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Discrimination

DISCRIMINATION

This entry includes 6 subentries:
Age
Disabled
Race
Religion
Sex
Sexual Orientation

Age

Age discrimination is what occurs when an employer uses age as a determining (and negative) factor in a job-related decision. For example, age discrimination takes place when an employer denies an applicant a job based on age. Similarly, age discrimination occurs any time an employer denies training, promotions, or any other opportunities based on age.

Many factors result in age discrimination, including lack of knowledge, ageist attitudes, and myths and stereo-types about older workers. The most common stereo-types about older workers are that older workers are less productive than younger workers; that older workers are more expensive than younger workers; that older workers are less adaptable and more rigid than younger workers; and that older people want to retire early, that they do not want to work.

The United States enacted legislation, the Age Discrimination in Employment Act (ADEA), in 1967 to prohibit age discrimination in employment. Three years earlier, amendments to add age to Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination based on race, gender, religion and national origin) had been rejected. Several reasons have been offered for excluding age from Title VII. First, Congress worried that it lacked the information necessary to enact age discrimination legislation. Second, many legislators feared that adding a prohibition against age discrimination would overload the civil right measure and lead to its defeat. Finally, in 1964 members of Congress simply did not understand or believe the magnitude of the age discrimination problem. As a result of the Civil Rights Act of 1964, however, Congress directed the secretary of labor to "make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected."

The secretary of labor's report confirmed that age discrimination in employment was a pervasive and debilitating problem, particularly insofar as hiring practices, which can result in long-term unemployment, and advised Congress that legislation was needed to address the problem.

The federal Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination in all aspects of employment including, hiring, termination, benefits, training, and promotions. As originally enacted, the ADEA protected employees aged forty to sixty-five. In 1978, Congress raised the upper age limit to 70. In 1986, Congress eliminated the upper age limit on the ADEA's protections. As a result, with very few and narrow exceptions, there is no mandatory retirement in the United States. Groups who are still subject to mandatory retirement include federal, state, and local firefighters and law enforcement personnel, air traffic controllers, and bona fide executives and high policy makers.

The ADEA applies to employers with twenty or more employees including employers in federal, state, and local governments. The ADEA also commands that labor organizations with twenty or more members may not exclude or expel members or refuse to refer members for hire based on age. Employment agencies may not fail or refuse to refer an applicant based on age. In addition, employment agencies may be covered as "employers" under the ADEA if they have the requisite twenty employees.

The United States also has fifty state laws that address age discrimination in employment. While the national statute protects individuals age forty and older, many of the state laws prohibit discrimination at any age. The majority of these laws cover employers with fewer than twenty employees. In addition, many provide broader relief than the ADEA, including allowing a victim to recover compensatory and punitive damages. Legal challenges to age discrimination in employment must commence with a timely charge filed with the Equal Employment Opportunity Commission (EEOC). However, given the fact that the EEOC files suit in less than one half of one percent of the charges it receives, enforcement of the ADEA is left largely in the hands of individuals. For example, in 2001, the EEOC received 17,405 charges but only filed suit or intervened in thirty-four age discrimination lawsuits. Because of the high cost of litigating an age discrimination lawsuit—in terms of time, money, and emotion—and the increasingly higher evidentiary burdens imposed by the courts on age bias victims, much age discrimination goes unchallenged.

While the ADEA may have raised societal awareness regarding age discrimination and eliminated the most blatant forms of it, such discrimination continues to plague the U.S. workforce. One explanation is that historically, Congress, the courts, and society have viewed age discrimination as less malevolent than race or sex discrimination and have treated freedom from age discrimination as something less than a civil right. Stereotypes about age and ability persist, in part, because of society's failure to fully attack and condemn ageist policies and practices.

BIBLIOGRAPHY

Butler, Robert N. Why Survive?: Being Old in America. New York: Harper and Row, 1975.

Eglit, Howard C. Age Discrimination. 3 vols. Colorado Springs, Colo.: Shepard's/McGraw Hill, 1994.

Gregory, Raymond F. Age Discrimination in the American Workplace: Old at a Young Age. New Brunswick, N.J.: Rutgers University Press, 2001.

Munk, Nina. "Finished at Forty." Fortune 139, no. 2 (1 February 1999): 50–66.

Palmore, Erdman B. Ageism: Negative and Positive. New York: Springer, 1990.

Platt, L. Steven, and Cathy Ventrell-Monsees. Age Discrimination Litigation. Costa Mesa, Calif.: James Publishing, 2000.

Simon, Ruth. "Too Damn Old." Money (July 1996): 118–120.

Worsnop, Richard I. "Age Discrimination: Does Federal Law Protect Older Workers' Job Rights?" CQ Researcher 7, no. 29 (1 August 1997): 675–695.

LaurieMcCann

See alsoOld Age .

Disabled

The U.S. Congress noted when enacting the 1990 Americans with Disabilities Act (ADA) that the country's 43 million disabled citizens have been "subjected to a history of purposeful unequal treatment" and politically disempowered because of "stereotypic assumptions not truly indicative" of their individual abilities "to participate in, and contribute to, society." Highly illustrative of this situation was Congress's citation of survey data which indicated that two-thirds of working age individuals with disabilities were unemployed, while two-thirds of nonworking disabled individuals wanted to work. Largely in response to this figure (census data was relatively more sanguine, reporting that "only" about half of working age disabled individuals were then unemployed), Congress promulgated Title I of the ADA in an effort to increase labor market participation among workers with disabilities.

Title I covers entities employing more than fifteen workers, prohibits their discriminating against "qualified individuals with disabilities" in all aspects of the employment relationship, and requires them to provide those individuals with "reasonable accommodations." These include making existing facilities physically accessible, job restructuring or modification, and reassignments. Accommodations which cause "undue hardship" to their putative providers are exempted from compliance, as is the hiring or retention of disabled individuals who pose a "direct threat" to public health or safety. To assert a Title I claim, disabled workers must first demonstrate that they are "qualified" individuals with disabilities. This requires workers not only to satisfy the ADA's definition of who is disabled, but also to establish the ability to "perform the essential functions" of a given job either with or without the assistance of a reasonable accommodation.

Although the determination of which accommodations are reasonable, and what job functions are essential, in any given dispute may seem at first blush the proper province for a jury, a vast majority of courts have instead deferred to employers' assertions of feasibility and essentiality, and have thus ruled as a matter of law that plaintiffs were unqualified for their positions. As a result, only some 5 percent of Title I plaintiffs prevailed in their federal trials during the period between 1992 and 1997.

As of 2002, the overall unemployment statistics of disabled workers remained essentially unchanged, while their employment rate relative to that of nondisabled workers had moderately decreased, leading some economists to assert that the ADA is actually harmful to the group it is intended to assist. Although issue can be taken with many of the assumptions underlying these analyses, including the metrics utilized, the picture painted remains dismal and should provoke concern and examination. Several factors have contributed to these negative post-ADA employment effects.

First is the unique civil rights chronicle of people with disabilities who, unlike other marginalized minority group members, were empowered by legislation prior to a general elevation of social consciousness about their circumstances and capabilities. Thus, popular opinions about people with disabilities, especially misperceptions regarding their capabilities, do not yet conform to the spirit of the ADA's legislative findings nor to the letter of assertions made by disability rights advocates.

Second, although a great deal of rhetoric has surrounded the costs of accommodations, the practical consequences of Title I have been the subject of surprisingly little research. The few empirical studies that have been conducted, however, indicate that many of the accommodation costs engendered by Title I are generally non-existent or minimal. In fact, they suggest that certain economic benefits, such as increased retention rates and concurrently reduced worker replacement costs, can make many accommodations cost effective for the providing employers.

A third factor is that, until 2000, national policymakers overlooked the impact of environmental factors exogenous to the ADA, including the availability of health care and accessibility of public transportation, on increasing disabled workers' labor market participation. Only a decade after the ADA's enactment were a series of policy initiatives passed to allow people with disabilities receiving social security disability-related benefits to earn more income without losing their cash or health benefits.

BIBLIOGRAPHY

Americans with Disabilities Act (1990), 42 U.S.C. § 12,101 et seq.

Stein, M. A. "Empirical Implications of Title I." Iowa Law Review 85 (2000): 1671–1690.

———. "Employing People with Disabilities: Some Cautionary Thoughts for a Second Generation Civil Rights Statute." In Employment, Disability, and the Americans with Disabilities Act: Issues in Law, Public Policy, and Research. Edited by P. D. Blanck. Evanston, Ill.: Northwestern University Press, 51–67. (2000).

———. "Labor Markets, Rationality, and Workers with Disabilities." Berkeley Journal of Employment and Labor Law 21 (2000): 314–334.

MichaelStein

See alsoDeaf in America ; Disability Rights Movement .

Race

Racial discrimination, a long-standing issue in American society, has taken many forms and been "more than black and white" in terms of whom it has affected. At various times and to varying degrees, African Americans, Asian Americans, Latinos, Native Americans, and other Americans of color have experienced racial discrimination, as have ethnic groups that in the past were regarded by many as a separate "race," such as Jews. The type and degree of racial discrimination have also varied in different regions of the country, although historically some of the most egregious discrimination has taken place in the American South.

Causes and Effects

Immigration has affected racial discrimination in a number of ways. In each wave of immigration, the newest groups to America's shores have often taken or been shunted into the least desirable, lowest-paying jobs. Some immigrant groups went into certain industries for cultural or social reasons, such as Chinese launderers and Jewish garment workers. For the most part, though, these new immigrants were at the mercy not only of "native" Americans but also of earlier immigrant groups. In the workplace, immigrants were often pitted against one another by employers and labor unions alike. While employers exploited them for cheap labor and sought to prevent them from becoming a united working class, organized labor unions fanned the flames of prejudice to protect their hard-won gains by limiting entrance to the crafts they represented. The oppressed immigrant groups themselves rarely remained solely victims. As they became more established in American society, they sometimes discriminated against newer groups in order to distance themselves from their own sense of "otherness." Moreover, for white European immigrants, racial discrimination served as a way to become part of white America and therefore superior to more visible minorities, especially (though not exclusively) African Americans.

Discrimination in the workplace has had the most profound and lasting impact on the groups it has affected. At the most basic level, it has limited minority groups to low-paying, menial jobs that offered no potential for advancement and were at times even hazardous. In the past, minority groups were restricted from the skilled trades and occupations, which have been more apt to provide union protection and opportunities for advancement than unskilled jobs. At the professional level, minorities have had to struggle on two fronts: first for admission to the educational programs necessary to pursue a profession such as law or medicine, and then for hiring and advancement within the profession. Even those who have succeeded in obtaining satisfying work have likely suffered from subtler forms of job discrimination, whether in lower wages, lack of advancement, or poor work environment. Women in minority groups, furthermore, have had to struggle against both racial and sexual discrimination.

Combating Discrimination

Throughout American history, African Americans and other minority groups, with and without white allies, have combated racial discrimination using a variety of tactics. These have included public protests, such as street picketing and riots; organized publicity campaigns; educational efforts; and litigation. They have also included efforts at economic self-help through voluntary organizations such as the National Urban League. For example, in New York City during the Great Depression, the League sponsored the "Don't Buy Where You Can't Work Campaign," picketing and boycotting white-owned businesses that had primarily black customers but discriminated against blacks in employment. These protests spread to other cities, and in 1937 the Supreme Court upheld the protesters' right to peacefully picket.

Political efforts to end racial discrimination were first undertaken in a serious way in 1941. The African American labor leader A. Philip Randolph threatened to organize a march on Washington to protest racial discrimination, especially in the then-booming military and World War II defense industries. In response, President Franklin D. Roosevelt issued Executive Order 8802 in June 1941, creating the Fair Employment Practices Committee (FEPC). Although at first the FEPC's powers of enforcement were limited and therefore its accomplishments were few, it was the first step in the federal government's role in stamping out racial discrimination in the workplace. Following World War II, President Harry S. Truman issued two executive orders: one that desegregated the U.S. armed forces, and one that eliminated discrimination on the basis of race or religion in federal employment and established a Fair Employment Board as part of the Civil Service Commission. In 1955 President Dwight D. Eisenhower issued executive orders affirming antidiscrimination as a federal government policy and creating the President's Committee on Government Employment Policy to administer it. It was President John F. Kennedy, however, who used the creation of the President's Committee on Equal Employment Opportunity (which also required nondiscriminatory employment practices of government contractors) to send a message to the southern-dominated Congress as he prepared what would under President Lyndon B. Johnson become the Civil Rights Act of 1964. In 1965, a permanent Equal Employment Opportunity Commission was established, with much greater powers of enforcement than its predecessors.

By the time of President Richard M. Nixon's administration, with the passage of the Equal Employment Opportunity Act in 1972, affirmative action, as the policy came to be known, evolved in theory and policy from merely hiring on an equitable basis to actively seeking minorities in order to achieve racial balance in the workplace (and in higher education). Affirmative action subsequently courted new controversy, and in 1978 the Supreme Court rejected the active seeking of hiring quotas but permitted race to be a factor in employment decisions in the landmark case Regents of the University of California v. Bakke.

Race and Organized Labor

Racial discrimination became an issue for organized labor long before it did for the U.S. government. Organized labor was, for much of its history, more a part of the problem than a part of the solution. Beyond the attitudes of organized workers, racial discrimination was, beginning in the nineteenth century, the established policy of many of the craft unions affiliated with the American Federation of Labor (AFL), as well as the policy of the independent railroad unions. These policies effectively restricted many blacks to menial, unskilled labor. The AFL craft unions, which also supported the anti-Oriental movement and its official manifestation, the Chinese Exclusion Act of 1882, were motivated partly by simple racism and partly by their desire to restrict the labor supply and ensure that their services would remain in demand. Those craft unions that did admit black workers generally organized them in segregated locals. African Americans as well as nonwhite immigrants, therefore, were often used as strikebreakers by employers.

The labor organizations that seemed most committed to organizing on an inclusive, rather than exclusive, basis—the Knights of Labor and the Industrial Workers of the World—unfortunately also proved to have the least staying power on the American labor scene. Not until the rise of the industrial unions, and with them the Congress of Industrial Organization (CIO), in the mid-1930s did organized labor make a serious effort to eliminate racial discrimination as an official policy. The CIO unions were not perfect either; even without official segregation in union ranks, contracts often allowed for wage discrimination, and people of color were largely kept out of leadership positions. The unions that proved to be notable exceptions to this rule, such as the United Packinghouse Workers of America, were generally leftist in orientation, making them targets for the McCarthy-era onslaught against organized labor as a source of communist subversion. Even then, by the postwar years, many industrial unions were (at least on paper) emphasizing solidarity among workers across racial lines. Unions that did not move toward equality voluntarily were increasingly forced to do so by state and federal regulations. For example, the Italian Locals of the International Ladies Garment Workers Union, once evidence of the union's commitment to diversity, were by the 1960s an embarrassing source of discrimination when they refused to admit black and Puerto Rican workers. The changing demographics of the workforce eventually forced a reassessment of labor's stance on issues of race, in matters of organizing and leadership alike. In 1995 the AFL-CIO elected Linda Chavez-Thompson as its first Latina executive vice president. And the AFL-CIO's drive to organize the unorganized was increasingly conducted with a recognition and even a celebration of the diversity of the American workforce.

Yet from the beginning, organized labor had to deal with both the popular prejudices of the day and the needs of its predominantly white male constituency. For example, before the Civil War the northern working class opposed the expansion of slavery not so much out of humanitarian concern as concern over its effect on wage labor. African Americans and other minority groups saw little reason to support the craft unions that excluded them, and their role as strikebreakers created a vicious cycle. Even when unions were willing to actively organize black workers, they undercut their own effectiveness by trying to honor local (usually southern) prejudices. This is what ultimately led to the demise of the effort by the Textile Workers Union of America to organize southern workers during Operation Dixie in 1946. In the 1960s the drive to organize the J.P. Stevens textile mills (made famous by the 1979 movie Norma Rae) was complicated by the union's effort to recruit white workers without alienating black workers, who were joining out of proportion to their numbers in the industry. McCarthyism also forced many unions to moderate antiracist rhetoric for fear of being thought communist. Finally, employers would often use race as a wedge against organizing, or use worker prejudices (perceived or actual) as an excuse to delay integrating the workplace.

Minorities Organize

Despite labor's checkered history in matters of racial discrimination, minority workers struggled to carve out a place for themselves in organized labor almost from its beginnings. Starting in the mid-nineteenth century, before the Civil War, African Americans formed their own labor unions in a number of trades. The best known was the Brotherhood of Sleeping Car Porters. In the late twentieth century the United Farm Workers built upon a Latino self-help movement, the Community Service Organization, to end the exploitation of migrant farm workers in the American Southwest. Minorities have also formed organizations to work for equality within the structure of organized labor. Among the more radical efforts to eradicate racism in organized labor and ultimately build interracial solidarity was the League of Revolutionary Black Workers, which flourished briefly in Detroit in the late 1960s and early 1970s. Although the League did not last, it helped raise general consciousness among black workers and strengthened mainstream efforts towards greater inclusiveness. The most successful organization, the Coalition of Black Trade Unionists, was founded in 1972 and continues to work with both labor and civil rights organizations to achieve African American equality in organized labor, the workplace, and beyond.

Race Discrimination in History

The long history of oppression of nonwhites goes back to America's founding, beginning with the systematic destruction of Native Americans and the importation of Africans for slave labor. Although African American men practiced a variety of crafts and trades during the early decades of the republic, by the time of the Civil War, slavery had become deeply entrenched in the American South, and most were restricted to agricultural labor. Following the Civil War and Emancipation, the Reconstruction did not deliver on most of its promises to freed slaves. The sharecropping system and the black codes kept most southern blacks working in slavery-like conditions. The men were rarely able to get more than agricultural work and the women, domestic work. Also during the late nineteenth century, the American West was built in large part with the labor of immigrants from China, Japan, Mexico, and the Philippines, who were paid low wages for back-breaking work. These immigrants were largely reviled by the AFL unions, which viewed them as a threat to white workers.

In the opening decades of the twentieth century black migration took many African Americans to northern cities to seek better work and better lives. In the North, these migrants found discrimination and strenuous, lowpaying jobs, for which they competed with a rising number of immigrants from various countries who also suffered discrimination and exploitation. Although during the early twentieth century a number of black business owners and professionals emerged, most African Americans remained part of the economic underclass, as did other peoples of color. Even so, for African Americans the industrial opportunities in the North were a marked improvement over conditions in the South, where industry lagged and the destruction of crops caused by the boll weevil sharply reduced the amount of agricultural work.

When the Great Depression hit, American minorities suffered disproportionately. Those who had previously been the "last hired" were now the "first fired," as whites often took over what had been "black" jobs. Drought and economic hardship, for example, pushed white farm workers off midwestern farms to compete with nonwhite migrant farm workers in the fields of California. After 1932 most black voters switched from the Republican to the Democratic Party because of Franklin D. Roosevelt, but the New Deal had a mixed record for minorities, who still suffered discrimination in obtaining federal jobs and unemployment benefits. World War II revived the economy to a degree the New Deal had not. However, the FEPC failed to eradicate racial discrimination in wartime industry. Its main problems were spotty enforcement and a failure to address the kinds of workplace discrimination that went beyond the hiring process, such as workplace segregation. At the same time, desegregation of the United States Armed Forces, the other reason Randolph threatened to march on Washington, was only accomplished after World War II.

Although the civil rights movement of the 1950s and 1960s is primarily remembered for gaining voting rights for African Americans and ending legal segregation in the South, its role in ending workplace discrimination with the passage of Title VII should not be underestimated. Although the mainstream civil rights movement ultimately failed to tackle the economic aspects of discrimination, the failure was not for lack of interest among its leaders. Prior to his assassination in 1968, Martin Luther King Jr. had announced the formation of a "Poor Peoples' Campaign" to address economic injustices against people of all races. In fact, on the night of his assassination, he was making a public appearance in support of striking garbage workers.

Into the Twenty-First Century

Toward the end of the twentieth century, the rising tide of conservatism and complaints about political correctness threatened the gains made in eradicating discrimination. Affirmation action came increasingly under attack, both in the courts and in public opinion, with both its efficacy and its fairness questioned. Many opponents of affirmative action raised the possibility that it perpetuates the very discriminatory attitudes it was designed to eradicate, arguing that when any nonwhite employee is hired, particularly at a higher level, suspicion is aroused that he or she obtained the position unfairly through racial preferences (even if the employee's job qualifications clearly indicate otherwise). Additionally, opponents of affirmative action have argued that the system, designed to correct for past inequities of race (and gender), does not address issues of class, since many of the program's beneficiaries belong to the middle class, with all its educational and economic advantages. Proponents of affirmative action counter that affirmative action, while not eradicating racial discrimination in the workplace, has made enough of a difference in the hiring and promotion of minorities that these small losses to non-favored groups are justified. At the same time, the fact that discrimination in the workplace has not yet been eliminated has been a key argument that affirmative action is still a necessary tool to promote a more just society in an increasingly diverse America.

BIBLIOGRAPHY

Burstein, Paul. Discrimination, Jobs and Politics: The Struggle for Equal Employment Opportunity in the United States since the New Deal. Chicago: University of Chicago Press, 1985.

Edley, Christopher, Jr. Not All Black and White: Affirmative Action, Race, and American Values. New York: Hill and Wang, 1996.

Edmondson, Munro S. "Industry and Race in the Southern United States." In Industrialisation and Race Relations: A Symposium. Edited by Guy Hunter. London: Oxford University Press, 1965.

Ferriss, Susan, and Ricardo Sandoval. The Fight in the Fields: Cesar Chavez and the Farmworkers Movement. Edited by Diana Hembree. New York: Harcourt, 1997.

Georgakas, Dan, and Marvin Surkin. Detroit: I Do Mind Dying. Cambridge, Mass.: South End Press, 1998. Updated edition on the Dodge Main Revolutionary Union Movement (DRUM).

Honey, Michael K. Southern Labor and Black Civil Rights: Organizing Memphis Workers. Urbana: University of Illinois Press, 1993.

Horowitz, Roger. "Negro and White, Unite and Fight!": A Social History of Industrial Unionism in Meatpacking, 1930–90. Urbana: University of Illinois Press, 1997.

Kushner, Sam. Long Road to Delano. New York: International Publishers, 1975.

Marable, Manning. How Capitalism Underdeveloped Black America: Problems in Race, Political Economy, and Society. Boston: South End Press, 1983.

Mills, Nicolaus, ed. Debating Affirmative Action: Race, Gender, Ethnicity, and the Politics of Inclusion. New York: Dell Publishing, 1994. Covers various contemporary views.

Minchin, Timothy J. Hiring the Black Worker: The Racial Integration of the Southern Textile Industry, 1960–1980. Chapel Hill: University of North Carolina Press, 1999.

Steinberg, Stephen. Turning Back: The Retreat from Racial Justice in American Thought and Policy. Boston: Beacon Press, 2001.

Susan RothBreitzer

See alsoAffirmative Action ; Immigration ; Labor ; Trade Unions ; andvol. 9:Pachucos in the Making .

Religion

Religious discrimination involves the persecution or harassment of a person because of his or her religious beliefs or practices. Throughout history, many people have been victims of religious discrimination. A primary reason that the Puritans and other groups left Europe and came to America was to escape religious persecution.

Freedom of religion—the right to believe in and practice whatever faith a person chooses as well as the right to have no religious beliefs at all—became a defining tenet of the young United States. On 15 December 1791, ten amendments to the U.S. Constitution known as the Bill of Rights became law. The first of these specifically states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of. …"

Several court rulings have interpreted this to mean that the government may not give special treatment or promote any religion. For example, it has been ruled unconstitutional for the government to give financial aid to religious schools and for public schools to teach religious texts, such as the Bible, or to recite prayers. However, the First Amendment was meant to protect religious groups from unfair treatment by the federal government.

It would take about 175 years for the United States to pass laws dealing with religious discrimination in the private sector, specifically labor.

The Civil Rights Act of 1964

The Civil Rights Act of 1964 greatly expanded the rights of minorities in key areas, such as employment, education, voting, and the use of public facilities. It was intended to end discrimination in these areas based on race, color, religion, or national origin. Many consider it to be the most important U.S. law on civil rights since Reconstruction (1865–77). Like most major legislation, the Civil Rights Act of 1964 occurred as a result of great social pressure.

After World War II, minority groups, specifically African Americans, grew increasingly vocal in their demands for civil rights. Many white Americans from various walks of life also began to see the need for civil rights laws. The U.S. courts reflected these changes in attitude by protecting the civil rights of minorities in various circumstances, particularly by making it possible for African Americans to participate in some activities on an equal basis with whites.

The executive branch of government, by presidential order, followed suit in the 1940s by legally ending discrimination in the nation's military forces, in federal employment, and in government contract work. Other bills, introduced in Congress regarding employment policy, brought the issue of civil rights to the forefront of legislators' agendas. Along with this push for racial equality came demands for equal rights for all minorities, including religious minorities.

By the 1960s, the federal government, responding to intense pressure, sought to pass a comprehensive civil rights law. Although President John F. Kennedy was unable to secure passage of such a bill in Congress, a stronger version was eventually passed with the support of his successor, President Lyndon B. Johnson. After one of the longest debates in Senate history, Johnson signed the bill into law on 2 July 1964.

Despite strong support for the measure, there were also determined critics who immediately challenged the constitutionality of the law. Not only did the Supreme Court uphold the law (in the test case Heart of Atlanta Motel v. U.S.), but the law itself gave federal law enforcement agencies the power to prevent discrimination in employment, voting, and the use of public facilities.

Title VII

One section of the civil rights Act of 1964—Title VII—specifically targets discrimination based on race, sex, color, religion, and national origin in the area of employment. The Act covers nearly every aspect of employment—recruitment, hiring, wages, assignment, promotions, benefits, discipline, discharge, and layoffs. It applies to private employers of fifteen or more persons, as well as labor unions and employment agencies.

Title VII also created the U.S. Equal Employment Opportunity Commission (EEOC), which was given the mission of enforcing the law against discrimination in the workplace. The five members of the commission, no more than three of whom may be from the same political party, serve five-year terms. They are appointed by the president and confirmed by the Senate.

The EEOC began operating on 2 July 1965, one year after Title VII became law. To those who had been fired or denied promotion because of their religious beliefs or endured other forms of religious-based discrimination in the workplace, the EEOC became a valuable ally in their fight for justice.

Claiming Religious Discrimination

Once a person or group files a charge of religious discrimination to the EEOC, the commission will determine the validity of the claim. If a case is proven, a monetary benefit is often awarded to the claimant.

Companies can often avoid a charge of religious discrimination by making reasonable accommodations for the religious needs of their employees and prospective employees. Such accommodations include giving time off for the Sabbath or holy days, except in an emergency, and allowing employees who don't come to work for religious reasons to take leave without pay, or to make up the time, or to charge the time against any other leave with pay, except sick pay. However, employers may not be required to give time off to employees who work in vital health and safety occupations or to any employee whose presence is critical to the company on any given day.

Employers also cannot schedule examinations or other important activities at times that conflict with an employee's religious needs. Nor can employers insist on a dress code that interferes with a person's religious dress.

An employee whose religious practices prohibit payment of dues to a labor organization will not be required to pay the dues. However, he or she will often be required to pay an equal amount to a charitable organization.

Training programs, designed to improve employee motivation or productivity through meditation, yoga, bio-feedback, or other practices, may also conflict with the non-discriminatory provisions of Title VII of the 1964 civil rights Act. If so, employers must accommodate such employees.

Two Key Amendments to Title VII

In 1972, an amendment to Title VII of the Civil Rights Act of 1964 created a loophole for employers: They would not be charged with religious discrimination if they could prove that accommodating the religious practices and beliefs of their employees would cause "undue hard-ship." An example of undue hardship would be if accommodating an employee's religious practices would require more than customary administrative costs. This might happen if an employer incurs overtime costs to replace an employee who will not work on Saturday. Undue hard-ship also may be claimed if accommodating an employee's religious practices denies another employee a job or shift preference guaranteed by the seniority system.

What constitutes undue hardship varies on a case-by-case basis. The court weighs the facts to determine whether the employer offered a reasonable accommodation or that undue hardship existed. The plaintiff will attempt to show that the hardship was not severe or that the accommodation offered was not reasonable.

Another amendment, passed in 1991, allows claimants of the civil rights Act to request a jury trial and to sue for compensatory and punitive damages. Compensatory damages cover the actual losses incurred as a result of the discriminatory act. Punitive damages are sought strictly to punish wrongdoers for their discriminatory act. Forcing a business or company to pay punitive damages is meant to discourage them from discriminating again in the future.

A Look at EEOC Statistics

The statistics complied by the EEOC show an upward trend in the number of charges of religious discrimination. Records also show a corresponding increase in the monetary benefits awarded claimants.

In 1992, there were 1,388 claims filed charging religious-based discrimination. In 1996, there were 1,564 claims, and in 2001, the number had climbed to 2,127. In many cases, the EEOC found no "reasonable cause" for the claim. Despite that, in 1992 $1.4 million were awarded to claimants, $1.8 million in 1996, and $14.1 million in 2001. (These figures do not include monetary benefits obtained through litigation.)

The United States is one of the most religiously diverse countries in the world, and its citizens enjoy great religious liberty. Such freedom from religious discrimination, however, obviously requires vigilance to maintain.

BIBLIOGRAPHY

Bernbach, Jeffrey M. Job Discrimination II: How to Fight—How to Win. Rev. ed. Englewood Cliffs, N.J.: Voir Dire Press, 1998.

Perlmutter, Philip. Legacy of Hate: A Short History of Ethnic, Religious, and Racial Prejudice in America. Armonk, N.Y.: M.E. Sharpe, 1999.

Repa, Barbara Kate. Your Rights in the Workplace. 5th ed., edited by Amy Delpo. Berkeley, Calif.: Nolo, 2000.

The United States Commission on civil rights. Religious Discrimination: A Neglected Issue. Washington, D.C.: 1980.

U.S. Equal Employment Opportunity Commission. Home page at http://www.eeoc.gov.

LyndaDeWitt

See alsoAnti-Catholicism ; Anti-Semitism ; First Amendment ; Religion and Religious Affiliation .

Sex

Sex discrimination refers to differential treatment based on sex. Gender, the meaning attached to being male or female, carries different connotations of value in different cultures. Traditionally in American culture a higher value has been given to whatever is defined as male. Anglo colonists brought with them the ancient English custom of coverture, by which a married woman's civil identity was "covered by" or absorbed into her husband's for virtually all purposes except crime. Therefore, all of the personal property she brought to the marriage became her husband's as well as any earnings or income thereafter. Unable to sign a legal contract, she had to be a widow in order to make a will. With voting rights initially tied to property ownership, blocking women's access to economic resources also meant denying their political rights.

The Gendering of Work and Wages and the Devaluation of Work Done in the Home

The advent of industrial capitalism in the nineteenth century brought new economic opportunities for men but closed options for women. As the gendered work that men and women performed within the household economy was transferred to mill and factory, jobs were gendered. Little value and low pay was attached to tasks usually performed by women. For minority women, sex discrimination in employment compounded racial and ethnic discrimination, relegating them to jobs at the very bottom of the economic scale. Occupational segregation and lower wages, as well as unrecognized, uncompensated labor for those doing housework, left most women economically dependent on men. As a result, the feminization of poverty long predated the twentieth century. Those women who remained in the home performed work central to the history of U.S. labor. But because the home came to be seen as a place of refuge from work, women's labor there went unacknowledged and, was never assigned monetary value. In 2002, the U.S. Gross Domestic Product, the measure of the nation's total output, still did not include an estimate for the value of household work.

Although some women found new employment opportunities during the nineteenth century as secretaries, librarians, and school teachers, feminization of jobs once held by men resulted in a decline in pay and prestige. For those educated women seeking advanced training that could provide them entrée into better paying, male-dominated professions, universities served as gate keepers, barring their entry. Harvard Law School, for example, did not open its doors to female students until 1950.

Strategies For Improvement

Workers attempting to improve their position through protest and ultimately unionization found ready adherents among working-class women. Women weavers in Pawtucket, Rhode Island, who walked off work in 1824 were among the first American workers to strike against low wages and long hours. Yet for several reasons male union leaders were often reluctant to include women in organizing efforts. Men held the highly skilled jobs that carried greater leverage in the event of strikes. Women workers, who were for the most part young and single, were considered temporary members of the labor force. With marriage they were expected to return to their proper sphere, the home, where they could remain if male workers received the "family wage" unions sought. The assumption that women workers were neither interested in unionizing nor effective organizers was put to rest in the early years of the twentieth century by organizers such as Rose Schneiderman, Fannia Cohn, Pauline Newman, Clara Lemlich, and Lenora O'Reilly. Still in their teens and early twenties, these young women were successful in bringing half of all female garment work into trade unions by 1919. Nonetheless, women workers and their middle-and upper-class allies for the most part turned to government rather than unions for protection from exploitation.

The young female textile workers at Massachusetts' Lowell Mills were the first industrial workers in the nation to demand state regulation of the length of the workday. As more of the country industrialized, these demands were heeded. State legislators limited the workday to ten hours. In the late nineteenth and early twentieth century, the Supreme Court held that such statutes interfered with the right and liberty of the individual to contract his labor. Women reformers successfully argued that an exception should be made for laws limiting women's hours of labor on the basis of their physical vulnerability, especially during pregnancy. In the landmark case Muller v. Oregonbr />(1908), the Court upheld Oregon's ten-hour law for women on the basis of their role as child bearers. Yet without comparable legislation establishing a minimum wage, minimum hours legislation disadvantaged those women living at the margin of subsistence, who needed to work more hours to make a sufficient income. When minimum hours legislation was supplemented by laws preventing women from performing night work or "heavy" work, the restrictions were used to designate some better-paying skilled jobs as male. Minimum wage legislation did not follow until the New Deal.

While the Fair Labor Standards Act (1938) established a minimum wage for both men and women, it too proved a mixed blessing. Many women covered by the act were paid less than men for the same jobs, while others, such as domestics, were simply not included. Efforts to equalize wages for men and women gained momentum after World War II amidst popular sentiment that the nation was indebted to the large numbers of women who flooded factories and ship yards to meet the wartime need for armaments. Passage of the Equal Pay Act did not occur until 1963, in part because the legislation acknowledged women as workers in their own right, not just as temporary earners contributing to the family economy. Even some male union leaders supporting the legislation may have done so not out of a fundamental belief in gender equity but rather because they anticipated that equal pay legislation would play upon employers' gender bias, prompting them to hire male workers at the expense of female workers.

The new statute prohibited different pay for men and women when their jobs required equal skill, effort, and responsibility and were performed under similar work conditions. However, since occupational segregation resulted in so few jobs in which men and women performed the same tasks, foes of sex discrimination sought in the 1970s to enlarge what constitutes equal skill, effort, and responsibility by advocating equal pay for jobs of "comparable worth."

Some state and local governments reevaluated state and municipal jobs in an effort to see whether nurses, for example, were performing work that represented the same level of training, stress, and difficult working conditions as that performed by sanitation workers so that pay scales for undervalued jobs, usually those held by women, could be adjusted. This form of pay equity encountered fierce opposition from those who feared that widespread reevaluation of work done by government employees could impact salaries in the private sector. Some feminists also opposed the policy of equal pay through comparable worth, arguing that the wage gap between fully employed men and women could best be closed by attacking job segregation.

An important start had been made with congressional passage of the Civil Rights Act in 1964. Title VII prohibited sex-as well as race-based discrimination in employment, pay, and promotion and called for the establishment of an Equal Employment Opportunity Commission (EEOC) to monitor compliance with the law on the part of employers and labor unions. In addition, the federal government was obliged to undertake an affirmative action program that would provide equal employment opportunities to job applicants and employees. As later amended, the Civil Rights Act also barred discriminatory treatment of pregnant employees, who were often forced to resign as soon as they learned they were pregnant, thereby jeopardizing both their jobs and seniority. In 1978, an executive order amended the Civil Rights Act to set goals and a timetable for promoting women's access to jobs in construction, an industry in which electricians, plumbers, machinists, welders, and carpenters were almost 100 percent male and 100 percent white. Accompanied by additional legislation mandating equal educational opportunities, women in the 1970s had a far better chance of obtaining the specialized training that provided access to better paying blue-collar jobs as well as positions in professions traditionally monopolized by men.

Inequities also existed for women in the labor force with respect to benefits. Social Security provisions enacted in the 1930s reflected an era when many women were not in the labor force and most were presumed to be economically dependent on male wage earners who paid into Social Security. Consequently, wives meeting certain criteria upon the death of a spouse could collect small sums intended to allow them to stay at home and care for dependent children. Yet as more women moved into the workforce, it became clear that what they paid into Social Security did not entitle their spouse and children to the same benefits. The case of Weinberger v. Wisenfeld (1975) concerned a widower who, after his wife died in childbirth, was denied Social Security benefits that would allow him to stay home and care for his infant son. This case demonstrated that sex discrimination could cut both ways: when the law discounted women as workers it could result in inequity for male as well as female plaintiffs.

Sexual harassment was a term first used in the mid-1970s. For decades working women had endured covert or explicit sexual advances from supervisors and employers, sexual innuendos, derogatory references to their sexual activities or body parts, and unwelcome "flirting" and fondling by coworkers. Meritor Savings Bank v. Mechelle Vinson (1986) was the first in a series of decisions that defined this type of sex discrimination. Feminist legal scholar Catharine MacKinnon, one of the attorneys for Vinson, who claimed to be a victim of sexual harassment, named two forms of such behavior for the Supreme Court: 1) "quid pro quo": when sexual submission to a supervisor becomes, either implicitly or explicitly, a condition for employment; and (2) "offensive working environment": when the conduct of a supervisor, coworker, or client unreasonably interferes with an individual's work or creates an intimidating and hostile workplace. In a unanimous opinion, the Court found for Vinson, declaring that the intent of Congress in Title VII of the Civil Rights Act was "to strike at the entire spectrum of disparate treatment of men and women" in employment.

Later Gains and Persistent Problems

As the result of such policies and, not least, women's own determination to break down gender barriers, sex discrimination in the workplace decreased during the late twentieth century. Yet it by no means disappeared. Earnings differentials, while narrowing, especially for younger women, persisted. In 2000, full-time female workers earned 76 cents for every dollar earned by males. The difference was due to the fact that 80 percent of working women held gender-segregated positions where wages were artificially low. Women made up two-thirds of all minimum-wage workers in the United States, and as a consequence, women also make up two-thirds of poor Americans. Even in higher paying positions where equally credentialed young men and women start out with the same pay, differentials tended to increase over time for a variety of reasons. Barriers to upward mobility and higher pay sometimes came in the form of a "glass ceiling," which women had difficulty breaking through because of subtle but lingering gender bias. Other barriers arose from the fact that the workplace, designed originally for males, only slowly accommodated to women who usually bore the greater responsibility for care work, even in dual income families.

Major companies with highly skilled employees whom they wish to retain instituted family-friendly policies such as flexible time schedules, maternity leave, and child care facilities. But many small businesses, especially those employing less skilled workers, offered little to employees, some of whom were already working two jobs, to help offset the burden of wage work, care work, and house work. For the increasing number of women who were their families' sole breadwinner the burden was especially heavy.

At a time when women now constitute 46 percent of the labor force and 64.5 percent of all mothers with children under six work outside the home, a fundamental rethinking of both work and family are needed to minimize the gender disparities that have historically inhibited the achievement of economic parity between the sexes. Necessary too is an extension of family-friendly government policies. Passage of the 1993 Family and Medical Leave Act was a start, albeit a problematic one. In the early 2000s women constituted 46 percent of the labor force and 65 percent of all mothers with children under six worked outside the home. The 1993 Family and Medical Leave Act acknowledged the need for family-friendly government policies. The statute required employers of over fifty persons to grant up to twelve weeks of unpaid leave annually to all full-time employees who had been on the payroll for a year for family or personal medical emergencies, childbirth, or adoption. However most Americans could not afford three months without income. Unlike Japan and Western European countries that allowed for longer leaves and, more important, paid leaves, the United States was the only industrialized nation that did not provide paid maternity leave.

The fight against gender discrimination faced obstacles in the late twentieth century. Beginning with the Reagan Administration in 1981, measures instituted in the 1960s and 1970s that were intended to promoted gender equity were eroded through the appointment process, cuts in funding, and other measures. The EEOC, which once had the power to institute legal proceeding against companies where a pattern of sex-based discrimination could be determined statistically, was no longer the effective monitor of the workplace Congress originally intended. The controversial welfare laws of the 1990s required benefits recipients to make the transition to employment without providing the necessary supports of a living wage, child care, and health care.

In sum, the policies of the second half of the twentieth century eroded gender barriers, lessening the impact of sex discrimination. Women made significant inroads in traditionally male professions such as engineering and law. More women owned their own businesses and earned better wages—by 2002 one in five American women earned more than her husband. Yet in a highly stratified labor market, discrimination based on sex and compounded by race and ethnicity continued, though often in subtler forms than in the past. Occupational segregation, while weakened in some areas, remained intact in others. Nurses and secretarial workers were still over 90 percent female, while the work force in the construction industry remained 98 percent male. The feminization of poverty continued. In an era when the number of female-headed households continued to rise, those penalized were not just women but their children. Gender equity in the work place remained an elusive and essential goal.

BIBLIOGRAPHY

Baron, Ava, ed. Work Engendered: Towards a New History of American Labor. Ithaca, N.Y.: Cornell University Press, 1991.

Boydston, Jeanne. Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic. New York: Oxford University Press, 1990.

Goldin, Claudia. Understanding the Gender Gap: An Economic History of American Women. New York: Oxford University Press, 1989.

Jones, Jacqueline. Labor of Love, Labor of Sorrow: Black Women, Work, and the Family From Slavery to the Present. New York: Basic Books, 1985.

Kessler-Harris, Alice. Out to Work: A History of Wage-Earning Women in the United States. New York: Oxford University Press, 1982.

———. A Woman's Wage: Historical Meanings and Social Consequences. Lexington: University Press of Kentucky, 1990.

———. In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in Twentieth Century America. New York: Oxford University Press, 2001.

Orleck, Annelise. Common Sense and a Little Fire: Women and Working-Class Politics in the United States, 1900–1965. Chapel Hill: University of North Carolina Press, 1995.

Ruiz, Vicki L. From Out of the Shadows: Mexican Women in Twentieth Century America. New York: Oxford University Press, 1995.

Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: University of North Carolina Press, 1986.

White, Deborah. Ar'n't I a Woman?: Female Slaves in the Plantation South. New York: Norton, 1985.

Jane SherronDe Hart

See alsoCivil Rights and Liberties ; Gender and Gender Roles ; Minimum-Wage Legislation ; Women in Public Life, Business, and Professions ; andvol. 9:Letter to President Franklin D. Roosevelt on Job Discrimination ; NOW Statement of Purpose .

Sexual Orientation

This refers to the treatment of individuals based on their sexual orientation by other individuals and public or private institutions. People whose sexual orientation places them in minority categories, such as lesbians, homosexuals, and bisexuals, have sought legal protection from this type of discrimination. The political and legal fight against this discrimination has been the general aim of the gay rights movement, which established its presence in American society and politics with the 1969 Stonewall Riots in New York City.

Federal, state, and local civil rights legislation, as well as private corporate employment policy, is used to remedy this type of discrimination. In 1982, Wisconsin became the first state to legally ban discrimination based on sexual orientation in private and public sector employment. At the end of 2001, ten other states (California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, and Vermont), the District of Columbia, and 122 counties and cities had a similar ban in place. Public-sector employees in an additional ten states (Colorado, Delaware, Illinois, Indiana, Maryland, Montana, New Mexico, New York, Pennsylvania, and Washington), as well as in 106 cities and counties, have legal protection against this type of sexual discrimination. More than half of the Fortune 500 companies and 2,000 other corporate entities have policies banning discrimination based on sexual orientation.

On 28 May 1998 President William J. Clinton signed an executive order banning this type of discrimination against all civilian federal employees. This executive order affords protection to all civilians employed by all federal departments, including the Department of Defense. At the beginning of the first term of his presidency, Clinton sought to overturn the Department of Defense's policy of discharging gay and lesbian noncivilians. This action marked the first controversy of his administration, and resulted in the Department of Defense's 1993 policy that became known as "Don't Ask, Don't Tell." Still enforced in 2002, this policy prohibits military officers and other enlisted personnel from asking fellow noncivilians about their sexual orientation. It was implemented as an attempt to end the military's practice of discharging noncivilians from service because of their sexual orientation, but it did not end the practice. In fact, it apparently had the opposite effect: by 2001 the number of such discharges increased 73 percent from 1993, the year when the policy was implemented.

There have been other attempts at the federal level to ban this type of discrimination. First introduced in the U.S. Congress in 1994, the Employment Anti-Discrimination Act (ENDA) seeks to ban discrimination based on sexual orientation in private and public employment in the thirty-nine states that have not enacted this law. In 1996, the bill was narrowly defeated in the Senate by one vote. It was reintroduced in 2001 to the 107th Congress, but it still lacked a majority vote needed for passage. Despite the anti-discrimination bill's failure to gain passage in Congress, a 1999 Gallup poll showed that 89 percent of Americans favored banning workplace discrimination based on sexual orientation.

Legislation protecting against discrimination based on sexual orientation has sustained scrutiny by the U.S. Supreme Court. In the early 1990s, several cities and towns in Colorado enacted such anti-discrimination laws. These laws were overturned in 1992 when Coloradans approved Amendment 2, which outlawed throughout the state any legal protection against discrimination afforded to gays and lesbians. The constitutionality of Amendment 2 was tested in the case Romer v. Evans, which came before the Supreme Court in 1995. In 1996, a majority of Supreme Court justices ruled that Amendment 2 violated the equal protection clause in the Fourteenth Amendment to the U.S. Constitution. In 1998, however, the U.S. Supreme Court appeared to contradict its ruling when it refused to hear a challenge to Cincinnati's Issue 3. Issue 3 stated that the city could never pass any legislation remedying discrimination based on sexual orientation. Justices Stevens, Souter, and Bader Ginsburg noted that the Court's refusal to hear the case neither set new law nor precedent, and that the Court's decision was based upon uncertainty concerning Issue 3's legal scope and effect.

The issue of discrimination based on sexual orientation is a controversial one. In 2001, for example, the Maryland legislature passed a law banning such discrimination in the public and private sector. Subsequently, citizens in the state drew up a petition to subject the ban to a statewide referendum to be held the following year. By placing the ban on a referendum, the law's detractors were able to suspend its enforcement for a year until the vote on the referendum could take place. Nevertheless, despite the controversy, the movement to ban sexual discrimination continues to grow. The Human Rights Campaign Foundation reported that in 2002, 161 employers, including state and local governments, unions, colleges and universities, and private corporations, enacted for the first time policies that ban this type of discrimination.

BIBLIOGRAPHY

D' Emilio, John, William B. Turner, and Vaid Urvashi, eds. Creating Change: Sexuality, Public Policy, and Civil Rights. New York: St. Martin's Press, 2000.

State of the Workplace for Lesbian, Gay, Bisexual, and Transgendered Americans 2001. Washington, D.C.: The Human Rights Campaign Foundation, 2001.

State of the Workplace for Lesbian, Gay, Bisexual, and Transgendered Americans: A Semiannual Snapshot. Washington, D.C.: The Human Rights Campaign Foundation, 2002.

William B.Turner

See alsoDefense of Marriage Act ; Gay and Lesbian Movement ; Military Service and Minorities ; Homosexuals ; Sexual Orientation .

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Discrimination

Discrimination

SPECIFIC ANTI-DISCRIMINATION LEGISLATION AFFECTING THE WORKPLACE
OTHER MAJOR EEO LAWS
INTERPRETING EEO LAW
WORKPLACE DISCRIMINATION IN THE TWENTY-FIRST CENTURY
AFFIRMATIVE ACTION
BIBLIOGRAPHY

Discrimination, in an employment context, can be generally defined as treating an individual or group less well in recruiting, hiring, or any other terms and conditions of employment due to the person's or group's race, color, sex, religion, national origin, age, disability, or veteran's status. These categories are referred to as protected classifications because they are singled out for protection by equal employment opportunity (EEO) laws. Subcategories of people within each protected classification are referred to as protected groups. For example, male and female are the protected groups within the protected classification of sex. EEO legislation affords protection from illegal discrimination to all protected groups within a protected classification, not just the minority group. Thus, employment discrimination against a man is just as unlawful as that aimed at a woman. The lone exception to this rule concerns the use of affirmative action programs (discussed later), which, under certain circumstances, allow employers to treat members of certain protected groups preferentially.

In the United States, effective federal legislation banning employment-related discrimination did not exist until the 1960s, when Congress passed Title VII of the Civil Rights Act (1964). In the years since, several other important federal laws have been passed. In addition to the myriad federal laws banning discrimination on the basis of race, color, sex, religion, national origin, age, disability, and veteran's status, almost all states have anti-discrimination laws affecting the workplace. Most of these laws extend the protections in federal law to employers that are not covered by the federal statutes because of their size (Title VII for example, applies only to employers with 15 or more employees). Some state laws also attempt to prevent discrimination against individuals and groups that are not included in federal law. For example, approximately fourteen states have passed statutes protecting all workers in the states from employment discrimination based on sexual orientation, and

several other states prohibit public sector employers from discriminating on the basis of sexual orientation.

SPECIFIC ANTI-DISCRIMINATION LEGISLATION AFFECTING THE WORKPLACE

Title VII of the Civil Rights Act (CRA), passed in 1964, covers organizations that employ fifteen or more workers for at least twenty weeks during the year. Specifically, the law states: It shall be an unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. Interpretations of Title VII by courts have clarified the specific meaning of the prohibitions against discrimination. In general, it is safe to say that virtually any workplace decision involving personnel is subject to legal challenge on the basis of Title VII, including not only decisions made relative to recruiting and hiring, but also in relation to promotion, discipline, admission to training programs, layoffs, and performance appraisal. Harassment of applicants or employees because of their membership in a protected classification is also considered a violation of Title VII.

Title VII is probably the most valuable tool that employees have for remedying workplace discrimination because it covers the greatest number of protected classifications. If a court determines that discrimination has occurred, this law entitles the victim to relief in the form of legal costs and back pay (i.e., the salary the person would have been receiving had no discrimination occurred). For instance, suppose a woman sues a company for rejecting her application for a $35,000 per year construction job because the company unlawfully excludes women from this job. The litigation process takes two years and, ultimately, the court rules in the applicant's favor. To remedy this discrimination, the court could require the company to pay her legal fees and grant her $70,000 in back pay (two years' salary).

Title VII of the Civil Rights Act of 1964 has had an enormous impact on the human resource management (HRM) practices of many companies, as it forced them to take a close look at the way they recruit, hire, promote, award pay raises, and discipline their employees. As a result of this self-scrutiny, many firms have changed their practices, making them more systematic and objective. For instance, most firms now require their supervisors to provide detailed documentation to justify the fairness of their disciplinary actions, and many firms are now more cautious with regard to their use of employment tests that restrict the employment opportunities for certain protected groups.

A number of Supreme Court decisions in the mid to late 1980s made discrimination claims under Title VII more difficult for employees to substantiate. To put more teeth into the law, Congress amended it by enacting the Civil Rights Act of 1991. This 1991 amendment expanded the list of remedies that may be awarded in a discrimination casethe employer now has more to lose if found guilty of discrimination. In addition to legal fees and back pay, an employer may now be charged with punitive and compensatory damages (for future financial losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life). The cap for these damages ranges from $50,000 to $300,000 depending on the size of the company. Employees are entitled to such damages in cases where discrimination practices are engaged in with malice or reckless indifference to the legal rights of the aggrieved individual (e.g., the employer is aware that serious violations are occurring, but does nothing to rectify them).

Moreover, the CRA of 1991 adds additional bite to the 1964 law by providing a more detailed description of the evidence needed to prove a discrimination claim, making such claims easier to prove. The CRA of 1991 also differs from the 1964 law by addressing the issue of mixed-motives cases. The CRA of 1991 states that mixed-motive decisions are unlawful. That is, a hiring practice is illegal when a candidate's protected group membership is a factor affecting an employment decision, even if other, more legitimate factors are also considered. For instance, a company rejects the application of a woman because she behaves in an unladylike mannershe is too aggressive for a woman, wears no makeup, and swears like a man. The company is concerned that she would offend its customers. The employer's motives are thus mixed: its concern about offending customers is a legitimate motive; its stereotyped view of how a lady should behave is a discriminatory one.

Congress introduced another bill, the Civil Rights Act of 2008, intended to restore the right of individuals and to challenge practices that have an unjustified discriminatory effect based on race, color, national origin, disability, age, or gender. The bill, ultimately defeated, was questioned by some, as it stated that allowing employers to hire illegal aliens undermine[s] the living standards and working conditions of all Americans.

OTHER MAJOR EEO LAWS

The Equal Pay Act of 1963 prohibits discrimination in pay on the basis of sex when jobs within the same company are substantially the same. The company is allowed to pay workers doing the same job differently if the differences are based on merit, seniority, or any other reasonable basis other than the workers' gender. In 2008, the Lilly Ledbetter Fair Pay Act (the Fair Pay Restoration Act) would have reversed the Supreme Court decision

that takes away the ability of women workers to sue for wage discrimination. However, it failed to get the 60-vote majority that it needed for Senate passage.

The Age Discrimination in Employment Act (ADEA) of 1967 bans employment discrimination on the basis of age by protecting applicants and employees who are forty or older. The ADEA applies to nearly all employers of twenty or more employees. The ADEA protects only older individuals from discrimination; people under forty are not protected. The act also prohibits employers from giving preference to individuals within the forty or older group. For instance, an employer may not discriminate against a fifty-year-old by giving preference to a forty-year-old. Except in limited circumstances, companies cannot require individuals to retire because of their age.

The Vocational Rehabilitation Act of 1973, a precursor to the 1990 passage of the Americans with Disabilities Act, requires employers who are federal contractors ($2,500 or more) to take proactive measures to employ individuals with disabilities. This law is limited in application since it only applies to federal agencies and businesses doing contract work with the government.

The Vietnam Veterans' Readjustment Assistance Act, passed in 1974, requires employers who are government contractors ($10,000 or more) to take proactive steps to hire veterans of the Vietnam era. The scope of this law is also limited by the fact that only government contractors must comply.

The Pregnancy Discrimination Act of 1978 amended the CRA of 1964 by broadening the interpretation of sex discrimination to include pregnancy, childbirth, or related medical conditions. It prohibits discrimination against pregnant job applicants or against women who are of child-bearing age. It states that employees who are unable to perform their jobs because of a pregnancy-related condition must be treated in the same manner as employees who are temporarily disabled for other reasons. It has also been interpreted to mean that women cannot be prevented from competing for certain jobs within a company just because the jobs may involve exposure to substances thought harmful to the reproductive systems of women.

The Immigration Reform and Control Act (IRCA) of 1986 prohibited discrimination based on national origin and citizenship. Specifically, the law states that employers of four or more employees cannot discriminate against any individual (other than an illegal alien) because of that person's national origin or citizenship status. In addition to being an anti-discrimination law, this act makes it unlawful to knowingly hire an unauthorized alien. At the time of hiring, an employer must require proof that the person offered the job is not an illegal alien.

The Americans with Disabilities Act (ADA) of 1990 was designed to eliminate discrimination against individuals with disabilities. The employment implications of the act, which are delineated in Titles I (private sector) and II (public sector) of the ADA, affect nearly all organizations employing fifteen or more workers. According to the act, an individual is considered disabled if he or she has a physical or mental impairment that substantially limits one or more of the individual's major life activities, such as walking, seeing, hearing, breathing, and learning, as well as the ability to secure or retain employment. In the years since passage of the legislation, the courts have applied a fairly broad definition of disability. The ADA only protects qualified individuals with a disability. To win a complaint, an individual who has been denied employment because of a disability must establish that, with accommodation (if necessary), he or she is qualified to perform the essential functions of the job in question. To defend successfully against such a suit, the employer must demonstrate that, even with reasonable accommodation, the candidate could not perform the job satisfactorily, or it must demonstrate that the accommodation would impose an undue hardship. The ADA defines undue hardship as those accommodations that require significant difficulty to effect or significant expense on the part of the employer.

An example of an ADA case would be one in which an employee is fired because of frequent absences caused by a particular disability. The employee may argue that the employer failed to offer a reasonable accommodation, such as a transfer to a part-time position. The employer, on the other hand, may argue that such an action would pose an undue hardship in that the creation of such a position would be too costly.

INTERPRETING EEO LAW

It is clear from the preceding discussion that an employer may not discriminate on the basis of an individual's protected group membership. But exactly how does one determine whether a particular act is discriminatory? Consider the following examples:

Case 1: A woman was denied employment as a police officer because she failed a strength test. During the past year that test screened out 90 percent of all female applicants and 30 percent of all male applicants.

Case 2: A woman was denied employment as a construction worker because she failed to meet the company's requirement that all workers be at least 5 feet 8 inches tall and weigh at least 160 pounds. During the past year, 20 percent of the male applicants and 70 percent of the female applicants have been rejected because of this requirement.

Case 3: A female accountant was fired despite satisfactory performance ratings. The boss claims she has violated company policy by moonlighting for

another firm. The boss was heard making the comment, Women don't belong in accounting, anyway.

Case 4: A male boss fired his female secretary because he thought she was too ugly, and replaced her with a woman who, in his opinion, was much prettier.

The Civil Rights Acts of 1964 and 1991 prohibit sex discrimination. Yet, knowing that sex discrimination is unlawful provides very little guidance in these cases. For instance, how important are the intentions of the employer? And how important are the outcomes of the employment decisions? In the first two cases, the employer's intentions seem to be noble, but the outcomes of the employment decisions were clearly disadvantageous to women. In the third case, the employer's intentions appear questionable, but the outcome may be fair. After all, the employee did violate the company policy. In the fourth case, the employer's intentions are despicable, yet the outcome did not adversely affect women in the sense that another member of her sex replaced the discharged employee.

To determine whether an EEO law has been violated, one must know how the courts define the term discrimination. In actuality, there are two definitions: disparate treatment and disparate impact. Disparate treatment is intentional discrimination. It is defined as treating people unfairly based on their membership in a protected group. For example, the firing of the female accountant in Case 3 would be an example of disparate treatment if the discharge were triggered by the supervisor's bias against female accountants (i.e., if men were not discharged for moonlighting). However, the employer's actions in Cases 1 and 2 would not be classified as disparate treatment because there was no apparent intent to discriminate.

While disparate treatment is often the result of an employer's bias or prejudice toward a particular group, it may also occur as the result of trying to protect the group members' interests. For instance, consider the employer who refuses to hire women for dangerous jobs in order to protect their safety. While its intentions might be noble, this employer would be just as guilty of discrimination as one with less noble intentions.

What about Case 4, where a secretary was fired for being too ugly? Is the employer guilty of sex discrimination? The answer is no if the bias displayed by the boss was directed at appearance, not sex. Appearance is not a protected classification. The answer is yes if the appearance standard were being applied only to women; that is, the company fired women but not men on the basis of their looks.

Disparate impact is unintentional discrimination, defined as any practice without business justification that has unequal consequences for people of different protected groups. This concept of illegal discrimination was first established by the Griggs v. Duke Supreme Court decision, handed down in 1971. Disparate impact discrimination occurs, for instance, if an arbitrary selection practice (e.g., an irrelevant employment test) resulted in the selection of a disproportionately low number of females or African Americans. The key notion here is arbitrary selection practice. If the selection practice were relevant or job-related, rather than arbitrary, the employer's practice would be legal, regardless of its disproportionate outcome. For example, despite the fact the women received the short end of the stick in Cases 1 and 2, the employer's actions would be lawful if the selection criteria (e.g., the strength test and height and weight requirements) were deemed job related. As it turns out, strength tests are much more likely to be considered job related than height and weight requirements. Thus, the employer would probably win Case 1 and lose Case 2.

WORKPLACE DISCRIMINATION IN THE TWENTY-FIRST CENTURY

The EEOC reported that nearly 7,000 racial harassment claims were filed in 2007, making it a record year for such cases. In one such case, Conectiv Energy and three sub-contractors reached a $1.65 million discrimination settlement with four African American employees who, while on the job, were subjected to racial slurs, KKK graffiti, and hanging nooses. However, defense contractor Lockheed Martin holds the record for the biggest individual racial discrimination settlement in U.S. history. In 2008, the company paid $2.5 million to an African American employee who was the recipient of death threats and racial slurs.

Sex-based discrimination complaints were also high in 2007. That year, the EEOC received 24,826 charges of sex-based discrimination. The Commission resolved 21,982 sex discrimination charges and recovered $135.4 million in monetary benefits for charging parties and other aggrieved individuals. This figure did not include monetary benefits obtained through litigation.

As of 2008, most states still did not have laws that protect homosexual people from discrimination in employment, housing, and health care. However, the spring of 2008 ushered in activity surrounding employment discrimination based on sexual orientation. A bill introduced in Congress would have prohibited employment discrimination based on sexual orientation. In May 2008, the California Supreme Court ruled that same sex couples have a constitutional right to marry, making California and Massachusetts the first two states to recognize such marriages. Homosexual employees argue that they are being under-compensated by not being able to provide benefits for their

domestic partners. This is a benefit usually granted to spouses and family members. California, since 2005, has had a law that requires employers to grant the same benefits to registered domestic partners as married spouses.

Finally, a study conducted about age discrimination revealed that even the use of ageist language has negative effects for companies and employees. Such phrases used in the workplace, like old goat or let's bring in the young guns, are linked to poor health and lower productivity of older workers. These comments can be costly for companies. In its 2006 fiscal year, the EEOC received nearly 17,000 workplace age discrimination charges and recovered nearly $52 million in monetary benefits.

AFFIRMATIVE ACTION

The aim of affirmative action is to remedy past and current discrimination. Although the overall aim of affirmative action is thus identical to that of EEO (i.e., to advance the cause of protected groups by eliminating employment discrimination), the two approaches differ in the way they attempt to accomplish this aim. EEO initiatives are color-blind, while affirmative action initiatives are color-conscious. That is, affirmative action makes special provisions to recruit, train, retain, promote, or grant some other benefit to members of protected groups (e.g., women, blacks).

In some cases, employers are legally required to institute affirmative action programs. For instance, Executive Order 11246, issued by President Lyndon Johnson, makes such programs mandatory for all federal government contractors. Affirmative action can also be court ordered as part of a settlement in a discrimination case. For example, in the 1970s, the state of Alabama was ordered by the Supreme Court to select one black applicant for each white hired as a state trooper. The purpose of this decree was to rectify the effects of past discrimination that had been blatantly occurring for several years.

Most firms, however, are under no legal obligation to implement affirmative action programs. Those choosing to implement such programs do so voluntarily, believing it makes good business sense. These firms believe that by implementing affirmative action they can (1) attract and retain a larger and better pool of applicants, (2) avoid discrimination lawsuits, and (3) improve the firm's reputation within the community and its consumer base.

Affirmative action implementation consists of two steps. First, the organization conducts an analysis to identify the underutilized protected groups within its various job categories (e.g., officials and managers, professionals, service workers, sales workers). It then develops a remedial plan that targets these underutilized groups. A utilization analysis is a statistical procedure that compares the percentage of each protected group for each job category within the organization to that in the available labor market. If the organizational

Exhibit 1 Affirmative Action Options

Always Legal

  1. Do nothing special, but make sure you always hire and promote people based solely on qualifications.
  2. Analyze workforce for underutilization.
  3. Set goals for increasing the percentage of minorities employed in jobs for which they are underutilized.
  4. Remove artificial barriers blocking the advancement of minorities.
  5. Create upward mobility training programs for minorities.
  6. Advertise job openings in a way that ensures minority awareness (e.g., contact the local chapter of NOW or the NAACP).
  7. Impose a rule that states that a manager cannot hire someone until there is a qualified minority in the applicant pool.
    Sometimes Legal
    (depends on the severity of the under-utilization problem)
  8. Impose a rule that when faced with two equally qualified applicants (a minority and non-minority), the manager must hire the minority candidate.
  9. Impose a rule that when faced with two qualified applicants (a minority and non-minority), hire the minority even if the other candidate has better qualifications.
  10. Set a hiring quota that specifies one minority hiring for every non-minority hiring.
    Never Legal
  11. Do not consider any non-minorities for the position. Hire the most qualified minority applicant.
  12. Fire non-minority employee and replace him or her with a minority applicant.

percentage is less than the labor-market percentage, the group is classified as being underutilized.

For example, the percentage of professionals within the organization who are women would be compared to the percentage of professionals in the available labor market who are women. The organization would classify women as being underutilized if it discovered, for instance, that women constitute 5 percent of the firm's professionals, and yet constitute 20 percent of the professionals in the available labor market.

The second step is to develop an affirmative action plan (AAP) that targets the underutilized protected groups. An AAP is a written statement that specifies how the organization plans to increase the utilization of targeted groups. The AAP consists of three elements: goals, timetables, and action steps.

The action steps specify how the organization plans to reach its goals and timetables. Action steps typically include such things as intensifying recruitment efforts, removing arbitrary selection standards, eliminating work-place prejudices, and offering employees better promotional and training opportunities.

When a company initiates an AAP as a remedy for under-utilization, it attempts to bring qualified women or minorities into the workplace to make it more reflective of the population from which the employees are drawn. This

practice sometimes involves the use of preferential treatment or giving members of underutilized groups some advantage over others in the employment process. The use of preferential treatment has triggered a storm of controversy, as detractors point to the seemingly inherent lack of fairness in giving preference to one individual over another based solely on that person's race or gender. Supporters, however, believe that preferential treatment is sometimes needed to level the playing field. The U.S. Supreme Court has ruled that preferential treatment is legal if engaged in as part of a bona fide affirmative action program that is designed to remedy underutilization. The AAP, however, must be temporary, flexible, and reasonable.

Opponents of affirmative action programs argue that reverse discrimination has resulted from some AAPs. For example, programs designed to ensure that women receive a higher education have been very effective; they now outnumber white males in college classrooms and white males are having a much harder time getting accepted. This could have future implications for the workplace.

Some states are considering doing away with affirmative action in government funded projects and public schools. In the 2008 election, voters in Arizona, Colorado, Missouri, Nebraska, and Oklahoma may get the chance to vote on the initiative: The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

Some AAP and diversity programs are considered counterproductive. In a Harvard review of diversity programs data filed by companies to the EEOC in 2006, it was discovered that initiatives aimed at reducing bias at the top levels of a company resulted in a 6 percent decline in the proportion of black women in management.

SEE ALSO Affirmative Action; Employee Recruitment Planning; Employee Screening and Selection; Employment Law and Compliance

BIBLIOGRAPHY

Barnett, T., A. McMillan, and W. McVea. Employer Liability for Harassment by Supervisors: An Overview of the 1999 EEOC Guidelines. Journal of Employment Discrimination Law 2, no. 4 (2000): 311315.

Barnett, T. and W. McVea. Preemployment Questions Under the Americans with Disabilities Act. SAM Advanced Management Journal 62 (1997): 2327.

Clark, M. M. Religion vs. Sexual Orientation. HR Magazine 49, no. 8 (2004): 5459.

Dessler, G. Human Resource Management. 10th ed. Upper Saddle River, NJ: Prentice-Hall, 2005.

Giddens, Brent. Same Sex MarriageWhat does it Mean for California Employers. 19 June 2008. Available from: http://www.callaborlaw.com/archives/court-decisions-same-sex-marriage-what-does-it-mean-for-california-employers.html.

Key Workplace Trends & Impact to Human Resources. 18 Mar. 2008. Available from: http://www.belmont.edu/hr/pdf/Revised%20Workplace%20Trends%20March%202008.ppt.

Kleiman, L.S. Human Resource Management: A Tool for Competitive Advantage. Cincinnati: South-Western College Publishing, 2000.

Kleiman, L.S., and R.H. Faley. Voluntary Affirmative Action and Preferential Treatment: Legal and Research Implications. Personnel Psychology 77, no. 1 (1988): 481496.

Montgomery, Lori. Senate Republicans Block Pay Disparity Measure. Washington Post 24 Apr 2008. Available from: http://www.washingtonpost.com/wp-dyn/content/article/2008/04/23/AR2008042301553.html.

Okamura, Angela and Katie McCown. Congress Introduces Civil Rights Act of 2008. civilrights.org 24 Jan 2008. Available from: civilrights.org.

Racial Harassment Cases Continue to Rise After Record Year. 8 May 2008. Available from: http://blog.diversityjobs.com/racial-harassment-cases-continue-to-rise.

Rodriguez, Juan. Ageist Language in the Workplace Impacts Productivity, Employee Health, and the Bottom Line. Diversityjobs.com 24 Apr 2008. Available from: http://www.diversityjobs.com/ageist-language-in-the-workplace-impacts-productivity-employee-health-and-bottom-line.

Royce, Cindy. Affirmative Action Ban Heads for Ballot in 5 States. CNNPolitics.com 7 Mar 2008. Available from: http://www.cnn.com/2008/POLITICS/03/07/affirmative.action/.

Sexuality and Public Policy. News Batch June 2008. Available from: http://www.newsbatch.com/sex.htm.

Smith, M.A., and C. Charles. Title VII of the Civil Rights Act of 1964. Georgetown Journal of Gender and the Law 5, no. 1 (2004): 421476.

Stodghil, Ron. Is There Room at the Top for Black Executives? New York Times 1 Nov 2007. Available from: http://www.nytimes.com/2007/11/01/business/01generation.html?pagewanted=print.

Wolkinson, B.W., and R.N. Block. Employment Law. Cambridge, MA: Blackwell, 1996.

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Discrimination

Discrimination

LABOR-MARKET DISCRIMINATION

NONCOMPETITIVE MODELS OF LABOR-MARKET DISCRIMINATION

MEASURING LABOR-MARKET DISCRIMINATION

CONCLUSION

BIBLIOGRAPHY

The online version of the American Heritage Dictionary of the English Language (2000) defines discrimination as, Treatment or consideration based on class or category rather than individual merit; partiality or prejudice. Discrimination is a broad and multidimensional concept that covers all acts of preferring one thing, person, or situation over another (Block and Walker 1982, p. 6). In this broad sense, discriminatory behavior can occur within many economic or social activities of daily life. For example, the preference of a high school basketball coach for a taller player over a shorter one in selecting a team or an employer paying an African American worker less than a white worker for the same work would both fall under the heading of discrimination. While the latter act carries an unambiguously negative connotation, few people would consider the former act to be malevolent. Thus, discriminatory behavior does not always imply injustice or prejudice. While understanding this distinction is important, a more relevant discussion of discrimination should emphasize the types of discriminatory acts that are socially and economically unjust, the type of acts that have caused the word discrimination to gain an unambiguously negative meaning. Denying or restricting equal opportunity in housing, education, and employment to members of a certain demographic group, such as African Americans, women, or other minority groups, constitutes an act of discrimination that violates common notions of social and economic justice and points to a need for policy intervention.

LABOR-MARKET DISCRIMINATION

One of the most common forms of discrimination, labormarket discrimination refers to differential treatment of workers within the labor market. It occurs when individual workers with identical productivity characteristics are treated differently with respect to hiring, occupational access, promotion, wage rate, or working conditions because of the demographic groups to which they belong.

Taste for Discrimination Gary Becker, the 1992 Nobel Prize recipient in economics, laid the groundwork for the mainstream economic approach to the analysis of discrimination in The Economics of Discrimination (1957). Beckers theory of discrimination represents an example of the neoclassical economics approach. He introduces the concept of taste for discrimination to translate the notion of discrimination into the language of economics. According to Becker:

If an individual has a taste for discrimination, he must act as if he were willing to pay something, either directly or in the form of reduced income, to be associated with some persons instead of others. When actual discrimination occurs, he must, in fact, either pay or forfeit income for this privilege. This simple way of looking at the matter gets at the essence of prejudice and discrimination. (Becker 1957, p. 14)

Employer Discrimination In cases of employer discrimination, employers with a taste for discrimination act as if employing, for example, African American workers imposes psychological costs that they are willing to pay. The measure of their willingness to pay can be translated into monetary terms by the discrimination coefficient. To illustrate, suppose that the costs to an employer of employing an African American worker and a white worker are Waa and Ww, respectively. If the employer possesses a taste for discrimination against the African American worker, he will act as if the actual cost were W aa(1 + d), where d, a positive number, is the discrimination coefficient. The prejudiced employer will be indifferent when choosing between a white worker and an African American worker when the cost of hiring each worker is, to him, equalthat is, Ww = Waa (1 + d). A clear implication is that the African American worker will be hired by the discriminating employer only if his wage rate is below that of a white worker. More precisely, the African American worker will only be hired if his wage rate is less than that of a white worker by at least the amount of the discrimination coefficient.

Employee Discrimination The source of discrimination may also be the prejudice of fellow employees. For instance, white workers may possess discriminatory preferences against African American workers and avoid situations where they have to work alongside them. The extent of employee prejudice can be monetized by the discrimination coefficient, using an analogy parallel to employer discrimination. A white worker who is offered a wage Ww for a job will act as if this wage rate is only W w(1 d), where d is the white workers discrimination coefficient. The white worker will agree to work with African Americans only if he or she is paid a premium equal to Wwd.

Customer Discrimination Another source of discrimination in the labor market results from the prejudice of customers. For example, white customers may prefer to be served by white workers, which would reduce the demand for goods and services sold or served by African American workers. More formally, suppose the actual price of a good or a service is p. Then a white customer would act as if the price of this good or service were p(1 + d) when faced with an African American worker. One of the implications of customer discrimination is that it would result in a segregated workforce within a firm, with white workers being placed in positions with high customer contact and African Americans working in positions with minimal customer interaction.

Predictions of Beckers Theory One of the predictions of Beckers theory is that the labor market will become completely segregated over time. This prediction can be illustrated using employee discrimination. In the presence of employee discrimination, nondiscriminating and profit-maximizing employers would never choose to hire both white and African American workers because employers want to avoid paying a premium to white workers. Instead, they would hire only African American workers who offer the same productivity as whites at a lower wage.

Another prediction of Beckers theory is that discrimination cannot persist in the long run in a competitive market where firms can enter and exit freely. This is because free entry by nondiscriminating employers will force discriminating employers out of the market. For example, nondiscriminating employers will hire equally productive African American workers at a wage that is lower than that offered to white workers. Nondis-criminating firms thus have a cost advantage over discriminating firms, and the forces of competition would drive the discriminating firms out of business. As more nondis-criminating firms enter the market, the demand for minority workers will rise, which will gradually erode the wage differentials between different groups of workers. Therefore, Beckers theory suggests that policies aimed at lessening or eliminating barriers to competition in the market place should help reduce discrimination and wage differentials.

Economists have widely tested the predictions made by Beckers model. For example, Orley Ashenfelter and Timothy Hannan (1986), using data from the banking sector, showed that the share of women employed in a firm is negatively related to the extent of competition in a geographical area. Another study by Judith Hellerstein, David Neumark, and Kenneth Troske (2002) found that, among plants with high levels of market power, those that employ more women are more profitable than those employing fewer women; no such relationship was found for plants with low levels of market power. These findings are consistent with Beckers prediction that discrimination can exist in situations where firms possess market power.

Although Beckers analysis of discrimination has found wide support among economists, criticism has been raised about the predictions of the theory. For example, it has been pointed out that, despite the models predictions, competitive market forces have not eliminated discrimination, and wage disparities between different demographic groups have not completely disappeared (Darity and Mason 1998). Others have shown that the prediction of a segregated market does not accord with todays real world; furthermore, more segregated workforces tend to generate more wage inequality, not less (Mason 1999). There is also evidence of skin-tone differences in wages among under-represented minorities (Mason 2004). Finally, several studies find that market competition does not decrease the degree of discrimination practiced within a sector, as predicted by Becker (Coleman 2004; Agesa and Hamilton 2004). Alternative theories of discrimination have been proposed to provide explanations for these issues.

Statistical Discrimination Discriminatory behavior can also occur because employers have limited information about the productivity characteristics of potential employees. Therefore, employers hiring decisions may rely on average group characteristics based on factors such as race and gender. As a result, individuals with identical productivity characteristics will have different labor-market outcomes because of the average quality of the group to which they belong. Judging individuals on the basis of their average group characteristics is referred to as statistical discrimination.

For example, suppose an employer has to choose between a male and female job applicant. Assume further that the observable personal characteristics of these two applicants, such as age, years of education, previous work experience, test scores, and recommendation letters, are identical and that both of them performed equally well at the job interview. An employer, having to make a hiring decision between the two applicants, may decide to offer the job to the male applicant based on the employers belief that female workers are more likely to quit their jobs than their male counterparts because women are likely to engage in childrearing. The employer makes a decision using statistics about the average group characteristics of the applicants. It is important to note that the statistical information used by the employer may or may not be accurate. In this example, whether or not women actually have higher quit rates than men is not relevant to the hiring outcome. While the behavior of some employers engaging in statistical discrimination could be rooted in prejudice, it is also possible that these actions are based purely on nonmalicious grounds. Statistical discrimination can result from decisions that may be correct, profitable, and rational on average.

Statistical discrimination helps explain how racial and gender differences between workers of equal productivity can exist in the labor market. It also explains how discrimination can persist over time. Unlike Beckers taste-for-discrimination model, the employer does not suffer monetarily from practicing statistical discrimination. On the contrary, the discriminating employer can benefit from this behavior by minimizing hiring costs. Therefore, there is no compelling reason for discrimination, and wage differentials between males and females or African Americans and whites tend to disappear in the long run in the presence of statistical discrimination.

While much of the focus on statistical discrimination concerns the labor market, such practices can be observed in different sectors of society as well. One nonmarket example of statistical discrimination is the observed racial differentials in policing patterns. John Knowles, Nicola Persico, and Petra Todd (2001) found that police search vehicles driven by African American motorists for illegal drugs and other contraband far more frequently than those of white motorists. If the motive behind this police behavior is the belief that African Americans are more likely to commit the types of traffic violations that police use as pretexts for vehicle searches, this type of behavior is an example of statistical discrimination.

However, William Darity and Patrick Mason (1998, p. 83) argue that statistical discrimination cannot be a plausible explanation for long-lasting discrimination. They assert that employers should realize that their beliefs are incorrect if average group differences are perceived but not real. If, on the other hand, these differences are real, then employers should develop methods to measure future performance accurately rather than engaging in discriminatory behavior, especially in a world with strict antidiscrimination laws.

NONCOMPETITIVE MODELS OF LABOR-MARKET DISCRIMINATION

The models of discrimination discussed above assume that firms operate in competitive markets. However, discriminatory motives can also be drawn from circumstances in which employers possess some degree of market power in wage determination. Alternative explanations of discrimination have been offered for these circumstances.

One of these alternative explanations is occupational crowding. The occupational crowding model of discrimination, advanced by Barbara Bergmann (1971), hypothesizes that labor-market disparities between African American workers and white workers (or males and females) are not due to a taste for discrimination by employers, but rather to a deliberate policy of segregating African American workers (or females) into lower-paid occupations. Crowding these groups into low-paying occupations and limiting their access to other occupations reduces their marginal productivity in comparison with that of white (or male) workers. At the same time, the exclusion of minorities from high-paying jobs pushes up the wages of whites, including those who might earn lower wages in the absence of discrimination.

However, profit-maximizing motives should induce some firms to start replacing higher-paid white (or male) workers with equally productive but cheaper African American (or female) workers. This process would eventually eliminate wage disparities between the two groups. In this case, the observed wage disparities can be explained by the presence of noncompetitive forces, such as barriers to worker mobility between occupations.

An alternative explanation of discrimination in the context of a noncompetitive market was developed by the British economist Joan Robinson (1933). Robinson argued that in a monopsonistic market (a labor market with a single employer), profits can be increased by discriminating against some workers if the labor supply elasticity (responsiveness to wages) of African American (or female) workers is less than that of white (or male) workers. Although this model offers a plausible explanation for monopsonistic markets, its applicability is limited because these types of markets are relatively rare.

Another explanation for discrimination was put forth by radical economist Michael Reich (1981). Reich criticized the neoclassical approach to discrimination on several grounds and offered an alternative explanation based on class conflict. According to Reich, a firms output and profitability depend not only on the amount of labor hired, but also on the level of collective action or bargaining power among workers within the firm. He further argued that bargaining power is a function of the wage and employment disparities between African Americans and other workers in the firm. Therefore, discriminatory practices, such as paying equally productive African American workers less than white workers or denying employment to African Americans, generates animosity in the work force, which reduces the bargaining power of workers. As a result of the workers weakened bargaining power, employers are able earn more profits. Unlike Beckers model, a competitive employer is a direct beneficiary of discrimination in Reichs model.

Another economist, William Darity (1989), criticized Reichs emphasis on the employer in the creation of class conflict and argued that racism among the white working class was not necessarily due to collusive behavior by capitalists, but rather to collective racist action by white workers. According to Darity, in a hierarchical society where occupations are stratified so that some occupations are preferred over others, discrimination occurs as members of different ethnic cultures fight over preferred occupations. One prediction of this explanation is that discrimination cannot be eliminated through government interventions like affirmative action that redistribute occupational positions; it can only be rooted out by eliminating the social hierarchy, because it is the main source of ethnic conflict that results in discrimination.

Patrick Mason (1999) showed that if workers face differential conditions of labor supply, if employers are able to limit the power of labor coalitions, and if racial identity is an important factor in job competition among workers, then competitive profit-maximizing firms may persistently discriminate in their labor-market decisions.

MEASURING LABOR-MARKET DISCRIMINATION

Although it is relatively easy to detect discrimination, it is much more difficult to measure it. The difficulty arises from the fact that not all the disparity between, say, the wages of African Americans and whites is due to labormarket discrimination. These two groups may also differ in their productive characteristics because of prelabor market discrimination (for example, African Americans receiving less and lower-quality education due to educational discrimination). Then, the disparity must be due in part to differences in the productivity characteristics between the groups. It is important to account for all of these productivity characteristics in order to obtain an unbiased estimate of the true measure of discrimination. After accounting for productivity characteristics, the residual in disparity would then represent a measure of discrimination.

CONCLUSION

Discrimination, whether it occurs in the form of denying employment, housing, or education to members of a particular group, places countless burdens on its victims and on society as a whole. These burdens are both economical and social. By provoking hostility between different groups, discrimination may undermine social harmony, leading to such undesirable social consequences as increased rates of crime. Discrimination also has adverse economic consequences because the earnings of those who face discrimination will be depressed and their career paths will suffer. As a result, the rate of poverty will increase among these groups. The negative consequences of poverty on education, health, crime, and the overall economy will further increase the costs of discrimination for society. Furthermore, many of these negative effects are likely to persist over generations. Thus, discrimination will not only place a cost on its current victims, it will also punish future generations, even if these future generations live in a society without discrimination.

Although the discussion above focuses on discrimination based on race or gender, discriminatory behaviors can and do target all minority groups, including the elderly, teenagers, the disabled, homosexuals, ethnic groups such as Hispanics, and members of certain religions such as Jews and Muslims.

SEE ALSO Discrimination, Racial; Discrimination, Statistical; Discrimination, Taste for; Discrimination, Wage; Discrimination, Wage, by Age; Discrimination, Wage, by Gender; Discrimination, Wage, by Occupation; Discrimination, Wage, by Race

BIBLIOGRAPHY

Agesa, Jacqueline, and Darrick Hamilton. 2004. Competition and Wage Discrimination: The Effects of Interindustry Concentration and Import Penetration. Social Science Quarterly 85 (1): 121135.

The American Heritage Dictionary of the English Language. 2000. 4th ed. Boston: Houghton Mifflin. http://www.bartleby.com/61/.

Ashenfelter, Orley, and Timothy Hannan. 1986. Sex Discrimination and Product Market Competition: The Case of the Banking Industry. Quarterly Journal of Economics 101: 149174.

Becker, Gary S. 1957. The Economics of Discrimination. Chicago: University of Chicago Press.

Bergmann, Barbara. 1971. The Effect on White Incomes of Discrimination in Employment. Journal of Political Economy 79 (2): 294313.

Block, Walter E., and Michael A. Walker. 1982. The Plight of the Minority. In Discrimination, Affirmative Action, and Equal Opportunity: An Economic and Social Perspective, eds. Walter E. Block and Michael A. Walker, 6. Vancouver, BC: Fraser Institute.

Coleman, Major G. 2004. Racial Discrimination in the Workplace: Does Market Structure Make a Difference? Industrial Relations 43 (3): 660689.

Darity, William, Jr. 1989. Whats Left of the Economic Theory of Discrimination? In The Question of Discrimination: Racial Inequality in the U.S. Labor Market, eds. Steven Shulman and William Darity Jr., 335374. Middletown, VT: Wesleyan University Press.

Darity, William, Jr., and Patrick L. Mason. 1998. Evidence on Discrimination in Employment: Codes of Color, Codes of Gender. Journal of Economic Perspectives 12 (2): 6390.

Hellerstein, Judith K., David Neumark, and Kenneth R. Troske. 2002. Market Forces and Sex Discrimination. Journal of Human Resources 37 (2): 353380.

Knowles, John, Nicola Persico, and Petra Todd. 2001. Racial Bias in Motor Vehicle Searches: Theory and Evidence. Journal of Political Economy 109 (1): 203229

Mason, Patrick L. 1999. Male Interracial Wage Differentials: Competing Explanations. Cambridge Journal of Economics 23: 139.

Mason, Patrick L. 2004. Annual Income, Hourly Wages, and Identity among Mexican Americans and Other Latinos. Industrial Relations 43 (4): 817834.

Reich, Michael. 1981. Racial Inequality: A Political-Economic Analysis. Princeton, NJ: Princeton University Press.

Robinson, Joan. 1933. Economics of Imperfect Competition. London: Macmillan.

Erdal Tekin

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Discrimination

DISCRIMINATION.

Discrimination should be understood as action and therefore distinguished from prejudice, which is a matter of thought, attitude, or belief. Racial discrimination then would consist of social action that produces unjust allocation of valued resources, based on racial categorizations of individuals or groups (Banton; Kairys, 1996). This is the standard definition and still serves in many cases: where race is concerned, it provides basic standards for distributional justice, and it permits one to disaggregate prejudice and discrimination (Merton). What the standard definition does not provide, however, is a link between unjust action and social structure, and this presents serious difficulties both for social thought and for social justice.

Patterns and understandings of racial discrimination have undergone significant change during the years since World War II. Such long-established practices of racial favoritism as the South African apartheid system and the system of state-enforced racial segregation in the U.S. South (that is, "Jim Crow") have been overturned in a complex sociopolitical process that combined sustained social movement activity with state-based racial reform. As a result, the formal (de jure) rules and agencies of racial preference have been largely if not entirely jettisoned, and explicit practices of discrimination on the part of resource holders and gatekeepers, such as employers, landlords, service providers, and schools to name but a few, have been stigmatized, though these practices often persist in more concealed and publicly deniable fashions.

It is undoubtedly a significant issue that an individual, group, or agency unfairly withholds resources (say, mortgages, university admissions, or trade union membership cards), denying access on an equal basis to persons of a negatively valued racial identity or, conversely, granting privileged access to persons of a favored racial group. But action of this type is identifiable and sanctionable, precisely because it is action: that is, transitive and predicated in the material present. Of course, such action often is not identified and very often is not sanctioned; it remains widely accepted or at least tolerated. But it is at least recognizable and comprehensible as the work of particular subjects, whether individual or collective.

Past racial discrimination, though, is much more difficult to address directly. Because discriminatory action is accretive and cumulative over time, especially over long durations, its effects can be felt without the presence of any active agent. Prolonged, transgenerational access to socially valued resources, such as elite university degrees, high-status jobs and professions, political power, and culturally afforded honor of various kinds (not to mention wealth), is facilitated by belonging to the "right" racial group (Harris; Feagin). Conversely, impeded opportunities, low status, culturally attributed dishonor (e.g., stereotypes of laziness, ugliness, or low intelligence), and frequently impoverishment are all outcomes of prolonged, transgenerational denial of access to resources and opportunities (Oliver and Shapiro; Brown et al.).

Thus racial discrimination is more than social action; in its repeated and reiterated forms it develops into a social structure. It becomes habitual and is taken for granted in all sorts of invisible ways: in the design of neighborhoods, the making of foreign policy or tax policy, or the writing of television news; in the way one is addressed by a policeman, treated by a doctor, or expected to speak the language.

This invisible structural discrimination evades attempts to regulate it, for example, through the law. After the 1960s civil rights reforms of state racial policy in the United States, for example, and after the 1994 dismantling of the apartheid regime in South Africa as well, the social structure of discrimination still exhibited a great deal of resilience (Winant; Zegeye). Some of this persistence may be attributable to the weakness of reform policy and the reluctance of courts to intervene strongly in sanctioning discriminatory practices (Kairys, 1993; Ezorsky), but a great deal of discrimination escapes public attention (sometimes even from those it damages) because it has little or no active agent, is hardly or not at all the work of intention, and is regarded as normal practice. This "transparent" discrimination in effect has no living perpetrators; it is the legacy of such past practices as slavery and colonial rule.

The presence of structural racial discrimination also has the effect of legitimating much intentional discrimination, which can be rendered agentless simply by the refusal to intervene on behalf of principles of fairness or equality as resources of social value are allocated. In large-scale terms (such as determining housing or wage policies), in medium-scale terms (such as carrying out university admissions), and in small-scale terms (such as hailing a cab, or "driving while black"), present-tense, active racial discrimination is supported and camouflaged by structural discrimination.

Thus state regulation alone is insufficient to effectively eliminate discrimination. Of course, discrimination can be maintained by state regulation: notably in the United States but elsewhere as well, courts have demonstrated how effectively they can sustain discrimination at socially acceptable levels. For example, U.S. courts have established legal standards that turn on the demonstration of explicit intent to discriminate as the prerequisite for enforcement of civil rights laws. In response to this, explicit profession of an intention to discriminate has become quite rare, and active discriminators have learned to dissemble and mask their practices under such code words as "colorblindness" and "merit" (Brown et al.).

Far more intensive measures have been proposed to eliminate or at least seriously reduce structural discrimination. These measures would be based on a policy of redistribution of resources according to a compensatory formula, sometimes viewed as reparations for past discrimination, and would also contemplate large-scale social therapy and healing projects, such as have occurred after the fall of dictatorships and after the military defeat of repressive regimes. Examples of such intensive projects include the Reconstruction period after the U.S. Civil War (Du Bois), the promulgation of a new South African constitution after the end of apartheid in 1994, and the "denazification" and supervised democratization processes that followed the defeat of the Axis powers in 1945.

While juridical processes, such as trials of human rights abusers and state-sponsored commissions like the South African Truth and Reconciliation Commission (TRC) or the Argentine National Commission on the Disappeared (CONADEP), might be expected to play a role in these transformations (Weschler), important work also would have to be undertaken at the level of civil society, of everyday life. Such activity would require an advanced commitment to democracy. Some of the TRC's innovations, such as provision of guarantees of nonretribution to those who acknowledged their own abusive practices, may serve as an initial model. While developing the large-scale dedication needed for such intensive antidiscrimination measures would be very difficult, preliminary work done by movement activists and scholars on the implementation of reparations suggests future directions (Bittker; Brooks; Dawson and Popoff).

See also Apartheid ; Prejudice ; Race and Racism ; Segregation .

bibliography

Banton, Michael P. Discrimination. Philadelphia: Open University Press, 1994.

Bittker, Boris I. The Case for Black Reparations. New York: Random House, 1973.

Brooks, Roy L., ed. When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice. New York: New York University Press, 1999.

Brown, Michael K., et al. Whitewashing Race: The Myth of a Color-Blind Society. Berkeley: University of California Press, 2003.

Dawson, Michael C., and Ravana Popoff. "Reparations: Justice and Greed in Black and White." Du Bois Review: Social Science Research on Race 1, no. 1 (spring 2004): 4791.

Du Bois, W. E. B. Black Reconstruction: An Essay toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 18601880. New York: Harcourt, Brace, 1935. Reprint, New York: Atheneum, 1977.

Ezorsky, Gertrude. Racism and Justice: The Case for Affirmative Action. Ithaca: Cornell University Press, 1991.

Feagin, Joe R. Racist America: Roots, Current Realities, and Future Reparations. New York: Routledge, 2000.

Harris, Cheryl. "Whiteness as Property." Harvard Law Review 106, no. 8 (1993): 17091791.

Kairys, David. "Unexplainable on Grounds Other Than Race." American University Law Review 45 (February 1996): 729749.

. With Liberty and Justice for Some: A Critique of the Conservative Supreme Court. New York: New Press, 1993.

Massey, Douglas S., and Nancy A. Denton. American Apartheid: Segregation and the Making of the Underclass. Cambridge, Mass.: Harvard University Press, 1993.

Merton, Robert K. "Discrimination and the American Creed." In Discrimination and National Welfare, edited by Robert W. MacIver. New York: Harper, 1949.

Oliver, Melvin L., and Thomas M. Shapiro. Black Wealth/White Wealth: A New Perspective on Racial Inequality. New York: Routledge, 1995.

Weschler, Lawrence. A Miracle, a Universe: Settling Accounts with Torturers. New York: Pantheon Books, 1990.

Winant, Howard. The World Is a Ghetto: Race and Democracy since World War II. New York: Basic, 2001.

Zegeye, Abebe, ed. Social Identities in the New South Africa. Colorado Springs: International Academic Publishers, 2001.

Howard Winant

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Discrimination

DISCRIMINATION

Inconstitutional law, the grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimination on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws.

In the 1960s, in response to the civil rights movement and an increasing awareness of discrimination against minorities, several pieces of landmark legislation were signed into law. Title VII of the civil rights act of 1964 (42 U.S.C.A. § 2000e et seq.), the most comprehensive civil rights legislation in U.S. history, prohibits discrimination on the basis of sex, race, religion, nationality, or color. Title VII was designed to provide for parity in the use and enjoyment of public accommodations, facilities, and education as well as in federally assisted programs and employment. It further allows an injured party to bring suit and obtain damages from any individual who illegally infringes upon the party's civil rights. The voting rights act of 1965 (42 U.S.C.A. § 1973 et seq.) prohibits the states and their political subdivisions from imposing voting qualifications or prerequisites to voting or standards, practices, or procedures that deny or curtail the right of citizens to vote, because of race, color, or membership in a language minority group. The fair housing act of 1968 (42 U.S.C.A. § 3601 et seq.) prohibits discrimination based on race, color, religion, sex, and national origin, in connection with the sale or rental of residential housing. In 1988, Congress passed the Fair Housing Amendments Act, which extends the same protections to handicapped people.

Other important federal laws have been aimed at remedying discrimination against other groups, including older U.S. citizens and individuals with disabilities. The Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C.A. § 621 et seq.) prohibits employers with 20 or more employees from discriminating because of age against employees over age 40. Industries affecting commerce as well as state and local governments are covered by the ADEA. Disabled individuals received federal protection against discrimination with the passage of the Rehabilitation Act of 1973 (29 U.S.C.A. § 701 et seq.), which prohibits any program activity receiving federal funds from denying access to a handicapped person. In 1990, Congress enacted the Americans with Disabilities Act (ADA) (codified in scattered sections of 42, 29, 47 U.S.C.A.). The ADA was widely hailed as the most significant piece of civil rights legislation since the Civil Rights Act of 1964. It provides even broader protection, prohibiting discrimination against disabled individuals, in employment, public accommodations, transportation, and telecommunications.

Although discrimination on the basis of gender is included in title VII of the Civil Rights Act of 1964, a number of other federal laws also prohibit sex discrimination. The equal pay act of 1963 (29 U.S.C.A. § 206 [d]) amended the fair labor standards act of 1938 (29 U.S.C.A. §§ 201–219). It prohibits discrimination through different forms of compensation for jobs with equal skill, effort, and responsibility. The Pregnancy Discrimination Act of 1978 (42 U.S.C.A. § 2000e[k]) prohibits discrimination against employees on the basis of pregnancy and childbirth, in employment and benefits. Title IX of the Education Amendments of 1972 (20 U.S.C.A. §§ 1681–1686) prohibits sex discrimination in educational institutions that receive federal funds, including exclusions from noncontact team sports on the basis of sex. In addition, the Equal Credit Opportunity Act (15 U.S.C.A. § 1691 et seq.) prohibits discrimination in the extension of credit, on the basis of sex or marital status.

State and local laws can also protect individuals from discrimination. For example, gays and lesbians, although not yet included under federal civil rights laws, are protected in many cities by local ordinances outlawing discrimination against individuals on the basis of sexual orientation. Minnesota, New Jersey, Rhode Island, Vermont, Wisconsin, and other states have passed such legislation—although some voters have sought to repeal it, with mixed results.

Local antidiscrimination laws have been used to deny funding to groups that bar members because of their sexual orientation. This was the case after the Supreme Court issued its ruling in Boys Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). The Court held that the Boy Scouts of America (BSA), as a private organization, had the constitutional right to bar homosexual troop leaders and members from its ranks. The Boy Scouts hailed this as an important victory, but many corporations and local governments were angered by the decision.

Major corporate sponsors withdrew their support, and school districts and city councils reviewed their relationships with the BSA. The one million Boy Scouts are organized into 19,000 local troops. Many of the troops use public schools or community centers for their meetings. In light of the court decision, a number of cities around the United States either barred the Boy Scouts from using public space or required them to pay, citing antidiscrimination ordinances and policies. In at least 39 cities, the local United Way charitable organizations withdrew funding to the BSA, again citing antidiscrimination policies. The BSA estimated in 2002 that these decisions cut local troop income by 10 to 15 percent, totaling millions of dollars.

further readings

Cokorinos, Lee. 2003. The Assault on Diversity: An Organized Challenge to Racial and Gender Justice. New York: Rowman & Littlefield.

Price, Joyce Howard. 2002. "Scouts Lose United Way Funds Over Gay Ban." Washington Times (March 15).

Richards, David A. J. 1999. Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies. Chicago: Univ. of Chicago Press.

cross-references

Affirmative Action; Age Discrimination; Club; Colleges and Universities; Disability Discrimination; Equal Employment Opportunity Commission; Gay and Lesbian Rights; Women's Rights.

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discrimination

discrimination This concept—which in common usage means simply ‘treating unfairly’—occurs most commonly in sociology in the context of theories of ethnic and race relations. Early sociologists (such as William G. Sumner and Franklin H. Giddings) viewed discrimination as an expression of ethnocentricism—in other words a cultural phenomenon of ‘dislike of the unlike’. This interpretation is consistent with studies of stereotyping which show how relations between ethnic and racial groups are affected by the socially derived beliefs each holds about the other. However, most sociological analyses of discrimination concentrate on patterns of dominance and oppression, viewed as expressions of a struggle for power and privilege.

There is considerable disagreement about the structural sources of these inter-ethnic and inter-racial struggles. Marxists argue that capitalist societies create racialism to assist exploitation (see, for example, M. Nikolinakos , ‘Notes Towards an Economic Theory of Racism’, Race, 1973
). A derivative of this approach is the argument that discrimination is often the result of internal colonialism (as illustrated in R. Blauner 's article on ‘internal Colonialism and the Ghetto Revolt’, Social Problems, 1969
). Theories of segmented or split labour-markets (such as that proposed by E. Bonachich , ‘A Theory of Ethnic Antagonism: The Split Labour Market’, American Sociological Review, 1972
; see also LABOUR-MARKET SEGMENTATION) offer another interpretation of discrimination, suggesting that capitalists benefit by forcing a distinction between cheap insecure labour and higher-paid secure labour, and that it is often convenient to draw from different ethnic or racial groups in constructing these categories. Finally, there are those who have argued that discrimination results from tendencies towards authoritarianism (however caused) among the poorer sections of any population (as, for example, in A. W. Smith 's ‘Racial Tolerance as a Function of Group Position’, American Sociological Review, 1981)
.

In recent years, the concept of discrimination has also been applied widely in the study of relationships between the sexes, where parallel sorts of arguments have often been deployed. Thus, research suggests that women are more likely to be located in the secondary sector of split labour markets, and (according to some) may even form an industrial reserve army. Rather more specialist studies have also looked at discrimination against the elderly (ageism) and those with disabilities. See also PREJUDICE; SEXISM.

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Discrimination

DISCRIMINATION


When two individuals with equal productivity receive significantly different wages for doing similar work, discrimination is said to exist. In addition to wage discrimination, inequalities in employment are reflected in the higher unemployment rates of minorities and young persons when compared to the unemployment rates of adult white males and females. The unequal treatment is based on worker's personal characteristics, unrelated and irrelevant to productivity. Discrimination issues center on differential treatment by race or ethnic group, gender, age, or handicap.

Economists speak of two types of discrimination: pure and statistical. Pure discrimination involves personal taste or preferences. Some employers may prefer not to be associated with members of a certain group such as minorities, women, young people, old people, or persons with disabilities. They tend simply not to hire that group. Statistical discrimination involves eliminating people from consideration who, as a group, have unstable work histories or poor work habits. This type of discrimination assumes all members of a group are less qualified because their group's education or training is widely perceived as inferior. A firm may be able to lower its recruiting costs by limiting its search to adult, white, married males. But, not hiring from certain demographic groups limits the pool of candidates in very competitive markets and can be costly to a business.

Since the early 1960s federal legislation in the United States prohibits job discrimination based on race or national origin, sex, age, religion, or handicap. The seven major laws are: Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Equal Pay Act of 1963, Title I of the Americans with Disabilities Act of 1990, Civil Rights Act of 1991, and Section 501 of the Rehabilitation Act of 1973. In the 1970s the government also began a program called affirmative action, to counteract past discrimination by giving preferential hiring to disadvantaged groups.

Despite extensive legislation, statistics show continued inequality in employment practices and wages. Employment figures from the Bureau of Labor Statistics show that black unemployment is more than double the rate of unemployment for whites in 1997. Concerning wages, statistics show that in 1997 women's overall earnings was seventy-four percent of men's earnings. Although legal gains are considerable, longstanding discrimination in job opportunities and wages persisted toward the conclusion of the twentieth century.

See also: Affirmative Action, Americans with Disabilities Act

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discrimination

dis·crim·i·na·tion / disˌkriməˈnāshən/ • n. 1. the unjust or prejudicial treatment of different categories of people or things, esp. on the grounds of race, age, or sex: victims of racial discrimination | discrimination against homosexuals. 2. recognition and understanding of the difference between one thing and another: discrimination between right and wrong | young children have difficulties in making fine discriminations. ∎  the ability to discern what is of high quality; good judgment or taste: those who could afford to buy showed little taste or discrimination. ∎  Psychol. the ability to distinguish between different stimuli: [as adj.] discrimination learning. 3. Electr. the selection of a signal having a required characteristic, such as frequency or amplitude, by means of a discriminator that rejects all unwanted signals.

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Discrimination

121. Discrimination

See also 155. FAVORITISM .

ageism, agism
discrimination on the basis of age, especially against older people.
chauvinism
ardent, unreasoned favoritism for a particular group. See also 289. NATIONALISM . chauvinist , n.
racism
discrimination on the basis of race, especially against blacks and other non-whites.
sexism
discrimination on the basis of sex, especially against women.

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discrimination

discrimination Differential responsiveness to stimuli when several stimuli are presented simultaneously.

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Discrimination

DISCRIMINATION

DISCRIMINATION , distinguishing between people on the basis of the group to which the person belongs rather than individual characteristics. With rare exceptions, contemporary forms of discrimination against Jews were not based upon the type of legal device and sanction that reached its apotheosis with the *Nuremberg laws. The postwar disclosure of the details of the Holocaust generated such massive popular revulsion that legal forms of antisemitism became taboo, for the gas chambers and the concentration camps were the ultimate consequence of legalized anti-Jewish discrimination. Antisemitism continued to find expression in the contemporary world in non-legislative discriminatory patterns. Sophisticated formulations to mask the antisemitic intent of the pattern were elaborated, and in no case could the pattern appear to be overtly antisemitic. Even where complete or almost complete exclusion of Jews was practiced, the rationale for such action had to be explained on grounds other than religious or ethnic discrimination. The more characteristic pattern took the form of "tokenism" (i.e., the admission of one or a few Jews into a non-Jewish milieu) or a quota system, which restricted the number of Jews to a precise or approximate percentage of the total composition.

The overall pattern of discrimination was selective in character: not all or almost all Jews were the objects of discrimination and not all or almost all spheres of public life were the loci of the discriminatory pattern. There were, however, certain major postwar exceptions to the selective character of non-legislative discrimination. During the "Black Years" in the Soviet Union (1948–53), virtually all Jews were subject to some form of discrimination, and many were even more harshly treated. A similar phenomenon occurred in Poland during 1968, with the difference that Polish Jews were permitted and even encouraged to emigrate. These anti-Jewish campaigns were deliberately masked, however, in the first case as "anti-*Cosmopolitanism," and in the second as "anti-Zionism."

Soviet Union

The Soviet Union, where in 1970 approximately one-quarter of the world's Jewish population lived, offered a classic example of how antisemitic motivation on the highest level was expressed in either exclusion, tokenism, or quota techniques. Andrei D. Sakharov, the distinguished Soviet physicist and co-creator of the hydrogen bomb, acknowledged in 1968 that "in the highest bureaucratic elite of [the Soviet] government, the spirit of antisemitism was never fully dispelled after the 1930s." A burgeoning Russian nationalism, which fed upon traditional antisemitism and was reinforced by the determination to erect barriers against Western influences and contacts, provided the motivation for the policy, as Jews, characteristically, had family as well as spiritual and cultural links with the West. Sakharov specifically mentioned the Soviet Union's "appointments policy" as the device by which discrimination against Jews was effected. That "appointments policy" excluded Jews from all key policy-making positions. Whereas the percentage of Jews in the Central Committee of the Communist Party was 10.8% in 1939, over the course of years, the percentage was reduced to almost nil – only one Jew remained in the Central Committee in 1970. There were no Jews in the Politburo, the Orgburo, or the top levels of the Secretariat. In the sensitive areas of diplomacy, security, foreign trade, and military affairs there were virtually no Jews: at the top levels, there was none at all; elsewhere in the hierarchy there were less than a handful. The political sphere, which embraced soviets on various levels and which was manipulated by the Communist Party apparatus, was characterized by "tokenism," whereby a tiny percentage of Jews was selected by the party. In contrast with the composition of the Supreme Soviet in 1937, for example, when approximately 3.5% of the deputies were Jewish (before the new "appointments policy" had been instituted), at the end of the 1960s, with a membership of some 1,500, it contained a token number of Jews – 0.25%. The same percentage obtained in the Supreme Soviets of the 15 Union Republics, in which there were 14 out of some 5,300 deputies; one or two Jewish deputies were chosen for some of the Union Republic Supreme Soviets. On the bottom of the legislative scale, the local soviets, which comprised over 2,000,000 members, received a similar token number of Jews (about 8,000). The percentage on this level approximated that of Jews in the legislatures on the republic and national levels. The quota system was used in the various branches of administration. Yekaterina Furtseva, minister of culture from 1960, explained how the system was initiated. If "a heavy concentration of Jewish people" was found in a governmental department, "steps were taken to transfer them to other enterprises …" At about the same time, Canadian Communist Party leader J.B. Salsberg was told in Moscow that the "transfer" method was applied to Jews in the "once-backward" Union Republics in order to make room for the newly trained native cadres in the administrative apparatus. In December 1962, Premier Nikita Khrushchev told Soviet intellectuals that Kremlin policy was aimed at preventing too many Jews from holding prominent posts, and in June 1963, the Party's principal theoretical journal, Kommunist, admitted the widespread use of the quota system in the training and placement of cadres in the various Union Republics. The quota system was most clearly expressed in university admission practices. The Soviet Bulletin of Higher Education (December 1963) disclosed that "annually planned preferential admission quotas" prevailed in Soviet universities. Nicholas De Witt, a U.S. specialist on Soviet educational practices, explained that the quota system operated "to the particularly severe disadvantage of the Jewish population." In a study published in 1964, he found that "in those republics where Jews constitute an above-average proportion of the urban population, their representation among university students is well below the rate of the general population's access to higher education." Whereas in 1935 the Jewish enrollment in Soviet universities was 13% of the population, by the 1960s it dropped drastically to little more than 3%.

The pattern of discrimination against Jews in political and social life paralleled a policy that deprived the Jewish community of the ethnic and religious rights to which it was constitutionally entitled and that other Soviet ethnic and major religious groups enjoyed. It should be emphasized, however, that the pattern of discrimination, especially in the civic and political arenas, was not endemic to Communist societies. In other European Communist countries (including Poland until 1967–68), Jews held prominent positions at all levels of the party and state administration. Even in the U.S.S.R. the anti-Jewish pattern of discrimination did not extend to everyday channels of social life. Residential restrictions were nonexistent, and there were no barriers to membership and participation in the lower levels of the Communist Party, trade unions, armed forces, social services, and clubs. Employment opportunities, other than administration, in such fields as science, medicine, law, and the arts were widespread. Particularly in the crucial area of the sciences, Jews ranked high both in absolute and relative terms, although the quota system in university admission practices brought about a decline in the percentage of Jews in relation to other nationalities. With the disintegration of the Communist system, all forms of official antisemitism virtually came to an end in Russia and Eastern Europe, replaced in many cases by grassroots antisemitism.

United States

This Soviet pattern of discrimination was in striking contrast with the pattern prevailing in the United States, where in 1970 one-half of the world's Jewish population resided. Discrimination against Jews on the national political level was neither existent nor sanctioned. Jews played an important and active role in all areas of political, public, and community life, although to a lesser extent outside major population centers. Yet the chauvinism of an old, established patrician class, combined with a nativist-Populist tradition and an "in-group" phobia of those striving to protect their insecure status (in an extended period of upward social mobility), perpetuated patterns of social discrimination against Jews in non-government spheres – employment, housing, and social institutions. The techniques employed were exclusion, tokenism, and the quota system. Widespread patterns of discrimination in private industry were notable principally on the executive or management levels; no problem was apparent below that level. A study published in 1968 showed that comparatively few Jews were found in executive positions in the insurance, automobile, and shipping industries. A 1967 survey of 38 major companies in the New York City area, including utility and transportation companies, commercial banks, oil concerns, electronic firms, and stock exchanges, revealed that the proportion of Jews among the total number of executives was relatively small. Private employment agencies abetted the perpetuation of discrimination by responding positively to the real or imagined prejudices of their clients. Exclusive residential areas, both in suburbia and high-rental urban cooperatives, were often characterized by quota practices. By means of restrictive covenants, a complete ban on the sale of property to Jews could sometimes be effected. Even though the Supreme Court ruled that covenants were not legally enforceable, the device was still used, as, e.g., in certain choice locations in Washington, d.c. and Detroit. Resort hotels, especially in certain vacation areas, also erected barriers against Jews. A study in 1956–57 showed that one out of four hotels carried on such practices, with an even higher ratio in Arizona resort hotels. Particularly distinctive on the social landscape was the pattern of discrimination in country clubs and city social clubs. According to a 1961 survey, three-quarters of the former and 60% of the latter either excluded Jews or maintained quotas against them. A study released in 1969 emphasized that discrimination in these clubs led to an "almost insurmountable barrier" for Jews who strove for advancement in industry and finance. The reason for this crucial linkage between social-club discrimination and employment opportunities was the fact that top-level business executives frequented these clubs and "naturally turned to the ranks of those they knew." In local communities, social clubs were vital factors in the power structure, and the scope of Jewish participation in the local decision-making process was directly proportionate to the extent that they excluded or restricted Jews. Progress in removing barriers against Jews, however, was made gradually, especially in the employment field. Other private forms of social discrimination had greatly declined by 1970. Typical of this trend were university admission practices. An American Council on Education study in 1949 revealed that the average Jewish university applicant had considerably less chance of being accepted than a Catholic or Protestant of comparable scholastic ability. The technique generally used was a fixed quota. Since then, and especially from the 1960s, restrictions based upon religion or ethnic origin were significantly reduced, confining themselves largely to a few exclusive cooperatives, athletic or golf clubs, and law firms.

England

The American pattern of social discrimination was paralleled, at least to some extent, in the United Kingdom. In the early 1960s it was estimated that approximately one-half of British golf clubs prevented, as far as possible, the admission of Jews to membership. Usually a quota system was applied, although in Manchester nearly 100 clubs adhered to an unwritten "Aryan paragraph" providing for total exclusion. Whether and to what extent there was a decline in club discrimination from the middle and late 1960s was never studied. Private school (called "public" school in England) enrollment was also characterized by a form of snobbish discrimination effected by the quota system. A London newspaper study in the late 1950s showed that the best-known boys' "public" schools limited the number of Jewish students to 10–15%. Some girls' "public" schools excluded Jews entirely, while others placed a 10% quota on them. The absence of careful studies on "executive suite" discrimination made judgment about employment practices in England difficult, although in the 1960s relatively few Jews were found in finance and heavy industry. It can be surmised, however, that this problem and related forms of social discrimination were less pressing than in the United States. As in America, the political sphere was virtually devoid of discrimination. The basic motivation of discrimination in England appeared to be social, a vestige of patrician snobbishness perhaps reinforced by religious considerations. The extent to which the American pattern of social discrimination was present in other Western and Latin American countries was not made the object of any scientific study.

Arab Countries

Whereas antisemitism in most parts of the Jewish-populated world was expressed by subtler forms of discrimination, in the Arab countries the necessity for pretense was not felt, especially after the Six-Day War (1967). Discrimination against Jews was open, callous, and frequently brutal. Upon the establishment of the State of Israel, all the Jews in Iraq were classed as enemy aliens. This act was accompanied by the sequestration of Jewish property and businesses and the banning of emigration. In March 1950, when the ban was lifted for one year, almost all of Iraq's 120,000 Jews fled, leaving 6,000 in the country. Further anti-Jewish discriminatory legislation was enacted in the years that followed, while the outflow of Jews continued, and, as of May 1967, the 2,500 remaining Iraqi Jews faced sharp limitations in the areas of citizenship, travel, and property. The Six-Day War brought on even more repressive measures: all Jewish homes were placed under surveillance; telephones were disconnected; personal property could not be sold; assets were frozen; licenses were canceled; the dismissal of Jewish employees was ordered; and travel from their area of residence was forbidden. A complete ban on emigration made the discriminatory pressures under which Jews lived all the more burdensome. Several Jews were publicly hanged in Baghdad, together with Muslim opponents of the regime, as "imperialist and Zionist spies." The situation in Syria was similar. Even prior to the Six-Day War, Syrian Jews were forbidden to sell property and move about beyond a one-and-a-half-mile radius from their place of residence without a special permit. Jews were required to carry special identity cards, and after the war, the 4,000 Syrian Jews were not permitted to emigrate. Just prior to the Six-Day War, the uar conducted a registration of its 2,500 Jews and, within two or three days of the outbreak of hostilities, ordered the imprisonment of the great majority of Jewish males. Most of these prisoners were released during 1968 but others were kept in prison until 1969and 1970. Prior to the war, the 4,000-member Jewish community in Libya was subject to a variety of restrictions, including a ban on emigration. The outbreak of war unleashed popular violence against Jews. When the ban on emigration was lifted soon after the war ended, the entire Jewish community fled. The tiny Jewish community of Aden underwent a similar experience.

bibliography:

E. Goldhagen (ed.), Ethnic Minorities in the Soviet Union (1968); S. Schwarz, Jews in the Soviet Union (1951); W. Korey, in: Midstream, 12 no. 5 (1966), 49–61; A.D. Sakharov, Progress, Coexistence and Intellectual Freedom (1968), ajyb, 69 (1968), N.C. Belth (ed.), Barriers: Patterns of Discrimination against Jews (1958); B.R. Epstein and A. Forster, Some of My Best Friends (1962); Rights, 7 no. 1 (Feb., 1968); B'nai B'rith International Council, Survey, Report 64–1 (Jan., 1964); R.M. Powell, The Social Milieu as a Force in Executive Promotion (1969); M. Decter, in: Foreign Affairs, 41 (1963), 420–30; B.Z. Goldberg, The Jewish Problem in the Soviet Union (1961); N. De-Witt, Education and Professional Employment in the U.S.S.R. (1961); idem, The Status of Jews in Soviet Education (1964).

[William Korey]

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Discrimination

Discrimination

Sections within this essay:

Background
Federal Laws Prohibiting Employment Discrimination
National Labor Relations Act of 1935
Fair Labor Standards Act of 1938
Equal Pay Act of 1963
Title VII of the Civil Rights Act of 1964
Age Discrimination in Employment Act of 1967
Rehabilitation Act of 1973
Civil Service Reform Act of 1978
Pregnancy Discrimination Act of 1978
Immigration Reform and Control Act of 1986
Americans With Disabilities Act of 1990
Family Medical Leave Act of 1993

State Laws and Statutes Prohibiting Employment Discrimination
Additional Resources

Background

Over the course of the last 150 years, the majority of laws in the United States to protect employees from unfair labor practices perpetrated by employers were enacted as a result of the labor movement and realization of workers' rights. As the workers' role in mass production became vital to the capitalist market economy during the Industrial Revolution that commenced in Europe and spread to the United States in the 1820s, protection of workers' rights and government intervention (particularly the Federal government) to regulate employers to protect workers became a necessity to prevent exploitation of workers (including child laborers) in often dangerous working conditions. An outgrowth of this movement to protect employees and employees' rights from dangerous conditions and unfair wages and hours was the protection of employees from discrimination by employers. More specifically, laws were enacted and enforced to prevent discrimination of targeted groups such as women and racial minorities and ensuring all employees are granted equal rights with respect to hiring, promotion, and termination decisions.

Laws specifically designed to protect workers commenced in earnest during the New Deal policies of Franklin Delano Roosevelt's presidential administration. New Deal policies, intended to ease the hardships caused by the depression, included laws to assist workers. The most prominent laws enacted by the Federal Government to protect workers during this period were the National Labor Relations Act of1935 and the Fair Labor Standards Act of 1938. Provisions of the National Labor Relations Act of 1935 were initially part of the National Industry Recovery Act of 1933. However, employers and leaders in the business community did not embrace the provisions of the act. Employers and business leaders felt that the National Recovery Act of 1933 gave the Federal government too much power to regulate the operations and administration of businesses and would ultimately stifle competition. A contentious court battle ensued after passage of the act and the United States Supreme Court declared the National Industry Recovery Act of 1933 invalid in the case of A.L.A. Schechter Poultry Corporation v. United States (1935). Provisions of the National Recovery Act of 1933 that mandated that workers receive a minimum wage salary and rights to join unions were then incorporated into the National Labor Relations Act of 1935. The validity of the National Labor Relations Act of 1935 was challenged before the Supreme Court in 1937 in National Labor Relations Board v. Jones & Loughlin Steel Corporation (1937). The Supreme Court, however, upheld the National Labor Relations Act of 1935 (also referred to as the Wagner Act) in a landmark decision that began an era of intervention by the Federal government to address unfair labor practices.

Labor laws pertaining specifically to discrimination have endeavored to protect workers from discrimination by their employer(s) based upon the employees race, gender, religion, national origin, age, marital status or physical disability. These laws were enacted as a derivative of both the greater labor movement and the "civil rights revolution" of the 1960s that sought to end discrimination in all social institutions, including the workplace. Labor discrimination may take several forms, but laws specifically prohibiting employment practices, such as discriminatory hiring, promotion, job assignment, termination, compensation and various types of harassment, were enacted by Federal law beginning in the early 1960s. There are also laws prohibiting retaliation against employees who initially lodge complaints. These laws are designed to protect employees. Some federal laws, however, do not always apply to state and local governments. In some late 1990s cases, the Supreme Court ruled that the federal laws place undue regulatory powers on state and local governments. In those instances, employees are protected by state and local laws but not federal laws.

Federal Laws Prohibiting Employment Discrimination

National Labor Relations Act of 1935

The National Labor Relations Board (NLRB) was created by passage of the National Labor Relations Act of 1935. The NLRB allows workers to anonymously vote to unionize their workplace. The provisions of the NLRB apply to all employers engaged in interstate commerce although airlines, railroads, agriculture, and government employers are exempt. The five board members are appointed by the president of the United States. There are two principle aims of the NLRB: to determine the freewill choice of employees to be represented by unions by means of secret-balloting and to deter and remedy unfair labor practices by employers and unions. The NLRB investigates complaints of unfair labor practices. If the NLRB determines there is reasonable cause to suspect a violation, an attempt is made by the NLRB to settle the complaint between the disputing parties. If there is no agreeable settlement, a formal complaint is issued and the complaint is heard before a NLRB administrative law judge. The judge issues an opinion that may be appealed to the board of the NLRB. The board's decision is subject to review by the United States court of appeal. About 35,000 charges are filed annually with the NLRB.

Fair Labor Standards Act of 1938

The principle aim of the Fair Labor Standards Act (FLSA) was to ensure minimum wage and maximum hour requirements for all nonunion workers. The initial intent was to protect children, particularly those exploited and working in bad factory conditions. The FLSA helps entry level workers in low wage jobs, such as manufacturing and agriculture, by establishing minimum wage and maximum hour provisions. As of 2002, the minimum wage is $5.15 per hour worked and workers who work more than 40 hours in a 168-hour seven day workweek cycle must be compensated at one and one-half times their regular hourly wage.

The FLSA was amended in 1974 to extend to all employees of States and local governments. However, an organization of municipalities and state governments sued, proclaiming that the new amendments exceeded congressional authority to extend the minimum wage and maximum hours provisions of the FSLA. In a landmark decision, the United States Supreme Court held in the 1976 decision of National League of Cities et al. v. Usery, Secretary of Labor (1976) that the 1974 amendments of the FLSA did exceed congressional power and were therefore unconstitutional. The case limited Federal power to regulate state and local employers concerning minimum wage and maximum hours provisions

Equal Pay Act of 1963

The Equal Pay Act of 1963 amended the FLSA by prohibiting wages based upon gender. According to the act, "equal work in jobs requiring equal skill, effort and responsibility and performed under similar working conditions" should be compensated equally, regardless of gender. Provisions of the Equal Pay Act of 1963 are enforced by Equal Employment Opportunity Commission (EEOC ).

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (CRA) prohibits employment discrimination based on race, color, religion, sex, and national origin. There have been several notable amendments to the original CRA enactment in 1964. The act protects prospective and incumbent employees against those prohibited acts of failing or refusing to hire or discharging or discriminating with respect to promotion decisions.

The most practical legislation to ensure compliance regarding these matters was the creation of the Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission (EEOC) seeks to prevent unlawful discriminatory employment practices by investigating complaints and advocating on behalf of complainants. If the respondent is a public organization such as a public agency or government agency, and the EEOC finds an unlawful employment practice, the EEOC requests the organization to refrain. If the responding organization does not agree with the findings of the EEOC, the EEOC may commence a civil action. The court adjudicating the case then makes a determination. The court may reinstate or hire employees with or without back pay or any other relief. Discrimination may also be remedied by altering policies. Respondents may also appeal adverse rulings.

According to the CRA, employers may not engage in practices that may have a "disparate impact" on employees of a particular race, gender, religion, or national origin. Disparate impact occurs when a particular group is not hired or promoted at the same rate as another group. Proving a disparate impact practice may be difficult. The employee (the "plaintiff") must prove prima facie evidence of disparate impact. If the plaintiff is successful, the burden of proof then shifts to the employer, the "respondent," who must then claim that the selection methods and decisions are job related. Bonifide occupational qualifications (BFOQs) are requirements necessary for specific employment. For example, people who want to be public safety workers such as police officers and firefighters must be physically fit.

Unlawful employment practices may consist of discriminating against a particular race by not hiring or promoting because of race or not hiring or promoting members of that race at the same rate of other races hired or promoted. Violations involving national origin may consist of "English-speaking only" work rules. Employers may not discriminate because of accent or manner of speaking. Employers may not schedule examinations or other selection or promotional exams in conflict with employees' days of worship. The employer may not also maintain a restrictive dress code in conflict with specific religious attire. Also, mandatory "new age" training programs such as yoga or meditation may conflict with the nondiscriminatory provisions of the religious. As of 2002, the EEOC handled between 75,000 and 80,000 complaints each year.

The Civil Rights Act (and subsequent amendments) grants power to recover compensatory damages and punitive damages for violations of other laws, such as the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. The Civil Rights Act of 1991 amended several provisions of Title VII including extending the category aggrieved parties to include United State citizens working in foreign countries and clarifying what is necessary for the plaintiff to prove.

Age Discrimination in Employment Act of 1967

Discrimination based upon age has been the subject of numerous debates. The debate involves classification of age discrimination within discrimination based upon race, color, sex, national origin, or religion. The idea that older persons are not targeted because everyone ultimately ages is central to the debate. That is to say, since everyone ages, there is no separate class for aging individuals. Older persons do not form a unique and distinct class. The resistance to classifying age with race, gender, and religion caused it to be omitted from the original Civil Rights Act of 1964. Subsequently there were numerous challenges of the ADEA. The ADEA was originally intended for private employers; however, in 1974, amendments extended it to local and state governments. There have been two landmark Supreme Court cases regarding the application of the ADEA to state employers. In 1983, the Supreme Court held in the case of EECO v. Wyoming (1983) that the ADEA was a valid exercise of congressional authority. However, the Supreme Court later ruled in Kimel et al. v. Florida Board of Regents (2000) that persons could not sue state and local employers for violations.

Rehabilitation Act of 1973

The Rehabilitation Act of 1973 protects employees with "handicaps" from discriminatory practices by their employers. Persons are defined as handicapped by the Rehabilitation Act of 1973 if they have a physical or mental impairment that substantially limits one major activity or has a record of such impairment or is regarded as having such an impairment. The Rehabilitation Act of 1973 also provides money to states for employment training and counseling for persons with handicaps. Several provisions of the Rehabilitation Act of 1973 specify groups protected and rights granted. Section 504 prohibits organizations that receive federal assistance from discriminating against qualified persons with handicaps. The 1992 amendments brought the Rehabilitation Act of 1973 into compliance with the Americans with Disabilities Act (ADA). The act required states to provide access devices for persons with handicaps. The amendments in 1998 require access to electronic and information technology provided by the Federal government unless doing so causes an "undue burden." Provisions of the Rehabilitation Act of 1973 are enforced by the Office of Civil Rights (OCR).

Civil Service Reform Act of 1978

The Civil Service Reform Act of 1978 (CSRA) prohibits any employee with the authority to make personnel decisions from discriminating against applicants or incumbent employees based on the person's race, color, national origin, religion, sex, age, or disability. The CSRA also grants certain protections against personnel actions based upon a person's marital status or political affiliation. Provisions of the CSRA are enforced by the Federal Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).

Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964 enacted in 1978, requires employers not to discriminate because of pregnancy, childbirth, or medical conditions related to pregnancy and childbirth. The PDA also applies to all females regardless of marital status. Provisions of the PDA are enforced by the EEOC.

Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act of 1986 (IRCA) is not primarily focused on prohibitions against unlawful employment practices; however, one provision requires employers who require employee verification prior to hiring not to discriminate against national origin. Provisions of the IRCA are enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

Americans With Disabilities Act of 1990

ADA prohibits private employers, state and local governments, employment agencies and labor unions with 15 or more employees from discriminating against qualified employees with disabilities. An employer is prohibited from discriminating against persons with disabilities in hiring, firing, advancement, compensation, training and other benefits related to employment. According to the ADA, a person with a disability has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. The ADA protects employees with disabilities prior to initial employment and employees that develop disabilities while employed by the employer.

In addition to prohibition against unlawful employment practices, the employer must also make "reasonable accommodations" for qualified employees who can perform "essential functions" of the job. A reasonable accommodation may consist of making existing facilities readily accessible to persons with disabilities or modifying equipment, training examinations, and policies, or requiring readers or interpreters. However, an employer is not required to lower quality or production standards to make accommodations.

The Supreme Court held in Board of Trustees of the University of Alabama et al. v. Garrett et al. (2000) that suits in federal court by state employees to recover money damages by reason of the State's failure to comply with Title I of the ADA are barred by the Eleventh Amendment. Essentially, the court ruling held that state employers are not bound by the ADA. Another recent Supreme Court ruling, Ella Williams v. Toyota (2001) also restricted the definitions of a person with a disability by adding that the disability must be in one or more major life activity which prevents the person "from performing tasks that are of central importance to most people's daily lives." The United States Supreme Court, with this ruling, attempted to clarify the broad language of the ADA to more precisely define when a person is to be considered disabled as opposed to impaired.

Family Medical Leave Act of 1993

The Family Medical Leave Act of 1993 (FMLA) protects employees against possible disruption in their employment caused by leave from work needed to care for a newborn or a sick family member. The FMLA applies to all public federal, state, and local municipal employers. The FMLA also applies to private employers who employ 50 or more employees in 20 or more workweeks in the current or proceeding year. Private employers must also be engaged in commerce or any industry affecting commerce.

The employee is entitled to specific benefits if employed by a public or private employer covered by the FMLA. The employee is entitled to 12 workweeks of unpaid leave during a 12month period for: the birth and care of a newborn child of the employee, for placement with the employee of a son or daughter for adoption or foster care, for care of an immediate family member (defined by the FMLA as a spouse, child, or parent) with a serious health condition (defined by the FMLA as "any period of incapacity or treatment connected with inpatient care in a hospital or hospice or residential medical-care facility or continuing treatment by a health care provider which includes any period in which the employee is unable to work, attend school, or perform regular activities due to a health condition, a pregnancy-related absence, a chronic serious health condition or a permanent long-term condition.") The employee may take leave intermittently, meaning that the 12 week block does not have to be taken consecutively. However, intermittent leave, when used for birth and care for adoption or foster care must be approved by the employer. When the leave is used to care for a seriously ill family member, the intermittent leave may be taken only when medically necessary.

When the employee returns from FMLA leave, the employer must restore the employee to the original job or equivalent job with equivalent pay. The employer must also maintain health benefits while the employee is on FMLA leave.

Employees must meet certain requirements before they are eligible for benefits afforded by the FMLA. Employees must work for a covered employer for a total of 12 months and have worked for at least 1,250 hours in the 12-month period. The employee must provide 30-days advanced notice for the need to take FMLA leave. Employers may also require employees to provide medical documentation to validate the medical condition claimed. Employers (at their expense) may require employees to seek a second or third opinion. Employees also must furnish their employers with status reports and intent to return to work.

The provisions of the FMLA are enforced by the United States Secretary of Labor's Wage and Hour Division. Thus far, there have not been any challenges to the provisions of the FMLA heard before the United States Supreme Court.

Although employees of state and local employers cannot sue their employers for discriminatory practices involving provisions of some Federal laws (most notably the ADEA and ADA), below is a list of the applicable state laws prohibiting employment discrimination.

State Laws and Statutes Prohibiting Employment Discrimination

ALABAMA: Title 25 of the Code of Alabama 1975

ALASKA: Title 23 of Alaska Statutes

ARIZONA: Title 23 of Arizona Revised Statutes

ARKANSAS: Title 11 of Arkansas Department of Labor Laws and Regulations

CALIFORNIA: Chapter 98.75 of the California Labor Code

COLORADO: Title 8 of Colorado Department of Labor and Employment

CONNECTICUT: Title 31 of the Connecticut Department of Labor

DELAWARE: Title 19 of the Delaware CodeM

DISTRICT of COLUMBIA: Title 36 of the District of Columbia Code

FLORIDA: Title 31 of the Florida Statutes

GEORGIA: Title 34 the Georgia Code

HAWAII: Title 21 of the Hawaii Revised Statutes

IDAHO: Title 44 of the Idaho Statutes

ILLINOIS: Chapter 820 of the Illinois State Employment Law

INDIANA: Title 22 of the Indiana Code

IOWA: Title 3 of the Code of Iowa

KANSAS: Chapter 44 of the Kansas Statutes

KENTUCKY: Title XXVII of the Kentucky Revised Statutes

LOUISIANA: Title 23 of the Louisiana Revised Statutes

MAINE: Title 26 of the Maine Revised Statutes

MARYLAND: Labor and Employment Article of the Maryland State Statutes

MASSACHUSETTS: Part I, Title XXI of the General Laws of Massachusetts

MICHIGAN: Chapter 408 of the Michigan Compiled Laws

MINNESOTA: Chapter 175 through 186 of the Minnesota Statutes

MISSISSIPPI: Title 71 of the Mississippi Code

MISSOURI: Title XVIII of the Missouri Revised Statutes

MONTANA: Title 39 of the Montana Code

NEBRASKA: Chapter 48 of the Nebraska Statutes

NEVADA: Title 53 of the Nevada Revised Statutes

NEW HAMPSHIRE: Section 275 of New Hampshire Revised Statutes

NEW JERSEY: Title 34 of New Jersey Statutes Anotated

NEW MEXICO: Chapter 50 of New Mexico Statutes Annotated

NEW YORK: Executive Law Article 15, New York State Human Rights Law

NORTH CAROLINA: Chapter 95240 through Chapter 95245 of the North Carolina General Statutes

NORTH DAKOTA: Chapter 14 of the North Dakota Century Code

OHIO: Section 4112.02 of the Ohio Revised Code

OKLAHOMA: Title 40 of the Oklahoma Statutes

OREGON: Title 51, Chapters 651 663 of the Oregon Revised Statutes

PENNSYLVANIA: Title 43 of the Pennsylvania Consolidated Statutes

RHODE ISLAND: Title 28 of the Rhode Island General Laws

SOUTH CAROLINA: Title 41 of the South Carolina Code of Laws

SOUTH DAKOTA: Title 60 of the South Dakota Codified Laws

TENNESSEE: Title 50 of the Tennessee Code

TEXAS: Texas Labor Code

UTAH: Title 34 of the Utah Code

VERMONT: Title 21 of the Vermont Statutes

VIRGINIA: Title 40.1 of the Code of Virginia

WASHINGTON: Title 49 of the Revised Code of Washington

WEST VIRGINIA: Chapter 21 of the West Virginia Code

WISCONSIN: Chapter 111 of the Wisconsin Statutes

WYOMING: Title 27 of the Wyoming Statutes

Additional Resources

"An Overview of the Fair Labor Standards Act" United States Office of Personnel Management. Available at www.opm.gov/flsa.htm.

"Employment Discrimination: An Overview" Legal Information Institute, Cornell Law School. Available at http://www.law.cornell.edu/topics/employment_discrimination.htm.

"Federal Laws Prohibiting Job Discrimination Questions and Answers" United States Equal Employment Opportunity Commission. Available at www.eeoc.gov/facts/qanda.html.

A Guide To Disability Rights Laws United States Department of Justice, Civil Rights Division, Disability Rights Section. Washington, DC: Government Printing Office, 2001.

Jacob, M. C. "Industrial Revolution" World Book Online Americas Edition, 2002. Available at http://www.aolsvc.worldbook.aol.com/wbol/wbPage/na/ar/co/275880.

"Labor and Employment Laws of the Fifty States, District of Columbia and Puerto Rico" Legal Information Institute, Cornell Law School. Available at http://www.law.cornell.edu/topics/Table_Labor.htm.

"Labor Movement," Mills, D. Q., World Book Online Americas Edition, 2002. Available at http://www.aolsvc.worldbook.aol.com/wbol/wbPage/na/ar/co/306670.

"Title VII of the Civil Rights Act of 1964" United States Equal Employment Opportunity Commission. Available at www.eeoc.gov/laws/vii.html

Troubled passage: The Labor Movement and the Fair Labor Standards Act Samuel, H. D., Monthly Labor Review, 123 (12) 32-37, 2000.

"United States Equal Employment Opportunity Commiscsion: An Overview" United States Equal Employment Opportunity Commission. Available at www.eeoc.gov/overview.html.

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Discrimination

Discrimination

In constitutional law, the grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimination on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws.

Jury Verdict Enhanced to $334 Million in Corporate Discrimination Case

In November 2006, a federal jury in Illinois awarded $48 million against Virginia Beach, Va.-based Amerigroup Corporation and subsidiary Amerigroup Illinois ("Amerigroup")for discrimination against pregnant women and other high-risk patients in their managed-care health maintenance organization (HMO) plan enrollments. Amerigroup was hired by the U.S. government to provide health care coverage for Medicaid-eligible needy persons. Instead, the jury found, Amerigroup pocketed the money and offered its services only to healthy clients within that group, intentionally avoiding those with health issues, including pregnancy. The original jury verdict was automatically tripled to $144 million pursuant to the federal False Claims Act and the Illinois Whistleblower Reward and Protection Act, which permit the award of treble damages for such extensive and systematic fraud. (Whistleblower acts generally protect employees from retaliatory employment actions for having reported illegal or wrongful conduct of their employers to appropriate authorities.)

In March 2007, the federal judge raised defendants' total liability to $334 million by adding civil penalties of $10,500 to each of 18,130 false Medicaid claims. The jury verdict followed a three-week trial and nearly four years of litigation originally stemming from a whistleblower's case filed by Cleveland Tyson, corporate lobbyist and former head of government relations for Amerigroup Illinois. In 2005, the Illinois Attorney General and the U.S. Justice Department joined the case. Under applicable law, Tyson was entitled to receive between 15 and 25 percent of the total damages awarded. United States, ex rel. Cleveland Tyson, et al. vs. Amerigroup Illinois, et al., 02C6074 (N.D. IL) 2006.

Tyson was fired from his position at Amerigroup in 2002 before filing a federal lawsuit alleging that Amerigroup had been filing false Medicaid claims with the state. The suit alleged that from 2002 to 2003, Amerigroup was paid $243 million in Medicaid money in return for providing health care to economically-eligible state applicants without regard to their health status. However, evidence presented at trial showed that Amerigroup trained its marketing representatives to avoid persons with medical conditions who could represent high corporate pay-outs for medical bills. Ultimately, the company spent less than half of the funds it was paid by the state and federal government on providing healthcare.

According to testimony and documentary evidence presented at trial, Amerigroup had a policy of "cherry-picking" healthy clients. Particularly damaging were e-mails and internal memoranda from the company. In one 2001 e-mail from Amerigroup's Illinois director of medical management, corporate officials were advised to "Please keep up the good work with the marketing reps of not trying to sign up pregnant women." In another e-mail, the director advised that the company had continued to build experience in not signing up pregnant women or people from areas where drug abuse was prevalent. Still another Amerigroup executive admitted that it was always his policy "to go after the healthies," and Dwight Jones, Amerigroup's corporate representative at trial, acknowledged that a large drop in the number of pregnant women as enrollees was the direct result of an active effort to avoid them in the first place.

Defense counsel denied the allegations that Amerigroup discriminated against pregnant women. While the company admitted that it did attempt to reduce its enrollment of women in their third trimester of pregnancy, the stated reason was to ensure "continuity of care" so that women would not be forced to switch doctors after having switched health plans. Defense also argued that state authorities had knowledge of and even encouraged such a policy.

Technically and procedurally, the initial 2002 complaint alleged that Amerigroup Illinois submitted false claims under the Medicaid program. The first amended complaint added a charge that Amerigroup maintained a scheme to discourage or avoid the enrollment of pregnant women and other Medicaid recipients with special needs. The third amended complaint alleged that Amerigroup Corporation was liable as the alter-ego of Amerigroup Illinois, Inc., and that Amerigroup Corporation was also liable for making false claims or causing false claims to be made.

Jury findings were that (1)the HMO (Amerigroup) actively discriminated against and sought to prevent the enrollment of pregnant women and sick individuals; and (2) the HMO (Amerigroup) had falsified its certification that it complied with anti-discrimination statutes and policies. This certification was made individually on each enrollment form submitted to the government between 2000 and 2003. Thus, each falsely-certified enrollment form constituted a separate "false claim" (18,130 in all).

Managed-care HMO health plans, such as those run by Amerigroup, are generally less expensive than fee-for-service Medicaid plans, because HMOs place restrictions on doctor and hospital choices to their networks. Medicaid is funded jointly by federal and state governments, which have supported the creations of HMOs to save money.

Amerigroup no longer operates is Illinois but continues to provide Medicaid-based HMO services in nine other states. At the time of the litigation, Amerigroup was posting between $2.3 and $3 billion in revenue annually.

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Discrimination

DISCRIMINATION

In constitutional law, the grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimination on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws.

CBOCS West v. Humphries

In an important employment discrimination case, the U.S. Supreme Court has settled, in the affirmative, the issue of whether claims of race-based retaliation could be brought under 42 USC § 1981. The significance of this case was that it confirmed for plaintiffs an alternative cognizable cause of action for race-based retaliation, in addition to that under Title VII of the Civil Rights Act of 1964. This frees them from the administrative burdens associated with Title VII, including the short administrative statute of limitation. It also frees plaintiffs from the damages caps that Title VII imposed on jury awards.

In CBOCS West, Inc. v. Humphries, No. 06-1431, 552 U.S.—,plaintiff Humphries, an African-American, was employed as an associate manager at a Cracker Barrel restaurant owned by CBOCS. He was ostensibly fired for leaving a safe in the restaurant unlocked overnight. However, in his complaint, he alleged that he was fired in retaliation for complaining to a district manager about another African-American employee who was fired for offenses that Humphries argued were tolerated from white employees. Humphries further alleged that a supervisor made overtly racial remarks about African-Americans and Mexican-Americans. He filed suit in federal district court under both Title VII of the Civil Rights Act of 1964, and 42 USC § 1981 of the Civil Rights Act of 1866. He alleged both racial discrimination for the firing, and race-based retaliation for having complained about the treatment of the other African-American employee.

The district court dismissed the Title VII claims for failure to timely pay filing fees; it also granted CBOCS summary judgment on the 1981 § claims. However, the Seventh Circuit Court of Appeals, while affirming the dismissal of the direct discrimination claim, remanded the case for a trial on Humphries' § 1981 claim of retaliation. The Seventh Circuit ruled that the statute did indeed encompass retaliation claims. CBOCS appealed to the U.S. Supreme Court, which affirmed the Seventh Circuit's opinion.

The relevant statutory language in 42 USC § 1981 (enacted in 1866, following the Civil War and end of slavery in the United States) provides that “[a]ll persons within the jurisdiction of the United States shall have the same right … to make and enforce contracts … as is enjoyed by white citizens.” The following section, § 1982, provides that “[a]ll citizens … shall have the same right, …, as is enjoyed by white citizens … to inherit, purchase, lease, sell, hold, and convey real and personal property.

CBOCS, in defense, had argued that § 1981's plain text did not refer to retaliation, which generally occurred after the formation of an employment contract. While a contract of employment was covered under § 1981, argued CBOCS, any post-contract conduct was not. Further, Congress had failed to expressly include an anti-retaliation provision in its § 1991 amendment to 1981. CBOCS also argued that such an expansive interpretation overlapped Title VII and could therefore undermine the procedural mechanisms under that statute.

As background, it had long been held, in prior decisions, that 42 USC § 1982 (not § 1981) recognized and encompassed retaliatory actions, e.g., Sullivan v. Little Hunting Park, 396 U.S. 229 (1969), as later interpreted and relied upon in Jackson v. Birmingham Bd. Of Education, 544 U.S. 167. Another line of prior cases had consistently held that § 1981 and § 1982 were to be interpreted alike, having been enacted together, having common language, and serving the same purpose of providing black citizens the same legal rights as white citizens. See, e.g., Runyon v. McCrary, 427 U.S. 160. But there were no direct cases on point addressing § 1981's application to retaliatory conduct that followed the “making” of a contract (in this case, a contract of employment).

Congress eventually enacted the Civil Rights Act of 1991, which very explicitly defined the scope of § 1981 to include post-contract-formation conduct. Since that time, the federal Courts of Appeals had uniformly interpreted § 1981 as encompassing post-contract retaliatory conduct. All that was needed was an affirmation from the U.S. Supreme Court, and according to the Court, the present case provided that opportunity for clarification and affirmation.

In so holding, the Court relied heavily on the doctrine of stare decisis, or the willingness of the Court to abide by its own previous decisions (precedents). In the present case, finding that 42 USC § 1981 would in fact support Humphries' claim for retaliation, Justice Breyer wrote for the Court, We conclude that considerations of stare decisis, strongly support our adherence to Sullivan, and the long line of related cases where we interpret § 1981 and 1982 similarly. CBOCS' arguments do not convince us to the contrary. We subsequently hold that 42 USC § 1981 encompasses claims of retaliation. The judgment of the Court of Appeals is affirmed.

Justice Breyer was joined in the majority opinion by Chief Justice Roberts and Justices Stevens, Kennedy, Souter, Ginsburg, and Alito. Justice Thomas wrote a dissenting opinion, joined by Justice Scalia, in which he opined that because the Court's holding had no basis in the text of 42 USC § 1981, and was not really justified by stare decisis, (because no prior case had held exactly what was held in this case), there was no firm basis for the Court's decision in the present case.

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Discrimination

DISCRIMINATION

Discrimination, in its sociological meaning, involves highly complex social processes. The term derives from the Latin discriminatio, which means to perceive distinctions among phenomena or to be selective in one's judgment. Cognitive psychology retains the first of these meanings, popular usage the second. Individual behavior that limits the opportunities of a particular group is encompassed in many sociological considerations of discrimination. But exclusively individualistic approaches are too narrow for robust sociological treatment. Instead, sociologists understand discrimination not as isolated individual acts, but as a complex system of social relations that produces intergroup inequities in social outcomes.

This definitional expansion transforms "discrimination" into a truly sociological concept. But in its breadth, the sociological definition leaves room for ambiguity and controversy. Obstacles to consensus on what constitutes discrimination stem from two sources—one empirical, the other ideological and political. First, deficiencies in analysis and evidence limit our ability to trace thoroughly the dynamic web of effects produced by discrimination. Second, because social discrimination is contrary to professed national values and law, a judgment that unequal outcomes reflect discrimination is a call for costly remedies. Variable willingness to bear those social costs contributes to dissension about the extent of discrimination.

The broadest sociological definitions of discrimination assume that racial minorities, women, and other historical target groups have no inherent characteristics that warrant inferior social outcomes. Thus, all inequality is seen as a legacy of discrimination and a social injustice to be remedied. By contrast, political conservatives favor a far narrower definition that limits the concept's scope by including only actions intended to restrict a group's chances. For solid conceptual reasons, sociologists seldom follow suit (but see Burkey 1978, p. 79). First, an intentionality criterion returns the concept to the realm of psychology and deflects attention from restraining social structure. Second, the invisibility of intentions creates insuperable obstacles to documenting discrimination.


DIRECT AND INDIRECT DISCRIMINATION

Sociologists' understanding of intricate societal patterns sensitizes them to the fact that disadvantage accruing from intentional discrimination typically cumulates, extends far beyond the original injury, and long outlives the deliberate perpetration. Many sociologists distinguish between direct and indirect discrimination (Pettigrew 1985). Direct discrimination occurs at points where inequality is generated, often intentionally. When decisions are based explicitly on race, discrimination is direct. Indirect discrimination is the perpetuation or magnification of the original injury. It occurs when the inequitable results of direct discrimination are used as a basis for later decisions ("past-in-present discrimination"), or decisions in linked institutions ("side-effect discrimination") (Feagin and Feagin 1986). Hence, discrimination is indirect when an ostensibly nonracial criterion serves as a proxy for race in determining social outcomes.

To illustrate with wages, direct discrimination exists when equally qualified blacks and whites or men and women are paid at different rates for the same work. Indirect discrimination exists when the two groups are paid unequally because prior discrimination in employment, education, or housing created apparent differences in qualifications or channeled the groups into better- and worse-paying jobs. This direct/indirect distinction resembles the legal distinction between disparate treatment and disparate impact. While intentional direct discrimination may have triggered the causal chain, the original injury is often perpetuated and magnified by unwitting accomplices. Intentionality criteria deny that the continuing disadvantage is a legacy of discrimination.

Years ago, Williams outlined the concept differently: "Discrimination may be said to exist to the degree that individuals of a given group who are otherwise formally qualified are not treated in conformity with these nominally universal institutionalized codes." (Williams 1947, p. 39, italics added). For Antonovsky (1960, p. 81), discrimination involves ". . . injurious treatment of persons on grounds rationally irrelevant to the situation" (italics added). Economists use starker terms. Becker (1968, p. 81) held that economic discrimination occurs ". . . against members of a group whenever their earnings fall short of the amount 'warranted' by their abilities" (italics added).

Two problems arise with these definitions. First, the assessment of "abilities" and of what treatment is "rationally" relevant or "warranted" is no easy task. Critical examination of common practice uncovers many instances where formal qualifications and "nominally universal institutionalized codes" prove not to provide a logical basis for distinctions. Employment testing litigation demonstrates that when hiring criteria once legitimized by tradition or "logic" are put to scientific test, they often fail to predict job performance in the assumed fashion. Analogous fallacies have been identified in the conventional wisdom guiding admission to advanced education. Hence, nominally universalistic standards may provide an altogether illogical basis for decision making. If such misguided selection procedures also work to the disadvantage of historical victims of discrimination, these practices are not exempted from the charge of discrimination by their universalistic facade.

The second problem with these definitions is that they ignore another, prevalent form of indirect discrimination. Even where nominally universalistic standards do serve some legitimate social function, such as selecting competent workers, adverse impact of these standards on those who bear the cumulated disadvantage of historical discrimination cannot be disregarded.

The complexity of discrimination and unresolved issues about its definition impede easy application of social science methods to inform institutional policy. Apparently rigorous quantitative analyses often only camouflage the crucial issues, as critical examination of wage differential decompositions reveals.


THE DECOMPOSITION APPROACH

Assessments of discrimination produced by decomposing gross race or gender differences in wages or other social outcomes are common in sociology (e.g., Corcoran and Duncan 1978; Farley 1984, Rosenfeld and Kalleberg 1990) as well as in economics (e.g., Gill 1989). One segment of the gross intergroup differential is defined by its empirical linkage to "qualifications" and other factors deemed legitimate determinants of social rewards. The second, residual segment not demonstrably linked to "legitimate" determinants of the outcomes often is presented as the estimate of discrimination. However, in the absence of better information than usually available and greater agreement on what constitutes discrimination, no unique estimate is possible. Through their choice of control variables to index "legitimate" determinants of social outcomes and their interpretation of findings, researchers wittingly or unwittingly shape their answers. Any appearance of scientific certitude is an illusion. For example, estimated proportions of the gender earnings gap caused by discrimination in the United States range from Sanborn's (1969) 10 percent or less to Blinder's (1973) 100 percent. Predictably, each has been challenged (Bergman and Adelman 1973; Rosensweig and Morgan 1976).

An Illustrative Decomposition Study. An analysis of gender differentials in faculty salaries at a large university illustrates the difficulty of separating "legitimate" wage differentials from inequity (Taylor 1988). About 90 percent of a $10,000 gender difference in faculty salaries was empirically linked to three factors widely considered legitimate determinants of faculty pay: academic rank, age, and discipline. Women tend to hold lower academic rank, to be younger, and more often to be affiliated with poorly-paid disciplines than men. Insofar as women's lower salaries are linked to rank, age, and discipline, is the salary differential untainted by gender discrimination? Conventional wage differentials imply an unequivocal yes. If a simple answer is given, it should be no. But in truth, when policy makers ask for dollar estimates of inequity that the institution is obliged to remedy, the answers are neither unequivocal nor simple.

If the university's promotion system has operated fairly, a gender gap reflecting differences in rank may be warranted. If gender bias has existed in the university's promotion system, depressing the average academic rank of women faculty, the resulting deficit in women's salaries reflects indirect discrimination. Attention should then be directed to the offending promotion processes. However, direct salary adjustments may also be in order, because gender bias in promotions weakens the link between rank and merit. Inequitable depression of women's ranks would not necessarily lessen their actual contributions to the faculty, just their status. Using rank as a universalistic determinate of salary would then undermine the goal this practice is claimed to promote—the matching of rewards to contributions.

Salary differences tied to the age differential of female and male faculty also raise troublesome questions. If the relative youth of women faculty reflects lower retention and higher turnover as a result of discriminatory review processes or generally inhospitable conditions, salary differentials tied to age differences are again examples of indirect discrimination. The evidence would signal a need for institutional efforts to improve the retention of women faculty. But here it is not clear that salary adjustments are warranted. Because faculty contributions may be a function of experience, application of the universalistic age criterion is arguably reasonable. Any gender gap in salary tied to age differentials could, then, be both a legacy of discrimination and a reasonable conditioning of rewards on contributions. Complicating the issue further is the fact that affirmative action efforts often meet with greatest success in recruiting junior candidates. Thus, without supplementary data, it is not even clear whether an age-linked gender gap in salary reflects continuing institutional discrimination or affirmative hiring.

Gender differences in salary associated with discipline present even more complicated interpretational problems. Women and men are distributed across academic disciplines in a fashion that mirrors the gender distribution across occupations. Disciplinary differences in average salary likewise mirror wage differentials across occupations. But are the differing occupational distributions simply a matter of gender differences in preferences or abilities with no implication of discrimination? Or are women steered away from lucrative fields, so that gender differentials in salary linked to disciplinary affiliation represent indirect discrimination in training, recruitment, and hiring? Or does the pattern of occupational wage differentials mirrored in disciplinary differences represent direct discrimination, an influence of gender composition per se on occupational wage structures (England et al. 1988)? In the latter case, assignment of responsibility for remedy presents particular problems. The university, like any other single employer, is simultaneously vulnerable to competitive forces of the wider labor market and a constituent element of that market. Defiance of the market by a single organization is costly to that organization; adherence by all organizations to the broader occupational wage structure perpetuates gender inequity and carries broader costs.

This faculty salary study did not examine the role of scientific "productivity." But the inclusion of productivity measures among the control variables raises further difficulties. On standard "productivity" measures, women faculty average lower scores than men (Fox 1990). Thus, an institutional study of salary differentials might find some segment of the male/female salary gap linked to productivity differences. Fox's research demonstrates, however, that gender differences in scientific productivity reflect contrasting levels of resources that institutions provide to male and female faculty. Like age and rank, the gender difference in productivity may itself be a product of institutional discrimination. Thus, salary differentials based on male/female productivity differences also may represent indirect discrimination. The new ingredient here is that institutional shaping of productivity is subtle. Scientific productivity is ordinarily seen as an outgrowth of talent and effort, not potentially gender-biased institutional resource allocation. Solid documentation of this indirect discrimination process offers another challenge for researchers.


COMPLEXITIES OF DISCRIMINATION AND REMEDY

Critical reflection on this decomposition study highlights a set of interrelated points about the complex nature of discrimination and unresolved issues of remedy.

  1. In American society today, the injuries of indirect discrimination are often far more extensive than those of direct discrimination. This conclusion does not imply that direct discrimination no longer exists (Reskin 1998). The continued operation of direct forms of discrimination is indicated by employment complaint records. American women and minorities have filed almost 1.5 million job discrimination complaints since 1965 (Blumrosen 1996, p. 4). In 1994 alone, over 150,000 such complaints were filed; 91,000 to local and state agencies and 64,000 to the U.S. Equal Employment Opportunity Commission (Leonard 1994, p. 24). Of course, not all complaints reflect genuine discrimination; on the other hand, not all discrimination prompts formal complaints. Many major corporations were found guilty of direct race or gender discrimination in the 1990s. And employment audits using paired, equally qualified applicants reveal widespread direct discrimination (Reskin 1998, pp. 25–29).
  2. Apparently reasonable universalistic principles may on closer examination be unnecessary or even disfunctional. Scrutiny of employment criteria prompted by the Supreme Court's 1971 Griggs v. Duke Power Co. decision has provided useful models for challenging nominally universalistic standards. Where it is possible to substitute standards that do as well or better at screening or evaluation without adversely affecting historical targets of discrimination, there are gains for all involved.
  3. When gaps in actual qualifications are a legacy of discrimination, more extensive remedies are needed. Where training deficits impair employability, or inadequate preparation impedes admission to higher education, attention should be given to the earlier schooling processes that generated these deficiencies. This form of remedy aids future generations. In the meantime, compensatory training can reduce the liabilities of those who have already fallen victim to inferior schools.
  4. Microcosms cannot escape the discriminatory impact of the societal macrocosm. Just as salary differences across academic disciplines reflect general occupational wage structures, institutions are often both prey to and participant in broader social forces. Narrow, legalistic approaches to remedy are inadequate for addressing this dynamic of discrimination.
  5. Empirical research on group discrimination must mirror the phenomenon in its variety and complexity. The regression decomposition approach has proven useful but has its limitations (see also Dempster 1988, and the ensuing commentary). Regression analyses could provide more pertinent information if based on more homogeneous job groups (Conway and Roberts 1994) and on structural equation models that test reciprocal causation. Most important, if the aim is to guide policy, a framework far more complex than the dichotomous discriminationor-not approach is required. The sociological arsenal of methods offers other promising approaches. Research that traces the actual processes of institutional discrimination is essential (e.g., Braddock and McPartland 1987, 1989). Also needed is attention to victims' perceptions of discrimination (e.g., Feagin and Sikes 1994) and investigation of the changes generated by anti-discrimination efforts. Another approach involves cross-national comparative research, which we consider below.

EFFECTIVE REMEDIAL INTERVENTIONS

Direct racial and gender discrimination in the United States has declined in recent decades—more slowly in the 1980s and 1990s than in the 1960s and 1970s. But what caused this decline? Many factors were involved, but governmental intervention was an important impetus. For example, blacks in South Carolina made dramatic economic gains in manufacturing during the late 1960s. Heckman and Payner (1989) demonstrated that human capital, supply shifts, and tight labor markets could not explain the sudden improvements. It was federal anti-discrimination programs, they concluded, that made a decisive contribution to the gains.

More general assessments also show that anti-discrimination legislation did reduce direct job discrimination nationally (Burstein 1985). It did not, however, eliminate the problem. Nor did such laws effectively attack indirect discrimination. For this more difficult problem, affirmative action programs were needed and have had some success (Reskin 1998). The resistance to such programs, however, underscores the difficulty of establishing effective remedies for the more subtle forms of discrimination.


DISCRIMINATION IN WESTERN EUROPE

Beyond racial and gender discrimination in the United States, the same basic concerns and principles arise for other nations and targets. Discrimination against Western Europe's new immigrant minorities is pervasive (Castles 1984; MacEwen 1995; Pettigrew 1998). Both direct and indirect discrimination are involved, though the indirect forms are largely unrecognized in Europe.

Investigators have repeatedly uncovered direct discrimination in England (Amin et al. 1988; Daniel 1968; Gordon and Klug 1984; Smith 1976). Controlled tests reveal the full litany of discriminatory forms involving employment, public accommodations, housing, the courts, insurance, banks, even car rentals. Employment discrimination poses the most serious problem. In every European Union nation, minorities have far higher unemployment rates than the majority group. In 1990 in the Netherlands, Moroccans and Turks had unemployment rates above 40 percent compared with the native Dutch rate of 13 percent (Pettigrew and Meertens 1996). During the 1974–1977 recession, West German manufacturing reduced its labor force by 765,000—42 percent of whom were foreign workers (Castles 1984, p. 148).

As in the United States, there are many reasons for minority unemployment disparities. The "last-in, first-out" principle selectively affects the younger minority workers. Typically less skilled, they are more affected by job upgrading. Minorities also are more likely to be in older, declining industries. But these patterns are not accidental. Planners put minorities into these industries for cheaper labor precisely because of their decline. In addition, these multiple factors offer insufficient explanations for the greater unemployment of minorities. Veenman and Roelandt (1990) found that education, age, sex, region, and employment level explained only a small portion of the differential unemployment rates in the Netherlands.

Indirect discrimination arises when the inability to obtain citizenship restricts the opportunities of non-European Union minorities. It limits their ability to get suitable housing, employment, and schooling. A visa is necessary in order to travel to other European Union countries. In short, the lives of Europe's non-citizens are severely circumscribed (Wilpert 1993). Castles (1984) contends that the guest-worker system that brought many of the immigrants to Europe was itself a state-controlled system of institutional discrimination. It established the newcomers as a stigmatized "outgroup" suitable for low-status jobs but not citizenship. Widespread indirect discrimination was inevitable for these victims of direct discrimination.

Anti-discrimination remediation has been largely ineffective in Europe. Basic rights in Germany are guaranteed only to citizens. So, the disadvantages of non-citizenship include limited means to combat discrimination. There is extensive German legislation to combat anti-Semitism and Nazi ideology, but these laws have proved difficult to apply to non-citizens. The German constitution explicitly forbids discrimination on the basis of origin, race, language, beliefs, or religion—but not citizenship. Indeed, the Federal Constitutional Court has ruled that differential treatment based on citizenship is constitutional if there is a reasonable basis for it and if it is not wholly arbitrary. Hence, a German court upheld higher taxes for foreign bar owners than German bar owners. And restaurants can refuse service to Turks and others on the grounds that their entry might lead to intergroup disturbances (Layton-Henry and Wilpert 1994).

Few means of combatting discrimination are available in France either. Commentators often view discrimination as "natural," as something universally triggered when a "threshold of tolerance" (seuil de tolerance) is surpassed (MacMaster 1991). Without supporting evidence, this rationalization supports quotas and dispersal policies that limit minority access to suitable housing.

The Netherlands, United Kingdom, and Sweden have enacted anti-discrimination legislation that specifically applies to the new immigrant minorities. And the Dutch have instituted modest affirmative action programs for women and minorities (De Vries and Pettigrew 1994). Not coincidentally, these countries make citizenship easier to obtain than Germany. Yet this legislation has been largely ineffective for two interrelated reasons. First, European legal systems do not allow class action suits—a forceful North American weapon to combat discrimination. Second, European efforts rely heavily on individual complaints rather than systemic remediation. Britain's 1976 Act gave the Commission for Racial Equality the power to cast a broad net, but individual complaints remain the chief tool (MacEwen 1995).

It is a sociological truism that individual efforts are unlikely to alter such systemic phenomena as discrimination. Mayhew (1968) showed how individual suits and complaints are largely non-strategic. Minorities bring few charges against the worst discriminators, because they avoid applying for jobs with them in the first place. Complaints about job promotion are common, but they are made against employers who hire minorities. Thus, effective anti-discrimination laws must provide broad powers to an enforcement agency to initiate strategic, institutionwide actions that uproot the structural foundations of discrimination. Mayhew's American analysis proves to be just as accurate in Western Europe.


CONCLUSIONS

A comprehensive understanding of societal discrimination in both North America and Western Europe must encompass two propositions.

  1. The long-lasting character of discrimination means that the effects typically outlive the initiators of discriminatory practices. Apart from its importance to the law, this feature of modern discrimination has critical implications for sociological theory. Discrimination is fundamentally normative; its structural web operates in large part independent of the dominant group's present "tastes," attitudes, or awareness. Hence, models based primarily on individual prejudice or "rationality," whether psychological or economic, will uniformly understate and oversimplify the phenomenon.
  2. Discrimination is typically cumulative and self-perpetuating. For example, an array of research on black Americans has demonstrated that neighborhood racial segregation leads to educational disadvantages, then to occupational disadvantage, and thus to income deficits (Pettigrew 1979, 1985). To be effective, structural remedies must reverse this "vicious circle" of discrimination. Affirmative action programs are one such remedy.

Seen in sociological perspective, then, discrimination is considerably more intricate and entrenched than commonly thought. The complexity of discrimination presents major challenges to social-scientific attempts to trace its impact. This complexity also precludes any one-to-one correspondence between perpetration and responsibility for remedy. Broad social programs will be necessary if the full legacy of direct and indirect discrimination is finally to be erased.


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Thomas F. Pettigrew Marylee C. Taylor

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Discrimination

DISCRIMINATION

In constitutional law, the grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimination on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws.

Jackson v. Birmingham Board of Education

Title IX of the Education Amendments of 1972, 20 U.S.C.A. §§1681-1688, prohibits discrimination on the basis of sex in federally assisted education programs. It has been used to attack gender discrimination in such diverse areas as admissions, scholarships, and athletic programs. Under Title IX, the federal government can stop funding educational systems that violate its provisions. In addition, the U.S. Supreme Court, in Cannon v. University of Chicago, U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) held that Title IX carries with it the implication of a private cause of action . This means that alleged victims of sex discrimination could sue school personnel and the schools themselves for damages. Although the Court admitted that the language of Title IX did not "expressly authorize a private right of action," the post-enactment "assumption" by judges, executive officers, and litigants that there was such a right proved that there was one. Left unresolved was whether a person who reported gender discrimination to school authorities could sue when the school retaliated for the report with unfavorable actions. The Supreme Court resolved the issue in Jackson v. Birmingham Board of Education, __U.S. __, 125 S.Ct. 1497, __ L.Ed.2d __ (2005), ruling that Title IX did allow a private right of action based on retaliation.

Roderick Jackson was a teacher in the Birmingham Public Schools and also coached the girls' basketball team. Jackson found that the girls' athletic teams did not receive equal funding and equal access to athletic equipment and practice facilities as compared to the boys' team. In late 2000, Jackson began to complain about these conditions, but the school leadership did not take corrective action. Instead, Jackson alleged that he received negative job evaluations and was removed as basketball coach in May 2001. Although he kept his teaching position, Jackson lost the income he received from coaching. Jackson filed a Title IX lawsuit in federal district court , arguing that the school district had retaliated against him for reporting the alleged Title IX violations. The district court dismissed his action, ruling that Title IX's private right of action did not include claims of retaliation. The U.S. Court of Appeals for the Eleventh Circuit upheld this decision, which ran counter to decision in two other circuit courts of appeal. The Supreme Court agreed to hear Jackson's case to resolve this conflict.

In a 5-4 decision, the Court overturned the Eleventh Circuit's decision. Justice Sandra Day O'Connor, in her majority opinion, noted that the Cannon holding had made clear that Title IX permitted private rights of action and that cases following it had "defined the contours of that right of action." The Court had permitted private lawsuits involving intentional violations of Title IX and suits against schools that were deliberately indifferent to cases of sexual harassment by a teacher against a student or by a student against another student. Justice O'Connor concluded that retaliation "against a person because that person has complained of sex discrimination is another form of intentional sex discrimination" under Title IX. In doing so, she also rejected the appeals court's finding that Jackson himself was not a victim of unequal treatment because of his sex and thus that he could not be protected by Title IX.

Justice O'Connor ruled that the mission of Title IX would be undercut if persons who complained about sex discrimination did not have a way to protect themselves from retaliation. Without such protection, individuals would be reluctant to report discrimination, and Title IX violations might not be corrected. The reporting of violations is central to Title IX enforcement; without protection from retaliation, the statute's enforcement schemed would "unravel." In addition, reporting is essential because Title IX requires that school officials receive "actual notice" of the allegedly discriminatory actions. Justice O'Connor believed that "Teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators." Therefore, the Court remanded the case back to the district court. Jackson would have the opportunity to prove that the school board retaliated against him because of his sex-discrimination complaints.

Justice Clarence Thomas, in a dissenting opinion joined by Chief Justice Rehnquist and Justices Antonin Scalia and Anthony Kennedy, argued that the Court's ruling was contrary to the plain language of Title IX "because retaliatory conduct is not discrimination on the basis of sex." Because he believed that Congress had not clearly authorized private rights of action, Thomas contended that the Court had usurped legislative authority by permitting private lawsuits.

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