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PSY 6430 Unit 2

Legal Issues ContinuedSchedule

Wednesday, 1/28 and Monday, 2/02: Lecture

Wednesday, 2/04: Exam

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SO1: Court structure, Title VII cases Title VII cases are tried in the federal court system

Supreme Court

Eleven Courts of Appeals Corresponding to Eleven Circuits

92 District Courts

9 justices

3 judges 1 judge

(MI is in the 6th; in most cases, trials heard by judges, not juries: click; CRA1991 permits trials intentional disc when compensatoryOr punitive damages. Different laws in different parts of the country until a case reaches the Supreme Court- most liberal, 9th, CA notorious)

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SO2: EEOC administrative process Before an individual can pursue redress in court under

Title VII (usually followed by OFCCP as well) File a complaint with the EEOC Exhaust all internal administrative remedies

At WMU an employee must contact Office of Institutional Equity

EEOC may pursue four negotiation steps Stakes increase at each step - penalties for the company

become more and more severe EEOC can proceed through all four in order, or skip some

and start with the most severe one, depending upon the strength of the individual’s complaint

(in 1990, OFCCP decided, based on statistics from WMU, to skip the first two and go directly to third step - conciliation agreement. It was lifted in 1995 -I’ll talk more about that in a few minutes)

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SO2: First negotiation step No Fault Settlement

Complaint is filed with EEOC Before EEOC collects any data, a settlement is

attempted Within 10 days of receipt of the complaint, EEOC sends a

copy to the company and immediately gives the company an opportunity to settle it

If unsuccessful, moves to informal fact finding Informal fact finding, settlement attempted again

If successful, it results in a no fault settlement Company does not admit any wrong doing, but engages in

some sort of compromise If unsuccessful, moves to the next negotiation step

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SO2: Second negotiation step: Pre-Determination Settlement

EEOC can and usually does subpoena the company’s records That is how EEOC gets access to the company’s records EEOC can subpoena ALL of the company’s records, not just the

records related to the specific complaint If it finds something else it doesn’t like, it can “go for it” as well

EEO data are strongly protected by organizations - national security secrets!

Company is invited to respond, if it does the response can be used by EEOC then or in the future

Most lawyers say organizations should never respond; whatever information/data they give EEOC can be used against them

EEOC, based on data, determines probable cause or no probable cause

If no probable cause, EEOC usually withdraws, but individual can pursue remedy in court - constitutional right (with little chance of success)

If probable cause and company settles, no wrong doing is admitted by the company

(NY State Court system, job analysis and needed access to those data so I could develop a representative sample, the AA officer refused to give themto me. I eventually got it, but had to go to Personnel Director and have him fight the battle with the AA office; AA office usually is separate from personnel)

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SO2: Third negotiation step: Conciliation Agreement

Initiated by finding of probable cause and no settlement Because the EEOC has found probable cause, at this point

things get pretty serious and any settlement is likely to result in some major concessions by the company (WMU’s conciliation agreement)

EEOC, not the Court, oversees this agreement thus it is a private agreement between parties, not a legal agreement

The EEOC administers compliance; if the organization does not comply, EEOC will typically file a law suit or OK a law suit by the plaintiff

No wrong doing is admitted by the company if it settles at this step

If no settlement can be reached, things get REAL serious and move to the Consent Decree step

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SO2: Fourth negotiation step: Consent Decree

Initiated by a law suit filed by EEOC or the plaintiff BEFORE litigation, EEOC attempts a settlement again If settled, costly for the organization

Usually involves lump sum payouts including back payments (for wages lost)

Typically not done in prior negotiation steps (including Conciliation Agt) Also may involve an AA program

Again, typically not done in prior negotiation steps Court must approve the settlement because a law suit was filed Court oversees compliance because the law suit was filed

This is NOT a private agreement between EEOC and the company If settled at this step, the company still does not admit to any

wrong doing The company has not had its day in court, and thus has not been

found to have engaged in unfair discrimination

(company has not been proven guilty in court; read some of WMU’s conciliation agreement; Abercombie and Fitch Consent Decree, Home Depot)

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SO6: Two reasons why a company may opt to settle even if charge is weak

Company YearConsent Decree

Settlement Amount

Merrill Lynch 2013 $160 million

Texaco 1996 $176.1 million

Nextel 2000 $176.0 million

Coca Cola 2000 $192.5 million

(I am going to jump ahead here - because of the relevancy of SO6; here are some figures - why on earth would companies settle for these amounts?)

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SO6: Two reasons why a company may opt to settle even if charge is weak

Costs and uncertainties of the outcome of litigation (could be worse than the settlement)

Public relations Who wants to buy clothes from a store that has

unfairly discriminated against blacks, Hispanics, Asians and females? (Abercombrie & Fitch, 2005)

Who wants to buy gas from Texaco where “the black jelly beans are stuck to the bottom of the bag?”

In fact, there was a very large, well organized boycott of Texaco before the case was resolved

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NFE: Difficult issues David Glenn, former WMU VP of Institutional Equity

Hired in 1988, retired December 2012 In 1989, WMU faced normal periodic investigations

from both EEOC and Dept. of Education (WMU probably knew they were coming, Mr. Glenn did not)

Conciliation agreement arose from those investigations

Never once when Mr. Glenn was here did WMU lose a court case (not as appreciated as he should be - nonevents are not recognized)

SO3: Apple, Amazon, & Oracle refusal’s to reveal diversity data

In Dec. 2014, in an investigative report by USA Today, re the lack of diversity in high tech companies Apple, Amazon, and Oracle refused to release EEO data

Nine other high tech companies did release EEO data

This is a very interesting/intriguing issue If you were employed by Apple, Amazon, or Oracle,

given EEOC’s broad powers to file law suits, what you recommend about releasing EEO data?

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(EEO data are considered state secrets: NYS court system, job analysis)

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SO4: Some statistics from EEOC

In 2013, over 93,000 charges of discrimination filed with the EEOC Race 35% Sex 30% Disability 28% Age 23% National origin 11% Religion 4% Color 3% Equal pay 1% Genetics .4%

SO5: EEOC’s Strategic Enforcement Plan, 2013-2016

Eliminate barriers in recruitment and hiring for all protected classes

Protect immigrant, migrant, and other vulnerable workers

Address emerging issues Enforce equal pay laws for females Preserve access to the legal system Prevent harassment

13(SP13 vs. SP15 re relevant cases to this class; harassment vs. recruitment and hiring)

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SO7: EEO vs. AA

Equal Employment Opportunity

Every individual is treated the same and every individual who is equally qualified has an equal opportunity for employment, promotions, etc. No preferential treatment Professional selection issue (this is exactly what

selection systems are designed to do - hire the best applicants)

Not controversial except for racists, sexists, etc.

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SO7: EEO vs. AA Affirmative Action

Redresses historical imbalances and increases number of minorities hired in the work place at a faster rate than what would occur simply through EEO

Can result in preference being given to individuals in certain demographic groups

If two candidates are equally qualified, preference will be given to the minority candidate

A less qualified minority may be hired instead of a more qualified majority

Social policy, not a “professional” selection issue Extremely controversial

(pros and cons, I have been on both sides. Denied a job with a very excellent, major company after I had interned there for 2 years in favor of a minorityfemale who had not worked for the company. Boss stupidly told me I was a 1 pointer, she was a 2 pointer. PA - hired into a position that could onlyBe given to a female or minority. Didn’t tell me, when I found out - I was angry, hurt. Did not want to be hired because. Started in a hole with colleaguesLater vindicated - white male I was in competition with - he turned out not to be very good. But before this – AA programs legally.

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SO8: Three situations in which a company would adopt an AA program

Organization is a government contractor and thus is required to do so under the laws administered by the OFCCP

Organization has entered into an agreement with EEOC or OFCCP to do so, or has been ordered by the courts to do so (consent decree or lawsuit)

Organization adopts a voluntary AA program Language in the CRA of 1991 makes the legality of

voluntary AA programs questionable* Lawyers recommend that organizations NOT do this

*I expand on this in the next two study objectives

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SO9: Voluntary AA programs

9A: Explain why the courts have historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII

9B: What are white males permitted to challenge in court re voluntary AA programs?

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SO9: Voluntary AA programs - the controversy

Conflict between wording of Title VII and preference that can be given members of protected classes:It is unlawful to fail or refuse to hire any individual with respect to race, color, religion, sex, or national origin.Further, “nothing in this title shall be interpreted to require any employer to grant preferential treatment to any individual.”

So, what about white males? Color - white Sex - male

(what about white males who are not hired because a member of a protected class is given preference?It happens)

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SO9: Reverse Discrimination Several reverse discrimination cases have been

brought under Title VII “Reverse discrimination:” Members of a majority group claim

they have unfairly discriminated against All of the cases that I am familiar with to date have

involved groups of white males In an employment situation, under Title VII (as

opposed to admission to universities/colleges), white males have never been successful in winning a direct challenge under Title VII

(they have at times, won disparate treatment cases, and “admission” law suits, but those are different laws: next slide)

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SO9: Reverse Discrimination SO9A: Why have the courts historically excluded white males

from filing a (reverse) discrimination lawsuit under Title VII?The Supreme Court has ruled that the intention of the framers of Title VII was to protect individuals who have been subjected to unfair discrimination in the past.Because white males do not fall into that category, the Supreme Court ruled that they were not entitled to file a lawsuit under Title VII.

SO9B: What can white males challenge in court?White males can challenge the legality of voluntary AA programs.(CRA of 1991 makes it virtually impossible for white males to challenge court-ordered AA programs, negating an earlier decision of the Supreme Court)

(Back to SO9A&B’ last point, imagine the company – the court ordered and approved an AA program – white males challenged it, andthe Supreme Court said it was OK for the males to challenge the legality of the AA program – that was corrected in the CRA 1991.

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Birmingham Dept. of Safety orIt’s difficult to do the right thing

1972 Courts ruled selection tests were not job related and

unfairly discriminated against blacks In the 37-year history of the department, a black

trooper had never been hired even though 25% of the workforce in the area was black

The department revised its selection procedures

Talked about this case before – in the introductory ppt

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Birmingham Dept. of Safety orIt’s difficult to do the right thing

1977 Black troopers challenged the promotional exams to

captain Of the 230 officers at or above the rank of corporal,

not one was black EEOC entered the case on the side of the troopers

pressuring the department to change its selection procedures

After several years, the department had failed to do so

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Birmingham Dept. of Safety orIt’s difficult to do the right thing

Justice Department then entered the case on the side of the black troopers

The department agreed to revise testing procedures New tests were developed but found to be inadequate Justice Department asks courts to impose a hiring

quota, which the courts did (50% hiring quota)* Justice Department then switches sides after Reagan is

President Justice Department helps the white troopers appeal the

quota system to the Supreme Court on the grounds of “reverse discrimination”

*hiring quotas are now illegal; goals are not, but quotas are

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Birmingham Dept. of Safety orIt’s difficult to do the right thing

Supreme Court rules that the white employees can challenge the court-ordered AA program because they were not “parties” to the original contract

Supreme Court remanded the case back to the Eleventh Circuit Court of Appeals to decide whether the AA program is legal or illegal

(cont. on next slide)

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Birmingham Dept. of Safety orIt’s difficult to do the right thing

Eleventh Circuit Court struck down the AA program, ruling that it was illegal as formulated Court ruled that the organization was NOT given more

protection “just because the program had been approved by the courts as part of a consent decree.”

Court refused to treat the consent decree ordered by the court any differently than a “voluntary” AA program.

Civil Rights Act of 1991 Makes it virtually impossible for white males to

challenge the legality of a court-ordered AA program

(all’s well that ends well – this started in 1977)

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SO10: Legality of voluntary AA, and the CRA of 1991

CRA of 1991

It is unlawful to use a protected status characteristic as a motivating factor* in selection.You cannot have an AA program without using protected status as a motivating factor, hence the CRA 1991 calls into question the legality of voluntary AA programs.

No court cases have addressed this issue, that I know of, so we just don’t know what the courts would decide.

Nonetheless, legal experts have strongly advised organizations not to adopt a voluntary AA and to abandon their current ones until this is resolved.

(language of the CRA that poses the problem for AA programs; remember Gatewood, Field & Barrick: we know what is not legal; but not what is legal)

* “Motivating factor” is an extremely important term here

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NFE: History of that language

CRA language was written to protect members of protected classes

It was in response to the Supreme Court decision involving a mixed motive case

Price Waterhouse v. Hopkins, 1989

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NFE: Price Waterhouse Disparate treatment (not adverse impact) case Hopkins, a female, was denied promotion to

partner The company considered both legal and illegal

factors when it denied promotion Illegal: make-up, hair style, and dress Legal: poor interpersonal skills

Thus, both legal and illegal factors were motivating factors in the decision: hence, the term, mixed motive case

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NFE: Price Waterhouse Supreme Court ruled in favor of Price Waterhouse

Why? Price Waterhouse maintained it would have made the same decision if they had not used gender-related factors as motivating factors

To negate that decision, the CRA language states that “it is unlawful to use a demographic characteristic as a motivating factor in selection.”

That language also calls into question the legality of voluntary AA programs

(can’t use it at all; good luck on that one! They meant well; one more slide on this)

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NFE: Mixed motive cases, an aside Even under CRA of 1991, the legal remedies for a

mixed motive case are severely restricted even if a plaintiff wins

Restricts monetary reimbursement (which does include payment of attorney fees and costs) to costs/expenses directly related to the pursuit of the mixed motive case

The court cannot award damages (monetary compensation) or back pay

The court cannot order the company to admit that it did anything wrong (that it unfairly discriminated against the plaintiff)

The court cannot reinstate an employee or force an employer to hire or promote the employee

Basically an “empty” victory for the plaintiff and not a very lucrative type of case for a law firm to take on

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SO11: Characteristics that an AA program must have to be legal

Text states that there are three characteristics that voluntary AA programs must have to be considered legal

However, all apply to any AA program, not just voluntary ones

Also, in the SO, I changed the three characteristics for the exam – not quite the same as in the text

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SO11: Characteristics that an AA program must have to be legal

They must be temporary This is because they are designed to eliminate an

historical balance, not maintain a balance They must be designed to correct a manifest

imbalance – in other words minorities must be underrepresented and you must be able to prove thatIf there are goals, they must be connected to the degree of imbalance.

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SO11: Characteristics that an AA program must have to be legal

They must not “trammel the interests of the white employees” or as I have said in the SO:They cannot completely bar advancement or hire of the majority group; quota systems are not legal (goals are OK but quotas are not) This is one reason the Supreme Court struck down UM’s

undergraduate AA program that added an arbitrary 20 points to the scores of underrepresented minorities

(love the language - trammel!!; 50-50 hiring quota, a white can be completely denied the opportunity for advancement)

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SO11: NFE: Thought QuestionIs the fact that AA programs must be temporary inconsistent with the fact that the OFCCP laws requiregovernment contractors to have an AA plan?

That is, how can a program be both required and temporary?

If there is no adverse impact (no manifest imbalance),then there is no AA program, because an AA program must only be used to correct manifest imbalances.Essentially, if there is not a historical imbalance, then an AA program is not required

SO12: Two reasons for support of AA

Redress the disadvantages associated with overt historical discrimination

Ensure public institutions, such as universities, police forces, etc. are more representative of the populations they serve

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(I am going to explore AA more: first time I have done this, so it will be interesting for me to get yourReactions to this material – that is, should I delve into this as much as I do?; universities, recent unrest in Ferguson, MO, NYC)

SO13: First group protected using the term “affirmative action” in 1935

Unionized workers Wagner Act of 1935

Not uncommon for employers to blacklist or fire unionized employees

The act did not protect minorities Except for the Congress of Industrial organizations,

minorities were often barred from unions

Little to do with current AA policies But set the stage for policies designed to

compensate or address an individual’s unjust treatment

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SO14,15,16: Early civil rights acts

Lyndon Baines Johnson First as VP and then as President

Differences between Title VII and Kennedy’s Executive Order

Targeted to integrate not only public facilities but also private businesses that sold to the public

Motels, restaurants, theaters, gas stations Very broadly aimed to end unfair discrimination in all

businesses with 25 or more employees Poll of the citizens revealed 70% of citizens approved

of the Act Title VII, remember, however, did not require AA

37(Often give credit to John F Kennedy, but in fact LBJ, brokered a civil rights act in 1957, then responsible for CRA 1964)

SOs 17-22 Arguments for and against AA, intro

EEO is not controversial The most qualified person is selected/promoted EEO is a professional selection issue

Affirmative Action which is required by the laws overseen by the OFCCP is very controversial Because the goal is to redress historic imbalances,

preferences are given to protected classes An particular individual (usually white male) may be

treated unfairly in order to advance that goal AA is a selection issue only as it relates to the laws,

but that is big “ONLY”

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(to review a bit; I am not going to require you to take one side or the other; it is important to understand the argumentson both sides; I have both benefited from AA and also been disadvantaged by it; some extent position is determined bywhether and the extent to which an individual believes there is unfair discrimination; not completely, however - EEO)

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SOs 17-22: Position on AA influenced by a number of things

EEO vs. AA: Difficult issue Do you believe that you have been unfairly

discriminated against? Do you believe others have been unfairly

discriminated against? Do you believe EEO exists? Have you been disadvantaged by AA? How strongly do you value diversity in the

work place?

SOs 17-19: Arguments in favor of AA Example of success of women

Educational opportunities opened up new career opportunities

Women are attending college at higher rates than males now, dramatic increase in percentage of women architects, doctors, lawyers, engineers, chemists, college faculty (yay!), business professionals and managers, police officers

Need to counterbalance historic inequalities Article addresses historic inequalities African

Americans Cases I talked about earlier show both disparate

treatment and impact for all protected classes

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(three here, treat them in the order they are given in the article, reverse the first and second one in terms of importance,emphasis by individuals who support AA; very few female professors, the first tenured associate, 1984, many more)

SOs 17-19: Arguments in favor of AA Fair vs. Equal and Discrimination vs. Inclusion

Advocates recognize AA is inherently unequal but given the inescapable fact that historic inequities exist, they believe the policy is much more fair than one that ignores these inequities

Advocates see AA not as discrimination but as a way to achieve inclusion

AA is an effort to overcome prejudicial treatment through inclusion.

The most effective way to cure society of exclusionary practices is to make special efforts at inclusion.

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(latter two are direct quotes from the article)

SOs 19-22: Arguments against AA Reverse discrimination: AA requires the very

discrimination it is seeking to eliminate Chung found clear bias against Asians and whites in three

highly selective private research universities. Admissions advantage and disadvantages in terms of SAT scores (old 1600 point scale)

Whites: 0 (control group) Blacks: +230 Asians: -50 Recruited athletes: +200 Legacies (children of alumni): +160

Espenshade & Radford found (controlled for grades, test scores, legacy status, and athletic recruitment)

Whites were 3x, Hispanics were 6x, and blacks more than 15x as likely to be accepted into a US university as Asians

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(I don’t think these arguments are well organized – first, bias against Asians and whites, same as the fourth, discrimination, butI also think there are some additional points under “discrimination” that are important”, so maybe I am missing something)

SOs 19-22: Arguments against AA Mismatch Effect

AA causes unprepared applicants to be accepted into highly demanding educational institutions or jobs which result in high drop out rates and eventual failure

Interracial friendships are more likely to form among students with relatively similar academic preparation and thus blacks and Hispanics are more socially integrated on campuses where they are less academically mismatched

Conclusion from the above is that the beneficiaries of AA – minorities – do not actually benefit but are actually harmed.

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SOs 19-22: Arguments against AA

Class Inequality Racial AA benefits middle- and upper-class blacks and

Hispanics at the expense of lower-class European Americans and Asians

Argue in favor of class-based AA, rather than race-based AA In 1976, a group of Italian American professors at the City University of

NY asked to be added as an AA category for hiring and promotion because they were underrepresented

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SOs 19-22: NFE but miscellaneous arguments against AA

Counter-productive AA lowers the bar and thus

Detracts from those who strive for excellence on their own merit Denies a sense of real achievement from those who benefit from AA

AA devalues the accomplishments of minorities and protected classes

AA stigmatizes all minorities, “they only were admitted or got the job because they were female/black/Hispanic/Native American

AA hinders reconciliation and increases racial tension Article mentions the recent strong push to ban AA in university

admissions due to Grutter v. Bollinger (UM Supreme Court case, 2003) 60% of MI voters subsequently approved a constitutional ban on AA in

university admissions (among other bans), Michigan Civil Rights Initiative (Prop 2, 2009)

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(not sure counterproductive is the right category; law school admission, AA OK; same year, struck down undergradAA policy – assigned 20 points to the point score of a minority applicant)

Wal-Mart: some details about the issues Managerial jobs were not posted; men were

often invited to apply, females were not Some female managers made $20,000-

$25,000 less than male counterparts Females in every job category have been paid

less than men since 1997, even though they have higher average performance appraisals and less turnover

“God made Adam first, so women would always be second to men”

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(Sos 23-29, NFE, description of cases and admissions law suits; articles in course pack. Hard to the cases without details. Wal-mart cont. on next slide)

Wal-Mart continued One female manager was told she was paid less

than a less qualified male because she “didn’t have the right equipment.”

Females were repeatedly told “men need to be paid more because they have families to support” and “men are here to make a career while women are not.”

Some were called “worthless broads” Some were asked to wear lower cut shirts And on and on….

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Texaco – settled in 1996, race $176.1 million settlement Class action suit EEO was investigating the complaints At an executive level meeting which was

secretly taped by one of the individuals, one executive referred to blacks as “black jelly beans that all seem to be glued to the bottom of the bag.”

At the same meeting, executives conspired to alter, withhold, or destroy corporate documents requested by EEOC and plaintiffs

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Novartis Pharmaceuticals – US, 2010 $250 million punitive damages $3.37 million in compensatory damages Could reach $1 billion dollars 70% of managers are male, while 66% of sales

representatives are female Management expected female representatives to be

amenable to sexual advances from the doctors they called on and criticized them when they complained about inappropriate advances

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(more Novartis on next slide)

Novartis Pharmaceuticals – US, 2010 Manager told a woman he preferred not to hire young

women because:

“First comes love, then comes marriage, then comes flex time and a baby carriage.”

Recruiters consistently asked women if they were married or had children but not men

One woman who had children was repeatedly passed over for promotion by men who had inferior sales numbers

One manager encouraged a woman to have an abortion

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Novartis Pharmaceuticals – US, 2010 A male district manager repeatedly showed female

direct reports pornography and invited them to sit on his lap.

He referred to women as “bitches” and “cunts” and said wives “were only good for washing, ironing, and f… .g”

Company responded “He wasn’t that bad a manager. He was just terrible with women.”

Novartis kept him on staff managing women for two years after HR had substantiated these claims and explained that it just took a long time to get rid of him because the company was owned internationally.

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(Novartis is going to appeal. Working Woman magazine has ranked Novartis as one of the top 100 companiesto work for in the nation for 10 years in a row….OK, moving on)

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SO28: NFE: Michigan Civil Rights Initiative

The MCRI passed as a constitutional amendment, in November 2006

Bans public institutions from using AA programs that give preferential treatment to groups or individuals based on race, gender, color, ethnicity, or national origin for employment, education and contracting purposes

(MCRI, proposition 2, just got resolved in April, 2014; interesting history, with its impetus beingthe Grutter v. Bollinger, UM law school case ruling in favor of AA; WMU is a public institution)

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NFE: MCRI history In Michigan, in 1995, both the undergraduate and law

school admissions policies at UM were challenged because of AA policies

Supreme Court heard both cases in 2003The undergraduate admission policy was found to be illegal; the law school policy was found to be legal

Undergraduate policy awarded 20 points on to the “admission score” for any underrepresented minority

Supreme Court ruled this was an arbitrary approach that did not allow individual consideration

Law school took race into consideration Supreme Court ruled this was OK

Note these decisions are similar to selection law decisions: quotas vs. goals

(undergraduate: Gratz v. Bollinger; law school : Grutter v. Bollinger – Bollinger was the President of UM at the time)

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NFE: MCRI history MCRI was sponsored by the same individuals that

sponsored a similar proposition in CA and the individuals who challenged the UM admission policies, particularly the law school admission policy that was upheld

To repeat, the MCRI is a constitutional amendment that:

Bans public institutions from using AA programs that give preferential treatment to groups or individuals based on race, gender, color, ethnicity, or national origin for employment, education and contracting purposes

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NFE: MCRI history 2008: District Court for the Eastern District of MI upheld

the constitutionality of the MCRI 2011: Sixth Circuit Court of Appeals ruled MCRI was

unconstitutional (by three judges) 2011: Michigan State Attorney General, Bill Schuette,

appealed for an en blanc hearing by the Sixth Circuit Court of Appeals (en blanc = all judges of the court)

2012: Sixth Circuit Court of Appeals ruled 8-7 that the amendment was unconstitutional because:“it deprived members of racial minority groups in MI of their 14th Amendment right to equal protection under the law by embedding the issue of affirmative action into the state’s Constitution, where it was prohibitively difficult for a minority group to challenge.”

(at issue was the constitutionality of having it be an amendment to the MI constitution)

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NFE: MCRI history

2012, same day: MI State Attorney General, Bill Schuette, announced he would appeal to the Supreme Court

2014, June: Supreme Court in a 6-2 decision upholds the constitutionality of the MCRI

Ballot initiative is legal MCRI does not violate the equal protection law of the 14th

Amendment of the US Constitution

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NFE: MCRI vs. OFCCP and WMU How does the MCRI affect WMU? Seem to have

contradictory laws with OFCCP requiring AA and MCRI banning it Federal laws supersede state laws, thus in situations

where the OFCCP laws require affirmative action for hiring, they will take precedence (i.e., hiring of staff and professors at WMU)

MCRI: “This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.”

MCRI: “If any part or parts are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit.”

(one more slide on this)

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NFE: MCRI vs. OFCCP and WMU, cont.

Federal laws do not address admissions or scholarships (or hiring contractors) based on diversity, so MCRI applies

(Thurgood Marshall; Chevaz King Scholarships; funding source makes a big difference; last slide in unit)

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Unit 2: The End

Questions?

Comments?

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NFE: Affirmative Action: Different and more controversial than EEO

Affirmative Action New York Herald article, circa 1900

The poor and illiterate class that is a national menace and cannot be disregarded with safety

Immigrants from Asia Immigrants from Southern Europe Immigrants from Ireland

“The rights of a lot of your foreparents were not recognized until the government stepped in and affirmatively lifted them up”

(Kenneth Brown, UM, 2004)