Central City Makes a Promotion--Part B.

Palmer, Steve C. ; Weyant, Lee ; McNary, George W. 等

CASE DESCRIPTION

The primary subject matter of this case concerns the alleged discriminatory employment practices within a governmental agency. Secondary issues examined include the development and application of affirmative action plans affecting several protected classes and management policies to insure equal employment opportunity. The case has a difficulty level of four, appropriate for upper level undergraduate and graduate students. The case is designed to be taught in three class hours and is expected to require three hours of outside preparation by students.

CASE SYNOPSIS

Are Affirmative Action Plans meaningful guidelines to employment decisions? Or, are these plans merely an exercise in satisfying legislative directives? What is an equal opportunity employment environment? The Central City Police Department faces these questions concerning their recent employment practices. More specifically, what is the department's justification for not promoting the individual with the second highest score on the promotion test? How can an employee with excellent performance evaluations and a clean discipline record not be promoted? Could it be that the individual was a woman? Does the work environment penalize women? Finally, are supervisors and employees appropriately trained and supervised regarding employment discrimination issues?

This case explores the integration of women into a predominately white male work environment. For example, the organization as a whole (i.e., city government) has developed affirmative action plans for over a decade. Only in the last several years has the branch level (i.e., police department) developed separate goals addressing their specific operation. Branch managerial decisions over the years did not eliminate discriminatory practices. In fact, branch management faced separate lawsuits from African American and then Hispanic employees over employment discrimination issues based on race. Now, branch management faces the integration of an additional protected class within the workforce. Will they follow their previous managerial behavior?

INSTRUCTORS' NOTES

Objectives

This case can be used in a variety of undergraduate and graduate classes. The authors believe that it fits into any of the following courses: Principles of Management, Human Resource Management, Business Ethics, Business Law and Employment Law. The analysis of the case can be from a managerial or a legal perspective. The case has also been successfully used in an Organizational Communications class.

The learning objectives for this case are:

1. Students should be able to summarize the purposes of an Affirmative Action Plan (AAP).

2. Students should be able to summarize the necessity for employment discrimination policies and procedures within an organization.

3. Students should be able to analyze a situation for disparate impact and a disparate treatment employment discrimination practices.

4. Students should be able to apply the 4/5ths or 80% rule in evaluating a fact situation.

5. Students should be able to synthesize managerial alternatives to alleviate employment discrimination within the workplace.

RESOURCES AVAILABLE

Students may find the following U.S. Department of Labor and the U.S. Department of Justice resources on affirmative action and equal employment opportunity useful:

http://www.dol.gov/esa/regs/compliance/ofccp/pdf/sampleaap.pdf

http://www.eeoc.gov/

ISSUES PRESENTED

What is the purpose of an Affirmative Action Plan (AAP)? Is this a regulatory document prescribed to address past actions? Is this a document that guides recruitment and promotion opportunities? Should this document provide guidance in any other areas of employment? Only senior management can develop the answer to these questions. Organizational communication of their "true" answer will be seen by employees not through bulletin board, or policy statements, but through managerial actions. That is, what role will social learning theory play in the implementation of a company's AAP?

The issues that arise from the lack of proper policies and procedures quickly become apparent in this case. The city lacks a formalized procedure for assignment of officers to particular duties or light duty assignments. The city also appears to lack a definitive process for handling complaints of possible illegal discrimination. The city's promotion practices do not reflect the goals established in its affirmative action policy. Instead, the policies that are in place are not written to cover foreseeable and common situations. The modifying of policy is not consistent nor is it done in a formal manner. Of course this will create situations, as the one in this case, that may lead to legal problems for the organization.

Prima Facie Case

In employment discrimination cases, the United States Supreme Court [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] set forth the requirements for the establishment of a prima facie case in employment discrimination cases. The elements are: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied and was qualified for the position; (3) the plaintiff, despite being qualified, was not hired; and (4) after plaintiff's rejection the position remained open and the employer sought others with the plaintiff's qualifications.

Disparate treatment/disparate impact

Under law there are two theoretical bases for Title VII legal actions, disparate treatment and disparate impact. Disparate treatment occurs when there is evidence that the discriminatory act was an intentional act based on race, color, sex, national origin or religion on the part of the employer. Under the theory of disparate impact, the discriminatory act was the result of a facially-neutral policy that has an adverse impact on members of a protected class. Statistics are frequently used in establishing disparate impact. The four-fifths rule (sometimes called the 80% rule) is frequently used as the preliminary tool to determine disparate impact. Under this rule, it is expected that members of protected classes will have a success rate that is at least 80% of the majority's success rate on selection devices. If the success rate is less than 80%, then the employer must show that the selection device was relevant to the requirements of the position and that the there was no other devise that could be used to measure, as accurately, the applicants' performance that has a less adverse impact on members of the protected class.

Defenses

There are several defenses that an employer can raise in employment discrimination cases. The first defense available is a legitimate, nondiscriminatory reason for the employment decision. The plaintiff can counter this defense if he/she can show that the reason was actually pretext.

Another defense is that there is a bona fide occupational qualification (BFOQ) that requires the discriminatory act. Race and color can never be a BFOQ under Title VII. In defense of a claim of disparate impact the employer may argue business necessity. This argument maintains that the policy was a business necessity thus making the policy a legitimate requirement of the job. Employers may also avoid liability under disparate impact even if a particular selection device is discriminatory if the overall process is not. Of course the employer may also prove that the plaintiff's evidence is not truthful or is inaccurate.

Improper conduct is mentioned throughout the case

Some actions may individually rise to the level of illegal conduct. Other actions collectively may create a hostile work environment. Students should be able to determine if a hostile work environment exists. To do so, they will have to determine if the conduct is pervasive, abusive, offensive or intimidating workplace.

QUESTIONS

1. Is the AAP a good one? What could be done to make it better?

Divide the class into groups to focus on each particular issue. Each group should develop a one page response for each question. Each group should report their findings to the class using flip chart paper which is posted in the classroom during the discussion period.

For a web-based activity, divide the class into groups. Create group work areas (i.e., group discussion boards, chat rooms, email). Each group will prepare a one page document listing their collaborative discussion to the class Discussion Board created for this assignment.

2. Is there evidence of employment discrimination? If so, does Jones have a good case?

In order to establish a prima facie case, Jones must show that (1) she is a member of a protected class; (2) she applied and was qualified for the position; (3) despite being qualified, she was not promoted; and (4) after her rejection the position remained open and the employer sought others with the plaintiff's qualifications. The first element is not difficult to show. Jones is female and therefore is a member of a protected class. She clearly applied and was qualified for the position; otherwise, her name would not have been on the eligibility list. Jones was not even a finalist in the consideration for either promotion, much less promoted. Therefore, the third element of the prima facie case can be shown. The final element is a little more difficult. However, since her name was not referred and the city did continue to seek qualified people for promotion after rejecting Jones, it appears that the fourth element can be proven.

3. What could her attorney argue?

An argument can actually be made that both theories of discrimination, disparate treatment and disparate impact, can be successfully asserted. In this case, the disparate treatment argument is not as strong as the disparate impact argument. Disparate treatment is intentional discrimination against a person because they are a member of a protected class. The decision was made that no woman would be promoted by the decision to only refer the names of the black candidates. Likewise, the decision not to apply the affirmative action in regard to women but to do so for all other protected classes is another example of a specific act that discriminated against women.

However, the case for disparate impact may be stronger. Over the three periods of time identified by affirmative action plans, the testing process has always resulted in a success rate for women of less than 80% of the success rate of men. In two of the three time periods the hiring rate for women was less than 80% of the hiring rate for men. In fact under the current plan the hiring rate for women is 20% that of men.

4. What could the city's attorney argue in its defense?

As the attorney for the city I would argue that there was a legitimate, non-discriminatory reason for the hiring decision. The city was under a federal court order to promote black police officers to the rank of sergeant. At the time of the promotions the city was two black sergeants short of the goal. By promoting only black police officers, the city would attain the hiring goal for sergeants. Court orders take precedence over the city's affirmative action plan. Further it was only coincidental that the decision to refer only the names of black officers resulted in only males being referred. Had there been female black police officers on the list, their name(s) would have been referred.

Further, the change in determining affirmative action goals at the rank of sergeant was a business necessity to more accurately reflect the current situation. Because the percentage of female police officers eligible for promotion to sergeant was significantly less than 22%, such a goal is not realistic.

5. If you were the judge, how would you decide this case? Explain your decision.

(The students' answers to this question will vary.)

EPILOGUE

Although this case has been fictionalized to protect the identities of the people involved, Central City Makes a Promotion--Part B is based on a true story. Below is a summary of what happened in the real-life case.

Mary Jones' attorney filed a lawsuit on her behalf when the state court opened on promotion day. Among other relief, she sought a temporary restraining order and a preliminary injunction preventing any promotions to sergeant unless she was also promoted. The state judge assigned the case, after a brief hearing involving the attorneys for both sides, issued a temporary restraining order and set a hearing for a preliminary injunction. At the hearing Jones' attorney suggested that the city be allowed to promote Williams because he was first on the list. The judge agreed and entered a temporary restraining order prohibiting any promotions to sergeant, except for Williams, unless Jones was promoted to sergeant. The judge also order the city to turn over volumes of documents requested by Jones' attorney. The matter was set for hearing on the preliminary injunction.

The day before the hearing on the preliminary injunction the city removed the case to the federal court. The federal judge maintained the temporary restraining order until a hearing on the preliminary injunction could be held about a month later. After a three-day evidentiary hearing, in his ruling on the motion for preliminary injunction the federal judge wrote that there was substantial evidence that Jones had been discriminated against. However, the judge denied the preliminary injunction and extinguished the temporary restraining order because Jones could not demonstrate irreparable harm and the city assured the judge that Jones would be promoted immediately after the order was extinguished because another vacancy at sergeant had occurred.

Once the judge ended the temporary restraining order, Jones and White were promoted to sergeant. The city backdated White's promotion so he would have seniority over Jones.

Shortly after the hearing on the preliminary injunction, the plaintiff filed an amended complaint that broadened the lawsuit into a class action on behalf of all Central City female police officers and police applicants. Over the objections of the city, the federal court certified the lawsuit as a class action after another two-day hearing.

After considerable discovery (interrogatories, depositions and requests for production) by both sides, the parties started serious settlement negotiations. The settlement efforts intensified after approximately 8-10 female officers testified by deposition about their personal experiences related to discrimination and harassment. Ultimately, the case was settled three years after being filed without trial. The settlement involved a comprehensive plan for correcting the practices and policies that resulted in the alleged illegal discrimination. Jones and another female sergeant who had been passed over for promotion were promoted to lieutenant as part of the settlement. White was still a sergeant so the seniority issue no longer existed.

The rest of the story: Jones was passed over for promotion to captain although she was the top name on the list approximately four years after her promotion to lieutenant (see Part C).

Fourteen years after Jones was promoted to lieutenant, she was a lieutenant preparing for retirement with 25 years of service. Retirement was just six months away. Robert White had become police chief in Central City. Just five months earlier, Jones was passed over for promotion to captain for a second time. Again Jones was the top name on the list at the time of the promotion. Just as when she was passed over the first time, there were no apparent reasons in her records to indicate that she was not promotable. However, White decided not to promote her. Jones decided not to fight the decision. On this day with about six months left in her tenure with Central City Jones' phone rang unexpectedly. It was Chief White congratulating Mary Jones. He advised her that he decided to promote her to captain.

[NOTE: This case is a fictionalized version of a real-life situation. Names and other potentially identifying information have been changed to protect identities. The applicable fact situation is true to the real case.]

Steven C. Palmer, Eastern New Mexico University

Lee Weyant, Kutztown University of Pennsylvania

George W. McNary, Creighton University