12 Feb Ethics and Diversity Cases: Legal Applications in the Workplace

M. June Allard

Worcester State University, Professor Emerita

Cases and Situations

The managers of today have gone far beyond consideration of workers in terms of single diversity dimensions. Managers deal daily with multiple identities: a worker who is not just older, but who is older and female or the worker who is male and Asian-American and has a visual disability. The judicial system however, still deals only in single dimensions. Discrimination charges and lawsuits are rarely filed in terms of composites; they are filed in terms of age or gender or race or religion or disability or other single dimensions of diversity.

Diversity from the Bench

U.S. District Judge Harold Baer, Jr., in observing that class action suits involve thousands of people of both genders and likely from diverse backgrounds, twice required that for class action lawsuits every effort be made to assign at least one minority lawyer and one woman lawyer with appropriate experience.

Note from the Courtroom

Judge Baer’s orders increase opportunities for women and minority lawyers to serve as lead counsel thereby giving them a chance to be spokespersons in a system dominated by white males.

Duchess Harris (2010, December 1). Orders Highlight Need for Diversity in Appointing Class Counsel. In Litigation News. Retrieved February 23, 2013, from http://apps.americanbar.org

A variety of actual cases and situations are presented here representing a broad spectrum of diversity issues in a wide variety of organizations. Each of the cases and situations outlined below involves ethical as well as legal issues in diversity.

For each case or situation, consider the ethical implications according to your own ethical framework. What do you personally think should be the outcome or resolution?

Information on the resolution or current status of most of the cases and situations can be found on the Internet. Were the outcomes and rationales similar to what you thought they should be? Why or why not?

Note that ethical and legal questions arise as to what constitutes discrimination and what an employer’s obligations are when an employee has a disability. Consider the guidance offered below in making your judgments.

Legal Considerations

Pretext Analysis. A key to analyzing almost any discrimination case is determining whether an employer’s given reason for taking action against an employee is the real reason, or a cover for intentional discrimination. This is known as a pretext analysis.

Under ADA, employers have the legal obligation to provide reasonable accommodations for workers with disabilities to enable them to perform their jobs. Employers are not required to provide personal accommodations such as hearing aids and wheel chairs.

Employers should be especially vigilant in defining and articulating essential job functions, and documenting the risks associated with an employee’s failure to perform such functions.

Spoilation refers to the destruction, alteration, or withholding of evidence. It results in the courts assessing penalties or even preventing the party from presenting evidence at all because if some of the evidence is “spoiled,” then all of it is suspect.