Diversity Highlights

Dr. David L. Griffin's thoughts imparting diversity issues pertaining to students, faculty and staff in the College of Education

November 11, 2008

From Legal Rights of Teachers and Students (2009, Second Edition)
by Nelda H. Cambron-McCabe, Martha M. McCarthy, and Stephen B. Thomas

RACE AND NATIONAL-ORIGIN DISCRIMINATION
Without a proven history of prior discrimination, an employer may not use race as a factor in making employment decisions.

Race and national-origin discrimination in employment continues in spite of nearly 140 years of protective statutes and constitutional amendments. Lawsuits are filed under the Fourteenth Amendment, Title VII, and 42 U.S.C. Section 1981.

Section 1981 originally was Section 1 of the Civil Rights Act of 1866. At one time, this statute prohibited only race discrimination in making and enforcing contracts, but now Section 1981 applies when either race or ethnicity discrimination is alleged in making, performing, modifying, and terminating contracts as well as in the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

Hiring and Promotion Practices
Unless a school district is under a narrowly tailored court order to correct prior proven acts of race discrimination, it may not advantage or disadvantage an applicant or employee because of that individual’s race. When unsuccessful candidates believe that race played a role in the decision-making process, they will generally allege disparate treatment, requiring the heightened proof of discriminatory intent. In attempting to support such a claim, many plaintiffs have difficulty overcoming employers’ purported nondiscriminatory reasons for their decisions, even when a person of a different race ultimately is hired.

Because most qualifications for initial employment (e.g., degree, licensure) in educational settings are required to perform jobs satisfactorily and to meet state standards and accountability mandates, disparate impact claims also are difficult to win. To do so, the plaintiff will have to show that:

• One group succeeded at a rate that was less than 80 percent of that achieved by the group with the highest passing rate (e.g., adverse impact results if 90 percent of Caucasians pass a test, but fewer than 72 percent of African Americans do so), or

• For small populations, the difference in performance between the two groups is statistically significant.

When tests are used, they must be reliable and valid, and must qualify as a business necessity. Test may not be discriminatorily administered, nor may their results be discriminatorily used. Moreover, employers may not use different cutoff scores for different racial groups or adjust scores based on race.