Civil Rights Act Is There Discrimination

 

By Albert L. Kelley

 

How do you tell if there is in fact discrimination under the Civil Rights Act? It isn’t easy. But there are some tools that can assist with the determination.

To determine if an employment practice has a disparate impact on one of the protected groups, the employer can calculate the percentage of minority applicants rejected over the percentage of nonminority applicants rejected. To make this calculation, look at the last 100 applicants for employment. Calculate the number of minority applicants that were rejected and the number of nonminority applicants that were rejected. Subtract these numbers from 100 to get the rate of selection. Then, divide the rate of selection of minorities by the rate of selection of nonminorities. If the result is less than 80% there is evidence of discrimination. Note that this is not proof, just evidence. Other factors may have taken part in the hiring decision that would explain the discrepancy.

Another tool the employer has is a comparison of his employee minority makeup versus the local population makeup. If minorities make up 25% of the local population and the employer hires 23% minorities, there would be evidence that the practices are not discriminatory. Again, this is just evidence, not proof. Whenever an employer uses one of these tools they should also look for other factors that might influence the result. For instance, an employer who hires based primarily on employee referrals will likely see the same minority composition maintained, while an employer who posts want ads in the newspaper may see a more representative mix.

CASE EXAMPLES:

Case facts: An applicant applies for a job and is rejected based on race. Subsequently, the employer stops advertising for the position and doesn’t hire anyone. Can the applicant say that he was discriminated if the job goes unfilled?

Answer: Yes. If he can show that the employer stopped taking applications because of his, it is the same as if the employer hired another person.

 

 

Case facts: An employee files a claim against an employer for what he believes is a discriminatory action. It is later determined that the action is lawful. If the employer fires the employee, can the employee file charges against the employer for unlawful retaliation?

Answer: A strict reading of the antiretaliation statute indicates it only applies if there were unlawful actions by the employer. However the courts are more kind and they have held that as long as the employee has a reasonable belief that what was being discriminated against under Title VII, the claim of retaliation does not hinge on a showing that the employer actually was in violation.

Case facts: An applicant applied for a job as a city clerk, which requires dealing with the public. While the applicant scored high on the aptitude test, the city felt he was lacking in oral communication skills due to his heavy Filipino accent. He claims discrimination based on national origin.

Answer: National origin and accent are inextricably bound. To hold otherwise would allow any employer to avoid Title VII simply by using communication skills as a determinant. However, where the ability to speak clearly is an important job qualifications, the employer may use accent as a ground for denial.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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