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Affirmative Action, Sex Discrimination & Retaliation

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Affirmative Action, Sex Discrimination & Retaliation

  • Course: Employment Law 101
  • Module: Discrimination
  • Lesson Type: Video
  • Lesson Duration: 7:54

Lesson Content

Okay, in this lecture we're going to talk more about Title VII of the Civil Rights Act. We're going to talk about affirmative action plans, we're going to talk about sex discrimination. And we're also going to talk about retaliation under Title VII.

Affirmative Action Plans is an interesting concept. It's essentially also thought of many parts of the world as positive discrimination. It's discriminating against people based upon a category like race or gender for the purpose of helping them in situation where historically they've been excluded. So, affirmative action is not a statute, it was enacted initially by John F. Kennedy, and in the early 60s, and it was an executive order which ordered the government to engage in a program of hiring minorities, and people that have been excluded from government service based upon race.

In 1967, it was revised and when it was revised, it included sex discrimination. And in 1965, going back a little bit, Lyndon Johnson signed another executive order, and that is Executive Order 11246, which is the executive order that we normally think of that authorizes affirmative action. The idea of these executive orders and I think about this as a sort of civics 101 but the President is like the CEO or the head of the administrative branch of our government which includes all of the government agencies and executive departments. And as such, he is ordering the federal government to engage in a plan of Affirmative Action and also requiring all private sector businesses that contract with the federal government to engage in Affirmative Action as well. The idea is to promote equal opportunity by giving minorities and women a chance for positions with the government or with government contractors.

It is discrimination. We are differentiating against or against gender in our selection process. However, it's very clear that the process is not to put people in the positions that they are qualified for. In other words, if we have a male and a female candidate for the federal contractor position and all else is equal, the male employee is not more qualified than the female employee, then affirmative action says we're to hire the female employee.

There's also reporting that has to happen where the federal contractors and the federal government file reports with the OFCCP, which is a branch of the administrative agency that regulates Affirmative Action plans, and disclose the racial and gender makeup of the workforce, and what positive efforts the contractors and the governments are doing to promote hiring people of color or women into positions within the agencies. So this is a very controversial, very, in some kinds of situations, emotional topic for people. I have, frequently, in my classes had students debate affirmative action and the merits and the degree it's still needed or not but people have different points of view and the purpose of my lecture today is to inform not necessarily to advocate one side or the other. It's the reality in our legal culture now, that we have situation in which we affirmatively give preference to minorities, or to women when hiring for government or government contractor positions if they are as qualified as the most qualified person for the position. And so, that's Affirmative Action.

Let's talk about sex discrimination. It's prohibited clearly under Title VII. What's interesting is that Title VII says that you can't discriminate based upon sex and that's all it says and so we've struggle to sort of figure out the boundaries of that. For years, the interpretation of the EEOC was based upon at a couple of Supreme Court cases that ultimately said that sex discrimination did not include pregnancy. As a result later in ’91, we created or congress created the Pregnancy Discrimination Act which amended Title VII to include it. But before that there's a long period in our history which sex denied equal pregnancy discrimination.

Now, in 2015, we're in a situation where the EEOC has recently switched positions and taken the position that gender identity and sexual orientation are extensions of sex discrimination and that is currently the administrative agency, the EEOC's interpretation, of that. There are cases coming up the courts to the extent that that will be addressed specifically is still a very contentious thing that's happening in the court system right now.

In addition, there is legislation that has been in Congress for several years. Something called the Employment Non-Discrimination Act. And the Employment Non-Discrimination Act essentially was a legislative effort to make gender dysphagia, and sexual orientation, and gender identification all protected categories with regards to discrimination in the workplace. So as it stands, the EEOC is interpreting sex very broadly, much more so than in previous administrations in previous years. And there is a strong push to expand the categories of discrimination to include gender orientation, sex orientation, gender identification areas so, that's an expanding area.

Let's talk about retaliation now in a previous lecture I talk a lot about retaliation and really all I'm gonna tell you here is that under Title VII there is a provision that protects workers who are opposing any sort of unlawful discrimination or who make charges or are involved in testimony or somehow participating in an investigation of some sort. So retaliation exists under Title VII as well and as you know from previous lectures, retaliation is the number one charge of discrimination within the EEOC, so it is a major, major area.

Mark Addington


Mark Addington

Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...

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