III. CIVIL JUSTICE SYSTEM AND OTHER INSTITUTIONAL SYSTEMS
A. Employment Disparities and Discrimination
The rate of unemployment and underemployment for African-American males has continued to worsen during the past four decades with no indication that the trend will improve in the near future. A generation of African-American males are unemployed and unskilled; they will never have an opportunity to become productive citizens.
Disparities in wages, promotional opportunities, and other terms and conditions of employment between African-American and white males continue to widen. A number of factors directly or indirectly cause the disparities between black and white males. For example, more employment opportunities are given to white males who reside in the suburbs than black males who reside in deteriorating urban areas. Other factors include the lack of education and marketable skills and employment discrimination.
Congress has promulgated a number of federal laws and regulations to prohibit employment discrimination directed at African-American males and other groups who have been historically discriminated against. The effectiveness and impartial enforcement of these laws by the judicial system to ensure equal employment opportunities for African-American males is still at issue.
Discrimination directed at African-American males appears to occur at all stages of the employment process: recruitment and initial interviewing, testing, grooming requirements, and job requirements. Discrimination directed at African-American males appears to be widespread, especially at the initial hiring stage. The use of employment “testers” has been used to show that some employers have a pattern and practice of discriminating against minorities, particularly African-American males. For example, the Fair Employment Council of Greater Washington (“FEC”), and the Urban Institute used employment testing to reveal how employers systematically discriminated against qualified African-American male applicants. In both cases, African-American males were matched with white male applicants who had similar education, demeanor, and experience. Both groups of “testers” were trained to give the same responses to questions during the interview. In almost every contact with an employer by the “testers,” the white male “testers” were either given the job, treated more favorably, encouraged to apply for jobs with the employer, or offered the higher level job. Nevertheless, employers generally asserted that if they could find “one” who was qualified, an African-American male would be hired. These two employment audits illustrate that when employers have an opportunity to hire qualified African-American males, they still rely on stereotypical biases to deny them employment. Many of these biases are related to how our justice system treats African-American males as guilty until proven innocent. This same negative predisposition influences employment decisions. It is almost as though the justice system has sanctioned such conduct.
African-American males who reside in the inner-city are often victims of employment discrimination based upon stereotypical racial biases. There is also evidence that black males are treated adversely because of a combination of their race (black) and sex (male). The courts, however, have not readily embraced this legal theory.
African-American males are also targets for racial harassment on the job and typically receive more severe disciplinary actions than white males for the same or similar infractions. After the passage of Title VII of Civil Rights Act of 1964, the Supreme Court issued a number of favorable employment discrimination decisions where African-American males were either the plaintiff or directly benefited from the decision. The Court interpreted Title VII to prohibit employers from implementing employment policies and practices that, although neutral on their face, had a disparate impact on minorities, particularly African-American males. The Court also upheld affirmative action programs designed to ensure the employment and upward mobility of African-American males. Very early on, the Court developed a flexible model for establishing a prima facie case of employment discrimination.
As the Supreme Court became more conservative during the second half of the 1980s and the 1990s, the Court retreated from its posture of liberally interpreting Title VII in order to eradicate all vestiges of employment discrimination. Instead, the Court has restricted the interpretation of Title VII, and has thus made it more difficult for minorities to proceed with disparate impact cases, and more recently in individual disparate treatment cases. In 1991, it took an act of Congress to overrule a number of Supreme Court decisions which established a more conservative approach to analyzing cases of employment discrimination. The immediate impact of the Court's posture was to send a signal to employers that equal employment opportunity was dead and aggressive affirmative action programs were illegal. Most recently, in St. Mary's Honor Center v. Hicks, an African-American male plaintiff had to prove that the employer's “legitimate non-discrimination” reason for his discharge was a pretext (a lie). The court of appeals reversed the district court, holding that once Hicks proved that the employer's reasons were a pretext, “he was entitled to a judgment as a matter of law.” The Supreme Court rejected this position and held that a plaintiff was not automatically entitled to a favorable decision upon meeting this burden. The fact-finder has the ultimate responsibility in determining whether the plaintiff has actually proven that he was discriminated against. This decision may permit employers to accept stereotypical biases about African-American males as a “legitimate non-discriminatory reason” for the denial of employment. The decision will surely make it more difficult for African-American males to prove employment discrimination.