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LAW & ETHICS IN THE BUSINESS ENVIRONMENT 8e
Instructor’s Manual
CHAPTER FOUR
VALUING DIVERSITY: STEREOTYPING VS. INCLUSION
MAIN CONCEPTS
Equal protection
The Civil Rights Act of 1964
Work-life balance
Gender inequity: a global perspective
INTRODUCTORY TIPS
A good way to introduce this chapter is to ask students to describe the times when they have felt
discriminated against because of their sex, clothes, age, height, religion, complexion, accent, car,
hairstyle, etc.
Their experience can be put into perspective by sketching the outlines of discrimination law: (1)
Explain that some situations or contexts (e.g. employment, education, housing, public
transportation) are governed by federal and/or state civil rights laws, including Title VII), while
others are not (entirely private clubs, purely social encounters); (2) that some reasons or bases
for discrimination are clearly illegal (race, sex, religion, age, national origin, disability), others
may be illegal depending on other circumstances (e.g., disparate impact of height and weight
requirements for a job), while others are largely permissible (e.g. favoring relatives, graduates of
certain schools). Finally, some kinds of discrimination are permitted by federal law, but outlawed
in some states (e.g., sexual orientation, smokers).
United States v. Windsor, Questions, p. 130
1. & 2. Views about marriage and what is at stake for opponents of same-sex marriage?
3. Impact of same-sex marriage on children
Significant research has been done on this issue and many articles are available including this
one which provides a recap of some of the research:
4. Research: Loving v. Virginia
Loving v. Virginia can be found at 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (Va.1967). The
majority in Windsor determined that DOMA deprived people of the liberty of deciding who to
marry and thus, is unconstitutional. The Supreme Court in Loving made a similar argument and
5. Wide-scale recognition of same-sex relationships on business.
There are several items that students can discuss here. There are tax implications- will
governments have to change tax structures or even statuses (married) which will impact the
6. & 7. Research: Individual states and same-sex marriages or partnerships
Have students search for the name of their state along with terms such as “gay marriage,”
“same-sex marriage,” or “gay partnership.” Students who cannot find any information from their
state likely live in a state that does not legally recognize such partnerships.
A search of the ACLU and same sex marriage leads to many articles regarding the Pennsylvania
lawsuit and lawsuits filed against other states.
As of February 2014 the Indiana debate is still in progress:
EQUAL PROTECTION
As an introduction to the discussion of the Equal Protection clause, you might want to discuss
some of the history of the 14th Amendment. After the Civil War, southern states responded to the
freeing of slaves by enacting Black Codes that severely limited the rights of just-freed slaves to
own property, enter contracts, leave jobs, etc. Congress responded by adopting the Civil Rights
Act of 1866, over President Andrew Johnson's veto. Worried that Johnson might be right in his
contention that the Act was unconstitutional, Congress pushed for the 14th Amendment, which
won ratification in 1868.
In its first interpretation of the 14th Amendment, the Supreme Court acknowledged the racial
basis for its guarantees of equal protection:
The one pervading purpose...lying at the foundation of [the 14th Amendment] and
without which none of [the 13th, 14th, 15th Amendments] would have been even
suggested; we mean the freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly-made free man and
citizen from the oppression of those who had formerly exercised unlimited
domination over him.... The Slaughterhouse Cases, 16 Wall 36 (1873).
In June 1996, the Supreme Court decided that the males-only policy of Virginia Military Institute
(VMI) violated the equal protection clause. Justice Ruth Bader Ginsberg wrote the majority
opinion, using language that may mean a new test for gender-based equal protection claims:
Parties who seek to defend gender based government action must demonstrate an
exceedingly persuasive justification for that action.
See: United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264 (1996).
Lozano v. City of Hazelton, Questions, pp. 133 - 135
1. Stakeholders
The stakeholders in the ordinance (which prohibit hiring or renting to illegal immigrants) are 1)
the legal workers who might not get jobs that go to illegal immigrants; 2) the employers who
may have to pay more for legal workers; 3) the home and apartment owners who may have to
charge less for their rent because of decreased demand; 4) the illegal immigrants who are in this
country trying to improve their living conditions; 5) the citizens of surrounding towns where the
illegal immigrants will go if they are “banned” from Hazelton; 6) the government leaders in
Hazelton who are responding to public demand for action.
2. Should states be permitted to create their own immigration policies?
This is an interesting question for class or group discussion. What are the pros and cons? How
would such laws impact employers who work in different states? What if an immigrant who is
covered under a state policy travels temporarily to a state with a more stringent policy?
3. Research: State and municipality immigration laws
An Internet search that includes the state in question and the words immigration law should
provide all the information needed to answer this question.
4. ITINs
Students should think broadly and creatively on this one. Some pros could be that taxes are
being paid as opposed to having the employees be paid “under the table” for work done. In
addition, it allows for locations where workers are desperately needed to have staff. Cons for
this approach could be that it allows immigrants to work in this country without going through
the process of becoming a citizen and obtaining a social security number, taking jobs away from
citizens.
5. E-Verify
Information about e-verify and various states may be found here:
http://www.ncsl.org/research/immigration/everify-faq.aspx
There are many articles available about the immigration reform bill and e-verify including:
http://www.usimmigrationblog.com/2013/06/immigration-reform-and-e-verify.html
6. Research: Crime statistics and immigration status
There are many web articles regarding crime and illegal immigrants. Some support the theory
that there in an increase in crime from illegal immigrants. Others do not. Examples from both
sides include:
http://www.utsandiego.com/uniontrib/20080307/news_lz1e7piehl.html
http://cis.org/ImmigrantCrime
7. Research: Housing permits
.
The Appeals Court agreed that the ordnance was unconstitutional:
http://republicanherald.com/news/appeals-court-again-rules-hazleton-s-immigration-ordinances-
unconstitutional-1.1526908
THE CIVIL RIGHTS ACT OF 1964
In this section, it is easy to bring in the GINA from Chapter 3. It is also interesting to talk about
why race, religion, gender, ethnicity and color all fall under the same statute but age and
disability did not – they had separate statutes passed.
Affirmative Action
Fischer v. Texas, Questions, p. 140 & 141
1. What rules does Justice Kennedy say Bakke, Grutter and Gratz set forth? Why would
Justice Thomas not “take them as given?”
“Decisions based on race or ethnic origin by faculties and administrations of state
universities are reviewable under the Fourteenth Amendment” … Any racial classification
The attainment of a diverse student body … serves values beyond race alone, including
enhanced classroom dialogue and the lessening of racial isolation and stereotypes …
“[A] race –conscious admissions program cannot use a quota system” … but instead must
“remain flexible enough to ensure that each applicant is evaluated as an individual and not in
Justice Thomas stated that “…. the equal protection principle reflects our Nation’s
2. Lee C. Bollinger
Judge Thomas would disagree as he believes:
“[racial] classifications ultimately have a destructive impact on the individual and
our society.”
Judge Ginsberg would agree with Bollinger in that “consciousness to race issues” is what is
driving Texas’ plan.
3. More accessible higher education
4. Research: Schuette v. Coalition to Defend Affirmative Action
5. Admission policy
Religion
Webb v. City of Philadelphia, Questions, p. 143 & 144
1. How does Directive 78 differ from the No beards policy?
Directive 78 does not have any documented exceptions. The no-beard policy had exceptions for
2. You are the head of Human Resources. How do you handle:
a. Religious Attire
On one level, students should think about the “look” policy to determine if it is a necessary or
helpful policy. The HR director should look at the correlation between the policy and sales.
b. Religious Grooming
In evaluating the policy, the students may think about safety issues. It seems that to enforce a
clean shave in the upper-bay and not in the more dangerous lower bay is counterintuitive. It
3. Dress Codes
a. Banks and earrings
Because the bank presumably allows females to wear earrings, this policy is based solely on
b. Shoes
c. Pizza Delivery
Without having looked at the ADA yet, students may or may not identify the medical
4. Religious Accommodations
a. Sabbath observance
The employer should document the necessity of having an employee deliver during those
b. Evangelism
In this case, the employee is not asking for an accommodation to practice her religion, she is
asking for an accommodation to bring her religion in to the workplace. Because the First
National Origin
Maldonado v. City of Altus, Questions, p. 148 & 149
1. Impact of English-only Rules
There is a broad spectrum of individuals that may be hurt by English-only rules. Individuals
with little or no English skills and those with pride in their cultural heritage would be impacted.
Similarly, diverse individuals (and those of all races, creeds, and nationalities who embrace
diversity) who seek to create a work environment of respect and inclusion are also affected. The
EEOC Guideline on English-Only Workplace Rules (text, p. 144) provides rationale for applying
the English-only rules in the workplace. This application of English-only rules does not promote
diversity and create and reinforce stereotypes. Individuals that would tend to benefit are people
who occupy the “majority” in the workplace and wish to maintain their position of power and the
status quo. In that regard, it would include a universe of individuals who are not members of
protected classes on Title VI.
The operation of English-only rules create and reinforce stereotypes as they highlight differences
and create barriers for inclusion between all groups. It is difficult to create a supportive work
and productive environment when the focus is on differences instead of commonalities. Respect
and relationships are harder to establish and nurture in this type of work environment when
policy of English-only is driven down by those in leadership positions.
2. Discrimination Claim and Proof
Hispanic city street department employees alleged that the English-only policy of the employer
created a hostile work environment for them based on their national origin. They felt a sense of
inferiority, isolation, and intimidation. The gravamen of their complaint was these actions
created a disparate impact -- fair in form, but discriminatory in operation. In the seminal case of
Griggs v. Duke Power (1971), the Supreme Court defined disparate impact employment practices
as those who are facially neutral in their treatment of different groups but fall more harshly on
one group than another and cannot be justified by business necessity.
At trial, plaintiff has the burden of proof for a prima facie case showing the allegedly facially
neutral employment practice has disproportionally affected the protected group. Then, if the
defendant proves a business necessity, the plaintiff may still prevail by showing that the
employer has refused to adopt an alternative employment practice that would satisfy the
employer's legitimate interests without having a disparate impact on a protected class. The fact
that plaintiffs are bilingual (assuming fluency) may make it more difficult for plaintiff to show a
disproportionate effect, and to support a claim by plaintiff, there is no need to adopt an
alternative employment practice because the impact on bilingual employees would be minimal.
This presumes an ability to communicate effectively in the English language.
3. Case for Business Necessity
There is a business necessity for requiring airline pilots to speak English in all air traffic
communications within the United States, where English is the primary language. This policy is
based on bona fide safety concerns within the United States. There is little, if any, tolerance for
errors or mistaken communications given the high speed of which aircraft operate in the sky and
on the ground. Instructions from air traffic control need to be executed immediately and with
precision. The lives of passengers, crew, and people on the ground are always risk with this
mode of transportation and airline safety is paramount. All communications must be clearly
understood.
The case of the computer software salespersons at management meeting is a fact specific inquiry.
It is important to look at the diversity and composition of the members of the work team. A
company would need to articulate a reason why the use of another language hurts or interferes
with productivity and efficiency or to maintain order and discipline. In a semiconductor
assembly line, or an airline baggage handling area, business necessity would include safety, and
thus a need for effective communication.
For the foregoing hypotheticals, assume arguendo, the majority of the workforce was Hispanic.
A strong argument can be made for the application of a bilingual work environment, as the
majority of the employees are able to communicate effectively in their primary language. Last,
requiring English to be spoken during nonworking hours does not constitute a business necessity.
One exception may be a police officer who observes an off-duty event and contacts dispatch.
Then, a case can be made for an English-only interaction.
4. Preference for Hiring Non –English Speaking
There are many reasons (often business or profit driven) for an employer’s preference for hiring
persons who do not speak English. It can be an effective mechanism to discriminate against
people in protected classes and to circumvent wage, discrimination, workers’ compensation and
other employment benefit laws. Examples include unskilled blue-collar workers as well as
migrant farm workers, landscape workers, meatpacking plants, housekeepers, and hotel workers.
It would be most unethical and fundamentally unfair to prefer such persons for the reasons
identified.
5. Prohibit students from Speaking Language Other than English
This is a most contentious area in the current political climate of immigration reform, and a
majority of the United States has enacted laws making English their official language.
The question calls for an analysis of a complicated area of law governed by a myriad of federal,
state, and local educational laws and federal/state constitutional law. The cited case of Rubio v.
Turner Unified School District No. 202, 453 F. Supp.2d 1295 (D. Kansas, 2006) states that
English-only policies are not inherently non-discriminatory as a matter of law and points out that
plaintiff was unable to cite any case that establishes a right to speak a foreign language in a
public school. It would matter if the school is public or private inasmuch there is no precedent
for asserting constitutional violations as “state action” by a private entity.
More information about Rubio may be found here:
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/08/AR2005120802122.html
Silva v. St. Anne’s Catholic School:
http://dockets.justia.com/docket/kansas/ksdce/6:2008cv01143/66406/
The “English only” approach appears to be at odds with educational law and a finding that “…
English language learners (ELLs) everywhere in the United States retain the right to use their
native language at any time, whether in or out of school.”
http://www.azbilingualed.org/AABE%20Site/AABE--News
%202004/a_guide_to_the_language_rights_o.htm.
6. Avoiding Litigation
This litigation might have been avoided by employing Alternative Dispute Resolution tools
including Court-Mandated Mediation Programs, community mediation, and community
dialogue.
The Community Relations Service of the Department of Justice is “the Department's
peacemaker" for community conflicts and tensions arising from differences of race, color, and
national origin. Created by the Civil Rights Act of 1964, CRS is the only Federal agency
dedicated to assisting state and local units of government, private and public organizations, and
community groups with preventing and resolving racial and ethnic tensions, incidents, and civil
disorders, and in restoring racial stability and harmony. See: http://www.usdoj.gov/crs/
The HR consultant hired to lead the discussion on the English-only policy for the city should
bring together individuals with a primary stake or interest in the outcome for conversations. This
effort should begin with the mayor (who voiced bias toward individuals speaking Spanish),
governing bodies of the City, community members, clergy, union leadership, and rank and file
membership. It is a sustained process, and results are not likely to be achieved quickly; however,
with patience and agreement to participate fully and fairly in the process, understanding and
agreements are achievable.
Sex Discrimination
Begin this topic by asking students whether they have ever experienced sexual or racial
harassment in the workplace, the classroom, or if they have observed someone else being
harassed because of their sex, religion, race, or sexual orientation. Other students can then
comment on whether they would consider the same behavior "sexual harassment." One of the
thorniest problems in this area of the law is the lack of consensus concerning acceptable
workplace behavior, with men and women tending to have different perspectives on the
acceptability of various interactions. You can lead discussion to a continuum of behavior, from
"clearly harassment" to "clearly acceptable," exposing a large middle gray area. Students can be
asked to keep this continuum in mind as they read this section of the chapter. You might also
point out that there is a distinction between sexual harassment that is basically illegal under Title
VII (leading to damages in a civil suit), and the kind of conduct that is both a violation of the
statute and of state criminal laws (rape, assault). Advise the class that while the text focuses on
Title VII suits, sexual harassment victims often have other remedies as well: suits based on state
civil rights laws and/or tort cases (intentional infliction of emotional distress.)
The Sanitized Workplace, Vicki Shultz, Questions, p. 154
1. Integration and equality throughout the firm
Schultz believes that claims of harassment mask other larger concerns such as the relegating of
women to low-status, low-pay positions. Elevating women to higher positions throughout a firm
would help in achieving equality. She would probably say, for example, that a firm that had a
larger number of women in executive positions would have a lower incidence of sexual
harassment complaints.
2. Research: Frederick W. Taylor
Information about Frederick W. Taylor and his “sterile” dream may be found here:
http://www.skymark.com/resources/leaders/taylor.asp
Schultz’ vision is one where the workplace is “a realm alive with personal intimacy, sexual
energy, and “humanness” ”.
