Thursday, May 17, 2012

Who gets to sue when everyone's a minority?

You'd have to be completely out of touch to miss the reports popping up everywhere today such as here, here, here, here and here (naturally Fox news can't pass this one up) that U.S. Census figures from 2011 show minority births were more than half of births during the year from July of 2010 to July of 2011, extending a longstanding trend.

This trend raises an interesting question which has been on the back burner for years, but will slowly become more central to discussions of employment discrimination:  what happens to discrimination claims when there is no "majority?"

For purposes of Title VII the protected classifications continue to be race, religion, national origin and sex.  Other statutory schemes, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act add being over 40 and being disabled, or having a record of disability or being regarded as disabled to those protected classifications.  In addition, state and local laws have added other protected classifications such as family status and gender identity.

An overly simplistic analysis of discrimination claims focuses on the nature of the protected classification, e.g., "I was fired because I am an African American," or "I did not get the job because I am Hispanic," but this completely misses the point.  The census bureau's report hammers home that we are all in one or another protected classification.

What's unlawful is not discrimination based upon the protected classification itself, but rather letting those classifications play any factor in the employment decision process.  It is no more lawful to hire someone because that person is Caucasian than it is to discharge that person because she is Jewish.  It makes no more sense in the applicant intake process to require physicals for every applicant, regardless of whether a conditional offer of employment has been extended than it does to arbitrarily advertise a position with the warning "you must be able to stand for 8 hours without a break."

I am not advocating what a group of Italian researchers have advocating, that promotional systems may be better if promotions are purely random, discussed in the report Promotion Systems and Organizational Performance: A Contingency Model (Steven E. Phelan and Zhiang Lin), whose research paper may be downloaded here,   What I'm advocating, and what any good employment lawyer will advocate, is that any such decisions need to be made without any consideration whatsoever of such protected classifications.  

And that's whether we're all majority, or we're all minority.

As a postscript, many thanks to my good friends and colleagues Kelly Phillips Erb, better known as Taxgirl Ellen Freedman who blogs here, and Jennifer Ellis who blogs here, and who cornered me at a Penna. Bar Association meeting last week and got me off my butt to post an update here.  

1 comment:

  1. Jennifer and I were happy to help in the nudging process, Harold. You're too knowledgeable and enjoyable to read for us to let your blog go untended.