlawful employment
practice for an employer:
1. Fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges or employment, because of
such individual’s race, color, religion, sex or national origin; or
2. Limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his status
as an employee, because of such individual’s race, color, religion, sex or
national origin.”
Lee A.J. (2005) observed
that,” the1964 civil rights act championed the need to protect minorities and
women from intentional discrimination that limited their employment
opportunities”
The great deal here of the
1964 CRA is to provide an equal ground to all in employment. This means that
everyone has an equal chance of being employed provided that he /she has
‘qualifications’ necessary to perform the applied job. The role of the Act is
to rationalize the employer’s decisions and policies from discriminatory
prospective to a fairground.
Cherry M.A (2005) argued
that “ Although Title VII and the Equal Pay Act were supposed to equalize the
terms and conditions of employment, they have left the sex-segregation nature
of work mostly intake. The problem… is that gender stereotyping and are the
barriers to entry but stereotypes of (lower Paying) jobs, and men towards
certain type of (higher paying) jobs”
Hodges A.C (2005) argued, “
Title VII of CRA initiated an era of expensive legislatives of individual
employment rights. At the time of passage Title VII was much needed to address
the widespread discrimination and segregation in the workplace while it has not
been an unqualified success the year since Title VII have seen obvious
substantial improvement in the distribution of jobs on the basis of race,
gender and ethnicity and reduction in the earnings gap between whites and
blacks and men and women. Equally obvious, Title VII has neither eliminated
discrimination in the workplace nor has it resulted in complete equity.
Employees have more rights than ever before, yet data regarding enforcement of
those rights regarding enforcement of those rights indicate that the rights are
often more theoretical than real”
Reed E.S (2000) viewed the
transformation and emancipation of sexual discrimination in employment as more
historical and not a real thing as argued that “ the history of mankind is a
history of repeated injuries and usurpations on the part of man toward woman,
having in direct object the establishment of an absolute tyranny over her… he
closes against her all the avenues of wealth and distortion which he considers
most honorable to himself…. He has endeavored, in every way that he could to
destroy her confidence in her own powers, to lessen her self-respect and make him
willing to lead a dependent and abject life”
The above literatures have
shown that Title VII of CRA of 1964 has reduced to a certain extend the problem
of sexual discrimination in employment but the problem is still of
discrimination is still there. Employer’s employment policies still reflect
unfair in certain area in employment such as discrimination practices in paying
women low wages and denying women opportunities to increase their earnings
through hiring and promotion.
In showing this Reed S.E
(2000) argued “ Kearney… was asked in her job interview with Steve MacAnally, a
former Merrill resident vice president in San Antonio how much money her
husband made. After she reluctantly told him, she claims he said ‘ we won’t
have to pay you so much then because you won’t starve. At the time Kearney was
45 years old with an MBA and 15 years experience working in major corporations.
Eventually she found out that she was being paid 30 % less than a man who had
recently graduated from college. She complained and a year later was fired …”
Rodger J. (2003) argued that
“ By establishing comparable across sex-segregated occupations and dissimilar
workplaces, minimum wage legislation can potentially address the extend to
which discrimination is embedded in the overall structure of pay and rewards”
Kimberly A. Yuracko (2005) argued that “Title VII prohibits
discrimination whereby women or men are denied employment opportunities because
of their status.”
The only exception is that the employer has valid reasons for
using it when it is a requirement of a job necessity. In a very narrow
exception Title VII of Civil Act of 1964 allows an employer to discriminate on
the basis of religion, sex or national of origin (but never race) if a
characteristic is something intrinsic to the job. In legal terms this exception
is called a Bonafide Occupational Qualification (BFOQ) exception. According to Gate
wood R., Field H.S (2001) “ A BFOQ defense means that no person of a particular
sex, race, color, religion, or national origin can adequately perform the given
job.” (Pp. 46) This type of defense is normally seen under disparate impact
cases when various groups have been affected in the same manner by employment
decisions. Here employer is defending that the results of the selection are because
of job relatedness.
As we have noted from the above analysis that
unfair employment policies can be to disparate or adverse impact, which means
that even though there was no intend to discriminate because the same
procedures were used uniformly for everyone applied, but the selection
procedure ended up in not selecting the protected groups. The advantage of this
process to employers is that it does not necessarily mean that unfair
discrimination has occurred if selection procedures can be shown to be job
related, related to business, or are bona fide occupational qualification. The
Title VII of Civil Right Act of 1964 strongly fights against employment
discrimination and demands the employers to make sure that they don’t have
policies, which advocates discriminations in employment as we have seen in the
discussion above. The only problem is that employers are sometimes reluctant in
practice non-discriminatory policies and as a result we have seen a number of
lawsuits against employers in different courts throughout America.
Let now see how employment
policies fluid sexual harassment. What is sexual harassment? According to
“title VII of the Civil Rights Act of 1964 and the CRA of 1991. Sexual
harassment is unwelcome conduct that consisted a form of gender-based
discrimination under The Title VII of 1964 puts clear that there are two forms
of harassment as shown below;
q
Quid Pro Quo
(this for that)
q
Hostile
environment harassment”
Domenic D. (1999) explained,
“ Quid Pro Quo harassment occurs when an employer takes a tangible adverse
employment action against an employee”
Merna D. (1999) argued, “
Quid Pro Quo sexual harassment occurs when… employers' sexual discriminatory
behavior compels a sexual demand and forfeiting job benefits continued
employment or promotions or otherwise suffering tangible job detriments”
Wallis T.J (2000) showed
that “ Quid Pro Quo is this for that as negotiating a trade. For example sleeps
with me and I will make sure you get promotions, sleep with me or you are
fired. When an employee’s position, advancement or salary depends on agreeing
to an unwelcome sexual advances from a boss or higher-ranking employee (someone
who has the authority to affect the employee’s job status)”
According to Robinson R.K
(2004) argued, “ An employee filing a formal complaint of Quid pro quo sexual
harassment under Titled VII must be able to substantiate the following;
q
The employee withers
male or female belongs to a class or group protected under Title VII.
q
The employee
was subjected to unwelcome sexual harassment, having done nothing by the world or
deed to encourage such behavior.
q
The welcome
behavior was based on the complainant’s gender, and must show that he or she
was subjected to disadvantageous conditions of employment to which members of
other sex were not. In short a woman must demonstrate that had she been a man
she would not have been harassed and vice versa.
q
Submitting to
rejecting the unwelcome behavior would have affected, explicitly or employee has
been denied a promotion, a recommendation for a raise or she may even have been
fired…”
All the authors agreed on
the content and facts of sexual harassment based on Quid Pro Quo the facts are
the same. In short and according to literature quid pro quo lies in the
following
1. Contingent nature
2. Gain tangible job benefits or detriment to job
benefits
3. Status of the harasser, must have power
4. Single incident.
I also tend to agree with
them but the only problem I have from this definition is that this form of
sexual harassment protects people as shown by Title VII of CRA and specifically
pointed out that the employee who BELONGS to groups protected under Title VII,
what about those who are not protected by Title VII? The act has not shown in the
case of any harassment what should they do, because they are the still the
citizen and deserve all the right and enjoyment under the constitution.
According to Merna D. (1999)
“ hostile work environment sexual harassment is much more difficult to define
than quid pro quo. It does not involve an economic threat like quid pro quo
rather; it denies an employee the right to work in an environment free from
discriminatory intimidation, ridicule and insult. This type of conduct than may
be considered harassment”
According to Davis W.J
(2004) said “ … the alleged harassment must be sufficiently severe or pervasive
enough to alter to alter the terms or conditions of the complainant’s job and
created an abusive work environment. The complaints must show that they
interfered with the individual’s work performance … unlike quid pro quo sexual
harassment, which restricts the pool of potential harassers to the ranks of
management, anyone can harass in a hostile environment. Technically, such work
conditions can be initiated by coworkers, vendors, customers or visitors to the
place of business. Even managers can perpetrate hostile environment sexual
harassment when to tangible employment actions are involved.
According to Tomkowicz S.M
(2004) observed “ … sexual harassment isn’t so much about the sex but rather
about the ways in which sexuality and other forms of sex-based differential
treatment can be used to undermine individuals in their workplace, and create
environments that are hostile or abusive to them precisely because of their
sex”
Domenick D
(1999) argued “ therefore the door is left open to the argument that this
standard requires employers to implement such extraordinary measures in order
to prevent sexual harassment because without these measures an employer cannot
keep track of its supervisors’ behavior. An employer’s failed to exercise
complete may fall short of reasonable care”
Well I tend to
be sympathetic with employers in this type of sexual harassment because it
involved a complicated environment and employer must be very smart in solving
this problem because, two major things are seen here first it is a sexual
explicitly behavior and second unequal treatment that discriminatory alters
employee’s working conditions.
Anyone can be
involved here it gives an employer a very difficult time to control the
situation unless the company has a good policy on sexual harassment and well
defined mechanism for monitoring the situation.
The role of
employer
Shachter R.
(2001) argued “ to establish the defense, employers must meet two essential
requirements. First they must show that the employer acted reasonably to
prevent and correct sexual harassment second, they must demonstrate that the
plaintiff unreasonably failed to use the employer’s preventive or corrective
opportunities, or to otherwise avoid harm.
q Affirmative
defense was adopted to avoid automatic employer liability and to give credit to
employers who make reasonable efforts to prevent and remedy sexual harassment
q Literal
interpretation of the defense requires that both prongs must be met for employers
to avoid liability. As a result some reasonable for supervisors sexual
harassment.
q
An employer
should be liable if and only if, the plaintiff proves that the employer was
negligent in permitting the supervisor’s conduct to occur.
q Reasonable
care includes having effective harassment policies in place, the second employee
failed to take advantage of any preventive or corrective opportunities provided
by the employer”
Shachter R.
(2001) “ An employer is subject to vicarious liability to a victimized employee
for an actionable hostile environment created by a supervisor with … authority
over the employee
q Policies
should be placed in the employee handbook and visibly posted throughout the
workplace. Employers can require employees to sign a document acknowledging
that they are aware of these policies.
q The
company should provide several avenues for employees to file complaints e.g. Through
HRD, hotline in order to rely on supervisor’s who may be the roof of problem to
take corrective action.
q Employers
should give complaints of harassment to top priority complaints should be
investigated through and resolved quickly”
Most of the
articles in this section are strict forward in the sense that, sexual
harassment is more fluids by employer’s policies. Employers failed to have effective
policies to guide the staff and supervisors what to do and what not to do. And
sometimes supervisors are using their power in harassing other staff for personal
benefits as we have seen in quid pro quo. But if the employment policies show
what the penalties for anyone who commit a certain felony no matter of your
position in the organization this would create the atmosphere of respect and
dignity for each person within the organization.
Why EEOC and AA?
EEO/Affirmative
action is legally mandated program whose aim is to increase the employment
opportunities of groups who have been disadvantaged in the past, EEO/AA prohibits
discrimination in the employment because of race, color, religion, sex, nationality
of origin, age or handicap, hence promote full realization of equal employment
opportunity. Also affirmative action puts teeth into EEO by requiring an
employer to have a written, comprehensive, enacted plan to remedy past
discrimination and prevent future discrimination.
According to
Dolan J. (2004) Equal Employment Opportunity was explicitly supported in the
law, as the stature declared for the first time that it is the policy of the
United States… to provide … a federal work force reflective of the nation’s
diversity. To these ends, a federal Equal Employment Opportunity recruitment
program was created to address the under representation of women and minorities
in federal service”
According to
Occhialino A.N., Vail D. (2005) “ the most dramatic change in the history of
the EEOC occurred when congress passed the EEO Act of 1972 which amended the
Title VII. Congress recognized that Title VII failure to imbue the EEOC with
enforcement authority was a serious defect effectively making the commission a
toothless tiger. To give the EEOC some bite, congress provided the agency the
authority to enforce Title VII against private employers either by filing suit
under section 706 or by failing a pattern or practice case under section 707…”
From above what
we see is the role of the EEO / EEOC and AA is to rationalize recruitment
policies to reflect the more diversity society, which prohibits discrimination
in employment. This was really a positive stage in development and in fighting
against the discrimination in employment policies.
There was a
negative feeling about the role of the EEOC since its inception that EEOC had a
mixed results in affecting Title VII’s purpose of eliminating unlawful
employment discrimination, the people were not getting what they thought they
would get out of it, that was instantly results, congress soon addressed the
Title VII limitations by increasing the EEOC’s role in enforcing it.
“ A core EEOC role is its
non-litigation enforcement … its charge-processing duties. This administrative
process puts EEOC on notice that discrimination has occurred, giving it a
chance to litigate. This administrative process thus at once enables aggrieved
individuals to seek redress for harms suffered, allows employers to resolve
workplace disputes and through more informal means, and helps to reduce the
federal court dockets”
Why
EEOC is important?
Despite the best
policy of the EEOC on prohibiting Discrimination in employment yet it is clear
that employment discrimination still thrives in all sectors of the American
workplace. Each year an overwhelming number of individuals in the private
sectors and those working for state and local government an average of 81,000
each year over the past decade.
The only problem
which I see is that EEOC some how is not capable of helping the individual,
because the bureaucratic system which has been associated with the institution
and individual sometimes it is difficult to continue with litigation because of
the cost associated with the lawsuit. As Meier. (2005) Observed “ in order for
a charge of discrimination to be filed, the investigation must validate the
following:
1. The basis for the reason for discrimination
2. The issue or action that constitutes
discrimination
3. The isolatability of the incident (proof the
complaints were treated differently from comparable employees)
4. That the firm accused of the discrimination
employ 15 or more people.
Upon validation
of this information, the investigator must decide whether there is sufficient
evidence of a violation to file a charge of discrimination. If so the agency’s
resources are committed to assist the complainant in resolving the grievance.
If not the agency does not pursue the matter any further.”
Viewed the
limitation of EEOC on the process of litigation, the process is not so far for
the benefit of targeted groups.
The role of
EEO/AA is very important in the implementation of Title VII. It should be born
in our minds that those who tend to preserve the right of business, have not
supported the laws that put a great deal of burden on the organization, and
always they are looking for ways of changing the laws.
As we have seen
in the above discussion EEO prefers everyone who is equally qualified has an
equal opportunity for employment, promotions and other benefits enjoyed by the
majority, while Affirmative action is a social concept and not professional
selection issue except as codified in laws. The goal of AA is to increase the
number of minorities in the workplace at a faster rate than what would occur through
EEO.
The concept
behind this assumption is that often minorities are given preferential
treatment in AA plans if two individuals are equally qualified or have
reasonably similar qualifications and one is a member of protected group member
would be given the first opportunity for the job. It should be strongly noted
that none of the laws require an organization to hire someone who is not
qualified or less qualified than a majority.
Therefore in
avoiding the litigation costs and discrimination practices in general the
everlasting solution is for employers to adopt the ant discrimination policies
in employment and more often to educate their staff in Title VII prohibitions.
By doing that the society will really be in transformation environment and
openness and competitiveness. They will be no more claims about employment
discrimination or reverse discrimination.
General Observation
q It
should be born in our minds that those people who are responsible for making
public policy and law should be concerned about the common good of the
community, and that any policy and law that has the practical effect of
depriving members of community their fair share of the benefits of communal
life its effectively unjust.
q Employers
owe a duty in justice not to engage in intentional discrimination aimed at
keeping women and protected groups out of the employment market, as insisted on
Title VII of the 1964 Civil Rights Act
Conclusion
As I have
discussed above that, everyone has right to work, to free choice of employment
and favorable conditions of work and protection against unemployment, without
any form of discrimination. Also I have pointed out that the employment
relations between employers and employees in the USA have long way beginning
with the abolitionist movement, civil war and the adoption of the 13Th
Amendment and civil lights laws.
The paper has
shown that there is relationship between employer and employees one does not
exist without the other, the only problem so far the relationship was not
fairly reflected to women and protected groups because of discrimination which
was existed because of employment policies which were based on segregation
against these groups.
The role of
government has been well cited of trying to provide balance in this situation
by providing New Act and Amending the constitution. But more efforts are still
required by the government to make sure that the problem is solved once and for
all.
Although it has
been argued that an employer should have every right to decide whom to employ
in his business, yet BUT the employment policies should reflect more of fair
balance of employing more qualified women and protected groups to bring more a diverse
society in a work place.
This literature review has identified
employment policies is a major source of sexual discrimination in American
diversity society. For this generation the introduction of Title VII of Civil
Rights Act of 1964 and the related Acts, were a big move when you compare with
the other changes back, I would like to point out that for the first time there
has been a steady increase in the government wide employment of minorities and
women overall in higher positions.
Employers have a
great role to play in this situation because their policies determine the
future and harmony of working place and society, in avoiding unnecessary
litigation. And finally employers must take time to educate employees about
their rights and how the organization is operating to avoiding discrimination
practices.
What
additional research in this area.
Is to look the
relationship between Legislative branch and the judicial branch and how the
relations affect the employment policies.
The role of
legislative branch passes laws then the Supreme Court interprets those laws;
BUT if the Legislative branch does not like how the Supreme Court is
interpreting the laws then they change the laws. How this system always affects
employment policies?
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