Ian Jenkins
HRER 501
May 31, 2018
Lesson 4 Assignment
Question Set One
Upon completion of reading this week’s chapter and module video, I have given the follow opinion about the question sets provided below. The issue presented in this case are whether Beach Bum job’s posting is considered discriminatory or does it mean the bona fide occupation standards?
As we have observed during our reading from the Equal Employment Opportunity Commission, “printing or publication of any notices or advertisements indicating prohibited preferences, specifications, limitations or discriminations; occupational qualification exception.”
In the Beach Bum’s vacant position posting, immediately there is jargon targeting students who are youthful. Their verbiage of “who are home for the summer break”, covertly directs their message towards college students, who are commonly between the ages of 18-23. Plain and simple, this is a violation of the Ages Discrimination in Employment Act of 1967, which suggests that those individuals over the age of 40 should look for employment elsewhere. Accompanying that in their hiring guidelines, they are seeking individual’s, mainly directed towards female, who “look good in a bikini”. Naturally inclining you must have a nice body to show off, which are traditionally younger women. This is not only sexist, but it deters most men from applying, which haphazardly violates the Title VII of the Civil Rights Act of 1964, as it is prejudice/discriminates against a gender. In the dialogue it states specifically that, “if you want to work on your tan” which can implicate once again women, but those with pale more fair skin, essentially white women. Once again, we can clearly see that this company is now discriminating against sex and now a person’s ethnicity. With both of these criteria being met, we now have enough to present this case to be argued as discriminatory.
The position of a lifeguard requires an individual to perform many functions that can save lives. In most, if not all instances, certain genders, race and age should not be variables on which an individual must be one or the other to aid in saving lives. Although, it is mentioned that Beach Bum’s are distinguished “babes of the beach”, and the company does receive a stipend of twenty-percent from female appearances, based on customer interaction. In short, the sex appeal of the female life guards can bring better business which can be viewed as a “business necessity”. In this instance, if Beach Bum were to argue that they have a business privilege to discriminate under the Title VII’s exception rule known as the Bona Fide Occupational Qualification. In the end, I would advise that Beach Bum’s do not pursue this avenue, due to the fact only twenty-percent would be gained from the controversial requirements. The job would be viewed on the basis of discriminatory rather than business oriented.
Question Set Two
Title VII of the Civil Rights Act of 1964 is a signature trademark of the civil rights labor law within the United States that prohibits any discrimination based on race, color, religion, sex or national origin. In order for an individual to present a case under this act, what must also be presented is Prima Facie. This prerequisite was established during the supreme court case of Griggs v. Duke Power Co., 401 U.S. 424 (1971). In this instance, the employer looked at the minority job applicants based on a neutral requirements, allowing those of a certain background to be selected and remove from the hiring process. For Griggs to establish that in fact discriminator did occur, he had to demonstrate that the job requirements did not align with the position responsibilities and that the impact was so drastic that it demonstrated that African Americans were in fact negatively affected by those requirements.
After establishing prima facie, Griggs then was able to transfer to burden of prove back to the employer, which they had to prove that neutral requirements for the position was a business necessity, not a racially motivated action. Then, if the employer is able to successfully demonstrate that the racially motivated needs are legitimate for employment, the burden will then transfer, back, to the plaintiff. Following that, the plaintiff would need display an alternative method that the employer could use, which was less discriminatory and such employer chose not to use that approach, referring to their illicit means.
In Griggs V. Duke the employer was not able to show that the requirements for the position were job related, nor that it was a business necessity to use those requirements. When demonstrating how recruiting methods can have a severe impact on those involved in the labor work force, precedent to the case, Hazelwood School Dist. v. United States, 433 U.S. 299, 308. In this case, the court established that the employers pool of candidates should be compared to the protected class composition of people who are qualified for the type of work in question and reside within a reasonable recruitment area.
In this instance, the court highlighted that the Hazelwood School District did display a coherent pattern of not hiring individuals of color who were qualified to teach. Hazelwood knowingly only hired teachers who came from a college that presented a great percentage of white students than those of colors. This pattern was relevant enough that the schools crafted a statistic disparity that guaranteed those who were applying, that were white versus hiring any applicants in the relevant labor force that would enable a more diverse quota. The court found that the school had no hiring standardizations for bringing in candidates, thus, establishing that the school used recruitment tactics to create a statically disparity, violating the Title VII of Civil Rights Act of 1964.
In comparison to the Beach Bum’s case, the plaintiff must establish discrimination by displaying the adverse effect of Beach Bum’s recruiting tactics and how it affected the labor force. Based on Venice Beach’s diversity, Beach Baum has around forty-percent white employees, while the remainder consists of minorities, half male and half female. But, this is not the case. The plaintiff can demonstrate that Beach Baum used recruitment methods exclusively through, Tri-Delta’s publications thus proving that this prevents many in that relative labor market from applying. Giving advantage to a select pool of candidates would be selected for hiring. Here, Beach Bum’s staff has 95 females and 5 males and out of the 2 groups only 1 minority, this occurrence is too large to be a happenstance. Lastly, once the plaintiff establishes prima facie, the burden shifts back to the employer to demonstrate necessity in their recruiting tactics. The employer could argue that their methods are necessary through TriDelta in order for the “Babes of the Beach” experience If Beach Bum can establish a business necessity, then the burden would shift back to the plaintiff. The plaintiff can then prove that Beach Bum’s reason for using Tri Delta is because the sorority is well known for its exclusivity for attractive females member; and, that there are other more diversified sororities and fraternities that have young, qualified, and attractive people that Beach Bum chose not to use. Thus, proving that Beach Bum’s recruiting method does create a disparate impact and is discriminatory under Title VII. The court would rule in favor of the plaintiff.
Question Set 3
According to the Americans With Disabilities Act
“Under 42 USCS § 12112 (d) (2) (A)
(d) Medical examinations and inquiries.
(2) Pre-employment.
(A) Prohibited examination or inquiry. Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”
Looking at the Harrison v. Benchmark Elective Huntsville Case, 593 F.3d.1206 (11th Cir. 2010), the court established that a plaintiff can qualify a prima facie case of discrimination by demonstrating that his employer discriminated against him by requiring a pre-employment medical exam or making a pre-employment improper medical inquiry. However, only an employer can inquire as to the person’s capability to perform the job, but nothing further. The court also highlighted that in the statutes, 42 U.S.C.S. § 12112(d)(2) did not limit the coverage to only those with known disabilities, but also those with “hidden disabilities.
As mentioned, the court continued to highlight that the plaintiff is not required to prove they have a disability. Unfortunately, Harrison was unable to prove prima facie under the ADA of 1990, in this case they “have a disability and they were discriminated against due to that disability”. In this case, the court found that it was not required due to the statue 42 U.S.C.S. § 12112(d)(2) but correlated with the section which included, “a disabled plaintiff is required to at least show some damages, emotional, pecuniary or otherwise caused by a violation”. In this instance, Harrison was able to demonstrate his suffered damages obtained about his medical condition, which lead to his termination of employment.
Beach Bum’s pre-employment medical inquiry required that employees could not establish prima facie from producing a positive test result for STD’s, as this is not filed under a disability. For an plaintiff to file discrimination, the individual would once again, need to display prima facie using the alternative method. This method was created by the Supreme Court in the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is used in many platforms of discrimination. The plaintiff must “establish prima facie,
1. That they belonged to a protected class,
2. The employer was seeking qualified applicants,
3. The applicant applied for the job,
4. The applicant was qualified for the job,
5. The employer continued to seek other applicants after denying employment.”4
If the plaintiff can establish prima facie, the burden then shifts to the employer to “produce proof that they had a lawful motive” 4. Then, “the produce evidence to discredit the employer’s reason, or to prove that there is no other reasonable explanation for their decision”4.
With beach Bum, the plaintiff would need to be minority, non-white, male, and over forty, who can meet the physical demands of the position. If the plaintiff demonstrates that he had applied for the life guard position solely through Tri-Delta’s publications, then interviewed for the position, and is remained qualified for the position, but was rejected employment while the employer continued to hire candidates who were younger, white, and are not qualified for the position. Then he would be able to establish prima facie.
The employer would then need to show they had a “lawful motive for denying employment”,4 such as a “business necessity” 6 to provide customers with the girly experience to procure increased business profits. If this reason meets the need of showing that the employer had a legitimate need to discriminate under Title VII exception rule, known as the bona fide occupational qualification, then the burden shifts back to the claimant to discredit the employer’s line of reasoning. I believe that the court will find Beach Bum discriminated against 3 protected class and by violating the Americans with Disabilities Act of 1990, the Age Discrimination Employment Act, and Title VII of the Civil Rights Act of 1964.