NCJ Number
58855
Journal
Kentucky Law Journal Volume: 64 Issue: 4 Dated: (1975-76) Pages: 114-145
Date Published
1976
Length
32 pages
Annotation
ALTHOUGH MORE MINORITIES AND WOMEN HAVE ACHIEVED EMPLOYMENT GAINS UNDER AFFIRMATIVE ACTION (TITLE VII OF THE CIVIL RIGHTS ACT OF 1964), THEY ARE ALSO OFTEN THE FIRST FIRED WHEN LAYOFFS OCCUR.
Abstract
THIS ARTICLE STATES THAT PROGRESS IN ACHIEVING EQUAL EMPLOYMENT IS FRUSTRATED BY SENIORITY SYSTEMS WHICH ARE SUPERIMPOSED ON A HISTORY OF RACE AND SEX DISCRIMINATION. PAST DISCRIMINATION HAS DEPRIVED MINORITY GROUPS OF AN OPPORTUNITY TO ACCUMULATE THE SENIORITY NECESSARY TO PROTECT THEIR NEWLY-ACQUIRED JOBS AND FURTHER THEIR ADVANCEMENT. UNIONS CONTEND, HOWEVER, THAT SENIORITY IS ESSENTIAL TO PREVENT EMPLOYER FAVORITISM AND ARBITRARY EMPLOYER DECISIONS ABOUT WHO WILL BE LAID OFF. THE MOST DESIRABLE ANSWER TO THIS CONFLICT BETWEEN SENIORITY SYSTEMS AND AFFIRMATIVE ACTION IS TO PREVENT THE CONFLICTS FROM THE BEGINNING AT THE BARGAINING TABLE. CONFLICTS COULD BE PREVENTED WITH AN AGREEMENT WHICH INCLUDES A MEANS OF ALLOCATING JOBS DURING LAYOFFS OTHER THAN BY LENGTH OF SERVICE OR OTHER CRITERIA WHICH RESULT IN THE CONTINUATION OF DISCRIMINATION. IF COURTS HOLD THAT EMPLOYMENT SENIORITY IS NOT A BONA FIDE SENIORITY SYSTEM WHEN SUPERIMPOSED ON PAST DISCRIMINATORY HIRING PRACTICE, EMPLOYERS AND UNIONS WILL BE MORE WILLING TO REACH AN AGREEMENT ACCEPTABLE TO WOMEN AND MINORITY EMPLOYEES. IT IS ALSO SUGGESTED THAT FEMALES AND MINORITIES BE ASSIGNED JOB CLASSIFICATIONS LESS SENSITIVE TO FLUCTUATING ECONOMIC CONDITIONS AND THEREFORE LESS SUSCEPTIBLE TO LAYOFFS. THE PROCEDURAL STRUCTURE SET FORTH IN THE NATIONAL LABOR RELATION ACT COULD ALSO BE USED TO PREVENT DISCRIMINATION, AND ARBITRATION MIGHT BE UTILIZED. NEGOTIATION AND COMPROMISE SHOULD BE ENCOURAGED. IF A CASE IS BROUGHT TO COURT, THE PROVISION OF SECTION 703 EXEMPTING BONA FIDE SENIORITY SYSTEMS SHOULD BE NARROWLY CONSTRUED TO EXTEND ONLY TO THOSE SYSTEMS WITHOUT PAST DISCRIMINATORY HIRING PRACTICES. (MJW)