using the attached case study, answer the questions at the end

The questions are on the last page of the case attachments. All of the information is in the provider case information. There are 4 pages of information. The questions are located on the last page.

Final PDF to printer Chapter Five Airwave Action 287 antidiscrimination laws. There is only one type of discrimination recognized by law, and it applies to everyone. That discrimination is the unlawful use of prohibited crite- ria for making job decisions. Whether it is done in the context of an affirmative action plan or not, if it is illegal discrimination, the law does not see it as different simply because of the type of person involved or the way it arose. See EEOC Compliance Manual, Section 15, at 5. We do not use the quotation marks after the first usage. 63. Elesser, Kim, "New Study: The Broken Rung Keeping Women from Management," Kim Elesser, Forbes (October 16, 2019). 54. https://www.adl.org/education/references/hate-symbols/okay-hand-gesture. 65. Public Law 111-203, 124 Stat. 1376. 1541 (July 11, 2010) codified as 12 U.S. Code 5452, hutp://www.fdic.gov/regulations/reform/dfa_selections.html49. 56. Proposed Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities Regulated by the Agencies and Request for Comment, 78 Federal Register 107 (October 25, 2013), p. 64052, huips://www federalregister.gov/articles/2013/10/25/2013-25142/proposed-interagency-policy- statement establishing joint standards-for-assessing the-diversity. 67. Maske, Mark, "Diversity Group Seeks Expansion of NFL's Rooney Rule to Cover Coordinator Jobs," The Washington Post (January 22, 2013), hup://www washingtonpost.com/blogs/football-insider/wp/2013/01/12/diversity-groupseeks- expansion of-nils-rooney-rule-to-cover-coordinator-jobs/: and Maske, Mark, "NFL Vows In Apply Rooney Rule Informally to Some Coordinator Positions," The Washington Post (December 21, 2016). https//www.washingtonpost.comews/sports/wp/2016/12/21/ nifl-vows-to-apply rooney rule-informally-to-some-coordinator-openings/?utm_ term=.019ac066ed24. Cases Case 1 Local 28, Sheet Metal Workers & EEOC 287 Case 2 Johnson E. Transportation Agency, Santa Clara County, Calfornia 290 Case 3 Ricci v. De Stefano 294 Local 28, Sheet Metal Workers v. EEOC, Case 1 478 U.S. 421 (1986) The union and its apprenticeship committee were found guilty of discrimination against Latinas and African Americans and were ordered to remedy the violations. They were found numerous times to be in contempt of the court's order, and after 18 years the court eventually imposed fines and an affirmative action plan as a remedy. The plan included benefits to persons not members of the union. The Supreme Court held the remedies to be appropriate under the circumstances Brennan, J. boon 34271_ch5_229-386.Andd 2NT 11/21720 04:15 PMFinal PDF to printer 288 Part Two Regulation of Disenmination in Explorer Local 28 represents sheet metal workers employed by . Paying for nonwhite union members to serve as contractors in the New York City metropolitan area. liaisons to vocational and technical schools with The Local 28 Joint Apprenticeship Committee (JAC) is sheet metal programs in order to increase the pool a labor-management committee which operates a 4 year of qualified nonwhite applicants for the appren- apprenticeship training program designed to teach sheet liceship program. metal skills. Apprentices enrolled in the program receive training both from classes and from on the job work The union appealed the remedy. Principally, the par- experience. Upon completing the program, apprentices Lies maintain that the Fund and goal exceeds the scope become journeyman members of Local 28. Successful of remedies available under Title VII because it extends completion of the program is the principal means of race-conscious preferences to individuals who are not the attaining union membership. identified victims of their unlawful discrimination. They In 1964, the New York State Commission for argue that section 706(p) authorizes a district court to Human Rights determined that the union and JAC award preferential relief only to actual victims of unlaws had excluded African Americans from the union and ful discrimination. They maintain that the goal and Fund apprenticeship program in violation of state law. The violates this provision since it requires them to extend Commission, among other things, found that the union benefits to Black and Hispanic individuals who are not had never had any Black members or apprentices, the identified victims of unlawful discrimination. We and that "admission to apprenticeship is conducted reject this argument and hold that section 706(z) does largely on a nepotistic basis involving sponsorship by not prohibit a court from ordering, in appropriate circum incumbent union members," creating an impenetrable stances, affirmative race-conscious relief as a remedy for barrier for nonwhite applicants. The union and JAC past discrimination. Specifically, we hold that such relief were ordered to "cease and desist" their racially dis- may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or criminatory practices. Over the next 18 years and innu- where necessary to dissipate the lingering effects of perva- merable trips to court, the union did not remedy the sive discrimination. discrimination. The availability of race-conscious affirmative relief To remedy the contempt and the union's refusal to under section 706(g) as a remedy for a violation of comply with court orders, the court imposed a 29 percent Tule VII furthers the broad purposes underlying the stat- nonwhite membership goal to be met by a certain date, ute. Congress enacted Title VII based on its determina- and a $150.000 fine to be placed in a fund designed to Lion that racial minorities were subject to pervasive and increase nonwhite membership in the apprenticeship pro- systematic discrimination in employment. It was clear gram and the union. The fund was used for a variety of to Congress that the crux of the problem was "to open purposes, including: employment opportunities for Negroes in occupations which have been traditionally closed to them and it was Providing counseling and tutorial services to non- to this problem that Title VII's prohibition against racial white apprentices, giving them benefits that had discrimination was primarily addressed." Title VII was traditionally been available to white apprentices designed to achieve equality of employment opportunis from family and friends. Lies and remove barriers that have operated in the past to . Providing financial support to employers otherwise favor an identifiable group of white employees over other unable to hire a sufficient number of apprentices. employees. In order to foster equal employment opportu . Providing matching funds to attract additional nities, Congress gave the lower courts broad power under funding for job-training programs. section 706(g) to fashion the most complete relief pus- Creating part-time and summer sheet metal jobs sible to remedy past discrimination. In most cases, the court need only order the employer for qualified nonwhite youths. or union to cease engaging in discriminatory practices, . Extending financial assistance to needy apprentices. and award make-whole relief to the individuals victimizedFinal PDF to printer Chapter Five Affirmative Action 289 by those practices. In some instances, however, it may be the same time, supporters of the bill insisted that emplay- necessary to require the employer or union to take affir ers would not violate Title VII simply because of racial mative steps to end discrimination effectively to enforce imbalance, and emphasized that neither the EEOC nor Title VII. Where an employer or union has engaged in the courts could compel employers to adopt quotas solely particularly longstanding or egregious discrimination, an to facilitate racial balancing The debate concerning injunction simply reiterating Title VII's prohibition against what Title VII did and did not require culminated in the discrimination will often prove useless and will only result adoption of section 703(j), which stated expressly that in endless enforcement litigation. In such cases, requir the statute did not require an employer or labor union ing a recalcitrant employer or union to hire and to admit to adopt quotas or preferences simply because of a racial qualified minorities roughly in proportion to the number imbalance. of qualified minorities in the workforce may be the only Although we conclude that section 706(z) does not effective way to ensure the full enjoyment of the rights foreclose a court from instituting some sort of racial protected by Title VII. preferences where necessary to remedy past discrimi Further, even where the employer or union formally nation, we do not mean to suggest such relief is always ceases to engage in discrimination, informal mecha- proper. The court should exercise its discretion with an nisms may obstruct equal employment opportunities. An eye towards Congress' concern that the measures not employer's reputation for discrimination may discourage be invoked simply to create a racially balanced work minorities from seeking available employment. In these force. In the majority of cases the court will not have to circumstances, affirmative race-conscious relief may be impose affirmative action as a remedy for past discrimi the only means available to assure equality of employ nation, but need only order the employer or union to ment opportunities and to eliminate those discriminatory cease engaging in discriminatory practices. However, practices and devices which have fostered racially strati- in some cases, affirmative action may be necessary in fied job environments to the disadvantage of minority cit- order effectively to enforce Title VII, such as with per- izens. Affirmative action promptly operates to change the sistent or egregious discrimination or to dissipate the outward and visible signs of yesterday's racial distinctions effects of pervasive discrimination. The court should and thus, to provide an impetus to the process of disman- also take care to tailor its orders to fit the nature of the ling the barriers, psychological or otherwise, erected by violation it seeks to correct. past practices. Here, the membership goal and Fund were necessary Finally, a district court may find it necessary to order to remedy the union and JAC's pervasive and egregious interim hiring or promotional goals pending the develop- discrimination and its lingering effects. The goal was ment of non-discriminatory hiring or promotion proce- flexible and thus gives a strong indication that it was not dures. In these cases, the use of numerical goals provides being used simply to achieve and maintain racial bal a compromise between two unacceptable alternatives: an ance, but rather as a benchmark against which the court outright ban on hiring or promotions, or continued use of could gauge the union's efforts. Twice the court adjusted a discriminatory selection procedure. the deadline for the goal and has continually approved We have previously suggested that courts may utilize changes in the size of apprenticeship classes to account certain kinds of racial preferences to remedy past dis- for economic conditions preventing the union from meet crimination under Title VII The Courts of Appeals have ing its targets. And it is temporary in that it will end as unanimously agreed that racial preferences may be used, soon as the percentage of minority union members in appropriate cases, to remedy past discrimination under approximates the percentage of minorities in the local Title VII. The extensive legislative history of the Act sup- labor force. Similarly the fund is scheduled to terminate ports this view. Many opponents of Title VII argued that when the union achieves its membership goal and the an employer could be found guilty of discrimination court determines it is no longer needed to remedy past under the statute simply because of a racial imbalance discrimination. Also, neither the goal nor the fund unnec in his workforce, and would be compelled to implement essarily trammels the interests of white employees. They racial "quotas" to avoid being charged with liability. At do not require any union members to be laid off, and do been 34271_cha5_229-386.indd 289 11/21720 04:15 PMFinal PDF to printer 290 Part Two Regulation of Discrimination Me Employment not discriminate against existing union members. While Case Questions whites seeking admission into the union may be denied benefits extended to nonwhite counterparts, the court's 1. Is it clear to you why a court would be able to include orders do not stand as an absolute bar to such individu- in its remedies those who are not directly discrimi als; indeed a majority of new union members have been nated against by an employer? Explain. white. Many of the provisions of the orders are race- 2. If you were the court and were still trying to get the neutral (such as the requirement that the JAC assign one union to comply with your order 18 years after the apprenticeship for every four journeymen workers) and fact, what would you have done? the union and JAC remain free to adopt the provisions J. As a union official, how could you have avoided such of the order for the benefit of white members and appli- a result? cants. Accordingly, we AFFIRM. Case 2 Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616 (1987) A female was promoted over a male pursuant to an affirmative action plan voluntarily adopted by the employer to address a traditionally segregated job classification in which women had been signifi cantly underrepresented. A male employee who also applied for the job sued, alleging it was illegal discrimination under Title VII for the employer to consider gender in the promotion process. The U.S. Supreme Court upheld the promotion under the voluntary affirmative action plan. It held that since it was permissible for a public employer to adopt such a voluntary plan, the plan was reason- able, and since the criteria for the plan had been met. gender could be considered as one factor in the promotion. Brennan, J. In December 1978, the Santa Clara County Transit Dis- in numbers far less than their proportion of the County trict Board of Supervisors adopted an Affirmative Action labor force in both the Agency as a whole and in five Plan (Plan) for the County Transportation Agency. The of seven job categories. Specifically, while women con- Plan implemented a County Affirmative Action Plan, stituted 36.4 percent of the area labor market, they which had been adopted because "mere prohibition of composed only 22.4 percent of Agency employees. Fur- discriminatory practices is not enough to remedy the thermore, women working at the Agency were concen- effects of past practices and to permit attainment of an trated largely in EEOC job categories traditionally held equitable representation of minorities, women and handi- by women women made up 76 percent of Office and capped persons." Relevant to this case, the Agency Plan Clerical Workers, but only 7.1 percent of Agency Off- provides that, in making promotions to positions within cials and Administrators, 8.6 percent of Professionals, a traditionally segregated job classification in which 9.7 percent of Technicians, and 22 percent of Service and women have been significantly underrepresented, the Maintenance Workers. As for the job classification rel- Agency is authorized to consider as one factor the sex of evant to this case, none of the 238 Skilled Craft Worker a qualified applicant. positions was held by a woman. The Plan noted that In reviewing the composition of its workforce, the this underrepresentation of women in part reflected the Agency noted in its Plan that women were represented fact that women had not traditionally been employed in