Discrimination, Illegal Discrimination, and Reverse Discrimination: An Epistemological Analysis of Equal Employment Opportunity Terminology

(1)

The Journal of Human Resource and Adult Learning, Vol. 12, Num. 2, December, 2016 issue 42

Discrimination, Illegal Discrimination, and Reverse Discrimination: An Epistemological Analysis of Equal

Employment Opportunity Terminology

John N. Orife, Ph.D., Department of Management, Indiana University of Pennsylvania, USA

ABSTRACT

There are various terms in the literature of Equal Employment opportunity that are often misunderstood, especially by individuals who are not HR specialists. The article identifies some of these terms or HR jargon as: discrimination, illegal discrimination, affirmative action, quotas, reverse discrimination and equal employment opportunity. The paper contrasts their everyday use with the proper professional usage, and questions the rationale for the term reverse discrimination. It urges a simplification of the terminology so that all those who perform HR functions have a simple and clear understanding of the jargon in order to facilitate communication across disciplines and various countries as well as reduce the unintended connotations of these terms.

INTRODUCTION

There are several terms in the area of equal employment opportunity (EEO) regulations, which many managers often show a lack of adequate knowledge. This situation arises because of the attempts in the United States and Western Europe/European Union (EU) to comply with the EEO regulations which lead some managers to take the line of least resistance or a shortcut; for example an organization that is trying to ensure that its workforce is representative of the relevant labor market may choose to use quotas in an effort to show that it has a voluntary affirmative action in place. At the same time, this same employer may face reverse discrimination charges. There is therefore a need to clarify the use of these various terms by emphasizing their meanings in the literature and enhance their understanding in the practice of human resource management (HR).

The purpose of this paper is to identify some terminology in HR, which have a noticeable level of being misunderstood. This article will focus on the terms, by explaining the ordinary meaning of the terms, as may be found in a dictionary, or everyday usage and then contrast it with the meaning of the same terms as typically used in the HR profession or in HR jargon. The paper will focus on the following terms: discrimination, illegal discrimination, equal employment opportunity, diversity, affirmative action, quotas and reverse discrimination. The paper will also attempt to integrate the usage of the various terms, as well as, question the rationale for the use of the term, “reverse discrimination”. It is hoped that this analysis will contribute to reducing some of the unintended connotations of these HR professional jargons.

DISCRIMINATION: LEGAL AND ILLEGAL

In everyday usage, the word, discrimination, refers to the practice of unfairly treating a person or a group of people differently from other people or groups of people” (Merriam-Webster Learners

(2)

The Journal of Human Resource and Adult Learning, Vol. 12, Num. 2, December, 2016 issue 43 Dictionary.com). In this usage, anyone who has been a victim of discrimination has experienced some unfair or even illegal treatment.

In the practice of HR, discrimination is not always illegal. As a matter of fact, some HR functions require discrimination. In staffing, we should discriminate against the unqualified applicant and that is not unfair or illegal. The task in selection is to discriminate in favor of qualified individuals and against unqualified individuals. The law, especially in Western countries, however, requires that we discriminate only on the basis of factors that make for success or failure on the job (job related factors). Hence a bona fide occupational qualification is a legal basis for discrimination and that is not unfair. In other words, the law does not say “thou shall not discriminate” but allows discrimination on the basis of job related factors.

Some HR functions require discrimination. A hospital looking for doctors in a particular country can discriminate against applicants who do not have a medical license to practice in that country, even if they are qualified doctors who are licensed to practice in other countries. That is why in HR we differentiate between illegal discrimination and legal discrimination.

When an individual is subjected to unfair or illegal discrimination, that experience may include different types of illegal discrimination: intentional discrimination, disparate treatment, disparate impact, continuation of past effects and retaliation. No matter the type of illegal discrimination that is practiced, such a situation does not provide equal employment opportunity (EEO).

EQUAL EMPLOYMENT OPPORTUNITY (EEO)

When any employer does engage in illegal discrimination, that employer may be justifiably accused of not providing equal employment opportunity. The term, Equal Employment Opportunity, does not have a dictionary explanation that is not related to EEO regulations. It is a creation of the legal regulations in EEO. It is sometimes erroneously interpreted that EEO means equal results. EEO only requires the opportunity to compete. It is not supposed to guarantee equal results, just as individuals who start an athletic event will have different outcomes or results, but all had the opportunity to compete, that is, begin the event. “EEO is used to represent a collection of legal and social policies that state members of the U.S.

society should have equal access to and treatment in employment” (Fisher, Schoenfeldt and Shaw, 1999, p.195). Employers who are found to engage in unfair and illegal discrimination in employment matters cannot be said to be providing equal employment opportunity.

In order to provide for equal employment opportunity in US organizations, there are a variety of laws which bar illegal discrimination against all individuals whether they are members of a minority group or a majority group. These include the Fifth Amendment to the U.S. Constitution ratified in 1791, the Civil Right Act (CRA) of 1866, based on the Thirteenth Amendment to the U.S. Constitution, Equal Pay Act of 1963, CRA 1964, 1991, Age Discrimination in Employment Act, 1967, Pregnancy Discrimination Act of 1978, and the Equal Employment Opportunity Commission Uniform Guidelines, 1978 and the Americans with Disabilities Act (ADA)1990.

Different countries also have their own regulations about equal employment opportunity. In India, for example, “A substantive conception of equality is enshrined in India‟s constitution, which directs the state to take affirmative action to empower women and disadvantaged minorities to compete on more equal terms with members of more privileged social groups. The government has been guided by this constitutionally sanctioned substantive impetus, and it has implemented a system of “compensatory discrimination” in the form of quotas for women and members of disadvantaged castes in government jobs. In taking a primarily substantive, rather than formal, approach to equality, India rightly recognizes

(3)

that neutral application of laws and policies will perpetuate the subordination of already disadvantaged groups. (Shenoy, 2013). In Nigeria, the concept of „federal character‟ is enshrined in section 17(3) of the 1979 and 1999 constitutions, and provide that “all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment”. In practice, however, “in order to achieve the federal character objective, there is a quota system employed…” (Orife and Chaubey, 2001).

In essence, there are different interpretations about the concept of EEO and how to provide equal employment opportunity for the citizenry. These individual country concepts about EEO and how to provide for it are not identical, for example, discrimination on the basis of gender (sex) in the United States is different from its understanding in the European Union (EU). Article 21 of the Charter of Fundamental Rights of the European Union contains a general prohibition on discrimination on a broad list of grounds including sexual orientation. “Any discrimination based on any ground such as sex … or sexual orientation shall be prohibited.” (EU Charter of Fundamental Rights, Article 21). As indicated in the quotation, in the EU, discrimination on the basis of sexual orientation is illegal, but that is not the case in the United States. The EU anti-discrimination laws also extend beyond the place of employment and that may not be the case in other countries

DIVERSITY

Diversity is a term, which is found in everyday language as well as in other fields, but also in EEO jargon. In everyday language, diversity indicates variety in form. So in the field of biology, there is biodiversity defined as: “the existence of many different kinds of plants and animals in an environment”

(Merriam-Webster Learners Dictionary.com).

In the field of human resource management, this term would mean having different groups being represented or participating in the workforce. If variety is to be achieved, the workforce should include different races/ethnic groups in multi-racial/ethnic countries, ages, gender, religion, disability, dual career families, etc. as they are represented in the relevant labor markets. A good question to ask is: “Is your workforce a fair representation of the labor market?” To the extent that it does, the organization would have achieved diversity, and potentially provides equal employment opportunity that is devoid of illegal discrimination.

In the United States, the report, Workforce 2000, (Johnston and Parker, 1987) probably made the term diversity prominent in HR terminology. It made the initial major impact in establishing the fact that there are shifts in the numbers in the workforce in terms of ethnicity, race and gender in the United States.

“One of the report‟s most interesting findings … concerns the increasing diversity in the workforce of the future.” (Johnston and Parker, (1987), Khojasteh, (1994), Fisher, Schoenfeldt and Shaw (1999), p.125).

It may be postulated that the term, „diversity management‟ has gained significant usage in the HR literature, in the United States because it is more politically acceptable, as a way of managing equal employment opportunity and avoiding illegal discrimination, unlike EEO which may have some political baggage from the Civil Rights Movement of the 1960s in the United States.

A question that arises is: “Can we provide a level playing field for individuals with the differences indicated, whether they are perceived or real as we attempt to provide equal opportunity in employment?”

Another relevant question is whether diversity requires that every group needs equal or proportional representation? That should be answered in the negative, since the qualified individuals within a particular group for a particular position may be different from its number in the general population.

(4)

The Journal of Human Resource and Adult Learning, Vol. 12, Num. 2, December, 2016 issue 45 Providing equal or proportional representation would be equivalent to putting quotas in place, which are usually illegal in the United States and other Western countries, unless they are court-ordered as a remedy for past illegal discrimination. This statement about quotas does not apply to countries where quotas are legal, as it is in India.

AFFIRMATIVE ACTION

Affirmative Action (AA) is another term that grew out of the United States EEO regulations. “The concept of affirmative action arose from the recognition that there was a historical pattern of discrimination against people belonging to certain groups – in particular racial minorities and women”

(Twomey, 2010, p.170). The term has its origin in in the United States Executive Order 11246, which required “federal agencies and all contractors to prohibit discrimination …and to take “affirmative action”

to accomplish these objectives” (Twomey, 2010, p.171). “The overall objective of the Affirmative Action Program (AAP) is to have the organization‟s workforce demographics reflect as closely as possible the demographics in the labor market from which workers are recruited.” (Mathis, et al. 2017, p.92). Affirmative Action is, therefore, one way the United States Federal Government tried “to improve employment opportunities for groups such as women and racial minorities” (Dessler, 2015, pp.48-49) who historically had been denied such a right.

Affirmative Action has had its share of controversy. „There are several misconceptions about AA…it is important to recognize that at no time does an AAP require quota hiring…Unless court-ordered, under a consent decree to address past discrimination, quota systems are simply illegal” (Ployhart, Schneider and Schmitt, 2006 p. 570). This situation would not apply in countries where quotas are legal.

Some questions that might be triggered in the area of AA include:

1. Does AA provide preferential treatment for the less qualified members of the groups which it helps to break down the barriers that had denied them equal opportunity? It may be stated that unless members of these groups are qualified ab initio, that is, from the beginning, it would be indefensible to use their group membership as a bona fide occupational qualification (BFOQ). Therefore it may be stated that AAP does not require an employer to consider applicants who do not have the minimum qualifications required. This is the principle that underlies the ADA 1990, which requires employers only to provide reasonable accommodation to disabled persons who can perform the essential job functions ( Ployhart, Schneider and Schmitt, 2006 p. 572). Even in countries where quotas are legal, the candidate has to be qualified or meet the minimum qualifications to be considered. In such cases, group membership may provide an additional advantage.

2. Does AAP provide preferential treatment for less qualified minority applicants than the majority applicants?

3. Are the minority candidates perceived to be less qualified or are they actually less qualified?

4. Are the majority candidates more qualified or are they perceived to be more qualified, because of

“group privilege” or what is termed “white privilege” in the United States?

How these questions are answered may give rise to the claim that AAP means: “white males need not apply”. There is still the belief, especially in the United States that “affirmative action policies designed to increase minority representation may focus White‟s attention on the impact of quota-like procedure on their own access to education and employment, in effect threatening their resources.”(Norton and Sommers, 2011, p.217).

(5)

AAPs may be voluntary or court–ordered. When they are voluntary, the employer is embracing the spirit of the equal employment opportunity. When they are court-ordered, they are a remedy for previous proven history of illegal discrimination and the failure to provide equal employment opportunity.

QUOTAS

The term, quota, has an everyday usage as well as in HR jargon. According to the Merriam- Webster Learners Dictionary, quotas are: “an official limit on the number or amount of people or things that are allowed, for example, import/export quotas or a specific amount or number that is expected to be achieved e.g. sales quotas .”

In the area of equal employment opportunity, quotas are illegal in the United States, unless it is ordered by a court, as part of a remedy for past illegal discrimination. (Greenawalt, K. 1979, pp 95-96).

While quotas are illegal in the United States, quotas are legal in some countries including India, as earlier indicated.

REVERSE DISCRIMINATION

The term, reverse discrimination, does not have an everyday connotation, which is different from the term discrimination. But it may be considered as retaliatory or payback. If one person discriminates against another person, when the victim of the initial discrimination returns the favor, it may be considered discrimination in reverse, or reverse discrimination.

The concept of reverse discrimination as found in HR literature borrows from this understanding that the majority that had either discriminated against minorities or been the beneficiary of such discrimination; and that they now feel that they have become the victims of unfair discrimination.

According Dessler, “reverse discrimination means discriminating against nonminority applicants and employees. [It is] a claim that due to affirmative action quota systems white males are discriminated against” (Dessler, 2015, p.49). “Affirmative-action programs were also designed to end discrimination.

However, some people criticize affirmative-action programmes that discriminate against men and against people who are not members of a group…They claim that these programmes that hire and promote only members of a minority group are in fact discriminating against people who are not members of a minority group. This type of discrimination is termed “reverse discrimination”. (Menache and Kleiner, 1999, p. 41).

“Despite the rush in some quarters to anoint contemporary American society as “postracial” ... a flurry of legal and cultural disputes … has revealed…an emerging belief in anti-White prejudice. Although legal challenges concerning so called “reverse racism” date back as far back as the 1970s … such claims have been at the core of an increasing number of high profile Supreme Court cases in domains such as access to education and employment discrimination” (Norton and Sommers 2011, p. 215).

The nature of reverse discrimination is controversial. (Greenawalt, 1979, p.101). The controversy dates back to the United States Supreme Court decisions in University of California v. Bakke (1978) and United Steelworkers of America, AFL-CIO-CLC v. Weber (1979) when the Court made decisions that have been interpreted as supporting AA and not supporting AA respectively. This analysis does not address the controversial issues as they have been sufficiently addressed by others (Greenawalt, 1979;

Brown, 1994).

The epistemological issue is the focus of this effort. The concern here is the significance of the verbal usages since the standard of review in court cases hinge on “the significance of the verbal formula

(6)

The Journal of Human Resource and Adult Learning, Vol. 12, Num. 2, December, 2016 issue 47 chosen for review… [and] it would be cynical to suppose that the standard of review is simply a verbal mirage…”. (Greenawalt, 1979, p. 106). In judicial decisions affecting reverse discrimination, the use of terms, have an important role. According to Greenawalt (1979), an intermediate standard used to determine the Bakke and the University of California, Davis case, refers to the terms „important‟ and

„compelling‟. “In ordinary English, these two words have greatly different connotations, though

“compelling” does convey more of a sense of overpowering significance, but in the lore of constitutional law in the last two decades “compelling” has come to mean an interest of such importance that when this requirement has been imposed, few classifications survived. By only asking for “important” interests, the Justices indicate that an interest of somewhat lesser magnitude will suffice.” (Greenawalt, 1979, pp. 106- 107). In the Weber case, the Supreme Court reinforced its conclusion “by examination of the language and legislative history…” (Cornell University Law School/ Legal Information Institute Bulletin, p. 347).

When a member of the majority experiences illegal discrimination, as the minorities have done for a longer period, a new term has been created to identify this type of illegal discrimination. It covers illegal discrimination suffered by the majority, for example, white males in the United States, or upper caste members in India. The term classifies illegal discrimination only on the basis of who the victim is. It does not add the type of value to the concept of illegal discrimination as do such terms as “disparate impact” as a type of illegal discrimination or “hostile environment” in sex discrimination. A relevant question is: Do we need a term that describes illegal discrimination only on the basis of the victim is? If the answer is yes, then we would need or should have terms for all the various categories of victims of illegal discrimination.

In multi-ethnic, multi-racial countries, multi-cultural or multi-religious countries, terms for the various groups of victims would need their own specific term. We would need terms for white female victims, black victims, religious victims, indigenous peoples‟ victims, etc.

What is the rationale for creating one term, reverse discrimination, for the injustice suffered by the majority without creating specific terms for other victims of unequal employment opportunity in the literature of EEO?

Since this “special term” has been in the literature for a long time, does this not represent disparate treatment in the use of terms describing illegal discrimination? Disparate treatment is illegal in terms of employment. Is there a difference because we are “employing” words and not people?

In the area of illegal discrimination based on gender, sexual harassment, covers that type of discrimination, regardless as to whether the victim or perpetrator is male or female. Usually women have been the usual victims of sexual harassment by men. But we now know that the victim and the perpetrator could be of either gender, men harassing other men and women harassing men or other women. We have not created, so far, different terms for these different victims of sexual harassment. The term sexual harassment has been deemed sufficient to cover all these situations.

Similarly, we do not differentiate between Buddhism, Christianity, Confucianism, Hinduism, Islam, Jainism, Judaism, Shinto, Sikhism, Taoism, and Zoroastrianism and create a special term for each group.

Illegal discrimination on the basis of religion has sufficed, even though the victim‟s religion may differ from situation to situation or from one country to another.

If we use the same logic, as pertains to religious or sex discrimination there should be no need to create a special term for illegal discrimination affecting majority victims of illegal discrimination, usually white males in Western countries or upper caste individuals in India.

Are the majority victims of illegal discrimination not covered by these other types of traditional illegal discrimination categories? Are majority victims not covered by all the laws and regulations that were put in place to provide EEO and level the playing field? If they are covered, why do we have a

(7)

different term to describe exactly what others have also experienced? Does the use of the term, reverse discrimination, for illegal discrimination against majority victims, not suggest preferential and disparate treatment in the use of terms?

CONCLUSON

This analysis of the ordinary meaning, technical meaning, of HR terms is aimed at clearing up the misconceptions noted in use of HR jargon. It is hoped that this analysis increases the clarity of the jargon as well as simplify the jargon. This is important as many organizations cross many national boundaries in pursuit of their organizational goal. What may be considered illegal in one country may be legal in another. Even when the same terms are used, the coverage may be different in different areas of the world. We should make the jargon clear and simple so as to facilitate communication between HR professionals and other professionals who perform HR functions in different parts of the world.. This should reduce the unintended connotations of some of the terminology we use in the field of equal employment opportunity.

REFERENCES

Brown, D.C. (1994). Legitimate testing practice or reverse discrimination? American Psychologist, 49 (11) 927-928.

Cornell University Law School Legal Information Institute Electronic Journal EU Charter of Fundamental Rights, Article 21 Dessler, G. (2015). Human Resource Management. Boston: Pearson.

Deepti Shenoy, (2013). Courting Substantive Equality: Employment Discrimination Law in India, 34 U. Pa. J. Int‟l L. 611.

Fisher, C.D., Schoenfeldt, L.F. and Shaw, J.B. (1999). Human Resource Management. Boston: Houghton Mifflin Company.

Greenawalt, K. (1979). The unresolved problems of reverse discrimination. California Law Review. 67 (1) 87-130.

Johnston, W.B. and Parker, A.H. (1987). Workforce 2000. Indianapolis: Hudson Institute.

Khojasteh, M. (1994).Workforce 2000: Demographic Changes and Their Impacts. International Journal of Public Administration, 17,(3&4) 1994, 465-505.

Merriam-Webster Learners Dictionary.com.

Mathis, R.L. et al. (2017). Human Resource Management. Boston: Cengage Learning.

Menache, R. and Kleiner, B.H. (1990). New developments in Reverse discrimination. Equal Opportunities International. Vol 18 Iss 2/3/4, 41-42.

Norton, M.I., and Sommers, S.R. (2011). Whites see racism as a zero-sum game that they are now losing. Perspectives on Psychological Science. 6(3) 215-21.

Orife, J.N. and Chaubey, M.D. (2001). Models of equal employment opportunity: A three-nation comparison, Vol. 2(3).

Ployhart, R.E., Schneider, B. Schmitt, N. (2006). Staffing organizations: contemporary practice and theory. Mahwah, NJ: Lawrence Erlbaum Associates.

Shenoy, (2013). Recommended Citation

Shenoy, Deepti (2013). Courting Substantive Equality: Employment Discrimination Law in India, 34 U. Pa. J. Int‟l L. 611.

Twomey, R.F. (2010). Employment Law. Boston: McGraw-Hill Irwin.