A Brief Analysis of Reverse Discrimination

Racial discrimination is defined as unfavorable treatment, or having fine judgement or taste against a distinct race or minority. It is an epidemic that has been occurring for hundreds of years. Throughout different time periods people have been discerning others because of physical characteristics uncommon to each other. In 1607, English colonists in Jamestown, Virginia, became the first Americans to bring African slaves to the New World thus beginning hundreds of years of discrimination.

There have been many improvements in the area of racial discrimination through laws and personal views, but racism still exists, and probably will for many years to come. In the workplace racial discrimination is so prevalent that there is one whole title in the Civil Rights Act of 1964 specifically dedicated to quelling this issue. The problem today is deciding where to draw the fine line between racial discrimination and making a choice for the better of your business, and when that line is crossed.

But racial discrimination effects people other than those being directly discriminated. By definition, racial discrimination is due to a bias against minorities. But there is another form of discrimination – that of reverse discrimination. In this case it isn’t the minority that is being discriminated against, it is the white man. Obviously both forms of biased views are, in simplest form, still discrimination, but reverse discrimination is sometimes not thought of as a serious problem and is an issue that must be addressed.

Civil Rights legislature has made major strides in establishing equal rights in the work place but as minorities gain civil rights the issue of reverse discrimination becomes a problem. Before we can take a look at reverse discrimination, we must first look at the laws that establish our basic civil rights. There are two main pieces of legislature that frame these basic civil rights. They are the Fourteenth Amendment of the constitution and the C! The Fourteenth Amendment was ratified on July 9, 1868, and is one of the most important legal weaponS in Black America’s struggle for equality (Davis, 11).

Section 1 of the Fourteenth Amendment declares that ” No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Bagley A-6). The basic meaning of the amendment is that people are equally entitled to fundamental rights (Schwartz, 100). Its intention was for the individual to possess basic civil rights and to describe how he is affected by basic agencies of the states.

In theory the “people” of the United States were now whites and minorities, and everyone should enjoy freedom equally (101). The Fourteenth amendment did have its shortcomings though. The way it was designed, lent itself to work on a state level rather than a federal level (Loevy 7). This meant that the federal government didn’t have as much power as the individual states in enforcing the law and therefore allowed for discrimination by private citizens. There was the notion of a “free white jury that will never convict” (8).

White southerners knew that a jury of their peers would never convict them for crimes such as murder, lynching, and blatant discrimination. It became routine that whites had their free will to personally enforce racial segregation. The first landmark case in the fight for racial integration and equality was Plessy v. Ferguson. In this case a railroad attendant refused to provide a sleeping car for an African American. It went to court under the fourteenth amendment and the Supreme Court eventually ruled that segregation of blacks and whites was constitutionally legitimate as long as the accommodations for each were equal.

Separate but Equal” was now precedent and the fight for equality had won its first battle. This verdict soon came into question though when the notion of racial segregation in public schools was taken to court. Brown v. Board of education was probably one of the biggest landmark decisions in the fight for equal rights. The Supreme Court ruled that “separate but equal” was by definition – unequal. The court stated that segregation in public schools was unconstitutional and also implied that all forms of segregation were illegal (Loevy 17). Although this decision implied that segregation was illegal it did little to enforce the idea.

There was still an opposition to integration that held the equal rights movement back. It was seen that there was a need for firm legislation that would not only lay down terms for equal rights but be able to enforce them too. >From 1866 to 1965 there were six Civil Rights Acts passed through congress. By far the most far-reaching Act was the Civil Rights Act of 1964 . It consisted of eleven titles and of those eleven; there was one that directly impacted discrimination in the workplace. Forty percent of all median income differences between black and white workers is the result of employment and occupation discrimination (Bell 717).

Title VII forbids discrimination by employers (Karst 284) and makes it unlawful to even ask a prospective employee any information about race, color, gender, religion, or national origin (Zigarelli 2). The agency that enforces Title VII is the EEOC (Equal Employment Opportunity Commission). Since the creation of the Civil Rights Act of 1964, Title VII has been the source of more litigation than any other titles in the act (Karst 285). The Civil Rights Act of 1964 was indeed firm legislation that did in fact protect the civil rights of Americans, but with the legislative laws of the act also came a host of Common Laws.

When a judge makes a decision in court, that decision is said to create a precedent. If a similar case comes to court the precedent will be what is followed when making that decision, and the precedent, although not a legislated law, becomes in affect, a law – or Common Law (Zigarelli 11). Now the citizens of the United States had a strong backing to achieve racial equality. But what happens when the system that is in place to provide these rights actually does the opposite and allows for discrimination of another group other than the minority.

Reverse discrimination in the workplace is defined as preferential treatment for minority group members in that workplace (Goldman 4). It can be either giving special treatment in considering an applicant for employment or in considering an employee for promotion or termination. Some of the ways that reverse discrimination is introduced is by the use of quotas, percentages, and set-asides. In an effort to speed up the process of racial integration in our society, the government put forth these certain employment policies.

Quotas and percentages are held to encourage minority hiring while also keeping with the existing workplace standards (Goldman 22). The idea is that if the percentage of minority employees working at an establishment is radically lower than the percentage of non-minority employees it is probably because of past discrimination. A quota is established to raise these numbers and create a racially equal working environment. In its basic form a quota is intended to be a goal the company wishes to achieve to be more of an equal opportunity employer.

The problem that arises with this type of policy is that it becomes very easy to instead of hiring minority workers based on their competence and skill level, just say “The next certain n! umber of minorities that apply for the job I’ll hire regardless of how skilled they are or how skilled their non-minority competition is. ” It becomes a case of white man applying for a job, and his race, not his credentials being the reason for not hiring him (Baer 135); therefore loosing the job to a less qualified minority simply because the company wanted to correct for its past discrimination practices.

In January 1972 the NAACP sued the Alabama state police because they had one of the least racially integrated police organizations in the country. The court ordered them to integrate their organization by hiring one African American police man for every white one until they possessed a 25 percent minority work-force (Urofsky 19). Court orders were followed and twelve years later the Alabama state police had one of the most integrated police forces in the south. Obviously the policy worked in integrating their organization but what would happen if a more qualified white man applied for the job and was rejected only because he was white?

Is there any difference between the discrimination of African Americans and the discrimination of whites simply because an organization is trying to erase past prejudices? There is a belief that compensation should be made for wrongs done and that there is a need to improve the economic status of minorities, but by making special treatment for some, it is inevitable that others are discriminated against (Fullinwider 2-5). The only thing that is accomplished by these reverse discrimination practices is that the injustice is merely shifted from one group to another (Urofsky 30) rather than working on a solution to abolish it .

Alan Goldman, author of Justice and Reverse Discrimination states that strict quotas for raising the percentages of blacks will, unless carefully controlled, result in the decrease of competency standards (22). The reason for this decrease, is that the employer can much more easily resort to hiring less qualified minority workers than properly screening the competency of all people that apply, thus lowering that standard. Quotas also have another drawback. While minorities have long been discriminated against as groups, the process of installing a quota discriminates against non-minorities as individuals (Urofsky 29).

Most people believe that African Americans as a group do deserve some sort of compensatory treatment for past prejudices against them (Fullinwider 58). But preferential hiring does not accomplish this. It only benefits individuals and does nothing to further the racial acceptance of that group. The concept of Equal Opportunity in America creates another problem with preferential hiring. As plainly as it can be stated, Equal Opportunity, is a concept that should lend opportunities to all races equally. But since the conception of quotas and preferential hiring, Equal Opportunity has taken on a somewhat different meaning.

It now seems to mean; instead of an equal opportunity for all, if one is a minority he will sometimes receive better treatment than a non-minority. Robert Fullinwider in his book The Reverse Discrimination Controversy goes so far to state that preferential hiring is unconstitutional because it violates the “principle of equal opportunity” (23). Now certainly there is no “principle of equal opportunity” in the constitution itself, but Fullinwider puts forth the idea that equal opportunity is analogous to the constitutional right of a fair trial or even of free speech.

When thought of this way it is easy to contend that there is in fact a “princi! ple of equal opportunity” that is somewhat similar to a constitutional right. In a simpler form it can be stated that preferential treatment to minorities can be considered if not unjust, at least unfair because it allows minorities to achieve less, and still be just as competitive as non-minorities (Fullinwider 21). It is interesting to note that while Title VII of the Civil Rights Act of 1964 is the main piece of legislature that frames our civil rights, it is also the main framework for allowing reverse discrimination.

Section 706(g) essentially gives the court power to order preferential treatment if the accused employer “has intentionally engaged in an unlawful employment practice charged in the complaint. ” The statement: “which may include but is not limited to, reinstatement or hiring of employees … or any other equitable relief as the court deems appropriate,” is basically the court’s right to impose any type of preferential treatment it sees as being necessary. It becomes more confusing to note that section 703(a) and (j) seem to give an opposite opinion of preferential hiring. 703(j) even goes so far as to state the following:

Nothing contained in this title shall be interpreted to require any employer … to grant preferential treatment to any individual or any group (Fullinwider 125). It seems to be an odd complement of ideas to be put together in the same Title. On one hand you have a part of the Title that states that the decision is up to the judgement of the court and on the other hand you have another section that states that it is actually not up to the court to decide – it is simply wrong. Fullinwider gives an explanation for this. He states that the two different sections can be thought of as two different rules that will be interpreted differently.

Depending on the situation the court is given the power to propagate whatever remedy will work best. All the previously mentioned terms such as preferential hiring, quotas, and set asides are all part of a whole known as Affirmative Action. This plan undertaken by Lyndon B. Johnson as an extension of Kennedy’s civil rights campaign was a series of steps made to overcome the present effects of past discrimination (“Affirmative Action” 241). Although the plan accomplished great strides for minorities it also gave rise to the issue of Reverse Discrimination.

And while it did advance minorities it left behind one major idea. The whole concept of discrimination comes not directly from the fact that minorities are held back physically or economically in society. It comes from the idea that we live in a race-conscious society where minorities are sometimes thought of as being a part of a lower economic standard. Critics of Affirmative Action do not see it as being a way for minorities to become more equal in society because with Affirmative Action comes the unending belief th! at ultimately, there is such a thing as race.

If we are to overcome racism we must first learn that there is no such thing as race – there are only people. Affirmative Action is therefore thought of as simply another way for America to become an even more race-conscious society, thus keeping minorities from progressing. A good way to further understand the intricacies of Reverse discrimination is to look at specific cases where the policies of preferential hiring, quotas, set asides were put to the test. The first case will explore the rights of a man who was working for ten years and finally had to sue his employer to get a promotion.

His name is Joseph Ray Terry and he has been a civil rights attorney at the EEOC for more than ten years. It has been said that workers should roughly be represented proportionally with their numbers in the general population but fifty percent of the white-collar jobs at the EEOC are held by blacks, who make up less than ten percent of the civilian workforce. Terry decided to sue and in 1996, the U. S. district judge of Memphis Jon McCalla ruled that the EEOC violated the laws that it was supposed to defend. Over his career, Terry was overlooked for a promotion more than ten times, and the jobs were given to less qualified minorities.

In 1987, the EEOC ha! d 21 district directors; 19 minority, and 2 white. Terry had the credentials; education, experience and high-level government training but he still didn’t get the job. One minority who was appointed over him didn’t even have a high school diploma and most of the minorities appointed over him had little, if any of the qualifications that he had. The judge ordered the EEOC to pay $150,000 in damages, $8,000 in stress, and ordered him to be given the position of deputy general counsel, and entitled him to back pay.

In this case it can clearly be seen that quotas and preferential hiring, while advancing many minorities, did hold back a perfectly capable white man from a promotion he deserved. The next similar example is of a female denied a position because of a less qualified minority. Patricia Steffes, a forty-six year old white female was awarded 2. 6 million dollars by federal jury on Wednesday May 6th, 1999. In this reverse discrimination case she was denied a management position in favor of a less qualified black man. Pepsi claims she lacked sales in front line management experience.

Steffes had worked her way up the corporate ladder from payroll clerk to a $73,000 a year management position when she applied for a higher position. She started at the age of eighteen in 1972, following in the footsteps of her father and other relatives. Steffes was promised the next promotion opportunity, which opened in Lansing, Michigan. Even though she happened to be well qualified for it, a black employee got the job. Pepsi was ranked by Fortune Magazine as one of the “Top 50 Best Places for Minorities to work” and reserved 285 million dollars of its budget for minority and women owned businesses.

The recent 2. 3 billion dollar IPO was handled by a minority owned! firm. Two of the top eighteen paid employees are minorities and twenty five percent of the entire workforce is comprised of minorities while thirty six percent of their hires in 1998 were minorities according to Fortune Magazine. In Steffes case, a minority held the job initially and when the word got out that Steffes might get hired, other minority employees complained and another less qualified black male got the job. Steffes wrote a letter to the EEOC and senior executive at Pepsi with no response.

She then mailed a letter to Mr. Charles Stamper, the Supervisor at Pepsi. The officials weren’t pleased so they put Steffes in their process called “developmental feedback” which is designed to improve an employees job performance. It resulted in Pepsi offering Steffes a transfer to a different facility on a “take it or leave it” basis. Steffes rejected it and took a leave of absence as advised by her doctor due to stress. She returned to work in September and supervisors allegedly ignored her.

She was then ordered to train another black man who was being promoted to a job similar to the one she didn’t receive. Steffes quit that day. One can see this is a case of blatant discrimination against a perfectly qualified white female. In the next case we will finally look at the concept of the set-aside. In the case FayComm v. US Small Business Administration a set-aside – designed to leave a certain number of contracts for minority firms to claim, ultimately was the cause of lengthy court battles and FayComm’s loss of a contract they deserved.

FayComm was a promising but small video production company. They had been working with FEMA for many years when a new (and expensive) contract came up to bid. FayComm bid on the job but was told that it was going to be given to a minority firm. Apparently the US Small Business Administration had taken the matter out of FEMA’s hands and given it to the minority, so FayComm sued for the right to bid fairly and competitively. The issue here is the idea of the set-aside. It is practice in some businesses to take a certain number of contracts and set them aside to give to minorities. This serves two purposes.

One is to satisfy Affirmative Action supporters, and the other is to skip the time consuming process of bidding for the contracts by simply “giving” it away to the minority. The problem arises in the fact that the contract is usually given to the minority regardless of its qualifications.

In one hearing on this matter the judge was quoted as saying: “You mean to tell me that if the ‘minority firm’ can demonstrate that it is not competent to do the work, and therefore cannot win the award in open, competitive bidding, then the lack of competence qualifies them to be given the contract? Apparently that’s how the idea of set-asides is written. To this day FayComm is still in business but never was given a chance to bid on the job. These cases clearly show that Reverse Discrimination is a serious issue in American Society. Through the use of preferential hiring, quotas, and set-asides the government while trying to end discrimination, only succeeded in creating more discrimination. It is obvious that there is a need for some kind of solution to stop all discrimination.

Though this paper was not written to solve discrimination, only analyze it, we will offer this final thought. It became increasingly evident to us that the reason for discrimination in the first place is because humans have this preconceived notion that for some reason, all people are not equal. No matter what the Constitution states or what laws are passed this idea seems to be engrained so deeply that it is quite difficult to overcome.

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