III. Enforcement and Theories of Employment Discrimination Laws
A. Federal Employment Discrimination Laws
Title VII of the Civil Rights Act of 1964, as amended, provides the major protection for victims of discrimination in the workplace. Title VII prohibits discrimination on the basis of “race, color, religion, sex, and national origin.”
Other major federal statutes that provide protection to victims of employment discrimination include the Civil Rights Act of 1866 (s 1981), the Americans with Disabilities Act, the Age Discriminationin Employment Act and the Rehabilitation Act of 1973. Moreover, there are numerous state and local laws, as well as federal orders, policies and regulations that prohibit discrimination in employment. Unfortunately, even with major federal employment discrimination legislation, the status of African-American males has only marginally improved, if at all. Indeed, after more than twenty-five years of litigation under Title VII to eliminate vestiges of employment discrimination, African-American males and other minorities continue to be discriminated against on the basis of race and sex. This is not to imply that Title VII and other federal and state legislation has not had any positive impact on improving the employment status of African-American males. To the contrary, Title VII has been the cornerstone for eradicatingemployment discrimination. During the 1980s and early 1990s, the courts' interpretation and application of Title VII and other federal civil rights laws have limited efforts to eradicate employment discrimination in the workplace. The reentrenchment has been the result of a judicial system which has become more conservative during the 1980s and early 1990s. The executive branch of the federal government, which is responsible for enforcing a number of federal civil rights laws, has also been criticized for its lack of enforcement of civil rights laws, particularly during the Reagan and Bush administrations.
B. Judicial Enforcement of Federal Discrimination Laws to Protect African-American Males
The enforcement of civil rights and labor laws by the judicial system has been a major impetus for ensuring equality between African-American and white workers. Since the passage of the Civil Rights Act of 1964, African-American males have prevailed in leading U.S. Supreme Court employment discrimination cases, as well as in some lower federal court decisions. In these cases, it was determined that the organization discriminated against the plaintiff, an African-American male, or a class of African males on the basis of race.
In Griggs v. Duke Power Company, the seminal case in employment discrimination, the Supreme Court held that the policy of requiring a high school education for assignments to certain positions in the organization had a disparate impact on African-American employees, primarily African-American males. Approximately two years after Griggs, another African-American male prevailed before the Supreme Court in McDonnell Douglas Corp. v. Green. In Green, the Supreme Court held that the plaintiff had met his initial burden to present a prima facie case; thus, the burden of proof shifted to the employer to “articulate some legitimate, nondiscriminatory reason for the employee's rejection.” The U.S. Supreme Court has rendered favorable decisions in other employment discrimination cases involving African-American males which have established legal precedent as well.
In cases where lower courts have upheld the constitutionality of Affirmative Action programs, African-American males were the primary beneficiaries of the programs. In addition, the U.S. Supreme Court has approved programs benefitting African-American males under Title VII and the Constitution.
In developing employment discrimination jurisprudence, courts have recognized disparate treatment and disparate impact as two ways to prove employment discrimination. In proving a case of discrimination on either theory the plaintiff has to prove that the employer discriminated on the basis of the plaintiff's race, color, sex, religion or national origin. Traditionally, cases filed by African-American males have alleged discrimination on the basis of race or sex, or both, but not as a combination of race plus sex. In other words, an African-American male could allege that he had been discriminated against on the basis of race (African-American) because a white employee was treated more favorably. The African-American male could also allege that he was discriminated against on the basis of sex (male) because a female was treated more favorably. The African-American male could also allege that a company's policy, though neutral on its face, had a disparate impact on him on the basis of either his race or sex.
C. Disparate Impact Theory of Discrimination
African-American males have had moderate success in convincing courts that facially neutral employment practices could have a discriminatory effect on their efforts to obtain employment and upward mobility. Even though the majority of these decisions did not single out African-American males as being the only group adversely impacted, African-American males were primarily the employees or applicants adversely affected by such policies.
More than twenty years ago, the Supreme Court announced acceptance of the disparate impact theory of discrimination in Griggs v. Duke Power Co. The original action in Griggs was a class action brought under Title VII of the Civil Rights Act of 1964, by thirteen African-American males who were denied employment opportunities based on Duke Power's personnel policies and practices. In Griggs, the plaintiffs were required to initially show that the facially neutral employment practice had a significant discriminatory effect on a protected group. The Court held that employment “practices, procedures, or tests neutral on their face,” that were not intended to discriminate, but that nevertheless “freeze” out a protected class of individuals, may violate Title VII. Thus, Title VII covers “not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Consequently, employment practices and policies that invidiously exclude African-American males, though seemingly neutral, violate Title VII unless the employer can show that the practices have a manifest relationship to the position the individual is seeking. In other words, there must be a correlation between the individual's performance and the employment practice.
Since Griggs, a number of lower courts have reviewed various employment practices and policies to determine whether African-Americans, as a group, have been disproportionately impacted. For example, federal courts have approved the disparate impact analysis in determining whether an employer taking arrest, conviction, military and garnishment records into account when making hiring and advancement decisions have a disparate impact on employment opportunities for African-Americans. These neutral practices and policies primarily impact African-American males, rather than African-American females, white males or white females. Although the courts have not expressly recognized that this form of discrimination is a combination of race plus sex discrimination, this disparate impact implies the existence of a race plus sex form of discrimination affecting African-American males which the courts should recognize.
In a more recent case evaluating whether a particular employment practice or policy had a disparate impact exclusively on African-American males, the Equal Employment Opportunity Commission (EEOC) prevailed after six years of litigation in convincing a federal court that an employer's grooming policy had a disparate impact on African-American males. In Bradley v. Pizzaco of Nebraska, Inc., an African-American male sued Pizzaco of Nebraska, Inc. (collectively Domino's), claiming that his termination for failure to comply with Domino's no-beard policy violated Title VII on the grounds that the policy had an adverse impact on African-American males. Domino's grooming policy prohibited company employees from wearing beards. Bradley was hired to deliver pizzas. He was terminated shortly after employment, however, because he would not comply with the company's no-beard policy.
Bradley suffered from a skin condition called pseudo folliculitis (PFB), which primarily affects African-American males. As a result of this medical condition, Bradley's skin would have become irritated and possibly scarred if he chose to shave. It was undisputed that Bradley had a severe case of PFB. However, Domino's policy provided for no exceptions. In reversing the district court's decision that the EEOC failed to establish a prima facie case, the court of appeals held that “the EEOC's evidence makes clear that Domino's strictly enforced no-beard policy has a discriminatory impact on black males.” The court accepted medical evidence that a significant number of the African-American male population is prevented from being clean-shaven. White males, however, are not so similarly impacted. Using the Griggs model, the court determined that Domino's policy was facially neutral but disproportionately impacted African-American males. When an employment practice or policy results in a disparate impact, the employer must justify the practice or policy by showing that there is a “substantial business justification.” If the employer can meet this burden, Title VII is not violated. However, plaintiff has an opportunity to show the availability of a less discriminating, alternative practice which still permits the employer to meet its goals. On remand, the district court held that Domino's was able to show that the no-beard rule was justified and did not violate Title VII. On appeal for the second time, the Eighth Circuit reversed the district court and remanded the case for entry of an injunction “tailored to place Domino's under the minimal burden of recognizing a limited exception to its no-beard policy for African-American males who suffer from PFB and as a result of this medical condition are unable to shave.”
It is clear from Bradley, as in Griggs, that African-American males were discriminated against, as a subgroup, in a manner which clearly involved a combination of race and sex. As in other cases, white males, white females and African-American females were not impacted by the policy. In Griggs and Bradley, plaintiffs were able to identify the specific practices which prohibited employment opportunities for African-American males. More often than not, employees cannot specifically pinpoint which employment practices result in their exclusion. All they can show is that there “aren't any of them” (African-American males) being hired or promoted by the organization.
Due to the varied stereotypical biases and attitudes held about African-American males, it is a substantial burden to require African-American males to specifically pinpoint which bias may have caused their exclusion. In these situations, the court should still apply the Griggs model to shift the burden to the employer to articulate why African-American males are absent from their organization or classified primarily as laborers, maintenance and production workers.
D. Disparate Treatment Analysis
The most prevalent form of discrimination alleged by individuals is disparate treatment. In most cases, African-American males allege that they have been treated differently because of their race. To prove a case of disparate treatment, an African-American male plaintiff must establish a prima facie case as outlined in McDonnell Douglas Corp. v. Green. Once he has established the prima facie case, the employer has an opportunity to set forth its “legitimate nondiscriminatory reason” for its action; thereafter, the plaintiff can argue that the reason given by the employer is a pretext for discrimination. In most cases, there is no direct evidence available to prove discrimination and the plaintiff has to rely on circumstantial evidence to prove his case. The burden of proof in disparate treatment cases always remains with the plaintiff to prove that intentional discrimination has occurred. Since an employer can easily articulate its legitimate reason for denying African-American males employment opportunities, African-American males tend to find it extremely difficult to prove their allegations of discrimination.
The Supreme Court's decision in St. Mary's Honor Center v. Hicks placed an additional burden on plaintiffs in employment discrimination cases by requiring further proof of intentional discrimination after the plaintiff has proved that the employer's “legitimate nondiscriminatory reason” was pretextual (i.e., a lie). Hicks, an African-American male, was terminated by his employer for allegedly poor attendance. Hicks presented evidence that there were white employees who had worse attendance records than him who were not terminated. Prior to Hicks, most courts would have found in favor of Hicks as a matter of law. The Supreme Court, however, concluded that Hicks had to go beyond proving that his employer's proffered reasons for its actions were pretexual; he had to prove that its actions were based on his race. This additional step in the McDonnell framework has been labelled “pretext plus.” Most evidence in employment discrimination cases is circumstantial and not direct; thus, it will be more difficult for plaintiffs, particularly for African-American males, to prevail in employment discrimination cases.