Ethics in the American Workplace

Abstract

Affirmative action programs in the workplace indirectly received a impetus from the Supreme Court in the landmark case of Griggs v. Duke Power Company.1 In this case the United States Supreme Court set out a critical component of the framework of analysis for applying title VII of the 1964 Civil Rights act to the employment relationship. The Court held in Griggs that even if an employer's hiring and promotion policies are not specifically intended to discriminate, nonetheless, a plaintiff in a discrimination lawsuit may prevail if he or she can show that the employer's policies have a discriminatory impact. The Court went on to hold that in the event a plaintiff establishes such a discriminatory impact-e.g. through introducing statistical evidence? the employer's only defense is business necessity.2 This defense, however, is extremely difficult for a defendant employer to sustain. To do so an employer organization must show that its pre-employment tests measure skills actually used on the job, or, that the tests accurately predict the performance level of job applicants. In practice employers generally find it difficult to justify pre-employment tests in either of these ways. Over the past twenty years, courts have thus invalidated numerous time honored criteria of applicant selection in employment. The judicial treatment of employer rules, practices, and policies determined to have a discriminatory impact has thus prompted many employers to adopt voluntary affirmative action programs. In dis cussing these programs it helps to distinguish between and strong affirmative action.3 Executive Order 11246, issued by Presi dent Johnson in 1966, exemplifies weak affirmative action. This order