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Floyd D. Weatherspoon
Permission Pending: Floyd D. Weatherspoon, Remedying Employment Discrimination Against African-American Males: Stereotypical Biases Engender a Case of Race plus Sex Discrimination, 36 Washburn Law Journal 23 (Fall 1996) (335 FootnotesOmitted)
The employment status of African-American males in the labor market and workplace is dismal. Labor statistics indicate that African-American males have one of the highest levels of unemployment. Employment opportunities for African-American males have continued to decline dramatically during the 1980s and into the 1990s. If employed at all, they are segregated into the lowest level positions and earn less than their white male counterparts.
African-American males who are successful in finding employment opportunities whether unskilled, skilled or professional are more likely to be victims of harassment and face overt discrimination in the workplace. Consequently, many qualified or qualifiable African-American males may find it less humiliating to remain unemployed, underemployed or to remain segregated in dead-end positions.
The reasons why the employment status of African-American males continues to deteriorate are numerous, but invidious employment discrimination is a major reason why their status continues to be tenuous. White Americans have negative perceptions and stereotypical biases of African-American male workers, which precipitate and fuel employment discrimination. These biases, unfortunately, overshadow any opportunity for African-American males to enter and progress in the labor market free from prejudice and hostility.
Employment discrimination against African-American males is not limited to either race or sex discrimination; it is a combination of race and sex. In other words, race is not the exclusive factor that inhibits employment opportunities for African-American males, and neither is sex. Race merged with sex forms the basis for “double-dip” discrimination. Meshed within this concept of race plus sex discrimination are negative stereotypical beliefs regarding African-American males that create a unique, and yet, challenging theory of discrimination for African-American males to prove, and for courts to analyze.
This theory of discrimination is not new to discrimination jurisprudence nor to our American legal system. However, the recognition and application of this theory by courts, employers and federal civil rights enforcement agencies to claims of discrimination against African-American males in most cases have been limited to race, without consideration of gender. This practice of pigeonholing all discrimination claims brought by African-American males on the basis of race and sex into a single and narrow legal framework has been detrimental to African-American male plaintiffs. Moreover, employers have systematically excluded African-American males from employment opportunities based upon stereotypical biases they perceive of African-American males. Without a recognition of a race plus sex model of discrimination, African-American male workers are often victims of discrimination without a legal remedy.
The purpose of this article is to explain how the deplorable status of African-American males in the labor market and in the workplace is the result of stereotypical biases and a combination of race plus sex discrimination directed at African-American male applicants and employees. This article will identify how the restrictive analysis by courts and enforcement agencies of employment claims filed by African-American males has been fatal to their claims of race plus sex discrimination. More importantly, this article proposes a number of recommendations for attacking employment discrimination against African-American males; thus, improving their employment status in the labor market.
Part II of this article describes the present status of African-American males in the labor market and factors which substantially contribute to their status, including stereotypical biases that employers consider when making decisions regarding their employment.
Part III discusses the impact of federal employment discrimination laws and the enforcement of those laws by the courts and federal civil rights enforcement agencies with respect to employment rights of African-American males.
Part IV describes and explains the application of the race plus sex theory of discrimination model. This section focuses primarily on how the courts have accepted the race plus sex model when applying it to African-American females' claims of discrimination. However, the courts have rejected or ignored the theory when African-American males present this model to prove a similar claim of race plus sex discrimination. This section also discusses how the courts, federal civil rights enforcement agencies and employers have failed to recognize and address the particular vulnerability of African-American males to discriminatory practices in the workplace.
Part V provides the courts, federal civil rights enforcement agencies and employers with recommendations for effectively identifying and remedying race plus sex stereotypical biases which result in employment discrimination directed at African-American males in the workplace. The recommendations proposed in this section are not a panacea for the multitude of issues African-American males confront in the workplace. These recommendations, however, will hopefully initiate a dialogue for addressing many of these problems. Moreover, if African-American males can find meaningful and stable employment in the labor market, it will enhance their abilities to resolve other issues related to their health, family, economic status and image.
Unlike the plight of African-American females, and similarly disenfranchised subgroups, very little legal scholarship has been written specifically on the plight of African-American males, particularly on the impact of the legal justice system. In this regard, the purpose of this article is to engender further legal research and scholarship in all other areas of the law which negatively impact the status of African-American males.
II. Stereotypical Biases Adversely Impact the Employment of African-American Males
A. Why Are African-American Males Unemployed or Underemployed?
There are a number of factors that negatively impact the employability and status of African-American males in the workplace. Debilitating factors such as the change from an industrial economy to a service-oriented economy, recessionary periods, the movement of blue collar and manufacturing jobs from urban inner-cities to suburbs or out of the country, the elimination of semi-skilled and unskilled occupations, the influx of immigrants willing to accept jobs traditionally filled by African-American males, and a lack of education and training have all proven to be direct causes of unemployment of African-American males, especially young African-American males. These factors impact white males, of course, but to a lesser extent.
African-American males, however, are generally impacted by other factors which are discriminatory. These additional discriminatory factors have resulted in African-American males being intentionally and systematically denied employment and advancement opportunities. Even college-educated African-American males cannot shield themselves from stereotypical biases; they too face intentional discrimination in the workplace.
Employers also intentionally exclude African-American males from senior level positions and positions where they have contact with the public because of perceived and actual consumer prejudice directed at African-American males.
When African-American males are employed they are more likely to be suspended or terminated than white male employees who are involved in the same or similar infractions. African-American males are harassed and denied work assignments which could lead to upward mobility.
They are also assigned the less desirable duties in organizations, more often accused of and terminated for sexual harassment, monitored more closely, receive lower performance evaluations, and are continuously confronted with hostility in the workplace.
A further cause of unemployment, underemployment and discrimination against African-American males stems from stereotypical biases about African-American males which originated during slavery and have perpetuated and evolved through the twentieth century. White Americans, as well as other minority groups, are steeped with such negative stereotypical attitudes and images about African-American males that every major institutional and organizational system adversely impacts African-American males. Whether it is the country's educational system, the judicial system (both civil and criminal), the military, the media, housing, health, politics or even sports, African-American males are negatively perceived and disproportionately impacted by policies and practices. Employment discrimination is just a small part of a national virus that is having a devastating effect on the status of African-American males, both socially and economically.
B. Negative Stereotypical Biases Against African-American Males
Historically, negative stereotypical biases and attitudes about and directed at African-American males have existed since America was officially recorded as being discovered in 1492. These biases toward African-American males have since expanded and linger on as we move into the twenty-first century. Slavery in America ended more than 100 years ago, but negative images of African-American males by white Americans have only marginally improved; some would even suggest that they have, in fact, deteriorated during the twentieth century.
During the past century, however, one noticeable superficial metamorphosis has been obvious; what we call African-American males. African-American males have gone from being called a “mandego” during the slavery period, to “nigger boy” in the 1930s and 1940s, to “nigga” or “negro” in the 1950s and 1960s, to “black” male in the 1970s and 1980s to the present politically correct term, “African-American” male. During each of these periods, stereotypical biases about African-American males can be identified. They include having sexual prowess, ignorance, lack of skill and education, violent tendencies, and arrogance. Unfortunately, these negative perceptions and fears of African-American males by white Americans during these periods did not end as a decade ended, but carried forward to become permanently ingrained in our American culture.
Various reports, studies and surveys confirm that basically every personality trait, physical characteristic, work ethic and even the mere persona of African-American males are perceived by white Americans, and increasingly by foreigners, as negative. The general sentiment is that African-American males have no desire to be productive citizens. They are less intelligent, are drug dealers and addicts, possess the propensity to be violent, are genetically flawed, sexually crave white females, engage in criminal activities, are members of gangs and are rapists. This represents only a partial list of stereotypical biases directed at African-American males. Negative images of African-American men as being “bogeymen” and “predators” have become so prevalent that when African-American males are falsely accused of committing a vicious criminalact, law enforcement authorities and the public automatically assume they are guilty.
America is primarily segregated by race; thus, many white Americans have no positive experiences with African-American males. White Americans typically draw their perceptions of African-American males from the media, the press, television and motion pictures which project African-American males as being violent and involved in some form of criminal activity. The local news and even best selling novels perpetuate negative stereotypes about African-American males. It appears that when African-American males are projected on the screen as being violent, shiftless or drug addicts, the results are higher ratings and bigger box office attendance and sales. Consequently, Hollywood appears to be more interested in making these types of movies, rather than portraying African-American males as hard working, productive citizens. Such negative portrayals have left most white Americans, if not fearing all African-American males, feeling uncomfortable in their presence.
C. Impact on Employment Decisions
Whether it is intentional or unintentional these stereotypical biases become factors that organizations consider when making employment decisions (for example, to hire, promote or terminate African-American males). “Will the African-American male ‘fit’ into the organization?” “How will white employees feel if we promote an African-American male over them?” “Will the black male applicant be on time if we hire him?” The African-American male applicant or employee drives an expensive car--“Did he steal it?” or “Does he sell drugs?” The African-American male employee wears designer clothes--“Did he steal them?” These are conscious and unconscious thoughts employers ponder as they make employment decisions. Such stereotypical considerations violate state and federal employment discrimination laws, but they are difficult to prove. Employers will, of course, emphatically deny that such considerations are factors in the employment process.
Discrimination against African-American males occurs at all stages of the employment process. Recruitment practices, the employment application, the interview, job assignments, job classification, training, performance evaluations, promotions and terms and conditions of employment are all used as methods of exclusion and termination. Similarly, African-American males have been historically discriminated against in all major industries, such as trucking, construction, railroad and manufacturing.
Discriminatory biases against African-American males have become institutionalized as an integral part of the employment process; thus, becoming the kind of “built-in headwinds” the Supreme Court identified as invidious forms of discrimination Congress was trying to prohibit. More than twenty years ago, three African-American males brought a class action suit against their employer, General Motors, alleging that its promotion and transfer procedures were racially discriminatory. The Fifth Circuit, agreeing with the plaintiffs' argument, expressed skepticism that African-Americans would receive an equal chance for promotional opportunities where the system relied primarily on subjective recommendationsfrom the selecting official. The selecting official acknowledged during his testimony that he did not have the same opinion of African-Americans that he had of whites, had no personal friends who were African-American, was a member of a segregated church, as well as a segregated club, and he mixed better with whites than with African-Americans. Today, twenty-five years later, most white Americans, especially the middle class, would be compelled to give the same testimony. The “good ole boys” network gives preference to those who are most alike and familiar with selecting officials. Given that America, without question, still remains a segregated society, as innocently expressed in the above testimony, stereotypical biases dominate selection and promotional processes to the exclusion of African-American males who are veiled with images of incompetency.
III. Enforcement and Theories of Employment Discrimination Laws
A. Federal Employment Discrimination Laws
Title VII of the Civil Rights Act of 1964, as amended, provides the major protection for victims of discrimination in the workplace. Title VII prohibits discrimination on the basis of “race, color, religion, sex, and national origin.”
Other major federal statutes that provide protection to victims of employment discrimination include the Civil Rights Act of 1866 (s 1981), the Americans with Disabilities Act, the Age Discriminationin Employment Act and the Rehabilitation Act of 1973. Moreover, there are numerous state and local laws, as well as federal orders, policies and regulations that prohibit discrimination in employment. Unfortunately, even with major federal employment discrimination legislation, the status of African-American males has only marginally improved, if at all. Indeed, after more than twenty-five years of litigation under Title VII to eliminate vestiges of employment discrimination, African-American males and other minorities continue to be discriminated against on the basis of race and sex. This is not to imply that Title VII and other federal and state legislation has not had any positive impact on improving the employment status of African-American males. To the contrary, Title VII has been the cornerstone for eradicatingemployment discrimination. During the 1980s and early 1990s, the courts' interpretation and application of Title VII and other federal civil rights laws have limited efforts to eradicate employment discrimination in the workplace. The reentrenchment has been the result of a judicial system which has become more conservative during the 1980s and early 1990s. The executive branch of the federal government, which is responsible for enforcing a number of federal civil rights laws, has also been criticized for its lack of enforcement of civil rights laws, particularly during the Reagan and Bush administrations.
B. Judicial Enforcement of Federal Discrimination Laws to Protect African-American Males
The enforcement of civil rights and labor laws by the judicial system has been a major impetus for ensuring equality between African-American and white workers. Since the passage of the Civil Rights Act of 1964, African-American males have prevailed in leading U.S. Supreme Court employment discrimination cases, as well as in some lower federal court decisions. In these cases, it was determined that the organization discriminated against the plaintiff, an African-American male, or a class of African males on the basis of race.
In Griggs v. Duke Power Company, the seminal case in employment discrimination, the Supreme Court held that the policy of requiring a high school education for assignments to certain positions in the organization had a disparate impact on African-American employees, primarily African-American males. Approximately two years after Griggs, another African-American male prevailed before the Supreme Court in McDonnell Douglas Corp. v. Green. In Green, the Supreme Court held that the plaintiff had met his initial burden to present a prima facie case; thus, the burden of proof shifted to the employer to “articulate some legitimate, nondiscriminatory reason for the employee's rejection.” The U.S. Supreme Court has rendered favorable decisions in other employment discrimination cases involving African-American males which have established legal precedent as well.
In cases where lower courts have upheld the constitutionality of Affirmative Action programs, African-American males were the primary beneficiaries of the programs. In addition, the U.S. Supreme Court has approved programs benefitting African-American males under Title VII and the Constitution.
In developing employment discrimination jurisprudence, courts have recognized disparate treatment and disparate impact as two ways to prove employment discrimination. In proving a case of discrimination on either theory the plaintiff has to prove that the employer discriminated on the basis of the plaintiff's race, color, sex, religion or national origin. Traditionally, cases filed by African-American males have alleged discrimination on the basis of race or sex, or both, but not as a combination of race plus sex. In other words, an African-American male could allege that he had been discriminated against on the basis of race (African-American) because a white employee was treated more favorably. The African-American male could also allege that he was discriminated against on the basis of sex (male) because a female was treated more favorably. The African-American male could also allege that a company's policy, though neutral on its face, had a disparate impact on him on the basis of either his race or sex.
C. Disparate Impact Theory of Discrimination
African-American males have had moderate success in convincing courts that facially neutral employment practices could have a discriminatory effect on their efforts to obtain employment and upward mobility. Even though the majority of these decisions did not single out African-American males as being the only group adversely impacted, African-American males were primarily the employees or applicants adversely affected by such policies.
More than twenty years ago, the Supreme Court announced acceptance of the disparate impact theory of discrimination in Griggs v. Duke Power Co. The original action in Griggs was a class action brought under Title VII of the Civil Rights Act of 1964, by thirteen African-American males who were denied employment opportunities based on Duke Power's personnel policies and practices. In Griggs, the plaintiffs were required to initially show that the facially neutral employment practice had a significant discriminatory effect on a protected group. The Court held that employment “practices, procedures, or tests neutral on their face,” that were not intended to discriminate, but that nevertheless “freeze” out a protected class of individuals, may violate Title VII. Thus, Title VII covers “not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Consequently, employment practices and policies that invidiously exclude African-American males, though seemingly neutral, violate Title VII unless the employer can show that the practices have a manifest relationship to the position the individual is seeking. In other words, there must be a correlation between the individual's performance and the employment practice.
Since Griggs, a number of lower courts have reviewed various employment practices and policies to determine whether African-Americans, as a group, have been disproportionately impacted. For example, federal courts have approved the disparate impact analysis in determining whether an employer taking arrest, conviction, military and garnishment records into account when making hiring and advancement decisions have a disparate impact on employment opportunities for African-Americans. These neutral practices and policies primarily impact African-American males, rather than African-American females, white males or white females. Although the courts have not expressly recognized that this form of discrimination is a combination of race plus sex discrimination, this disparate impact implies the existence of a race plus sex form of discrimination affecting African-American males which the courts should recognize.
In a more recent case evaluating whether a particular employment practice or policy had a disparate impact exclusively on African-American males, the Equal Employment Opportunity Commission (EEOC) prevailed after six years of litigation in convincing a federal court that an employer's grooming policy had a disparate impact on African-American males. In Bradley v. Pizzaco of Nebraska, Inc., an African-American male sued Pizzaco of Nebraska, Inc. (collectively Domino's), claiming that his termination for failure to comply with Domino's no-beard policy violated Title VII on the grounds that the policy had an adverse impact on African-American males. Domino's grooming policy prohibited company employees from wearing beards. Bradley was hired to deliver pizzas. He was terminated shortly after employment, however, because he would not comply with the company's no-beard policy.
Bradley suffered from a skin condition called pseudo folliculitis (PFB), which primarily affects African-American males. As a result of this medical condition, Bradley's skin would have become irritated and possibly scarred if he chose to shave. It was undisputed that Bradley had a severe case of PFB. However, Domino's policy provided for no exceptions. In reversing the district court's decision that the EEOC failed to establish a prima facie case, the court of appeals held that “the EEOC's evidence makes clear that Domino's strictly enforced no-beard policy has a discriminatory impact on black males.” The court accepted medical evidence that a significant number of the African-American male population is prevented from being clean-shaven. White males, however, are not so similarly impacted. Using the Griggs model, the court determined that Domino's policy was facially neutral but disproportionately impacted African-American males. When an employment practice or policy results in a disparate impact, the employer must justify the practice or policy by showing that there is a “substantial business justification.” If the employer can meet this burden, Title VII is not violated. However, plaintiff has an opportunity to show the availability of a less discriminating, alternative practice which still permits the employer to meet its goals. On remand, the district court held that Domino's was able to show that the no-beard rule was justified and did not violate Title VII. On appeal for the second time, the Eighth Circuit reversed the district court and remanded the case for entry of an injunction “tailored to place Domino's under the minimal burden of recognizing a limited exception to its no-beard policy for African-American males who suffer from PFB and as a result of this medical condition are unable to shave.”
It is clear from Bradley, as in Griggs, that African-American males were discriminated against, as a subgroup, in a manner which clearly involved a combination of race and sex. As in other cases, white males, white females and African-American females were not impacted by the policy. In Griggs and Bradley, plaintiffs were able to identify the specific practices which prohibited employment opportunities for African-American males. More often than not, employees cannot specifically pinpoint which employment practices result in their exclusion. All they can show is that there “aren't any of them” (African-American males) being hired or promoted by the organization.
Due to the varied stereotypical biases and attitudes held about African-American males, it is a substantial burden to require African-American males to specifically pinpoint which bias may have caused their exclusion. In these situations, the court should still apply the Griggs model to shift the burden to the employer to articulate why African-American males are absent from their organization or classified primarily as laborers, maintenance and production workers.
D. Disparate Treatment Analysis
The most prevalent form of discrimination alleged by individuals is disparate treatment. In most cases, African-American males allege that they have been treated differently because of their race. To prove a case of disparate treatment, an African-American male plaintiff must establish a prima facie case as outlined in McDonnell Douglas Corp. v. Green. Once he has established the prima facie case, the employer has an opportunity to set forth its “legitimate nondiscriminatory reason” for its action; thereafter, the plaintiff can argue that the reason given by the employer is a pretext for discrimination. In most cases, there is no direct evidence available to prove discrimination and the plaintiff has to rely on circumstantial evidence to prove his case. The burden of proof in disparate treatment cases always remains with the plaintiff to prove that intentional discrimination has occurred. Since an employer can easily articulate its legitimate reason for denying African-American males employment opportunities, African-American males tend to find it extremely difficult to prove their allegations of discrimination.
The Supreme Court's decision in St. Mary's Honor Center v. Hicks placed an additional burden on plaintiffs in employment discrimination cases by requiring further proof of intentional discrimination after the plaintiff has proved that the employer's “legitimate nondiscriminatory reason” was pretextual (i.e., a lie). Hicks, an African-American male, was terminated by his employer for allegedly poor attendance. Hicks presented evidence that there were white employees who had worse attendance records than him who were not terminated. Prior to Hicks, most courts would have found in favor of Hicks as a matter of law. The Supreme Court, however, concluded that Hicks had to go beyond proving that his employer's proffered reasons for its actions were pretexual; he had to prove that its actions were based on his race. This additional step in the McDonnell framework has been labelled “pretext plus.” Most evidence in employment discrimination cases is circumstantial and not direct; thus, it will be more difficult for plaintiffs, particularly for African-American males, to prevail in employment discrimination cases.
IV. The Race Plus Sex Theory of Discrimination
The theory of race plus sex discrimination is by no means a major revelation. However, as is often the case with the obvious, courts refuse to accept this theory and apply it when stereotypical bias against African-American males results in African-American males being discriminated against in the workplace. Rather than recognize the clear evidence that Title VII factors may be combined, the courts continue the tradition of parsing a statute into separate and totally distinct elements.
A. Supreme Court Accepts Sex Plus Theory of Discrimination
In 1971 the Supreme Court accepted the theory of sex plus in Phillips v. Martin Marietta Corp. In Phillips, Mrs. Ida Phillips was denied employment by the defendant because she had pre-school-age children. However, defendant employed men with pre-school-age children. The district court granted a motion to strike the portion of the complaint which alleged that discrimination against females with pre-school-age children violated Title VII. The district court subsequently granted defendant's motion for summary judgment because 75 to 80 percent of the positions in question were held by females; thus, sex discrimination could not have occurred. On appeal, the Fifth Circuit affirmed the lower court decision. The Fifth Circuit stated:
We are of the opinion that the words of the statute are the best source from which to derive the proper construction. The statute proscribes discrimination based on an individual's race, color, religion, sex or national origin. A per se violation of the Act can only be discrimination based solely on one of the categories, i.e., in the case of sex: women vis-a-vis men. When another criterion of employment is added to one of the classifications listed in the Act, there is no longer apparent discrimination based solely on race, color, religion, sex or national origin. It becomes the function of the courts to study the conditioning of employment on one of the elements outlined in the statute coupled with the additional requirement, and to determine if any individual or group is being denied work due to his race, color, religion, sex or national origin.
. . . .
. . . Ida Philips was not refused employment because she was a woman nor because she had pre-school age children. It is the coalescence of these two elements that denied her the position she desired.
In vacating the appellate decision, the Supreme Court stated that “[s]ection 703(a) of the Civil Rights Act of 1964 requires that persons of like qualifications be given employment opportunities irrespective of their sex. The Court of Appeals therefore erred in reading this section as permitting one hiring policy for women and another for men--each having pre-school-age children.” Justice Marshall's concurring opinion noted that the Civil Rights Act of 1964 “intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterization of the sexes.”’ Since Phillips, the Supreme Court has issued additional decisions supporting its theory of discrimination plus other factors. Clearly, this legal theory should apply to African-American males who are discriminated against because of “stereotyped characterizations” of their race plus their sex.
B. Race Plus Sex Theory Application to African-American Females
A few district courts and at least three of the federal appellate courts have hesitantly embraced the race plus sex theory as it applies to African-American females. In Jefferies v. Harris County Community Action Association (HCCAA), the Fifth Circuit Court of Appeals held that discrimination against African-American females can exist even in the absence of discrimination against African-American males or white females, thus clearly accepting the race plus sex theory of discrimination.
Jefferies, an African-American female, applied for one of two positions as a field representative. The positions were previously staffed by a white female and an African-American male. On the day she submitted her application, Jefferies noticed that a “personnel action” had been completed to hire Eddie Jones, an African-American male, as acting field representative. Jefferies filed a lawsuit alleging race and sex discrimination. During the trial, Jefferies submitted uncontroverted evidence that every position for which she applied had been filled by males or white females.
The district court dismissed Jefferies' claim of race and sex discrimination. In reversing the district court's decision, the Fifth Circuit agreed with Jefferies' argument that the district court erred in refusing to address her claim of discrimination based on a combination of race and sex. The court stated:
In the absence of a clear expression by Congress that it did not intend to provide protection against discrimination directed especially toward black women as a class separate and distinct from the class of women and the class of blacks, we cannot condone a result which leaves black women without a viable Title VII remedy.
. . . .
We also feel that this result is mandated by the holdings of the Supreme Court and this court in the “sex-plus” cases.
Other district courts have not been as willing to recognize the theory of race plus sex discrimination. For example, in DeGraffenreid v. General Motors Assembly Division, St. Louis, the district court addressed the issue directly and emphatically refused to recognize that discrimination could be based on a combination of race and sex discrimination. In DeGraffenreid, African-American females employed by General Motors brought an action under the Civil Rights Act of 1964 and section 1981 alleging race and sex discrimination in that the “last hired--first fired” layoff policies discriminated against African-American females and perpetuated past practices of discrimination. The African-American females plaintiffs further alleged that “they [ were] suing on behalf of African-American women, and that therefore [the] lawsuit attempts to combine two causes of action into a new special sub-category, namely, a combination of racial and sex-based discrimination.” In dismissing the action, the district court indicated that plaintiffs were unable to cite any decisions supporting such a theory, nor could the court find support in its own research. The court acknowledged that if discrimination occurred on the basis of race or sex a remedy should be ordered. However, the court stated that African-American females “should not be allowed to combine statutory” claims, such as race and sex “to create a new ‘super-remedy”’ because such a theory is not supported by the legislative history of Title VII, nor case law. Specifically the court stated:
The legislative history surrounding Title VII does not indicate that the goal of the statute was to create a new classification of “black women” who would have greater standing than, for example, a black male. The prospect of the creation of new classes of protected minorities, governed only by the mathematical principles of permutation and combination, clearly raises the prospect of opening the hackneyed Pandora's box.
On appeal, the Eighth Circuit affirmed part of the lower court decision, reversed part and remanded the case for further proceedings in accordance with the decision. However, the Eighth Circuit stated in dicta that: “We do not subscribe entirely to the district court's reasoning in rejecting appellants' claims of race and sex discrimination under Title VII.” The Eighth Circuit failed to articulate which part of the theory it rejected or the part it supported, nor did it give any analysis to support its conclusion.
In another case where it was clear that the plaintiff, an African-American female, indirectly raised the claim of race plus sex allegations, the court rejected the allegation of discrimination when the similarly situated employees were an African-American male and an American Indian female. Specifically, the court stated “[n]ot only did plaintiff fail to establish that other similarly situated employees were treated differently, but the situations she presented to the . . . court for comparison involved the activities of a black male and a Native American female.”
Recently, the Ninth Circuit also applied the race plus sex theory to a claim of discrimination by a female professor of Vietnamese descent. In Lam v. University of Hawaii, the plaintiff alleged discrimination based on race, sex and national origin. The district court granted defendants' motion for summary judgment, in part because it determined that defendants had given “favorable consideration” to an Asian male and a white female during the selection process. In reversing the grant of summary judgment, the circuit court decided that the lower court made a significant error in separating the treatment into discrete categories of race and sex. “[T]he attempt to bisect a person's identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.”
C. The Application of the Race Plus Sex Theory to African-American Males
In contrast to the developing trend of African-American females and other protected groups in persuading courts to approve the race plus sex theory, African-American males have had almost no success in race plus sex cases. However, in Long v. AT&T Information Systems, Inc., an obscure federal district case, the court accepted plaintiff's request for the court to analyze his case on the basis of his race (African-American) and sex (male) together. The court stated “plaintiff argues that [defendant] did not discriminate against him on the basis of either race or sex standing alone, but on a combination of the two, and the Court confines its inquiry accordingly.” The court accepted Long's prima facie case of race plus sex without citing authority. Long, an African-American male, alleged that he was discriminated against individually as an African-American male, and that there was a pattern and practice of discrimination against African-American males in terms and conditions of employment. Specifically, Long alleged that African-American males received lower compensation, were denied advancement opportunities, assigned substandard accounts, and his supervisor used racial epithets in reference to him (“black boy”), whereas whites and other minorities, including African-American females, were treated more favorably.
Long attempted to prove that there was a pattern and practice of discrimination against African-American males by charting the average salaries of African-American males, African-American females, white males, white females, Hispanic females and Asian males who were employed by the defendant. The court ruled that the plaintiff's data was flawed, because many of the employees included in the data were not in comparable positions. Nonetheless, the court did not reject the grouping of employees by race and sex for purposes of determining whether a pattern and practice of discriminating against African-American males existed. The court, however, removed the names of employees who were in a different department from the plaintiff, thus reducing the number of employees to compare from forty-one to twenty-two. After excluding nineteen employees from the data, the court reasoned that “[w] ith this small sample size, plaintiff's comparison of ‘average’ salaries may present distorted results as a small number of very high or low salaries [[[[would] disproportionately affect the averages.” Though the court found that Long failed to substantiate his claim of discrimination in compensation or promotion, it did find that Long proved discrimination in termination by showing personal attacks on himself.
Courts generally, however, have either failed to explore the race plus sex theory, or the issue has not been raised on appeal or in a timely manner. In some cases, plaintiff received a cursory review, or the court ignored plaintiff's claim of race plus sex discrimination and analyzed the claim on the basis of race or sex. In other cases, the facts suggest a race plus sex form of discrimination but only a claim of race discrimination is pursued. Unfortunately, stereotypical bias on the basis of race and sex directed at African-American males in the workplace appears to be limitless. Meanwhile, stereotypical biases against African-American females and other minority groups in the workplace are prevalent but are not based upon feelings of hate and fear. If an employer has a choice between hiring a qualified African-American male or a qualified African-American female, the employer will generally opt to hire the African-American female. Employers might consider a negative stereotypical bias of African-American males as the tie-breaker. Moreover, employers recognize that African-American females can be counted twice on their Affirmative Action plan, once as African-American and once as female. This double counting is a legal method of manipulating Affirmative Action statistics to ensure that the analysis will not show any significant underrepresentation of African-Americans and females in the workplace.
A significant difficulty seems to arise when an African-American female and a white male have received favorable treatment, while an African-American male has been treated less favorably. Such a claim of discrimination could probably defeat an African-American male's claim of race and sex discrimination. Courts have typically held that if an African-American female was selected over an African-American male, race could not have been a factor. Furthermore, in a sex discrimination case, where a white male has also been selected, the sex of the African-American male could not have been a factor. This creates a loophole through which a biased, but shrewd, employer could hire an African-American female and a white male in order to defeat any future employment discrimination claim filed by an African-American male. Courts have generally failed to recognize that organizations may discriminate against African-American males on the basis of race plus sex, even if an African-American female and a white male are treated more favorably.
Courts have usually declined to recognize African-American males or, in some cases, to even consider them as a separate class or subgroup in a Title VII analysis. A clear example was recently illustrated in Davis v. Yazoo County Welfare Department. In Davis, the Fifth Circuit refused to determine whether African-American males represent a protected class; the court limited its review to the district court's finding of sexual discrimination.
Davis was a thirty-three year old African-American male who applied for one of two positions as an eligibility worker in the Yazoo County Welfare Department. The positions were filled by an African-American female and a white female. Subsequently, additional vacancies were also filled by African-American females. Approximately one month after the initial selections, defendant filled two other vacancies with African-American females. Filing a complaint with the Equal Employment Opportunity Commission (EEOC), Davis alleged that the defendant had discriminated against him on the basis of race and sex. After he received a right to sue letter from the EEOC, Davis filed a civil suit in federal district court, again alleging discrimination based on race and sex.
The district court held that Davis had been discriminated against on the basis of sex in violation of Title VII. The district court, however, failed to rule on the race allegation or recognize African-American males as a subgroup protected by Title VII. Plaintiff appears to have established a prima facie case by alleging that the employer preferred females for the positions, particularly African-American females. Clearly, Davis was a member of a subclass of African-American males who are protected under Title VII. The rejection of Davis may have been based upon stereotypes and assumptions regarding his race and sex. The mere fact that an African-American female was selected should not have defeated his individual claim of race plus sex based discrimination.
In Parrott v. Cheney, the court also ignored the possibility of a combination of race plus sex discrimination. The court ruled that Parrott, an African-American male with fifteen years of experience in the relevant field could not support his allegations of race and sex discrimination even though the second selectee was a white female with only ten years of experience. The court granted a motion for summary judgment dismissing the action because plaintiff failed to establish a prima facie case. The district court, in granting the motion, cited Holmes v. Bevilacqua:
The facts here parallel quite closely the facts of the Holmes case. In Holmes, the plaintiff, a black male, applied for a vacant position and survived two screening processes before being chosen as one of five finalists. The ultimate selectee, a white male, was chosen although he had less experience and had ranked slightly lower than the plaintiff among the five finalists chosen during the screening process. The plaintiff in Holmes testified at trial that all of the candidates were well-qualified, just as the plaintiff in this case testified at his deposition that Ms. Mandish was well-qualified. In Holmes, as in this case, the plaintiff could not produce evidence which demonstrated that race was a determining factor in the employer's decision. As in Holmes, plaintiff cannot make out a prima facie case of discrimination.
The court's focus in Parrott was purely on the issue of race even though the plaintiff alleged discrimination on the basis of race and sex. The first selectee for the position was a Hispanic female. Her selection was subsequently rejected by a grievance examiner. A new selection panel was convened, and it selected a white female. The selection of a minority female and a white female over a qualified African-American male should have easily established a prima facie case of discrimination as outlined in McDonnell Douglas Corp. v. Green. The district court, however, held that the Fourth Circuit decision in Holmes required some evidence of discrimination at the prima facie stage. Instead of following the McDonnell Douglas Corp. standard of analyzing the race plus sex claims, the court implied that the selecting official, an African-American male, could not discriminate against another African-American male. The court failed to give the plaintiff an opportunity to go forward with the case to prove that he had been denied a promotion because he was an African-American male. In dismissing the action, the court ignored the race and sex claims, instead analyzing the case on the basis of race or sex.
Even when race and sex combined have not overtly been considered in the employment decision process, the combination of race and sex nonetheless has usually played a sub rosa role in the process. By ignoring this theory of discrimination, a court limits and devalues an employee's individual experiences with discrimination. There is no indication of legislative intent to limit Title VII in such a manner. Rather, Congress' objective was to eliminate all forms of invidious discrimination on the basis of race, color, sex, national origin and religion, as well as combinations of these “categories.”
V. Remedying Race Plus Sex Discrimination
A. The Role of Courts: Recognition and Application of Race Plus Sex Theory of Discrimination
In Vogler v. McCarty, Inc., the Fifth Circuit, in framing a remedy in a Title VII suit, acknowledged that courts “must be free to deal equitably with conflicting interests of . . . employees in order to shape remedies that will most effectively protect and redress the rights of the . . . victims of discrimination.” The failure of courts to recognize and analyze cases on the basis of race plus sex deprives African-American males of an opportunity to pursue and prove claims of discrimination. Courts should follow the Fifth Circuit in focusing on protecting and redressing the rights of those discriminated against. Such a focus would allow courts to recognize that employment discrimination against African-American males, and other sub-classes, may be unique and different from other protected groups; thus, new remedies and theories of discrimination are mandated.
1. Protected Sub-Classes
In interpreting Title VII, the courts should recognize that African-American males are a protected sub-group under Title VII. The legislative history of Title VII supports the assertion that Congress intended to eliminate all vestiges of workplace discrimination precipitated by an individual's race, color, sex, religion and national origin. Where these factors merge to create new sub-classes of discrimination, the courts should recognize that individuals within these sub-classes are protected by Title VII. These sub-classes can be created by merging multiple prohibited forms of discrimination such as age, disability and sexual orientation. Indeed, such sub-classes could include not only African-American males, they could include, among others, white females (race plus sex), white males (race plus sex), disabled African-Americans (disability plus race), white males over 40 (race, sex and age), Asian females (national origin plus sex), a black male Jamaican (race plus national origin) and a 40 year old female (age and sex).
The reluctance on the part of courts to adopt the race plus sex theory arises from the fear that it may unleash even more claims of discrimination. Courts would prefer to analyze discrimination as if the Title VII factors were separate, discrete categories, ignoring the obvious reality that individuals embody several, if not all, of the Title VII factors. This was evident in Judge v. Marsh, where the plaintiff alleged that the employer's selection and performance evaluation systems disfavored African-American females when an African-American male and a white female were promoted instead. The court accepted the conclusion reached in Jeffries, that African-American females are protected as a subgroup under Title VII, yet at the same time attempted to limit its application. The Court stated:
The difficulty with this position is that it turns employment discrimination into a many-headed Hydra, impossible to contain within Title VII's prohibition. Following the Jeffries rationale to its extreme, protected subgroups would exist for every possible combination of race, color, sex, national origin and religion. It is questionable whether any employer could make an employment decision under such a regime without incurring a volley of discrimination charges. For this reason, the Jeffries analysis is appropriately limited to employment decisions based on one protected, immutable trait or fundamental right, which are directed against individuals sharing a second protected, immutable characteristic. The benefits of Title VII thus will not be splintered beyond use and recognition; nor, will they be constricted and unable to reach discrimination based on the existing unlawful criteria.
The court, in Judge, shuddered at the possibility that the diverse nature of discrimination forces the court to consider all possible combinations of Title VII discriminations. The court failed to explain how an individual can share two of the Title VII factors and suffer discrimination due to both without a combination of the factors occurring.
Courts which have rejected the race plus sex theory of discrimination are correct that Title VII clearly delineates five individual bases of discrimination; such a conclusion is clearly within the formal letter of the law. The legislative history, however, does not support placing any such limitations on the courts' authority to combine the five bases into subsets. Indeed, the intent of Congress that Title VII be used as a vehicle to eradicate discrimination in the workplace requires protection of individuals who are discriminated against because of a combination of the five Title VII bases, such as race plus sex. While race plus sex discrimination may not be within the strict letter of Title VII, it is clearly within the generous spirit of Congress' prohibition against workplace segregation. Congress equipped the courts to battle the many-headed Hydra through Title VII's prohibition against employment discrimination, not by multiplying litigation. Generous application of the race plus or “interactive discrimination” theory should not be blamed for creating the monster of employment discrimination; the many-headed beast clearly existed prior to the enactment of Title VII's attempt to exterminate it. The Judge court's reasoning flies in the face of social reality.
Ironically, what such courts fear is actually an understandable development in the continuing struggle against discrimination. Courts should look for ways to channel the race plus theory rather than attempt to limit it. Payne v. Travenol Laboratories provides a counter example to the Judge court's rejection of the race plus theory. Payne involved a class action which included both African-American males and African-American females challenging their employer's practice of excluding African-Americans and females from the more highly paid positions. The trial court refused to allow Payne, an African-American female, to represent the interests of both African-American males and African-American females, thereby excluding African-American males from the class. The district court stated:
[T]here is too much conflict between the males and the females in this situation for them to represent a class which would involve black males, or males of either race. There is a controversy in this case with reference to whether or not females should be permitted to be employed in the position of material handler in the plant, because they have always been assigned to and employed in the assembly part of the plant, and in that category which carries . . . a lower rate of pay. If these black female plaintiffs are going to get into a controversy with males, either white or black, then I don't think they can represent the male population of the plant so far as males or [sic] concerned, or for that matter any males who may have an interest in retaining their jobs as material handlers.
In upholding the district court's decision, the circuit court acknowledged that the African-American female plaintiffs' claim of discrimination in job assignments would be in conflict with the interest of African-American males. “Black males are entitled to a class representative who is free from a desire to prove a claim that will impair their interests.” The circuit court did, however, state that “[i]f a black female plaintiff argues that the employer favors white males to the detriment of both females and blacks, there is no inherent obstacle to the representation of both groups.” Even though the rights of the African-American males in Payne were diminished when they were excluded from the class, the court clearly supported the principle that individuals can claim a combination of bases for discrimination which creates subsets of individualswho are protected under Title VII. The Payne courts were clearly able to deal effectively with the many-headed Hydra the Judge court found so terrifying.
2. Prima Facie Case of Discrimination
To ensure that the borderline policies of Title VII are met, courts must recognize that African-American males can establish a prima facie case of discrimination even if African-American females (race) and white males (sex) are represented in the workforce or are similarly situated. In Delesstine v. Fort Wayne State Hospital and Training Center, the Seventh Circuit rejected defendants-appellants' argument that the plaintiff-appellee, an African-American male, could not establish a prima facie case if he was “permanently replaced by a member of a protected class (a female).” According to the court, appellants' “reasoning would foreclose a plaintiff from proving a prima facie case unless an employer discriminated not only against the plaintiff but also against every so-called ‘non-protected’ person to fill the position. Appellants' argument defies the logic, purpose and language of Title VII.”
Further support for recognizing that African-American males can establish a prima facie case, even if another protected class individual is selected or maintained, can be found in the Supreme Court's decision in Furnco Construction Corp. v. Waters. The Court stated: “It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race [African-American], without regard to whether members of the applicant's race [sex] are already proportionately represented in the work force.” Indeed, the traditional notions of who is a protected class individual have since given way to a modern thought that all individuals are protected under Title VII; thus, the first step of the prima facie case should automatically be met once plaintiff identifies which immutable characteristic she or he has (i.e., African-American and male). The McDonnell Douglas Corp. test for establishing a prima facie case “was never intended to be rigid, mechanized, or ritualistic.” Nevertheless, courts opt for a mechanized analysis of race or sex even when plaintiff alleges race and sex to establish a prima facie case of discrimination.
3. Judicial Notice
The employment status and stereotypical biases against African-American males are so widely known and internalized by the general public that courts could legitimately take judicial notice of these facts. The lingering present effect of stereotypical biases on the employment of African-American males is evident. As a defined group, African-American males have suffered from a pattern of discrimination. Federal labor statistics and other validated studies on African-American males are readily available and can be tested for accuracy. Many of these findings unequivocally support the proposition that African-American males are subjected to employment discrimination as a result of their race and gender.
Employment barriers, such as educational requirements, training and employment discrimination, which prohibit full employment opportunities for most African-American males, have a long history of negatively impacting the employability of African-American males.
Courts have previously considered the “educational and cultural forces” present in society to determine whether individuals have been victims of discrimination. Courts have taken judicial notice of such history. Courts have also taken judicial notice in other areas where there has been a long history of racial discrimination directed at African-Americans.
The Supreme Court in United Steelworkers of America v. Weber took judicial notice of the fact that employment discrimination against African-American males in filling craft positions existed. The Court stated that the long history of excluding African-Americans from craft unions prevented them from having the required credentials to be hired as craftworkers. The kind of studies cited in Weber and relied on by the Court to take judicial notice are similar to other studies cited in this article.
Today, courts could take similar judicial notice of the fact that African-American males are impacted by the “glass ceiling” in corporate America, that negative stereotypical biases of African-American males is pervasive and that African-American males can present a case of employment discrimination on the basis of their race and gender, even if African-American females and white males have not been treated adversely.
4. Determine That “Testers” Have Standing to Bring Employment Discrimination Claims
The use of testers is a process whereby individuals pose as applicants who have similar physical characteristics, demeanor, education, and experience, except for their immutable characteristics (e.g., race and sex), and are sent to apply for jobs with a particular employer. The testers have no intentions of accepting an offer of employment. The primary purpose of the process is to determine whether individuals of different races or gender, particularly African-Americans, are treated less favorably in the selection process. The use of testers to determine whether discrimination exists is not a new technique. Indeed, it has been used quite successfully for more than ten years to uncover discrimination in the housing industry. More recently, testers have been used to uncover discrimination in hiring practices, mortgage lending and in the retail car industry.
In Havens Realty Corp. v. Coleman, the Supreme Court held that the testers had standing to sue under the Fair Housing Act of 1968 for housingdiscrimination. Havens Realty argued that the respondents were not injured; thus, they lacked standing to sue in their capacity as testers. The use of testers to discover the extent of employment discrimination in Chicago, Washington, and Denver has concluded that minorities, particularly African-American males, are treated less favorably in the hiring process than white applicants.
The first court case to challenge the use of testers in the employment area was filed in 1991 in Fair Employment Counsel of Greater Washington v. BMC Marketing. The employer alleged that the testers lacked standing to file suit under federal civil rights laws which prohibit race discrimination.
In BMC Marketing, two African-American males and the Fair Employment Council of Greater Washington, Inc. brought a discrimination action against BMC Marketing Corporation, an employment agency owned by Snelling and Snelling, when the two African-American male applicants were not referred to employers for employment consideration and white males with similar qualifications who applied after the African-American males were referred.
The employment discrimination experienced by the two African-American testers is not unusual. The Civil Rights Act of 1964 was passed to prohibit such conduct. Moreover, the Civil Rights Act of 1991 was passed to further eliminate such discriminatory hiring practices and to correct the failings of the Civil Rights Act of 1964 and the Supreme Court's failure to eradicate employment discrimination.
In an effort to uncover and eradicate discriminatory hiring practices in the greater Washington, D.C. area, the Fair Employment Council of Greater Washington (FEC) “designed and implemented a program of systematic employment testing using professional social science methodology” to determine whether qualified African-American applicants were being afforded the same opportunities as white applicants seeking referrals to employers. The FEC employed two African-American males and two white students as testers, matching the two African-American males and white testers who had similar academic credentials, demeanors, age and verbal skills.
Thereafter, they were trained how to interview and how to record and observe their experiences when contacting the employment agency for referrals. According to the complaint, on December 10, 1990, one of the African-American testers entered the premises of BMC Marketing and sought information regarding employment opportunities. The African-American male tester completed an application, which included a grammar and spelling test and a release for defendant to investigate his background. He also completed a typing test. After waiting for approximately thirty minutes, he was interviewed by a white employment counselor. During the interview which lasted five to ten minutes, the counselor directed him to consider positions other than the ones listed with her office. The African-American male tester was never contacted, nor were his references, even though he was qualified for at least one position that defendant knew was available.
The complaint further alleged that ten minutes after the African-American male tester completed the employment application and interview with defendant, a white male tester from FEC entered the same office and completed the same application and tests. The white male tester provided information on his qualifications that were comparable to those provided by the African-American male tester. Even before the white male took the typing test, he was asked whether he would be interested in a switchboard position. Later that same morning, he was referred by defendant to an interview for a switchboard position. The white tester was coached by defendant on interviewing techniques, and his references were contacted during the time he was taking the typing test. The white tester was subsequently offered the job at the prospective employer but refused the offer. The African-American male tester was not contacted by defendant, even though the position remained open.
On December 11, 1990, FEC sent the second pair of testers to BMC Marketing. The facts are somewhat different from the first scenario, but the results were the same. On this occasion, the African-American male was not given an application and was told the company was a secretarial referral firm. The white male tester, however, was provided with an application and the grammar and spelling test. The testers' qualifications were comparable. The white male tester was not required to take the typing test. Again, the white male was given a referral, coached on interviewing, was subsequently offered the job but refused the offer. Neither of the African-American male testers were contacted or referred for the switchboard position.
Citing the Supreme Court's decision in Havens, the district court in BMC Marketing held that even though the plaintiffs had no intention of accepting any job defendant referred them to, they were nevertheless injured when they did not receive “truthful information” concerning employment opportunity because of their race; thus, they had standing to pursue a civil action under Title VII. The district court correctly reached this decision by focusing its analysis on the similarities between the Fair Housing Act and Title VII of the Civil Rights Act. In upholding the use of testers in housing discrimination cases under the Fair Housing Act, the Supreme Court had relied on s 3604(d) of the Act which makes it unlawful to represent to any person because of race, color, religion, sex or national origin that any dwelling is not available for inspection, sale or rental when such dwelling is in fact available. The Supreme Court concluded that Congress clearly intended that testers have standing to sue under the statute. “A tester who has been the object of a misrepresentation made unlawful [under the statute] has suffered injury in precisely the form the statute was intended to guard against, and therefore, has standing to maintain a claim for damages under the [[[ statute].”
Relying on the Havens analysis, the court in BMC Marketing recognized that the Title VII prohibition against discrimination has virtually the identical language as s 3604(e) of the Fair Housing Act. Section 2000e-2(b) of Title VII states:
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis his race, color, religion, sex, or national origin.
Based on the similarities of the two statutes, the court concluded: “Just as the statute in Havens, by its terms, established an enforceable right to truthful information concerning the availability of housing; so s 2000e-2(b) by its terms establishes an enforceable right to nondiscriminatory referrals from employment agencies.”
On appeal to the United States Court of Appeals for the District of Columbia Circuit, the court reversed the district court's decision and held that the individual testers lacked standing to seek damages under Title VII and did not state a cause of action under s 1981. However, the court did find that the council, as an organization, could “proceed with [a] Title VII claim, but it has a cause of action only to the extent that the effects of BMC's discrimination have perceptibly impaired its programs.” This decision will make it more difficult to proceed with tester cases under s 1981, but not necessarily Title VII.
B. The Role of the Federal Government: Enforcement of Civil Rights Laws
Like the courts, federal civil rights enforcement agencies have failed to educate and inform employers and federal contractors as to how stereotypical biases used to intentionally or unintentionally exclude African-American males from the workplace on the basis of their race and sex violate Title VII and other federal statutes.
The U.S. Equal Employment Opportunity Commission (EEOC) has primary responsibility to interpret and enforce Title VII. Moreover, the EEOC has the authority to issue policy statements, guidelines, bring class action suits in pattern and practice cases, intervene as a plaintiff in employment discrimination cases and process administrative complaints prior to litigation. The EEOC has not issued or proposed any policies or guidelines to alert employers that African-American males and other subgroups can be discriminated against based upon a combination of race and sex. The EEOC recently approved a National Enforcement Plan “identifying priority issues and setting out a plan for administrative enforcement and litigation of the laws within its jurisdiction.” One of the priorities listed in the plan were claims based on the intersection of two or more prohibited bases of discrimination; for example, discrimination against females of color, older females or minority persons with disabilities.
The Office of Federal Contracts Compliance Program (OFCCP), U.S. Department of Labor, has primary responsibility to enforce Executive Order 11246. The OFCCP has also failed to take the initiative to fully explain to federal contractors their responsibility to ensure that African-American males are not discriminated against on the basis of their race plus sex. The OFCCP should monitor and evaluate personnel practices and policies of federal contractors to determine the existence of disparate impact against African-American males. This would be included during compliance reviews. Federal contractors could also be required to establish goals and timetables specifically on the employment of African-American males.
Federal civil rights agencies can also take the following initiatives to discourage the exclusion of, and employment discrimination against, African-American males in the workplace.
1. Accept and Process Charges of Discrimination by “Testers”
The EEOC took a major step toward supporting the use of testers by issuing a policy that charges of discrimination filed by testers would be accepted and processed by the agency. This was the first time that the EEOC took an aggressive stand on the use of testers to uncover employment discrimination. It has been suggested that the EEOC not only accept charges of discrimination brought by testers but also litigate such cases.
There is support as well as organized resistance to the use of testers in the employment area. As a result of the EEOC policy on testers, the National Association for the Advancement of Colored People (NAACP) filed a class action with the EEOC against Lord & Taylor department stores in Miami, Florida. The NAACP used several job testers to support its suspicion that the department stores discriminated against African-American applicants for employment. The use of testers can be used effectively to uncover subtle acts of employment discrimination against African-American males. It has also been recommended that a nationwide audit using testers be conducted to determine the extent of racial discrimination in employment practices.
2. Recognize and Analyze Discrimination Charges on the Basis of Race Plus Sex
It should be recognized at the administrative level that African-American males can be discriminated against on the basis of being an “African-American male,” not just because of their race or sex, but a combination of both. In applying the standard formulated in McDonnell Douglas Corp. for a plaintiff to establish a prima facie case of employment discrimination, the EEOC has, in a number of administrative decisions, held that race and sex protected a “black female,” thus meeting the prima facie case. However, once the burden of production shifts to the respondent to “articulate a legitimate non-discriminatory” reason for its action, there has been no legal analysis as to whether the subgroup was excluded because of a combination of discriminatory bases. For example, in EEOC Decision No. 85-1, an African-American female alleged discrimination on the basis of race and sex when she was denied a position with respondent. After the charging party established her prima facie case of discrimination, the employer's legitimate reason for denying the charging party the position was that all the selectees had prior experience. In a footnote, the decision mentioned that the four available positions were filled by an “[African-American] male, a [w]hite female, and two [w]hite males.” The EEOC held that there was “no reasonable cause to believe” that the charging party had been discriminated against on the basis of race or sex. There was no analysis or mention that since an African-American female was not selected that discrimination may have occurred on the basis of a combination of race and sex. In an earlier case filed with the EEOC on the basis of race and sex, an African-American male alleged that his employer discharged him and removed other African-American males from supervisory positions. The EEOC determined that the employer violated Title VII.
If an African-American male charging party or the EEOC fail to recognize that race plus sex could be the basis for the discrimination, and only the race claim is pursued, the plaintiff may be prohibited from pursuing the sex claim once the case is brought to court. The charging party must have filed the charge and the basis for the allegation of discrimination with the EEOC prior to pursuing litigation. A failure to file a race plus sex claim of discrimination with the EEOC prior to litigation may result in a dismissal of the additional basis included in a complaint in federal court.
3. Issue Policy Statements
As with other forms of discrimination, the EEOC should also issue policy guidelines on “discrimination against subclasses.” Such guidelines would define and identify various subclasses, including the legal framework for establishing a prima facie case of race plus sex based discrimination, as well as other forms of “interactive discrimination.”
These guidelines and policies on employment discrimination against African-American males would be issued to explain how stereotypical biases against African-American males can result in a violation of Title VII. In addition to the EEOC, the OFCCP should issue a policy statement or guidelines to federal contractors on how subgroups of individuals are protected by Title VII when multiple bases of discrimination are present. Litigation of such claims should be vigorously pursued, and the agencies' methods of collecting data on the various subgroups affected should be improved.
4. Glass Ceiling Initiative for African-American Males
The U.S. Department of Labor defines the “glass ceiling” as “those artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing upward in their organization into management level positions.” In 1989, the Department of Labor began an initiative to investigate corporate America to determine why females and minorities were disproportionately excluded from executive positions. In 1992, the Department of Labor released a report on steps corporate America can and is taking to improve the advancement of minorities and females into the executive suites. The U.S. Department of Labor insists that the glass ceiling initiative is to identify barriers which preclude both minorities and females from the executive suite. In reality, however, the glass ceiling initiatives are directed primarily at white females. In practice, minority females are a “politically correct” tag-a-long in the dialogue on the “glass ceiling.” African-American males are considered as an afterthought, if at all.
The U.S. Department of Labor should conduct a more comprehensive study of African-American male employees to determine what has inhibited them from upward mobility in organizations. The glass ceiling has clearly prohibited their upward mobility to senior level positions. Indeed, African-American males are inhibited more by “steel beams” than simply glass ceiling, and are excluded, except for the usual token African-American male, who normally holds an “invisible” high-level management position. African-American males are excluded from high level policy making positions, in part because of the stereotypical images that white male managers and executives have of African-American men. African-American males are likewise missing from the ranks of “feeder” positions from which they can move up the corporate ladder. This occurs for a variety of reasons. African-American men are hired into either the lowest entry-level position, traditional staff positions such as personnel or community relations, or quasi-middle management positions without the benefit of a mentor.
A review of statistical data of African-American male employees in major private sector industries supports the view that they have failed to shatter the glass ceiling. African-American males compose only 2.6 percent of executive, administrative and managerial occupations, whereas white males compose 49 percent of those occupations. More disheartening is that African-American males who have the same level of education or even more than whites are not guaranteed success in breaking the glass ceiling.
The exclusion of African-American males from executive positions is a direct result of organizational barriers and attitudinal biases that are unique to them because of their race and sex. Most studies which have analyzed the “glass ceiling” have focused on females, particularly white females and minorities, especially African-American females and to a lesser extent African-American males. Additional studies are warranted to determine what specific factors and barriers prohibit the upward mobility of African-American males in public and private institutions. Such studies should not marginalize discrimination directed at other particular groups. Rather, they should acknowledge that African-American males experience similar, as well as different, forms of employment discrimination based upon their race and sex. It is clearly such a combination of biases that form a barrier to their breaking the “glass ceiling,” or melting down the steel beams barring their entry into the executive suite.
5. Conduct Empirical Studies
The federal government has conducted a number of studies on race discrimination and gender discrimination. However, the correlation between stereotypical biases against African-American males and the decline of their employment status has been almost totally ignored by the federal government. In 1986, however, the U.S. Commission on Civil Rights issued a major study on the economic status of African-American males. This study detailed the disparities between white and African-American males in wages and employment. Except for this study, the federal government has not taken any comprehensive initiatives to determine why the disparity between white and African-American males has continued to worsen, particularly during the past two decades.
On the other hand, a few states have recently conducted preliminary research on the plight of African-American males in their respective states. These studies have also concluded that stereotypical biases against African-American males are rampant. Clearly, if the nation is to effectively address the employment status of African-American males, the federal government must take the lead in identifying the causes and solutions to this national tragedy.
C. The Role of Employers: Affirmative Action Plans/Programs
To a certain extent, employers and federal contractors take a compliance perspective and not a proactive approach to equal employment opportunity and Affirmative Action. For employers and federal contractors to maintain and to regain in some industries, competitiveness in the global market demands a constant evaluation of their present and future workforce. Indeed, Workforce 2000 also demands immediate attention of this subject.
A proactive, aggressive equal employment module and an Affirmative Action plan will be a requirement for employers to find qualified and qualifiable candidates in the workplace. This includes African-American males. Specifically, an employer's Affirmative Action plan must not only meet the legal requirement but also the spirit in which President Johnson mandated such plans more than 30 years ago. Even though race-based Affirmative Action plans have been attacked in court as unconstitutional and voluntary Affirmative Action plans challenged under Title VII, a well drafted Affirmative Action plan can withstand legal challenges. As a result of the U.S. Supreme Court's decision in Adarand Constructors, Inc. v. Pena, many employers are reluctant to develop and implement a proactive Affirmative Action program. The Supreme Court placed stringent restrictions on affirmation action plans with race conscious provisions. Race conscious provisions in Affirmative Action programs, even to address the most egregious history of discrimination, will be challenged. Further, Affirmative Action programs are being attacked because many Americans feel that discrimination in employment no longer exists. In Adarand, the Supreme Court held that all governmental Affirmative Action programs which included a race-based classification must meet the strict scrutiny standard of review. The Adarand decision did not outlaw all race-based remedies to eliminate racial discrimination; however, it requires that such plans are narrowly tailored and meet a compelling governmental interest.
The Supreme Court cited an earlier decision, United States v. Paradise, as an example where a governmental race-based Affirmative Action program met the strict scrutiny test. In Paradise, the district court concluded that the Alabama Department of Public Safety “had systematically excluded [African-Americans] from employment” as state troopers “in violation of the Fourteenth Amendment.” To correct a long history of discriminatory promotional practices by the employer, the district court ordered “the promotion of one black trooper for each white trooper . . . as long as qualified black candidates were available, until the department implemented an acceptable promotion procedure.”
In upholding the lower court's order, the Supreme Court held that the “[g] overnment unquestionably has a compelling interest in remedying past and present discrimination by a state actor.” In Paradise, the facts revealed that the employer had excluded African-Americans for nearly four decades. Moreover, conduct on the part of the employer was “pervasive, systematic, and obstinate discriminatory conduct” which justified a race-conscious relief. The Supreme Court also determined that the race-conscious remedy was narrowly tailored, flexible and was a temporary remedy for correcting the past and present effect of discrimination. Paradise illustrates that evidence which clearly demonstrates a pattern of exclusion of African-American males from employment and promotional opportunities by a governmental entity can support the implementation of race-conscious provisions in the employer's Affirmative Action plan to remedy the race plus sex form of discrimination.
In the private sector, the Supreme Court's decision in United Steelworkers of America v. Weber outlined the elements of a permissible voluntary Affirmative Action plan with a race-classification provision. In Weber, the employer and union agreed to eliminate racial imbalances in the craftwork positions by reserving 50 percent of the openings in the training program for African-Americans until the percentage of African-Americans in the craft positions represented the percentage of African-Americans in the labor force. In upholding the program, the Supreme Court stated that Title VII did not limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious Affirmative Action programs.
The Weber court also outlined the specific guidelines for private sector employers to follow when implementing race-conscious Affirmative Action programs. Weber requires race-conscious Affirmative Action programs to not “unnecessarily trammel the interest of white employees,” (i.e., not to discharge white employees to hire African-American employees; not to create a plan that absolutely bars the advancement of white employees; and to have only temporary plans).
Clearly, private employers have more flexibility than public sector employers to correct past and present practices of denying African-American males' employment opportunities. This is not to suggest that every Affirmative Action plan needs a race-conscious provision; indeed, most Affirmative Action plans lack such a provision. Only where past practices of exclusion are deeply rooted and where qualified or qualifiable African-American males are available would an employer consider such a remedy.
The public has been misled with regard to the use of race-conscious provisions in Affirmative Action programs, outreach Affirmative Action programs and reverse discrimination. Race-conscious Affirmative Action programs represent a small percentage of all Affirmative Action programs. Most plans include strategies for recruitment and retention, community outreach, and provisions for ensuring equal opportunities within organizations. Only when employment discrimination exists does the employer include a race-conscious provision in their Affirmative Action program. Where evidence supports that intentional forms of discrimination have been institutionalized, a temporary race-conscious provision in an Affirmative Action plan is warranted. This would include African-American males who have indeed been intentionally excluded.
African-American males make up 12 percent of the United States population. However, a major portion of African-Americans of working age have been voluntarily or involuntarily removed from the employment market. In part, this is because of a lack of meaningful employment opportunities and employment discrimination because of who they are. Employers and federal contractors have, if not a social responsibility, a legal obligation to recruit, hire, train and promote African-American males. For an employer to just say that they are “an equal employment opportunity employer” is a waste of print. To be successful at this endeavor, employers must recognize and take positive actions to eliminate discriminatory barriers and attitudes which exclude African-American males. These barriers and attitudes are laced with stereotypical biases surrounding their race and sex that are particular to just African-American males. Consequently, employers and federal contractors should take the following initiatives to identify how the race and sex of African-American males are considered when employment decisions are made.
1. Goals and Timetables
Employers should establish goals and timetables for the employability of African-American males in all job categories where they are underemployed. The number of African-American males employed should be considered separately from the number of African-American females employed. For example, in Peightal v. Metropolitan Dade County, the fire department's Affirmative Action plan set hiring goals to “include 15 black males, 29 Hispanic males, 8 black females, 8 Hispanic females, and 7 white females.” The Fire Department was successful in hiring 18 black males, 24 Hispanic males, 5 black females, 4 Hispanic females, 12 white females and 23 white males. However, in American Federation of Government Employees Local 1923, the employer rejected the union proposal to establish goals for employing African-American males in administrative and clerical positions. The employer argued that the proposal would “directly and excessively interfere with the Agency's right to hire and assign employees because the proposals ‘would mandate the selection of a set number of employees in particular job categories, irrespective of the Agency's need to have any positions filled.”’ The union argued that the proposals stated a “numerical objective” as opposed to quota.
2. Recruitment and Retention
Employers must design recruitment plans that are directed specifically at recruiting African-American males. A recruitment plan should contain strategies to include areas of the community and institutions where African-American males are disproportionately represented. Clearly, African-American male parolees, those at homeless shelters and at recreation centers are excellent sources for recruitment, especially for entry level or trainee positions. A number of studies have suggested that employers actually do quite the opposite, intentionally directing their recruitment efforts away from sources where they would be ensured of finding qualified and qualifiable African-American males. In the survey conducted by Kathryn M. Neckerman and Joleen Kirschenman, some responders describe African-American males in this manner: “black men have a chip on their shoulder; [[[they] resent being told what to do”; “black men were more likely to falsify their [ employment] applications”; “black men were not willing to ‘play the game’ and to ‘follow the rules.”’
These stereotypical biases regarding African-American males result in the exclusion of African-American males from being recruited and, ultimately, employed or promoted. Once employed, the employer should design plans for African-American males to be retained and promoted within the organization.
3. Diversity Training
It is projected that by the year 2000 the demographics of the American workforce will have changed substantially from a workforce dominated by white males to a diverse workforce of females and a sundry of minority groups. Among this diverse working group will be African-American males. To reduce conflicts within this new workforce, employers should develop and require all employees to participate in a diversity training program. Included in this program should be an orientation on identifying and preventing negative stereotypical biases directed at African-American male employees and applicants.
The transformation of the American workforce from a purely homogeneous culture to a diverse mixture of cultures and ethnicities will dictate employers' development of a systematic initiative to sensitize and educate managers on how to manage employees within the framework of the law. Similarly, co-workers, customers, clients and contractors of employerswill also require orientation on working with a diverse work-force.
The shift from Affirmative Action to diversity is the next natural progression to ensure equal employment opportunities for all employees. The implementation of diversity programs will empower employees to effectively work as a team, and to recognize and celebrate differences among the various racial groups. Cultural diversity training, however, should not be limited to white males; it should be required of all employees including females, all minority groups and African-American males too.
Because of the infinite number of stereotypical biases directed at African-American males, specifically with regards to employment, African-American males will be disproportionately excluded from being hired and promoted. The exclusion of African-American males will be based upon stereotypical biases regarding their race and gender (African-American and male). An orientation for employees to recognize their biases and how to avoid such conduct is a prerequisite for preventing race and sex claims of discrimination.
Where litigation has already proceeded, courts have permitted the parties to include diversity training as part of a consent decree to resolve the case. For example, in Aburime v. Northwest Airlines, Inc., the court approved a consent decree which included a provision on diversity and sensitivity training.
Judges and court personnel would also benefit from instituting a diversity training program to become aware of how their stereotypical biases of African-American males affect their employment decisions, as well as the administration of justice.
In 1968, the Report of the National Advisory Commission on Civil Disorders reported that:
jobs [held by African-Americans] often involve substandard wages, great instability and uncertainty of tenure, extremely low status in the eyes of both employer and employee, little or no chance for meaningful advancement, and unpleasant or exhausting duties. Negro men, in particular are more than twice as likely as whites to be in unskilled or service jobs which pay far less than most.
More than twenty-five years have passed since the National Advisory Commission issued its report. Unfortunately, the status of African-American males has continued to deteriorate, both socially and economically. Many of the reasons why African-American males continue to face double-figure unemployment is due to race plus sex discrimination and stereotypical biases which effect all aspects of their lives. There is no single solution or remedy for eliminating institutional barriers or permanently eradicating years of negative images of African-American males that are deeply rooted in the minds of employers and the general public. A comprehensive plan of action on the part of employers, civil rights enforcement organizations, the judicial system, Congress and even African-American males must meet this challenge as we move into the twenty-first century.
. Copyright (c) 1996, Floyd D. Weatherspoon. Associate Professor of Law, Capital University Law School (Columbus, Ohio). B.A. 1974, North Carolina A&T State University; J.D. 1977, Howard University Law School. I would like to thank members of the Midwestern People of Color Legal Scholarship Conference, especially Professors Maria O'Brien Hylton, Boston University School of Law, and Anna L. Iijima, William Mitchell College of Law for reviewing drafts of this article. I would also like to than Myron Graver for his editorial advice. I am especially grateful to my research assistants, Eric Kidwell, Eric Gordon, Kris Langdom, Shay Meagle, and Marlon E. Branham for their assistance. I would also like to thank Jane Underwood and Libby Moore, members of our library staff, for taking a special interest in my research projects and identifying numerous resources to support my thesis.
. The annual unemployment indicators for African-American men, 16-19 years for 1991 were 36.5, and 42.0 for 1992; whereas the annual unemployment indicators for white men, 16-19 years were 17.5 for 1991, and 18.4 for 1992. For African-American men, 20 years and over, the unemployment indicators were 11.5 for 1991, and 13.4 for 1992; where the annual unemployment indicators for white men were 5.7 in 1991 and 6.3 for 1992. See 117 Bureau of Labor Statistics, U.S. Dep't of Labor, Monthly Lab. Rev. 91 (1994); U.S. General Accounting Office, Equal Employment Opportunity, Displacement Rates, Unemployment Spells, and Reemployment Wages by Race 1 (1994) (finding that “[d] espite numerous federal legislative efforts to provide equal employment opportunities regardless of race ... African American economic outcomes persistently lag those of whites in the United States. The labor market is a chief source of these differences. For example, average African American wage rates are consistently below those of whites, and African American unemployment rates are higher than those of most other racial groups”).
. This disparity did not just develop in the 1980s and 1990s, however, these recent figures represent a worsening pattern of unemployment. For example, between 1950-1980, the unemployment rate for African-American males had been on the average almost twice the rate of unemployed white males in all age groups. James P. Smith & Finis Welch, Closing the Gap, Forty Years of Economic Progress for Blacks 108-09 (1986) [hereinafter Closing the Gap]. Recent figures indicate that in some age groups the rate of unemployment of African-American males is triple the rate of unemployment for white males in the same age group. Id.; Nat'l Comm'n for Employment Pol'y, on Shaky Ground: Rising Fears About Incomes and Earnings vi (1994) [hereinafter On Shaky Ground]. “[N]early three-quarters of black men ... maintain[ed] a full-time, full-year job consistently throughout the [seventies]. Only one-half ... were able to maintain this full-year, full-time employment [in the 1980s] .... Two-thirds of black men saw their earnings rise over the course of the 1970s, while less than one-half saw the same in the 1980s.” On Shaky Ground, supra, at vi. See also Lisa Saunders, Relative Earning of Black Men to White Men by Region, Industry, 118 Monthly Lab. Rev. 68 (April 1995) (finding that African-American men on the average earned less than white men in 1989 than in 1979 and concluding that the decline in wages is attributed, in part, to the changing distribution of employment and earnings by industry); Leslie S. Stratton, Racial Differences In Men's Unemployment, 46 Indus. & Lab. Rel. Rev. 451, 463 (1993); William B. Johnston & Arnold H. Packer, Workforce 2000, Work & Workers For The 21st Century 101 (1987) (finding that the employment status of African-American men will continue to decline by year 2000 as a result of a changing job market).
. The U.S. Equal Employment Opportunity Commission reports that African-American males represent 6 percent of the private sector work-force; however, on a scale of 100 percent in each occupational classification, they represent 18.1 percent of individuals classified as service workers, 15.2 percent of individuals classified as laborers, and 27.1 percent of individuals classified as semi-skilled; only 5.5 percent of individuals are classified as official or managers. EEOC, Job Patterns for Minorities and Women in Private Industry 1 (1991); John Bound and Richard B. Freeman, What Went Wrong? The Erosion of Relative Earnings and Employment Among Young Black Men in the 1980s, 28 Q. J. of Econ. 435-62 (1993) (discussing the disparately low employment rates and earnings of young African-American males); Census Bureau Attributes Large Wage Gap Among Blacks to Educational Differences, Daily Lab. Rep. (BNA) No. 178, at d12 (September 16, 1993) (stating that “[r]egardless of educational attainment, white men [have] higher median earnings than African-American men across most occupational categories,” according to U.S. Census data).
. Treatment of African-American males in the work force is illustrated in the following cases. In McGinnis v. Ingram Equipment Co., McGinnis, a African-American male, was removed from his position as foreman. 685 F. Supp. 224, 225 (N.D. Ala. 1988), vacated on other grounds, 888 F.2d 109 (11th Cir. 1989). When the supervisor notified McGinnis of the displacement, he stated, “it just don't [sic] look right for me to have a nigger foreman with all my white customers.” Id. McGinnis was the only African-American employed by the defendant and was continually harassed by the supervisor. Id. Even though he was classified as a mechanic helper, McGinnis frequently was given janitorial assignments and other tasks, for example, keeping restrooms clean, keeping African-American visitors out of the restroom and removing chicken carcasses from the truck. Id. at 225-26. He was directed to sit at the rear of the room where the company's Christmas dinner was held, his food was placed on the floor and he was repeatedly called “nigger” and “black s-o-b” by the supervisor in front of others. Id. at 226. The trial judge stated that “McGinnis has already suffered many more racial indignities at the hands of the Company than any one citizen should be called upon to bear in a lifetime.” Id. at 228. During Congressional hearings on the Civil Rights Act of 1990, the McGinnis case was cited to support the need of amending section 1981 of the Civil Rights Act of 1866 to cover racial harassment. See House Comm. on Educ. & Labor, Civil Rights Act of 1990, H.R. Rep. No. 644, pt. 1, 101st Cong. (1990). In Starks v. George Court Co., a African-American male was continuously called “boy” on the job by his supervisor and co-workers. 937 F.2d 311 (7th Cir. 1991). On one occasion his supervisor stated: “Yeah boy, you better do what your master tells you.” Id. at 313. On another occasion while unloading a truck, three white youths yelled racial epithets at him: “Hey, look at the nigger, look at that coon. That nigger knows what he's doing.” Id. The youths then pelted Starks with stones. When Starks yelled at the boys to leave, the supervisor told Starks to leave them alone and to continue working. Id. In Yarbrough v. Tower Oldsmobile, Inc., the African-American male mechanic was moved to the back of the shop, after hearing his supervisor state: “We don't want no black guy [working] in the front of the shop.” 789 F.2d 508, 510 (7th Cir. 1986). These cases represent some of the most egregious forms of discrimination directed at African-American males. Most forms of discrimination directed at African-American males are more subtle modifications of the above examples. The discrimination is more difficult to identify, yet just as devastating.
. See E. Douglass Williams and Richard H. Sander, The Prospects for “Putting America To Work” In the Inner City, 81 Geo. L.J. 2003, 2009 (1993) (finding that African-American men are discouraged from seeking employment because of low wages and the unavailability of meaningful jobs); Black Youth Employment, Minority Mkt. Alert, Feb. 1, 1992, Vol. 4 No. 2 (finding that African-American men are angry and frustrated because primarily the lower paying jobs are only available to them and perceiving that employers engage in discrimination; therefore they may not pursue employment).
. See The Race Plus Sex Theory of Discrimination, infra Part IV.
. See B.H. Hooks, Ain't I A Woman: Black Women And Feminism (1981); Judy Scales-Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights, in Feminist Jurisprudence 282 (Patricia Smith ed., 1993); Judy T. Ellis, Sexual Harassment and Race: A Legal Analysis of Discrimination, 8 J. of Legis. 30 (1981); Maria L. Ontiveros, Three Perspectives on Workplace Harassment of Women of Color, 23 Golden Gate U. L. Rev. 817-23 (1993); Charlotte Rutherford, African American Women and “Typically Female,” Low-Wage Jobs: Is Litigation the Answer?, 17 Yale J. Int'l L. 211 (1992); Cathy Scarborough, Conceptualizing Black Women's Employment Experiences, 98 Yale L.J. 1457 (1989); Judith A. Winston, Mirror, Mirror on the Wall: Title VII, Section 1981, and the Intersection of Race and Gender in the Civil Rights Act of 1990, 79 Cal. L. Rev. 775 (May 1991).
. Scholarship written on other groups who have historically been victims of employment discrimination are too many to cite. For example, a general LEXIS search revealed numerous articles related to employment discrimination against females, individuals with disabilities, national origin, older workers and various minority groups.
. See Note, Invisible Man: Black and Male Under Title VII, 104 Harv. L. Rev. 749 (1991); Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective, 23 Cap. U. L. Rev. 23 (1994).
. See generally Phillip Moss & Chris Tilly, Why Black Men are Doing Worse in the Labor Market: A Review of Supply-Side & Demand-Side Explanations (1991) (reporting how labor demand shifts, supply shifts and institutional reformation in the labor market have negatively impacted African-American males in the labor market).
. See Jared Bernstein, Econ. Pol'y Inst., Where's the Payoff? The Gap Between Black Academic Progress & Economic Gains 3, 40 (1995) (finding that the shift from well-paying jobs in manufacturing to low earning service jobs during the 1980s hurt African-American male workers).
. See The Recession and the Work Force: Hearing Before the Senate Comm. on Labor and Human Resources, 102d Cong. 64-68 (1991) (testimony on America's recession and its effects on the work force, indicating that African-Americans suffer disproportionately high unemployment during recessions).
. See Thomas Hyclak & James Stewart, A Note on the Relative Earnings of Central City Black Males, 16 J. Hum. Resources 304 (1981). See also William J. Wilson, Poverty, Joblessness, and Family Structure in Inner City: A Comparative Perspective 20 (undated) (unpublished manuscript, on file with author) (analyzing how the “economic restructuring” of jobs in the inner city adversely impact African-American males).
. Carol Stump, Free Trade Area of the Americas, 4 J. Int'l L. & Prac. 153, 169 (1995) (discussing how NAFTA has caused thousands of jobs to disappear, with the largest net affect on females and minorities).
. African-American workers bore a relatively heavier burden of widespread job displacement during the 1980s because of the industries and occupations in which they were concentrated. They also were less likely to be rehired and were out of work longer. For example, between 1979-1983, “[f]or African-American men these occupations were not only the ones hit hardest by job displacement; they had also provided the majority of jobs over this period .... [B]lack men in manufacturing experienced more difficulties in finding reemployment: 62.2 percent were reemployed compared to 76.8 percent of white men.” Lori G. Kletzer, Job Displacement 1979-86: How Blacks Fared Relative to Whites, 114 Monthly Lab. Rev. 17, 19 (July 1991). See generally McKinley L. Blackburn et al., The Declining Position of Less Skilled American Men, in A Future of Lousy Jobs?: The Changing Structure of U.S. Wages (Gary Burtless ed., 1990).
. Frederick Douglass predicted more than a century ago that:
The old avocations, by which colored men obtained a livelihood, are rapidly unceasingly and inevitably passing into other hands; every hour sees the black man elbowed out of employment by some newly arrived emigrant, whose hunger and whose color are thought to give him a better title to the place; and so we believe it will continue to be until the last prop is levelled beneath us.... It is evident, painfully evident to every reflecting mind, that the means of living, for colored men, are becoming more and more precarious and limited. Employments and callings, formerly monopolized by us, are so no longer.
Herbert Hill, Black Labor and American Legal System 12-13 (1977) (quoting Frederick Douglass).
. See Alfred W. Blumrosen, Black Employment And The Law 102-37 (1971). Reporting on results of a study conducted by the U.S. Equal Employment Opportunity Commission (EEOC) on job patterns for minorities and females during the 1960s in private industry that found the predictable conclusion that employment discrimination was pervasive, the report cited a study conducted by Princeton University for the EEOC which surprisingly reported among its findings:
The lower educational level of some minority groups is a factor in their lower occupational status, but statistical analyses using two different approaches show that it accounts for only about one third of the difference in occupational ranking between Negro men and majority group men; the inevitable conclusion is that the other two thirds must be attributed to discrimination, deliberate or inadvertent.
Id. at 106. See also Educationally and Economically Disadvantaged Children: Joint Hearing Before the Senate Comm. on Labor and Human Resources, and the House Comm. on Education and Labor, 100th Cong. (1987) (discussing need to educate disadvantaged students, especially African-American and hispanic children).
. See Disadvantaged Youth Unemployment: Hearing Before the Subcomm. on Labor of the Senate Comm. on Labor and Human Resources, 100th Cong. (1987) (discussing the lack of education, work experience and unemployment of inner-city minority youths); U.S. Commission on Civil Rights, the Economic Progress of Black Men 43 (1986) [hereinafter Progress of Black Men] (finding that racial differences in education can be a factor in racial differences in unemployment).
. Jewelle T. Gibbs ed., Young, Black, and Male in America: An Endangered Species (1988). See also Bernstein, supra note 11, at 1-4, 7-8 (finding that the level of education for African-Americans, especially African-American males, has risen over the past thirty years, while their economic progress has fallen).
. Kletzer, supra note 15, at 19.
. Stephen Nord and Yuan Ting, Discrimination and the Unemployment Duration of White and Black Males, 26 Applied Econ. 969, 977 (1994) (finding that the unemployment duration differential between African-American and white males is largely due to discrimination); Stratton, supra note 2, at 463 (finding that the differential in the rate of unemployment between African-American and white men is greatly impacted by their race and stating that “[a] pparently, little progress has been made over the past 15 years in improving employment probabilities for black men”). See Bernstein, supra note 11, at 44 (concluding that labor market discrimination continues to adversely impact young African-American men); Progress Of Black Men, supra note 18, at 43 (finding that employment discrimination may also contribute to the disparity in employment between whites and African-Americans); See Moss and Tilly, supra note 10, at 7 (determining that employers have discriminatory attitudes regarding African-American workers).
. See Lams v. General Waterworks Corp., 766 F.2d 386 (8th Cir. 1985) (finding that African-American males were systematically denied promotional opportunities on the presumption they preferred lower level positions, even though they showed an interest in being promoted); Holsey v. Armour & Co., 743 F.2d 199 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985) (upholding the district court's finding that the company had engaged in a pattern of discrimination against African-American males on promotion and job assignments); Andrew M. Gill, The Role of Discrimination In Determining Occupational Structure, 42 Indus. & Lab. Rel. Rev. 610 (1989) (presenting statistical data which substantiates that employment discrimination is a reason why minorities and specifically African-American men are excluded from managerial, sales, clerical and craft positions).
. See Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995) (African-American male with extensive experience and Master's Degree related to job denied position which was given to white male with no degree and less experience). African-American male professionals also face racism not only in the workplace but in all facets of life. Their college degrees and three piece suits fail to shield them from racism in other institutional systems. See Earl G. Graves, Black Enterprise, July 1995, at 9, for an editorial on how his African-American male son, a graduate of Yale and Harvard, and a senior vice president was stopped and frisked on a commuter train because the police officer was in search of another suspect who was an African-American male. The immutable characteristic of “black and male” was probable cause to stop and frisk. Graves states “[n]o prestigious degree, six-figure income, corner office or impeccably tailored suit will protect a black man from suddenly inexplicably becoming Public Enemy No. 1.” Id.
. See generally Progress of Black Men, supra note 18; Gary S. Becker, The Economics of Discrimination (1975).
. See U.S. Office of Personnel Management, Final Report on Minority/Non-Minority Disparate Discharge Rates (1995). A study by the federal government of the rate of discharges of minority and non-minority employees in federal agencies revealed that the rate of discharge for minority males, particularly African-American males, exceeded all other groups. In almost every type of discharge, for example, performance removals, termination during probation, minority males' rate of discharge doubled the rate of non-minority males. The disparity rate occurred in all regions of the country, as well as in all occupational categories, for example, from professionals to blue collar positions. See also Felicia Kessel, Black Men and Women in the Corporate Playground: Is the Competition Real?, 94 Crisis 19, 23 (Apr./May 1987) (indicating that the performance of African-American men is more harshly evaluated than that of African-American females).
. See Sims v. Montgomery County Comm'n, 766 F. Supp. 1052 (M.D. Ala. 1991) (holding that the defendant's policy of avoiding the assignment of white female police officers and African-American male police officers to share patrol cars is so overtly and clearly demeaning to African-Americans that it can only be characterized as racial harassment). In Davis v. Monsanto Chem. Co., two African-American male employees alleged that a hostile work environment was created when racial slurs were directed at them, derogatory racial graffiti was written on the bathroom walls and a safety poster was defamed to depict a African-American man as an incompetent worker. 858 F.2d 345 (6th Cir. 1988), cert. denied, 490 U.S. 1110 (1989). All of the above cases represent the type of harassment that African-American males have alleged in the workplace from white male supervisors and co-workers. These white supervisors and co-workers specifically directed their hostility at African-American makes because their hatred of African-American males. Typically, such intense hatred and hostility is not directed at African-American females; however, they are also racially harassed in the workplace. This is not to marginalize their experience but to suggest that their experiences may be different from that of African-American males.
. See Steele v. Louisville & N.R. Co., 323 U.S. 192 (1944). This case illustrates how African-American males have been historically assigned and reassigned to jobs that were “arduous, longer and less remunerative work,” whereas white males were employed in the “highly desirable” jobs. Id. at 196. It has been more than 50 years since the decision in Steele revealed blatant acts of discrimination directed at African-American males, but similar employment practices still exist in the twentieth century. See also Lewis v. Philip Morris, Inc., 419 F. Supp. 345 (E.D. Va. 1976). The complaint alleged in part that African-American males were not in positions that would lead to supervisory positions or craft positions, and that African-American female employees were assigned “to the most arduous jobs in the Fabrication Department for disproportionately long periods of time.” Id. at 350. Clearly, the plaintiff raised issues of race plus sex claims of discrimination; however, prior to trial, the parties agreed to limit various issues of discrimination to race or sex. Id. The district court held that the employer's past practices of segregating African-Americans had a chilling effect on their efforts to seek higher level positions. Id. at 356. On appeal, the Fourth Circuit reversed the holding relating to race discrimination and remanded the sex discrimination allegation. Lewis v. Tobacco Workers' Int'l Union, 577 F.2d 1135, 1147 (4th Cir. 1978). The court of appeals held that the lower court failed to determine whether the employer in fact discriminated against the employees. Id. Instead, the district court determined whether the employer failed to eliminate the chilling effect of its past practices of discrimination. Id. at 1143. For a discussion of the Lewis case, see Vicki Schultz and Stephen Petterson, Race, Gender, Work, And Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation, 59 U. Chi. L. Rev. 1073, 1152-56 (1992).
. See Sledge v. J.P. Stevens & Co., 16 Fair Empl. Prac. Cas. (BNA) 1652 (E.D.N.C. 1975), aff., 25 Empl. Prac. Dec. (CCH) P 31,494 (1980) (African-American employees alleged assignment to janitorial positions when similarly situated white employees were assigned to more desirable positions).
. Equal Employment Opportunity Comm'n v. Mount Vernon Mills, Inc., Riegel Div., 58 Fair Empl. Prac. Cas. (BNA) 73 (N.D. Ga. 1992) (African-American male alleged “that he was treated differently than other white employees when he was fired for making sexually explicit remarks to co-worker while other similarly situated white workers were not fired for similar sexual harassment conduct”); Bassett v. Davis, No. 78 C 1388, slip op. (N.D. Ill. 1982) (African-American male alleged that his employer was only interested in pursuing “sexual harassment cases involving a African-American male supervisor and a white female subordinate; and that when sexual harassment took the form of a white supervisor and African-American subordinate, black on black, or white on white, the [employer] either took no action or regarded it far less seriously”).
. Webb v. Missouri Pac. R.R. Co., 826 F. Supp. 1192 (E.D. Ark. 1993) (African-American railroad employees maintained an action against their employer because white employees and management monitored their work more exclusively than white employees; this constituted harassment).
. See Foster v. MCI Communications, 773 F.2d 1116 (10th Cir. 1985) (holding that a African-American employee was a victim of racial discrimination when he consistently received poor evaluations from his white supervisor). See Jeffrey H. Greenhaus et. al., Effect of Race on Organizational Experiences, Job Performance Evaluations, and Career Outcomes, 33 Acad. Mgmt. J. 64 (1990) (finding that African-Americans are more harshly evaluated on the job).
. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991). In Weaver a African-American male manager was called “black knight” and “midnight cowboy,” excluded from company sponsored social events, denied promotions and terminated. Weaver testified that on one occasion the president of the company stated “because of his rearing, he had to be careful in the presence of articulate black men ... [and] that he [Weaver] found the comment shocking and demoralizing.” Id. at 1522. See also Frank E. James, More Blacks Quitting White-Run Firms, Wall St. J., June 7, 1988 (page numbers omitted). A survey of African-American professionals concluded that African-Americans were quitting white-run firms because of a number of factors, including a lack of support, lack of positive direction and the company's policy of tokenism.
. See The Plight of African-American Men in Urban America: Hearings Before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. 1st Sess. 273 (1991) (statement of Dr. John Hope Franklin, Professor Emeritus, Duke University, Durham, N.C.). For a historical review of the development of myths and stereotypes of African-American males, see William H. Turner, Myths and Stereotypes: The African Man in America, in The Black Male in America 122 (Doris Y. Wilkinson & Ronald L. Taylor eds., 1977).
. Even today, the issue of African-American males' sexual prowess can result in their being harassed. See, e.g., United States v. McAninch, 994 F.2d 1380, 1387 (9th Cir. 1993) (admitting to the harassment of African-American men and other minority men, the defendant stated he “felt that if [[[[African-American men] were sexually superior to white men, it would hurt [[[his] chances of landing a woman”).
. See Tom W. Smith, National Opinion Research Ctr., Univ. Of Chi., Ethnic Images 4-6, 9 (1990) [hereinafter Ethnic Images]. See generally Harold McNeil and Susan Schulman, On the Job, Prejudice Persists; Attitudes Translate into Setbacks for Blacks, Buffalo News, Dec. 1, 1992, Tues. City Edition, at 1 (reporting results of a survey that finds 66 percent of whites and 88 percent of African-Americans “believe African-Americans are discriminated against in the workplace” and revealing that stereotypical biases against African-Americans prohibit their entrance in the job market); Lawrence Bobo and James R. Kluegel, Modern American Prejudice: Stereotypes, Social Distance, and Perceptions of Discrimination Toward Blacks, Hispanics, and Asians (Oct. 7, 1991) (unpublished manuscript, on file with author).
. Jawanza Kunjufu, 1 Countering the Conspiracy to Destroy Black Boys (1985); Jawanza Kunjufu, 2 Countering the Conspiracy to Destroy Black Boys (1986) (finding that by fourth grade, African-American boys are negatively perceived and targeted for failure). The performance of African-American male students has deteriorated to the point that some school districts have proposed and implemented separate public schools for African-American males. The programs have been challenged as being unconstitutional. See Garrett v. Board of Educ. of Sch. Dist. of Detroit, 775 F. Supp. 1004 (E.D. Mich. 1991). For a discussion of separate schools for African-American male students, see Kevin D. Brown, The Dilemma of Legal Discourse for Public Educational Responses to the “Crisis” Facing African-American Males, 23 Cap. U. L. Rev. 63 (1994); Richard Cummings, All-Male Black Schools: Equal Protection, the New Separatism and Brown v. Board of Education, 20 Hastings Const. L.Q. 725 (1993); Drake D. Hill, Afrocentric Movements in Education: Examining Equity, Culture, and Power Relations in the Public Schools, 20 Hastings Const. L.Q. 681 (1993); Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 Yale L.J. 1285 (1992); Pamela J. Smith, Comment, All-Male Black Schools and the Equal Protection Clause: A Step Forward Toward Education, 66 Tul. L. Rev. 2003 (1992); Roberta L. Steele, Note, All Things Not Being Equal: The Case for Race Separate Schools, 43 Case W. Res. L. Rev. 591 (1993).
. See A Symposium on the Impact of the Judicial System on the Status of African-American Males, 23 Cap. U. L. Rev. 1-277 (1994) (a collection of articles on how various aspects of the American legal system adversely impact African-American males).
. U.S. General Accounting Office: Equal Opportunity, DOD Studies on Discrimination in the Military 36, 41, 43 (1995) (summarizing 72 studies conducted between 1974 and 1994 related to equal opportunity in the military and citing a number of studies which determined that African-American males are adversely treated in the military); Ronald W. Perry, Racial Discrimination and Military Justice (1977).
. See Leroy D. Clark, The Law and Economics of Racial Discrimination in Employment by David A. Strauss, 79 Geo. L.J. 1695 (1991) (responding to David A. Strauss, The Law and Economics of Racial Discrimination in Employment, 79 Geo. L. J. 1619 (1991)). Clark states:
Black youths, particularly males, are probably hindered in their search for employment by the media-induced image of the young, inner-city, black male as irresponsible (creating babies and then refusing to support them), dangerous (involved in gang activity or mugging innocent citizens), or involved with drugs. This image is likely to influence a refusal to hire black youth, a kind of “rational” statistical discrimination ....
Id. at 1702. See also Earl Ofari Hutchinson, The Assassination of the Black Male Image (1994) (describing how the media, especially the press, perpetuates negative stereotypes of African-American males by publishing half truths and sensational headlines regarding their behavior); David Shaw, Negative News and Little Else, L.A. Times, Dec. 11, 1990, at A1.
. See, e.g., Indiana Civil Rights Comm'n v. Wellington Village Apartments, 594 N.E.2d 518 (Ind. Ct. App. 1992). In Wellington Village the African-American male tester was not given any “specific information about apartments that would be available soon, the deposit required, nor told to check back at end of the month.” Id. at 523. Such information was provided to the caucasian tester, thus giving him “a better opportunity to rent an apartment” than the African-American male. Id. This fact pattern parallels situations where African-American males seek employment. When there is no available opening at the time of inquiry, they are usually not encouraged directly or indirectly about the possibility of future opportunity.
. To illustrate the trivial value placed on the health of African-American men, even by the federal government, see Arthur L. Caplan, Twenty Years After: The Legacy of the Tuskegee Syphilis Study, 22 Hastings Center Rep. 29-32 (1992) [Hereinafter Tuskegee Study]. The Tuskegee Study was initiated in 1932 by the U.S. Public Health Service which selected 600 poor and illiterate African-American men in Macon County, Alabama, to participate in a research study without their informed consent. Of the 600 selected, 400 were infected with syphilis and were allegedly receiving treatment for the disease. However, in the 1950s when penicillin was available for treating such infections, the men were intentionally denied penicillin treatment; instead they continued in the study, with a disease known to be contagious and life-threatening. It was not until 1972, 40 years later, with public outcry, and a class action suit, the study was ended and the lawsuit settled. Pollard v. U.S., 69 F.R.D. 646 (M.D. Ala. 1976). For a full discussion of the Tuskegee Study, see James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment (1993); Allan M. Brandt, Racism and Research: The Case of the Tuskegee Syphilis Study, 8 Hastings Center Rep. 21 (1978). For a general discussion on the health of African-American males, see Woodrow Jones, Jr. And Mitchell F. Rice eds., Health Care Issues in Black America (1987); Lawrence Gary, Health Status, in Black Men 47-71 (Lawrence Gary ed., 1981); Andrew Hacker, Two Nations, Black and White, Separate, Hostile, Unequal 49 (1992) (discussing that African-American males suffer from hypertension because of the discrimination they face everyday and the “rage that [they] must suppress”).
. Matthew M. Hoffman, The Illegitimate President: Minority Vote Dilution and the Electoral College, 105 Yale L.J. 935 (1996).
. Even though African-American males dominate a number of collegiate and professional sports, they are still viewed as slave bucks. See Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1181 (6th Cir. 1995) (at a basketball game during half time and at subsequent practices, the coach of the men's basketball team told the team “he wanted the players to play like niggers on the court and wished he had more niggers on the basketball court”). In 1992, Marge Schott, owner of the Cincinnati Reds was accused of referring to African-American male members of the team as “million-dollar nigger,” “dumb, lazy nigger,” and making the comment, “I'd rather have a trained monkey working for me than a nigger.” Schott was subsequently suspended by Major League Baseball's Executive Council, fined $25,000 and required to attend multi-cultural training. Claire Smith, Baseball Bans Cincinnati Owner for a Year Over Racial Remarks, N.Y. Times, Feb. 4, 1993, at A1. See generally Timothy Davis, The Myth of the Superspade: The Persistence of Racism in College Athletics, 22 Fordam Urb. L.J. 615 (1995).
. See Robert L. Green & Denise L. Wright, African-American Males: A Demographic Study and Analysis (1991) (providing data on the social and economic status of African-American males).
. Among the many stereotypical biases regarding African-American males is that they have a propensity to be violent. In part, white Americans' fears derive from the institution of slavery. Slave owners were fearful that slaves would uprise against slavery and would violently retaliate. Today, many white Americans have no recollection or historical perspective of the Nat Turner uprising, except there is a general stereotype that African-American males react violently when confronted with conflict, especially involving white males; thus, the defense is to avoid all contacts, except sports, if possible with African-American males. In 1950, a leaflet was distributed in Chicago which stated, among other things, that “[i]f persuasion and the need to prevent the white race from becoming marginalized by the negro will not unite us, then the aggressions ... rapes, robberies, knives, guns and marijuana of the negro, surely will.” Beauharnais v. Illinois, 343 U.S. 250, 252 (1951).
. Testifying before Congress on the impact of lyrics on juvenile justice, Professor Michael Eric Dyson described the historical troubles of African-American males in this manner:
From the plantation to the postindustrial city, black males have been seen as brutishly behaved, morally flawed, uniquely ugly and fatally oversexed. The creation of negative black male images through the organs of popular culture, especially in theological tracts, novel, and more recently in film and television, simply reinforced stereotypes of black males as undisciplined social pariahs, citizens of a corrupt subculture of crime or docile imbeciles.
Shaping Our Responses to Violent and Demeaning Imagery in Popular Music: Hearing Before the Subcomm. on Juvenile Justice of the Senate Comm. on the Judiciary, 103d Cong. 32 (1994) (statement of Michael Eric Dyson, professor).
. Sharon Cohen, Black Factory Workers Face Sagging Economy, Low Wages--And Racism; Rust Belt: African-Americans Have Trouble Getting Hired, Trouble Overcoming Stereotypes and Trouble Maintaining Their Fragile Foothold in the Middle Class, L.A. Times, Sept. 13, 1992, at A3 (citing study of private employers in Los Angeles and Detroit which found that 20 percent of employers felt African-American men were “lazy and violent”); Harold McNeil and Susan Schulman, On the Job, Prejudice Persists; Attitudes Translate Into Setbacks for Blacks, Buffalo News, Dec. 1, 1992, at 1 (reporting a survey that reveals that African-Americans and whites believe employment discrimination is widespread against African-Americans, and that whites have negative perceptions of African-Americans). See also Ethnic Images, supra note 35.
. Lawrence Vogelman, The Big Black Man Syndrome: The Rodney King Trial and the Use of Racial Stereotypes in the Courtroom, 20 Fordham Urb. L.J. 571, 573 n.5 (1993) (describing how white Americans have feared African-American men since slavery).
. Kathryn M. Neckerman & Joleen Kirschenman, Hiring Strategies, Racial Bias, and Inner-City Workers, 38 Soc. Probs. 433 (1991) (finding that 47.2 percent of a survey of Chicago employers felt that inner-city African-American workers in selected occupations lacked work ethics).
. See Ivory L. Toldson & Alfred B. Pasteur, The Black Male Mystique: At Once Admired and Feared, an Exposition of What It Means to be Black and Male in America, 1 J. Afr. Am. Male Stud. 70, 71, 74-75 (1993).
. See Richard J. Herrnstein & Charles Murray, The Bell Curve, Intelligence and Class Structure in American Life Chs. 13 and 14 (1994) (discussing the I.Q. of African-Americans and whites, their performance on standardized tests and variables which can impact I.Q. scores and suggesting that the I.Q. of African-American males could explain their lower employment status). See, e.g., Rodgers v. Western-Southern Life Ins. Co., 792 F. Supp. 628, 631 (E.D. Wis. 1992) (finding that supervisor stated “[y]ou black guys are too fdumb to be insurance agents”); Levin v. Harleston, 770 F. Supp. 895 (S.D.N.Y. 1991). See also Ethnic Images, supra note 35 (finding that the public has a negative image of African-Americans in several areas, including their intelligence and whether they are hardworking or lazy); Joleen Kirschenman & Kathryn M. Neckerman, “ We'd Love to Hire Them, But ...”: The Meaning of Race for Employers, in The Urban Underclass 203, 227 (Christopher Jenks & Paul E. Peterson eds., 1991) (surveying Chicago-area businesses and finding many felt that: “In talking about reasons black men don't get jobs, you know, I think a lot of people see that group as being quote lazy unquote, which is a stereotypical image ....”).
. Sam V. Meddis, Stereotypes Fuel Cycle of Suspicion, Arrest, USA Today, July 23, 1993, at 6A.
. See 138 Cong. Rec. S4241-44 (daily ed. Mar. 26, 1992) (statement of Sen. Bradley) (describing how African-American men were portrayed in the movie “Grand Canyon” as being violent and robbers, and how the movie portrayed that whites fear African-American men).
. Cornel West, Race Matters 83-91 (1993) (discussing how America is obsessed and fearful of African-American sexuality, particularly African-American males). General stereotypical biases and myths regarding the sexuality of African-American males was articulated by Justice Clarence Thomas during his confirmation hearing to be a Supreme Court Justice. Justice Thomas stated:
[I]n this country when it comes to sexual conduct we still have underlying racial attitudes about black men .... [L]anguage throughout my life, language about the sexual prowess of black men, language about the sexual organs of black men ... these are charges that play into racist, bigoted, stereotypes and these are the kinds of charges that are impossible to wash off.
Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States, 102d Cong. 201-02 (1991) (testimony by Judge Clarence Thomas). Unfortunately, Justice Thomas' description of how the sexuality of African-American men is perceived by white America is true; the fallout of these stereotypes has been used to exclude or limit employment opportunities for African-American males in the workplace where white females are also employed.
. See, e.g., Florida v. Bostick, 501 U.S. 429, 442 n.1 (1991) (Marshall, J., dissenting) (citing testimony from law enforcement officers which confirms that young African-American males are presumed to be engaged in trafficking illegal drugs); David Margolick, Falsely Accused: In a Humiliating Arrest, A Black Judge Finds Lessons of Law and Race Relations, N.Y. Times, Jan. 7, 1994, at A23; Barbara Reynolds, Presumed Guilty: Why Black Men Can't Feel Safe, USA Today, Nov. 13, 1992, at A15.
. Clark, supra note 39.
. African-American males have historically been the victims of false allegations of rape, most recently on college campuses. See, e.g., Felicity Barringer, False Rape Report Upsetting Campus, N.Y. Times, Dec. 12, 1990, at A21 (stating that a George Washington student made a false allegation of rape against a African-American male); Tim Doulin, Blacks Demand Expulsion; April 26 Deadline Set for Woman Who Told of Rape, Columbus Dispatch, Apr. 13, 1990, at C4. In both cases, the allegations of a African-American male raping a white female student proved to be a hoax; however, the racial stereotype of African-American males being rapists overshadowed any presumption of innocence until proven guilty. For a discussion of how African-American men are more severely punished for rape than white males because of racism and sexism, see Brande Stellings, Note, The Public Harm of Private Violence: Rape, Sex Discrimination and Citizenship, 28 Harv. C.R.-C.L. L. Rev. 185 (1993).
. A recent study by the Glass Ceiling Commission reports that:
African American men are stereotypically perceived as lazy/ undisciplined/ always late/ fail to pay their taxes/ unqualified but protected by affirmative action/ violent/ confrontational/ emotional/ hostile/ aggressive/ unpredictable/ unable to handle stressful situations/ threatening/ demanding/ militant/ loud/ and less intelligent than other racial or ethnic groups.
African American women are stereotypically perceived as incompetent/ educationally deficient/ aggressive/ militant/ hostile/ lazy/ sly/ and untrustworthy.
U.S. Glass Ceiling Commission, Good For Business: Making Full Use Of The Nation's Human Capital 71 (1995) [hereinafter Glass Ceiling Report].
. For example, in 1989 Charles Stuart, a white male, alleged that a African-American male robber shot and killed his pregnant wife. The Boston police immediately rounded up African-American males in a predominantly African-American community who fit the general description. When Stuart became the prime suspect for killing his wife, he committed suicide. See Bryan K. Fair, Using Parrots to Kill Mockingbirds: Yet Another Racial Prosecution and Wrongful Conviction In MayComb, 45 Ala. L. Rev. 403, 422 (Winter 1994) (describing the Stuart case and other incidents where African-American males have been falsely accused of vicious crimes).
. See generally Derrick Bell, Faces At The Bottom Of The Well: The Permanence Of Racism (1992).
. Ronald E. Hall, Clowns, Buffoons, and Gladiators: Media Portrayals of the African-American Man, 1 J. Men's Stud. 239, 242-43 (1993) (describing how the media portrays African-American males); Charles M. Madigan, Racial Stereotyping: An Old, Virulent Virus, Chi. Trib., May 13, 1992, at 1C (finding that the media tends to focus on crime involving African-American males which perpetuates racial stereotyping).
. See United States v. Clary, 846 F. Supp. 768, 771 (E.D. Mo. 1994); C. Thomas, Media Overlooking Black-Success Stories, St. Louis Post Dispatch, August 31, 1993, at 7B. Thomas states:
If you are white, what image comes to mind when you think about young black males: For many, it is that of a criminal. When some whites see a young black male on the street, they react by clutching their purses, increasing their walking speed, or telegraphing their discomfort in other ways. Each night in most major cites, local TV news flashes pictures of young black males who have committed criminal acts ... handcuffed with head down, or shot dead in the gutter or in body bags, this negative image of young black America is tragically a part of the nation's consciousness.
. Deroy Mundock, Oh My God! It's a Black Man!, Chi. Trib., March 11, 1993, at 23 (finding that the evening news typically features African-American males in handcuffs when being arrested); Charles Summer Stone, Jr., Thucydides' Law of History, or from Kerner, 1968 to Hacker, 1992, 71 N.C. L. Rev. 1711 (1993) (assessing whether the media's coverage of the African-American community has changed during the past 25 years).
. A passage from Terry McMillan's Waiting To Exhale captures the conversation between a group of African-American females discussing African-American males: “They're not all with white girls, they're not all homosexuals, they're not all married, either. When you get right down to it, we're talking five, maybe ten percent. What about the rest? They're ugly, stupid, in prison, unemployed, crackheads, short, liars, unreliable, irresponsible, too possessive, dogs, shallow, boring, stuck in the sixties, arrogant, childish, wimps ... too old and set in their ways ....” Terry McMillan, Waiting To Exhale 332 (Penguin Books 1992). See also Hutchinson, supra note 39, at 3-5, 80-91 (describing how the novel Waiting To Exhale perpetuated negative images of African-American men); Alice Walker, Color Purple (1982) (the lead African-American male character “Mister” was projected as being a child abuser and wife batterer).
. See generally Thelma Golden, Black Male: Representations of Masculinity in Contemporary American Art (1994) (series of essays on how African-American males have been projected in art, films and by the media).
. As early as 1915, in D.W. Griffith's “Birth of A Nation,” negative images of African-American males were projected in motion pictures. Further, stereotypical images have been projected in recent movies. See Boyz N the Hood (Columbia Pictures 1991); New Jack City (Warner Brothers 1991); Juice (Paramount 1992); Demolition Man (Warner Brothers 1993); Waiting to Exhale (Twentieth Century Fox 1995).
. Professor Anderson states: “When he walks down the street, people tend to give him a wide berth. Women clutch their handbags and sometimes cross the street. Men watch him nervously but try to avoid eye contact. Elderly people quake in visible fear. Everybody fears the young black man. It doesn't seem to matter that most young black males in the city are committed to civility and law-abiding behavior. Most city residents-black and white-ascribe criminality, incivility, toughness and street smartness to the anonymous black male.” Elijah Anderson, Black Males, White Fears, Chi. Trib., February 8, 1991, at 19.
As a personal anecdote, in 1989, while attending an American Association of Law School Conference in Washington, D.C., I had an extensive conversation with one of the presenters, a white female law professor regarding law school teaching. At the time of our conversation I was dressed in a conservative blue suit and tie. After that particular session, I changed into tennis shoes and jeans to look for souvenirs at a shop near the hotel. Approximately twenty minutes after my conversation with the professor, I passed her on the street as she walked toward the hotel. As she walked toward me, I noticed she moved to the opposite far edge of the sidewalk. As we came within talking distance, I stated, “Professor, your presentation was excellent.” She never made eye contact with me and continued to cautiously pass, without any recognition of my existence. I turned and noticed her pace had picked up, almost to a slight run. I yelled, “Professor, its me-- Professor Weatherspoon.” Hesitantly, she looked over her shoulder and gave a reluctant wave, and continued a brisk nervous walk. Some would suggest that my race and sex were not a factor in this experience; others, as I do, would conclude that it had everything to do with my race and sex.
. In Florida, an administrative law judge awarded a white female workers' compensation after developing a “phobia” toward African-Americans, specifically African-American males. Fuqua Indus., No. 163-20-6245 (Fla. Dep't of Labor & Employment Security Apr. 26, 1990), aff'd, Colorcraft Corp., Fuqua Indus. v. Jandrucko, 576 So. 2d 1320 (Fla. Dist. Ct. App. 1991), cert. denied, Fuqua Indus., Inc. v. Jandrucko, 501 U.S. 1252 (1991), appeal dismissed, Fuqua Indus. v. Tomlinson, 983 F.2d 236 (11th Cir. 1992).
. In Robinson v. Adams, 847 F.2d 1315 (9th Cir. 1988), the court dismissed a claim of disparate impact based on the fact that the employer employed no African-American males. The court did, however, acknowledge that “conceivably, the absence of any black male employees could result from racial stereotyping or have some other link to racial discrimination.” Id. at 1318. See Logan v. Shalala, 63 Fair Empl. Prac. Cas. (BNA) 434 (D. Md. 1993) (plaintiff filed a civil suit alleging that the agency engaged in a pattern of discrimination against the African-American males; however, the case was subsequently settled for $25,000).
. Price v. Philadelphia Elec. Co., No. 91-5864, 1994 U.S. Dist. LEXIS 11454 (E.D. Pa. Aug. 16, 1994) (an employer felt that a African-American man's co-workers might be “strained” because of his race).
. Vore v. Indiana Bell Tel. Co., 32 F.3d 1161 (7th Cir. 1994) (white employees brought suit because of a hostile work environment because African-American males were placed in positions over them).
. Perry v. Stitzer Buick, GMC, Inc., 604 N.E.2d 613, 615 (Ind. Ct. App. 1992) (supervisor asked African-American co-worker in front of other workers whether he had stolen a car “like all you black people always do”).
. Stereotypical biases that African-American males are involved in the sale and distribution of illegal drugs has allowed law enforcement officers to stop African-American males at will. Developing case law reveals that the use of drug courier profiles by agents of the Drug Enforcement Agency (DEA) and state officials to detain African-American male travelers for suspected criminal activities raises Fourth Amendment concerns. See, e.g., United States v. Williams, 949 F.2d 220 (6th Cir. 1991), cert. denied, 112 S. Ct. 2308 (1992); United States v. Millan, 912 F.2d 1014 (8th Cir. 1990); United States v. Radka, 904 F.2d 357 (6th Cir. 1990); United States v. Taylor, 917 F.2d 1402 (6th Cir. 1990). See also United States v. Prandy-Binett, 995 F.2d 1069 (D.C. Cir. 1993) (Edwards, J., dissenting) (arguing that the police lacked probable cause to stop defendant at a subway station, Judge Edwards stated: “The circumstances that actually arouse police ‘suspicion’ are obvious to anyone who bothers to look--individuals travelling through Union Station who are evidently poor or people of color are the individuals who are approached, questioned, stopped and searched”); United States v. Harvey, 16 F.3d 109 (6th Cir. 1994) (Keith, J., dissenting) (police officer testified that he had probable cause to stop a vehicle for a possible traffic offense because there were “three young black male occupants in an old vehicle”). Judge Keith vehemently dissented to the majority's decision that the stop and search were lawful, and stated:
In my twenty-six years as a federal judge, although I have suspected discrimination by police officers, I have never heard an officer admit he stopped an individual based on the color of his skin. This case presents blatantly egregious circumstances and warrants an exception to the Ferguson test. Such an exception does not grant special treatment to African-Americans, but merely ensures equal treatment guaranteed by the Equal Protection Clause. The majority's willful disregard of the flagrant discriminatory treatment in this case endorses a system where one set of traffic regulations exist for African-Americans, like myself, and a more lenient set exists for white Americans. For the same minor traffic infraction, a white motorist remains an unimpeded violator, whereas an African-American motorist automatically becomes a suspected felon and menace to society. Such disparate treatment alienates and ostracizes African-Americans, fortifying their badge of second-class citizenship.
Id. at 114.
. 5 Empl. Discrimination Rep. (BNA) 302-03 (1995) (discussing Jackson v. Casellas, No. 88 CV-0654C (W.D.N.Y. July 10, 1995)). Young African-American males wearing a leather coat allegedly stated in front of another employee that he must have been “shopping in the back of a car trunk” (implying he purchased stolen goods). Id. at 303. Regina Austin, “ A Nation of Thieves”: Securing Black People's Right to Shop and Sell in White America, 1994 Utah L. Rev. 147, 148 (1994), states:
Blacks are treated as if they were all potential shoplifters, thieves, or deadbeats. There can hardly be a black person in urban America who has not been denied entry to a store, closely watched, snubbed, questioned about her or his ability to pay for an item, or stopped and detained for shoplifting.
Employers harbor these same stereotypical biases of African-American males who are “well dressed” when applying for employment or promotional opportunities. It is a double-edged sword for African-American males; if they dress stylish its “too black,” if they dress in designer clothes they are thieves.
. See Charles R. Lawrence, The ID, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. Rev. 317 (1987) (explaining how “cultural stereotype” produces unconscious racism which can result in qualified African-Americans denial of employment opportunities).
. Recruitment practices, for example can have the effect of systematically excluding African-American males from the pool of qualified applicants when an organization uses the word-of-mouth technique to recruit and promote employees. For example, in Roberts v. Gadsden Memorial Hosp., 835 F.2d 793 (11th Cir. 1988), a African-American male hospital employee was denied a promotional opportunity when a white male was selected for the position through the use of an informal and secretive hiring process. The court indicated that the white male landed the job primarily because he attended the selecting official's (also a white male) barbecue outing and was his “drinking buddy.” Citing Gadsden, the court in EEOC v. Metal Serv. Co., 892 F.2d 341, 349 (3d Cir. 1990), held that two African-American male applicants established a prima facie case of discrimination when vacancies were filled by “informal, secretive and subjective hiring practices.” The court stated “[an employer's] informal methods necessarily and intentionally favored those who move within his social circles, i.e., white people .... [A] black man stood little chance of getting this promotion. This method of promotion patently failed to afford a black man the equal treatment which Title VII demands.” Id. at 350. For other courts expressing similar concerns on the use of word-of-mouth hiring, see Barnet v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970).
. Race-coding on employment applications by employers and employment agencies has been used to exclude minorities from consideration. Equal Employment Opportunity Comm'n v. Chicago Miniature Lamp Works, 947 F.2d 292 (7th Cir. 1991) (employer wrote “B” on African-American applicants' applications; however, the court did not find that in this case it had a negative effect); Mister v. Illinois Cent. Gulf R.R. Co., 832 F.2d 1427, 1436-37 (7th Cir. 1987) (employer's policy of hiring laborers who lived close to work had a discriminatory impact on African-Americans).
. See Barrett v. University of Colorado Health Sciences Ctr., 851 P.2d 258 (Colo. Ct. App. 1993). During the interview process the individual responsible for interviewing applicants advised a supervisor that a particular applicant was qualified but he was a African-American male. The court upheld the employer's decision to discipline the interviewer for making disparaging racist comments regarding an applicant's qualification. See also Griffin v. George B. Buck Consulting Actuaries, Inc., 551 F. Supp. 1385 (S.D.N.Y. 1982). In Griffin, a African-American male, who graduated magna cum laude at the University of Pennsylvania and obtained a Bachelor of Science in Economics with a major in actuarial science and accounting, wrote defendant a letter requesting an interview. At the time of his application, Griffin had passed seven professional examinations in actuaries. After the company received Griffin's letter they invited him to New York for an interview for an actuarial trainee position. It was disputed whether the company knew from Griffin's letter that he was African-American since there was nothing on his resume to indicate his race. After he arrived for his interviews, his first interview lasted ten to fifteen minutes and the second interview lasted 20 to 30 minutes. Neither interviewer discussed Griffin's experience or any substantive matter relating to actuarial science. Shortly after the interviews, he received a rejection letter. Griffin subsequently proved that the company's reasons for rejection were pretexual.
. Symposium, Who Will Help The Black Man?, New York Times Magazine, Dec. 4, 1994, at 72, 76. William Julius Wilson, Professor of Sociology & Public Policy at The University of Chicago, finds that employers are reluctant to assign African-American males to positions where they will have contact with the public. Because a substantial number of jobs now require some public contact, African-American males will be unemployed. Wilson further states:
There is a perception that they [black males] don't relate to the public or the public doesn't relate to the black males. That the consumer would rather not have to deal with the black males.
There is an image that black men are threatening, that they're dangerous and that people would rather not come into contact with them. This image has increased in recent years and it carries over to the employment place.
Id. at 76. See Sledge v. J.P. Stevens & Co., 24 Empl. Prac. Dec. (CCH) P 31,494 (E.D.N.C. 1980) (a decree entered into by the parties recognized subclasses of African-American males and African-American females who had been discriminated against in the company's assignments and layoffs).
. James v. Stockham Valves and Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. denied, 434 U.S. 1034 (1978) (finding that employer made initial job assignments on the basis of employees' race).
. In Weldon v. Kraft, Inc., a African-American male alleged that his unsatisfactory evaluations were a pretext to race discrimination. 896 F.2d 793 (3d Cir. 1990). In reversing the district court's dismissal of the claim, the court of appeals held that Weldon established a prima facie case of discrimination by showing that he and other African-American males experienced unfavorable treatment, whereas white co-workers who were similarly situated were treated more favorably. Id. at 798. The court also noted that subjective evaluations which were relied on by Kraft “are more susceptible of abuse and more likely to mask pretext.” Id. at 798 (quoting Fowle v. C & C Cola, 868 F.2d 59, 64-65 (3d Cir. 1989). The negative comments on Weldon's evaluation related to initiative, effort, motivation and desire to learn, which are typical examples of subjective factors that adversely impact black males' performance evaluations.
. See Hughes v. Derwinski, 967 F.2d 1168 (7th Cir. 1992) (African-American males denied promotion when employer fails to complete a supervisory appraisal of his performance; whereas the employer completed the necessary appraisals of white candidates who were being considered for the position); Redd v. City of Phenix, Ala., 934 F.2d 1211 (11th Cir. 1991) (African-American male denied promotion because the selecting official believed he did not want the Acting Chief of Police position, even though he applied for the position and was the highest ranking employee); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991) (African-American male supervisory employee denied a promotion to an upper management position); Holsey v. Armour & Co., 743 F.2d 199 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985) (determining that white junior employees were promoted over a more senior experienced African-American male employee); Joan E. Rigdon and Carol Hymowitz, For Black Men, Success Resolves Few Problems, Wall St. J., May 8, 1992, at B1 (African-American male executives describe stereotypical biases about them that adversely affect promotional opportunities at the senior level).
. Increasingly, African-American males are being hired on a temporary basis rather than in full time positions. See The Recession and the Work Force: Hearing Before the Comm. on Labor and Human Resources, U.S. Senate, 102d Cong. 95 (1991) (testimony prepared by Heidi Hartman) (finding that African-American men are disproportionately represented in the temporary workforce). See e.g., Martin v. City of Beaumont, Texas, No. B-87-1076, 1992 U.S. Dist. LEXIS 2970 (E.D. Tex. Feb. 19, 1992). In Martin, African-American male employees brought charges of discrimination in hiring assignment, discipline and on-the-job assignments. The court held in favor of defendant; however, the alleged facts are illustrative of the type of allegations raised by African-American males.
. Hill, supra note 16 (providing a detailed historical review of racial discrimination in major industries).
. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).
. Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972).
. Id. at 358.
. Id. at 359 n. 23.
. Derrick Bell, Faces At The Bottom Of The Well: The Permanence Of Racism (1992).
. 42 U.S.C. ss 2000e-1 to 2000e-17 (1994). Section2000e-2(a) states:
It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
. Id. at s 2000e-2(a)(1).
. Civil Rights Act of 1866, as amended, 42 U.S.C. s 1981 (1994). This statute states: “All persons ... shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ....” 42 U.S.C. s 1981. Courts have interpreted this statute to prohibit race discrimination in employment. Johnson v. Railway Express Agency, 421 U.S. 454 (1975). African-American males have successfully prevailed under this statute in a number of cases. See, e.g., Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417 (7th Cir. 1986) (racial harassment).
. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990). For an overview of this statute, see Floyd D. Weatherspoon, The Americans with Disabilities Act of 1990: Title I and Its Impact on Employment Decisions, 16 Vt. L. Rev. 263 (1991).
. 29 U.S.C. s 633 (1994).
. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (1973) (current version at 29 U.S.C. s 701 (1994)). For an excellent discussion of this statute, see Bonnie P. Tucker, Section 504 of the Rehabilitation Act After Ten Years of Enforcement: The Past and the Future, 1989 U. Ill. L. Rev. 845 (1989). African-American males have brought claims under this statute but not to the extent that they have brought race claims under Title VII. As will be discussed later in detail, courts tend to overlook the possibility that an individual can be discriminated against based on a combination of immutable characteristics. For example, in Prince v. Westchester County Department of Health, a African-American male filed a claim of discrimination on the basis of his race and disability. 58 Empl. Prac. Dec. (CCH) P 41,523. The court analyzed each basis independent of the other. Interestingly, the court held that the plaintiff failed to establish a prima facie case because another African-American man was selected. Id. at P 71,094-096. The court did not explore the race plus disability claim, i.e., African-American male with a disability.
. See 3 Empl. Prac. Guide (CCH) (1993); State Fair Employment Laws and Their Administration (BNA) (1964).
. For an outline of selected Executive Orders related to employment discrimination, see Affirmative Action After Adarand, A Legal, Regulatory, Legislative Outlook, 68 Labor Rel. Rep. (BNA) Aug. 7, 1995, at 5-14; Jonathan S. Leonard, The Impact of Affirmative Action on Employment, 2 J. Lab. Econ. 439 (1984).
. Closing the Gap, supra note 2.
. David L. Rose, Twenty-Five Years Later: Where Do We Stand on Equal Employment Opportunity Law Enforcement?, 42 Vand. L. Rev. 1121 (1989). Rose traces the development and impact of Title VII and Executive Order 11246 on the status of minorities and females and the federal government's enforcement of these civil rights measures. The data reveals that the unemployment rate of African-American males between the ages of 16 and 19 years old was more than double that of white males in the same age range in 1988. Id. at 1181 app. Even more revealing is the fact that the unemployment rate for African-American males substantially increased between 1962 and 1988. Id.
. A study by the U.S. Department of Labor on the impact that education, Affirmative Action, and migration to the North had on the economic progress of African-Americans between 1940 and 1980 reported that a
forty-year record clearly points to a significant and quantitatively large improvement in the relative economic status of black men. In 1940, the typical black male earned around $4,500 (in 1984 dollars); a similarly employed black male earned almost $19,000 by 1980. Between 1940 and 1980, black male wages increased 52 percent faster than white. The typical black male worker in 1940 earned only 43 percent as much as his white counterpart; by 1980, the figure was 73 percent .... However, one must remember that even in 1980, black males incomes still significantly lagged behind those of whites.
Closing the Gap, supra note 2, at vii. See also Alfred W. Blumrosen, The Legacy of Griggs: Social Progress and Subjective Judgments, 63 Chi.-Kent L. Rev. 1 (1987) (analyzing how the Griggs decision impacted the social progress of minorities). See generally John J. Donohue III, The Impact of Federal Civil Rights Policy on the Economic Status of Blacks, 14 Harv. J.L. & Pub. Pol'y 41 (1991) (discussing the effect civil rights policy has had on the economic standing of African-Americans). For a detailed discussion of the impact of Title VII on African-Americans, see Ronald Turner, A Look at Title VII's Regulatory Regime, 16 W. New Eng. L. Rev. 219 (1994).
. See Mark S. Brodin, Reflections on the Supreme Court's 1988 Term: The Employment Discrimination Decisions and the Abandonment of the Second Reconstruction, 31 B.C. L. Rev. 1 (1989).
. Norman C. Amaker, Civil Rights and the Reagan Administration 5 (1988) (concluding that “the Reagan administration's civil rights enforcement record is weaker than the record of all immediate predecessors, including its Republican counterparts”).
. See generally Hill, supra note 16 (providing a historical view of the struggles African-American workers endured to eliminate employment discrimination).
. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Griggs v. Duke Power Co., 401 U.S. 424 (1971).
. Foster v. MCI Telecommunications Corp., 555 F. Supp. 330 (D. Colo. 1983), aff'd, 773 F.2d 1116 (10th Cir. 1985) (finding that employer discriminated on the basis of race when Foster was laid off and was not rehired later); Gardner v. Buffalo Rock Co., 527 F. Supp. 505 (N.D. Ala. 1981) (finding that a African-American truck driver was discriminatorily discharged because of race).
. 401 U.S. 424 (1971).
. Id. The court of appeals cited the following data: “In North Carolina, census statistics show, as of 1960, while 34% of white males had completed high school, only 12% of Negro males had done so. On a gross level, then, use of the high school diploma requirement would favor whites by a ratio of approximately 3 to 1.” Griggs v. Duke Power Co., 420 F.2d 1225, 1240 n.6 (4th Cir. 1970).
. 411 U.S. 792 (1973).
. Id. at 802.
. See, e.g., United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983); Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
. Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992), cert. denied, 506 U.S. 827 (1992); Stuart v. Roache, 951 F.2d 446 (1st Cir. 1991), cert. denied, 504 U.S. 913 (1992); Alexander v. Prince George's County, Md., 901 F. Supp. 986 (D. Md. 1995), aff'd in part, rev'd in part, 95 F.3d 312 (4th Cir. 1996); Shuford v. Alabama State Bd. of Ed., 897 F. Supp. 1535 (M.D. Ala. 1995); Baker v. City of Detroit, 483 F. Supp. 930 (E.D. Mich. 1979).
. United States v. Paradise, 480 U.S. 149 (1987); United Steelworkers of America v. Weber, 443 U.S. 193 (1979).
. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
. Griggs v. Duke Power Co., 401 U.S. 424 (1971). See also George Rutherglen, Disparate Impact Under Title VII: An Objective Theory of Discrimination, 73 Va. L. Rev. 1297 (1987); Ronald Turner, A Look at Title VII's Regulatory Regime, 16 W. New Eng. L. Rev. 219, 247-54 (1994).
. See, e.g., Butler v. Elwyn Inst., 765 F. Supp. 243 (E.D. Pa. 1991). The court found that plaintiff stated a sufficient claim under Title VII when she argued that the “refusal to grant leaves of absence for a period of incarceration had an adverse impact on black citizens because black citizens are incarcerated at a higher percentage than white citizens.” Id. at 247. Consequently, the court denied defendant's motion for summary judgment and allowed plaintiff to proceed with discovery. Id. at 251. Even though the case was brought by an African-American female, it clearly impacts African-American males because they are incarcerated at a higher rate than all citizens.
. 401 U.S. 424.
. “At the time the action was instituted,” Duke Power employed “95 employees at its Dan River Station, fourteen of which were black men.” Griggs v. Duke Power Co., 420 F.2d 1225, 1228 (4th Cir. 1970). Thirteen employees became plaintiffs in the law suit. Id.
. Griggs, 401 U.S. at 430. See also Connecticut v. Teal, 457 U.S. 440, 448 (1982) (stating that the goal of Title VII was to eliminate “ ‘artificial, arbitrary, and unnecessary”’ employer created barriers to professional development that have a discriminatory impact upon individuals (quoting Griggs, 401 U.S. at 431)).
. Griggs, 401 U.S. at 431.
. Id. at 436.
. Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972) (holding that the defendant's policy of barring from employment consideration anyone arrested on a number of occasions violated Title VII).
. Green v. Missouri Pacific R.R. Co., 523 F.2d 1290 (8th Cir. 1975), aff'd after remand, 549 F.2d 1158 (8th Cir. 1977) (holding that defendant's policy of denying employment consideration to any person convicted of a crime, other than a minor traffic violation, was not justified by “business necessity” and violated Title VII). Green, a African-American male, presented statistical data that indicated “that blacks [were] convicted of crimes at a rate at least two to three times greater than the percentage of blacks in the populations of certain geographical areas”; thus, defendant's policy would have a disparate impact on African-Americans. Green, 523 F.2d at 1294. See also Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert. denied, 406 U.S. 950 (1972) (affirming trial court's order that reference to arrest records be deleted from firefighter examinations).
. Dozier v. Chupka, 395 F. Supp. 836, 843 (S.D. Ohio 1975) (citing Dep't of Defense, IV Report of the Task Force on the Administration of Military Justice in the Armed Forces 149 (1972)).
. See United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977), cert. denied, 434 U.S. 875 (1977) (affirming the trial court's finding that a background investigation on all police force applicants which looked at “social status” and “financial condition” was not related enough to job performance); Wallace v. Debron Corp., 494 F.2d 674, 675 (8th Cir. 1974) (defendant “concedes that its facially neutral garnishment policy subjects a disproportionate number of African-Americans to discharge”); Johnson v. Pike Corp. of America, 332 F. Supp. 490 (C.D. Cal. 1971) (noting that a policy of terminating employees whose wages had been garnished several times disproportionately impacted minorities).
. For example, in United States v. City of Chicago, the background investigation conducted by the Chicago Police department “required disqualification of applicants who evidenced bad character, and dissolute habits or immoral conduct.” 549 F.2d at 432. The investigation “inquires into an applicant's social status, financial condition, arrest and driving records, military, employment and educational background, and the arrest record of his family.” Id.
. 7 F.3d 795 (8th Cir. 1993), rev'g, No. CV 86-0-753, 1992 U.S. Dist. LEXIS 19654 (D. Neb. Aug. 19, 1992), on remand from, 939 F.2d 610 (8th Cir. 1991), rev'g, 51 Fair Empl. Prac. Cas. (BNA) 811 (D. Neb. 1989), cert. denied, 502 U.S. 1057 (1992). The circuit court had remanded the case back to the district court to determine whether defendant could establish a business justification for the no-beard policy.
. The franchise agreement between Pizzaco and Domino's required the establishment of a no-beard grooming policy. Such a policy was implemented and affected all employees regardless of race. Bradley, 51 Fair Empl. Prac. Cas. (BNA) at 812.
. “PFB is a medically established chronic facial skin disorder which is caused by sharp tips of recently shaved facial hair penetrating the skin and causing an inflammatory reaction such as painful papules, pustules, keloids and lesions which can result in scarring and other facial disfigurement.” Id.
. Id. at 813.
. Bradley, 939 F.2d at 613.
. The evidence included military studies which showed that “upwards of fifty percent of black males who do not shave have PFB and of those twenty percent could not shave.” Id. at 612.
. The military studies relied on by the EEOC in Bradley clearly indicated that “PFB prevents a sizeable segment of the black male population from appearing clean shaven, but does not similarly affect white males.” Id. at 613.
. Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 797 (8th Cir. 1993) (citing Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810, 815 (8th Cir. 1983)).
. Id. at 798 (citing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)).
. Bradley v. Pizzaco of Nebraska, Inc., No. CV-86-0-753, 1992 U.S. Dist. LEXIS 19654 (D. Neb. Aug. 19, 1992). The Eleventh Circuit reached a similar finding in Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993). The court recognized that PFB disproportionately afflicts African-American men; the court nevertheless held that the “city's evidence concerning safe use of respirators established a business necessity defense to claims that the no-beard rule had a disparate impact on black men.” Id. at 1112.
. Bradley, 7 F.3d at 799.
. Even though the claim of discrimination in Bradley is clearly race plus sex, the claim could also have been race plus sex and disability. African-American males are susceptible to this particular disability.
. The Supreme Court decision in Wards Cove Packing Co. v. Antonio, required plaintiffs in disparate impact cases to identify the specific employment practice(s) that adversely impacted a protected class in order to establish a prima facie case of disparate impact. 490 U.S. 642 (1989). The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991), modified the Wards Cove decision. Sections 105(a)(k)(1)(A)(i) and 105(a)(k)(1)(B)(i) provide:
a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity;
With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.
. In Ward's Cove, the respondents alleged that a variety of petitioner's hiring practices had resulted in Filipinos and Alaskan natives being assigned the lower paying unskilled jobs and whites being assigned higher level positions. The respondent alleged that petitioner's hiring/promotion practices, which included “nepotism, a rehire preference, a lack of objective hiring criteria, separate hiring channels, a practice of not promoting from within--were responsible for the racial stratification of the workforce,” had a disparate impact on their employment opportunities with the company. Ward's Cove, 490 U.S. at 647. Many of these practices could have a disparate impact on African-American males.
. 411 U.S. 792 (1973).
. Id. at 802.
. Id. at 793.
. 509 U.S. 502 (1993).
. Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses: The Fallacy of the “Pretext Plus” Rule in Employment Discrimination Cases, 43 Hastings L.J. 57 (1991).
. In Justice Souter's dissent, he stated that the Court's recent decision “saddle[s] the victims of discrimination with the burden of either producing direct evidence of discriminatory intent or eliminating the entire universe of possible nondiscriminatory reasons for a personnel decision.” Hicks, 509 U.S. at 528. See also Thomas A. Cunniff, The Price of Equal Opportunity: The Efficiency of Title VII After Hicks, 45 Case W. Res. L. Rev. 507, 544 (1995) (stating that “[t]he Court has made it too easy to get away with discrimination. Therefore, discrimination will not be driven out as quickly as it could or should be, and the efficient discrimination free market will not be achieved as quickly”).
. See Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989); Elaine W. Shoben, Compound Discrimination: The Interaction of Race and Sex in Employment Discrimination, 55 N.Y.U. L. Rev. 793 (1980) (arguing that courts should recognize “a combination of protected characteristics--such as race and sex”); Peggie R. Smith, Separate Identities: Black Women, Work, and Title VII, 14 Harv. Women's L.J. 21 (1991) (describing discrimination on the basis of race and sex as “interactive discrimination”).
. 400 U.S. 542 (1971). Cf. Chambers v. Omaha Girl's Club, 629 F. Supp. 925, 942 (D. Neb. 1986) (finding that the plaintiff was “defined by both race and sex, alone or in combination”).
. Phillips v. Martin Marietta Corp., 400 U.S. at 542.
. Phillips, 411 F.2d 1, 3-4 (5th Cir. 1969).
. Phillips, 400 U.S. at 544.
. Id. at 545 (Marshall, J., concurring) (quoting Equal Employment Opportunity Comm'n, Guidelines on Discrimination Because of Sex, 29 C.F.R. s 1604.2 (a)(1)(ii) (1972)).
. See Int'l Union v. Johnson Controls, Inc., 499 U.S. 187 (1991) (sex plus fertility); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (sex plus gender stereotypes); Fisher v. Vasser College, 70 F.3d 1420, 1433 (2d Cir. 1995) (citing Newport News Shipbldg. & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)) (sex plus pregnancy).
. It has also been suggested that the combination of being African-American plus poor will result in employment discrimination, particularly against African-American males who live in the inner city. See E. Douglas Williams and Richard H. Sander, Poverty Law and Policy: The Prospects for “Putting America to Work” in the Inner City, 81 Geo L.J. 2003 (1993). Sander notes that the racial gap in joblessness widens markedly as income declines and proposes the possibility that the combination of being African-American and poor intensifies the likelihood of encountering discrimination. This seems quite plausible, not least because one of the most “feared” persons in modern American society is the young, inner-city African-American male. Id. at 2032.
. See Sims v. Montgomery County Comm'rs, 766 F. Supp. 1052, 1098 (M.D. Ala. 1990) (stating that “[b]lack female officers employed by the Sheriff's Department are in an especially precarious position because they are subjected to both sexual and racial harassment .... Moreover, they are also subjected to additional discrimination because of their dual status which neither the white female officers nor the black male officers must bear”). See also Anthony v. County of Sacramento, 898 F. Supp. 1435, 1445 (E.D. Cal. 1995); Graham v. Bendix Corp., 585 F. Supp. 1036, 1047 (N.D. Ind. 1984) (holding that “under Title VII, the plaintiff, as a black woman is protected against discrimination on the double grounds of race and sex, and an employer who singles out black females for less favorable treatment does not defeat plaintiff's case by showing that white female or black males are not so unfavorably treated”); Logan v. St. Luke's Hosp., 428 F. Supp. 127 (S.D.N.Y. 1977); Vuyanich v. Republic Bank of Dallas, 409 F. Supp. 1083, 1089 (N.D. Tex. 1976).
. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987) (stating that “ ‘the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications,”’ the court concluded that the aggregation of both bases of discrimination was permissible to prove employment discrimination (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971))); Lewis v. Bloomsburg, 773 F.2d 561 (4th Cir. 1985) (accepting plaintiff's statistical evidence to support a class action claim that defendant's hiring practices intentionally or by disparate impact discriminated against African-American females who applied for employment); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1033 (5th Cir. 1980) (citing the Supreme Court decision in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), as permitting a sub-class of individuals (females with pre-school children) to claim disparate treatment). See also Payne v. Travenol Lab., Inc., 673 F.2d 798 (5th Cir. 1982) (affirming the certification of a class action consisting of African-American females employees); Lea v. Cone Mills Corp., 438 F.2d 86, 88 (4th Cir. 1971) (certifying a class of African-American females).
. For a discussion of the application of this theory to African-American females, see Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365 (1991). See supra note 146, for a list of other articles.
. 615 F.2d 1025, 1032 (5th Cir. 1980).
. Jefferies v. Harris County Community Action Ass'n, 425 F. Supp. 1208 (S.D. Tex. 1977). In analyzing the race and sex claim of discrimination, the district court bifurcated the race and sex analyses. Id. at 1213. The court spent little time analyzing the race issue noting that since plaintiff and the selectee were both African-American, her claim of race discrimination was unsupported. Id. Furthermore, the court found that the racial composition of the workplace had a noticeable percentage of African-American employees. Id. The court's sex discrimination analysis also held that plaintiff failed to support the claim because the employer employed a high percentage of females supervisors, 16 out of 30. Id.
. Jefferies, 615 F.2d at 1032-33.
. See Munford v. James T. Barnes & Co., 441 F. Supp. 459 (E.D. Mich. 1977) (dismissing race claim and permitting sex claim).
. 413 F. Supp. 142 (E.D. Mo. 1976), aff'd in part, rev'd in part on other grounds, 558 F.2d 480 (8th Cir. 1977).
. Id. at 143.
. The court dismissed the sex discrimination claim filed under s 1981 as this statute does not permit recovery for sex discrimination, only race. Id. at 144. The court also dismissed the sex discrimination claim on the merits in that plaintiffs failed to prove their claim of sex discrimination under Title VII. Id. Based on judicial economy, the court dismissed the race claim without prejudice to allow the plaintiffs to consolidate their claim or intervene in another pending case with similar claims of race discrimination. Id. at 145. The judge in the pending case refused to permit the cases to be consolidated. Mosley v. General Motors Corp., 63 F.R.D. 127 (E.D. Mo. 1973), rev'd in part, aff'd in part, 497 F.2d 1330 (8th Cir. 1974). Thereafter, DeGraffenreid's race claim was dismissed.
. DeGraffenreid, 413 F. Supp. at 143.
. Id. at 145.
. DeGraffenreid, 558 F.2d 480. While the case was pending on appeal, the U.S. Supreme Court issued two cases clarifying whether a bona fide seniority system which perpetuated pre-Civil Rights Act discrimination violated the law. Id. at 484 (discussing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977); United Air Lines v. Evans, 431 U.S. 553 (1977)). The court held that these cases were dispositive of the seniority issue in the present case. Id. The court, however, did find that the district court dismissal of “all race discrimination claims without prejudice” was an error. Id. at 486.
. Id. at 484.
. Nephew v. Rice, No. 92-6083, 1993 U.S. App. LEXIS 9798 (10th Cir. Apr. 23, 1993).
. Id. at
. 40 F.3d 1551 (9th Cir. 1994).
. Id. at 1554.
. Id. at 1561.
. Id. at 1562.
. Id. The Ninth Circuit explained that “when a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex.” Id. at 1562. In Anthony v. County of Sacramento, the court applied the Lam analysis where an African-American female alleged she was continuously harassed on the basis of her race and gender. 898 F. Supp. 1435 (E.D. Cal. 1995). The court stated that “the epithet ‘black bitch’ cannot be designated exclusively as either racist or sexist.” Id. at 1445.
Overall, plaintiff's theory is that she was subjected to an environment that was hostile on both racial and sexual grounds, and that she was harassed to a degree that altered the conditions of her employment because she was a black woman. [The court] must therefore consider the evidence of racial and sexual animus collectively for purposes of assessing plaintiff's continuing violation theory.
Id. at 1445-46.
. 733 F. Supp. 188 (S.D.N.Y. 1990).
. Id. at 200.
. Id. See also Bazemore v. Friday, 478 U.S. 385, 386 (1986); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 334 (1977).
. Long, 733 F. Supp. at 201 n.13.
. Id. at 202-04.
. See Dabish v. Chrysler Motors Corp., 902 F.2d 32 (6th Cir. 1990) (failing to consider a race plus sex claim by white female that African-American females are treated more favorably).
. See Hughes v. Derwinski, 967 F.2d 1168 (7th Cir. 1992). Hughes, a African-American male, was denied two promotions within a three-month period. A white male was selected for the first position and a African-American female was selected for the second position. Plaintiff alleged race discrimination in the first selection and sex discrimination in the second selection. Plaintiff could have also raised the issue that African-American males were being denied promotional opportunities, particularly when he was denied the second position. In Thomas v. California State Dep't of Corrections, plaintiff failed to raise the gender issue on appeal; therefore, the court refused to address the race and gender issue. No. 91-15870, 1992 U.S. LEXIS 20346, at n.1 (9th Cir. Aug. 18, 1992). In Burton v. Sec. of Health & Human Servs., the court of appeals failed to explore the race plus sex theory of discrimination against African-American males because the issue was not presented before the administrative law judge; thus, there was no evidence in the record to support the claim. 762 F.2d 1006 (6th Cir. 1985). In Duck v. New York City Dep't of Transp., an African-American male alleged that he was transferred and demoted from a captain position to a lieutenant position because he was “attempting to uncover discrimination against African-American males within the DOT.” No. 93-C7388, 1994 U.S. Dist. LEXIS 11226, at(S.D.N.Y. Aug. 10, 1994). There was evidence that of the forty-two DOT captains, only three were African-American males; 28 were African-American females. Id. at *3 n.1. The case was dismissed on procedural grounds. Id. at *19-20.
. Ester v. Derwinski, No. 90-C2835, 1992 U.S. Dist. LEXIS 5454 (N.D. Ill. Mar. 31, 1992) (African-American male alleges race and sex discrimination when African-American and white females were selected for promotions and few African-American males promoted).
. In White v. McDonnell Douglas Corp., the plaintiff filed a civil action against his employer on the basis of his race and sex. 985 F.2d 434 (8th Cir. 1993). In granting defendant's motion for a summary judgment, the court separately analyzed the race and sex claim. In Thompson v. Arkansas Dep't of Human Servs., the plaintiff, a African-American male, appealed the district court's judgment in favor of defendant dismissing his Title VII claim of race and sex discrimination. No. 92-2039, 1992 U.S. App. LEXIS 31312 (8th Cir. Dec. 1, 1992). The district court held that plaintiff failed to establish a prima facie case of discrimination on the basis of race or sex. Plaintiff, inter alia, presented statistical figures to support his argument that defendant's hiring practices discriminated against African-American males. In affirming the district court's decision, the court of appeals merely stated that plaintiff failed “to show that [defendant] engaged in systematic personnel policies and practices designed to exclude African-Americans and males.” Id. at *3 (emphasis added). It was unclear whether the court reviewed the evidence in terms of the exclusion of African-American males, or bifurcated the race and gender issue. See also Sims v. Montgomery County Comm'n, 766 F. Supp. 1052, 1098 (M.D. Ala. 1990) (finding discrimination where the employer “frowned upon black male officers riding with white female officers”). Although there is clearly a gender nexus involved, the court nonetheless concluded that the employer was driven solely by a racial basis, relying on the absence of evidence that the department frowned upon African-American females riding with white females or white males. Id. at 1086. In Sanchez v. Philip Morris, Inc., 774 F. Supp. 626 (W.D. Okla. 1991), aff'd in part, rev'd in part, 992 F.2d 244 (10th Cir. 1993), the court bifurcated the race and sex claims of a Hispanic male.
. See, e.g., Calloway v. San Francisco Unified Sch. Dist., No. 91-C32415BA, 1992 U.S. Dist. LEXIS 21913, at *2 (N.D. Cal. Oct. 30, 1992) (African-American male raised the issue that there were too few African-American males “being appointed to principal positions” but he only filed a claim of discrimination on the basis of race); Alsup v. Int'l Union of Bricklayers and Allied Craftsmen of Toledo, Ohio, Local Union No. 3, 902 F.2d 1568 (6th Cir. 1990) (twenty-nine African-American males brought suit claiming only race discrimination for their alleged exclusion from craft positions in a number of construction companies and unions; however, the case was dismissed on procedural grounds).
. See Glass Ceiling Report, supra note 58, which cites double the number of stereotypical biases of African-American males than African-American females. See Kirschenman & Neckerman, supra note 51. See generally Cathy Scarborough, Conceptualizing Black Women's Employment Experiences, 98 Yale L.J. 1457 (1989) (providing a historical review, as well as a current review of stereotypical biases and employment discrimination directed at African-American females and workers).
. Andrew Hacker finds that African-American females hold a larger percentage of the African-American work force, including professional jobs, than African-American males for a number of reasons, for example African-American females who are single and head of household must work out of necessity, and married African-American females must also work to supplement the family's income. Hacker concluded that there are other reasons for the larger percentage of African-American females in the work force:
Of at least equal importance are attitudes and decisions among white employers. If and when organizations feel compelled to hire more black workers, they generally prefer to take on black women rather than black men. Black women, like all women, are perceived as being less assertive and more accommodating. Thus there is the hope that black women will show less resentment or hostility, and will be less apt to present themselves as “black” in demeanor and appearance. A further concern of white employers, albeit not one openly stated, is that having black men and white women work together might lead to familiar relationships that could either be misunderstood or have some ground in fact.
Hacker, supra note 41, at 115-16 (1992). See also Dorothy J. Gaiter, Black Women's Gains In Corporate America Outstrip Black Men's, Wall St. J., Mar. 8, 1994, at 1 (finding that African-American females have made substantial gains in professional positions as opposed to African-American men); Carla A. Harris, Differential Impacts of Affirmative Action on Black Women Versus Black Men 4-5 (Mar. 1984) (unpublished thesis, Harvard University) [hereinafter Differential Impacts] (finding “that where black women and men are viewed as substitutes in the labor market, black women do take black men's jobs and decrease black men's market opportunities. Thus, black women gain at the expense of black men”).
. Differential Impacts, supra note 188, at 30 (reporting interviews with personnel types which verify the thesis that there is a greater demand for African-American females in the labor market, “because black women offer employers a double credit on the affirmative action reports as a woman and as a minority”). One response stated:
Because an employer can get “two for one.” Everyone gets a lot of credit for goal attainment in this affirmative action business. No one wants to hear how you fulfill your minority and women goals and no one wants to hear that you can't find enough eligible male minorities' goals, he can hire one black woman and fulfill both goals thus he can get “two-for-one.”
Id. at 70.
. Woodard v. Mayor of Baltimore, 884 F.2d 1391 (4th Cir. 1989).
. Note, Invisible Man: Black and Male Under Title VII, 104 Harv. L. Rev. 749, 759-61 (1991).
. 942 F.2d 884 (5th Cir. 1991).
. Id. at 886 n.5 (stating that “[w]e decline to comment in this case on whether black males represent a protected subclass, because our review is limited to the findings of the district court, [which] ... found only sexual discrimination”).
. Davis v. Yazoo County Welfare Dep't, 942 F.2d 884.
. 748 F. Supp. 312 (D. Md. 1989), aff'd, 914 F.2d 248 (4th Cir. 1990).
. Id. at 317.
. Id. at 318.
. 794 F.2d 142 (4th Cir. 1986).
. Parrott, 748 F. Supp. at 317-18.
. 411 U.S. 792, 802 (1973).
. Parrott, 748 F. Supp. at 317.
. 451 F.2d 1236, 1238-39 (5th Cir. 1971). See also Smith, supra note 146, at 22 (arguing that the courts should analyze Title VII claims under the sex plus theory when presented with such a claim); cf. Carey v. United States Postal Serv., 812 F.2d 621 (10th Cir. 1987) (holding that settlement of African-American male employee's Title VII suit “did not constitute independent act of intentional racial discrimination against white” co-workers).
. See generally Charles and Barbara Whalen, The Longest Debate: A legislative History of the 1964 Civil Rights Act (1985).
. See Dabish v. Chrysler Motors Corp., 902 F.2d 32 (6th Cir. 1990) (arguing white female was treated differently because she was perceived as a “mentally inferior white women”); McCoy v. Johnson Controls World Servs., Inc., 878 F. Supp. 229, 231 (S.D. Ga. 1995) (alleging harassment of white female by two African-American females stating to her that “ ‘we have always been able to make white bitches like you quit, you're one stubborn bitch ....”’). Clearly, the allegations of harassment are a consideration of the plaintiff's race (white) and gender (female). Since the court was only responding to the defendant's motion to dismiss the claim of sexual harassment, the court did not address the race claim of discrimination. See also Kruszka v. Runyon, No. 3:94-CV-666RM (N.D. Ind. July 19, 1995) (alleging termination of white female was based on race and gender discrimination); Anthony v. County of Sacramento, 898 F. Supp. 1435, 1445 (E.D. Cal. 1995) (holding that referring to an African-American female employee as a “black bitch cannot be designated exclusively as either racist or sexist”).
. Hicks v. ABT Assoc., 572 F.2d 960 (3d Cir. 1978); Walters v. City of Atlanta, 610 F. Supp. 715 (D.C. Ga. 1985) (arguing a white male was denied a position because of his race and sex); United States v. Illinois State Univ., No. 95-3067 (C.D. Ill. Mar. 2, 1995) (arguing race and gender discrimination when the employer allegedly selected only minorities and females over the white male plaintiff for a building services training program); EEOC Decision No. 76-20, 1975 EEOC LEXIS 17 (Dec. 4, 1975) (alleging race and sex discrimination against a white male when he received a suspension for violating a company policy, but the African-American male or female were not suspended for violating the same or similar policy).
. Duck v. New York City Dep't of Transp., No. 93-C7388, 1994 U.S. Dist. LEXIS 11226 (S.D.N.Y. Aug. 10, 1994) (alleging discrimination based on race, sex and age against a African-American male over forty).
. See Lam v. Univ. of Hawaii, 40 F.3d 1551 (9th Cir. 1994). The court stated in Lam that “like other sub-classes under Title VII, Asian women are subject to a set of stereotypes and assumptions shared neither by Asian men nor [other] women.” Id. at 1562 (discussing Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025 (5th Cir. 1980)). The Lam court also cited Jessica Hagedorn, Asian Women in Film: No Joy, No Luck, MS., Jan./Feb. 1994, at 74, which discusses stereotypes of Asian women as geisha, dragon lady, concubine and lotus blossom. See also Mahroom v. Alexander, 22 Empl. Prac. Dec. (CCH) P 30,580 (N.D. Cal. 1979) (Iraqi female alleges national origin and sex discrimination).
. Coke v. Hebrew Home of Greater Washington, 44 Fair Empl. Prac. Cas. (BNA) 122 (D.D.C. 1987) (rejecting plaintiff's s 1981 claim of race and national origin claims, alleging that his claims of race and sex discrimination were “inextricably intertwined”).
. Good v. United States West Communications, Inc., No. 93-302-FR, 1995 U.S. Dist. LEXIS 1968 (D. Or. Feb. 16, 1995) (allowing a forty-two year old female “to go forward with her claim that [the employer] discriminated against her on the basis of the combination of age and sex”).
. 649 F. Supp. 770 (D.D.C. 1986).
. Jefferies, 615 F.2d 1025. See supra Part IIIB for discussion of Jefferies.
. Judge v. Marsh, 649 F. Supp. at 780. See also Fisher v. Vassar College, 70 F.3d 1420, 1434 (2d Cir. 1995) (expressing concerns regarding marital status as a plus factor; that as more “splintered categories come into play, marital status may become an unmanageable factor for sex-discrimination analysis”).
. Judge, 649 F. Supp. at 780.
. See Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892) ( “[A] thing may be within the letter of [a] statute and yet not within the statute, because not within its spirit nor within the intention of its makers.”).
. 673 F.2d 798 (5th Cir. 1982).
. Id. at 809 n.8.
. Id. at 811. Cf. Colston v. Maryland Cup Corp., 18 Fair Empl. Prac. Cas. (BNA) 83 (D. Md. 1978). The Colston court stated:
On the one hand, [the black female plaintiff] would argue that defendant's policies and practices discriminated in favor of males, including black males, and against females. At the same time, she would claim that defendant favored whites, including white females, over blacks. In light of these conflicting positions, plaintiff would not be an adequate representative of either black males or white females.
Id. at 85.
. Payne v. Travenol Lab., 673 F.2d at 811.
. The circuit court affirmed the trial court's denial of plaintiffs' request that notices be sent to African-American males who would be adversely affected by the redefinition of the class by the court. Id. at 812.
. 682 F.2d 130 (7th Cir. 1982), cert. denied, 459 U.S. 1017 (1982).
. Id. at 132.
. Id. Consequently, the court held that plaintiff-appellee met the first prong of the McDonnell test for a prima facie case of employment discrimination because he was a African-American man.
. 438 U.S. 567 (1978).
. Id. at 579.
. Id. at 577.
. In White v. McDonnell Douglas Corp., a African-American male alleged race and sex discrimination. 985 F.2d 434 (8th Cir. 1993). However, the court stated, “[i]f a plaintiff shows that he is a member of a protected class (here, blacks or men) ... he has established a prima facie case of disparate treatment.” Id. at 435 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
. See Fed. R. Evid. 201(b).
. See 117 Monthly Lab. Rev. 91 (1994) (pointing out the employment disparities between African-American men and others).
. See Geier v. Alexander, 593 F. Supp. 1263, 1264 (M.D. Tenn. 1984) (taking judicial notice “of the long history of social, economic and political oppression of blacks in Tennessee ... its effects are pervasive throughout the black community, affecting practically all black men, women and children in the state” (quoting Milliken v. Bradley, 433 U.S. 267, 287 (1977))); Perkins v. City of West Helena, Ark., 675 F.2d 201 (8th Cir. 1981), aff'd, 459 U.S. 801 (1982) (electoral process).
. 443 U.S. 193 (1979).
. The Supreme Court stated in Weber that “[j]udicial findings of exclusion from crafts on racial grounds are so numerous as to make such exclusion a proper subject for judicial notice.” United Steelworkers of America v. Weber, 443 U.S. at 198 n.1.
. See Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir. 1990); Watts v. Boyd Properties, Inc., 758 F.2d 1482 (11th Cir. 1985); Village of Bellwood v. Gorey & Assoc., 664 F. Supp. 320 (N.D. Ill. 1987). For an excellent discussion of the use of testers in the housing industry, see Teresa Coleman Hunter and Gary L. Fischer, Fair Housing Testing--Uncovering Discriminatory Practices, 28 Creighton L. Rev. 1127 (1995).
. Board of Governors, Federal Reserve System, A Feasibility Study on the Application of the Testing Methodology to the Detection of Discrimination in Mortgage Lending (1991).
. Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 Harv. L. Rev. 817, 817 (1991) (finding that white men were offered better prices at retail car dealerships than African-Americans and females).
. 455 U.S. 363 (1982).
. Title VII of the Civil Rights Act of 1968, 42 U.S.C. s 3604 (1996), makes it unlawful for an individual or firm covered by the Act:
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial statue, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
42 U.S.C. s 3604(a), (b), (d).
. Havens, 455 U.S. at 373-74. See generally Michael E. Rosman, Standing Alone: Standing Under the Fair Housing Act, 60 Mo. L. Rev. 547 (1995); Robert G. Schwemm, Standing To Sue In Fair Housing Cases, 41 Ohio St. L.J. 3 (1980).
. Marc Bendick, Jr., et al., Measuring Employment through Controlled Experiments (1993) [hereinafter Measuring Employment]; Margery Auston Turner, et al., Opportunities Denied, Opportunities Diminished: Discrimination In Hiring, in Urban Inst. Rep. 91-9 (August 1991).
. Measuring Employment, supra note 240, at 4.
. Id. at 8 (citing a study conducted by the University of Colorado).
. Similar studies suggest that Hispanic male job seekers are treated less favorably than white applicants. See, e.g., GAO Report on Employer Sanctions and Discrimination: Hearings Before the Senate Comm. on the Judiciary, 101st Cong. 58-59 (1990) (use of testers uncovered discrimination against Hispanics in hiring by employers); Marc Bendick, Jr., et. al., Discrimination Against Latino Job Applicants: A Controlled Experiment, 30 Hum. Resource Mgmt. 469, 477 (1991) (finding that “[t]he average male Latino applicant is more than twice as likely to encounter discrimination than the average female Latino applicant (29.3% versus 12.2%)”).
. Turner, supra note 240 (finding that despite various civil rights laws, African-American men have and continue to be discriminated against by employers in hiring); Hiring Discrimination Against Young Black Men, Urb. Inst., Summer 1991, at 4-5 (summarizing the Urban Institute's studies on testing in employment).
. Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 829 F. Supp. 402 (D.D.C. 1993), modified, 28 F.3d 1268 (D.C. Cir. 1994); cf. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) (in a discriminatory employment practices suit by a testor the court, focusing on the merits of the claim, issued an injunction against future discrimination and awarded attorneys fees to plaintiffs).
. Plaintiffs brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. s 2000e-2(b); the Civil Rights Act of 1866, 42 U.S.C. s 1981; and the District of Columbia Human Rights Act, D.C. Code Ann s 1-2512(b) (1992).
. In 1991, the Urban Institute conducted a study similar to other tester studies to determine whether African-American youth were treated differently than whites when seeking entry level positions in the Chicago and the Washington, D.C. areas. The Institute employed one African-American and one white male with identical “age, physical size, education, experience and other ‘human capital’ characteristics as well as such intangibles as openness, apparent energy level, and articulateness.” Turner, supra note 240, at 4. More than 500 hiring audits were conducted during the study. The study concluded that in 20 percent, or one out of five audits, the white male tester advanced further than the equally qualified African-American males. The Institute concluded that the study suggests that “despite extensive legislative and regulatory protections and incentives to hire minorities, unfavorable treatment of young black men is widespread and pervasive across firms offering entry level jobs in the Washington, D.C. and Chicago metropolitan areas.” Id. at 32. Furthermore, “unfavorable treatment of black job seekers is widespread, and [ ] discrimination contributes to black male unemployment and non-participation in the labor force.” Id. at 33.
. Second Amended Complaint for Declaratory Judgment, Permanent Injunctive Relief, and Damages at 4, Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 829 F. Supp. 402 (D.D.C. 1993) (No. 91-8909 NJH).
. For a description of FEC's testing process and selection and training of testers, see Measuring Employment, supra note 240. The report also cites the following examples of discriminatory treatment uncovered by FEC's study:
Opportunities to Interview. The Washington Post carried an advertisement for a restaurant supervisor in the Washington suburbs. A black tester who went to the restaurant was told that he would be called if the restaurant wished to pursue his application. Minutes later, a white tester with equivalent credentials followed the same application procedure. He was called later the same day to schedule an interview, interviewed the day after that, and subsequently offered the position. Meanwhile, the black tester made four follow-up calls to reiterate his interest in the position, including one after the white tester refused the job offer. No response was received to these calls.
Job Offers or Referrals. A black female tester sought entry-level employment through a large employment agency in downtown Washington. After completing an application and being interviewed briefly, she was told that she would be called if a suitable vacancy became available. Shortly thereafter, her white testing partner arrived seeking similar opportunities. After she completed an application and was interviewed, she was told about a receptionist/sales position at an upscale health and grooming firm. She was coached on interviewing techniques and scheduled for an interview later that day; in that interview, she was offered the position.
Compensation. A major department store chain advertised in the Washington Post for sales assistants in the women's clothing department of a branch in an affluent neighborhood. When a pair of female testers applied for the position, both were interviewed by the store's personnel department, and both were offered permanent, full-time employment. However, the staring salary offered to the black tester was $6.50 per hour, while her white partner was offered $7.50 per hour.
Steering. A major-brand auto dealer in the Washington suburbs advertised in the Washington Post for a car salesperson. A black male tester who applied was told that to enter the business, he should accept a position as a porter/car washer. Arriving shortly thereafter with identical credentials, his white testing partner was immediately interviewed for the sales position that had been advertised.
Access to Additional Opportunities. A Dating service in the Washington suburbs advertised in the Washington Post for a receptionist/typist. When a black tester applied for the position, she was interviewed but heard nothing further. When her white testing partner applied for the receptionist position and was interviewed, the employer offered to create a new position for her, that of personal assistant to the manager. This new position would pay more that the receptionist job, would lead to rapid raises and promotions, and would provide tuition assistance. Follow-up calls by the black tester elicited no interest on the part of the firm, either for the receptionist position or the newly created opportunity, even after the white tester refused the offer.
Id. at 11-12.
. Victims of discrimination are never aware of this type of evidence. See generally Richardson v. Howard, 712 F.2d 319, 321 (7th Cir. 1983) (stating that “[t]he evidence provided by testers ... is a major resource in society's continuing struggle to eliminate the subtle but deadly poison of racial discrimination”); Fowler v. McCrory Corp., 727 F. Supp. 228, 233 n.6 (D. Md. 1989) (stating that victims of hiring discrimination “may not even have known of the employment opportunities they were being denied”).
. The facts illustrate that employment discrimination against qualified African-American males is not limited to professional positions but also in lower level and entry level positions. For a discussion of the use of testers to uncover employment discrimination in hiring in these types of positions, see Michael J. Yelnosky, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs, 26 U. Mich. J.L. Ref. 403 (1993).
. Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
. Fair Employment Council of Greater Washington, Inc. v. BMC Mktg. Corp., 829 F. Supp. at 404. The Supreme Court has previously recognized that “actual or threatened injury required by Article III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing ....”’ Havens, 455 U.S. at 373 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
. Havens, 455 U.S. at 373-74.
. 42 U.S.C. s 2000e-2(b) (1994).
. Fair Employment Council of Greater Washington, Inc. v. BMC Mktg. Corp., 829 F. Supp. 402, 404 (D.D.C. 1993).
. Fair Employment Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1281 (D.C. Cir. 1994). See also Steven G. Anderson, Comment, Tester Standing Under Title VII: A Rose by any Other Name, 41 DePaul L. Rev. 1217, 1258-68 (1992) (arguing that testers have standing to sue under Title VII).
. BMC Mktg., 28 F.3d at 1281. See also Shannon E. Brown, Note, Tester Standing Under Title VII, 49 Wash. & Lee L. Rev. 1117 (1992) (providing a detailed analysis on the issue of standing in tester cases).
. 3 EEOC, Compliance Manual (1991).
. 42 U.S.C. s 2000e-4(g)(6) (1994).
. 42 U.S.C. s 2000e-4(g)(3) (1994).
. 42 U.S.C. s 2000e-5(b) (1994).
. National Enforcement Plan Approved by EEOC, Daily Lab. Rep. (BNA) No. 27, at d20 (Feb. 14, 1996).
. For a discussion of the impact of Executive Order 11246, see James E. Jones, Jr., Twenty-One Years of Affirmative Action: The Maturation of the Administrative Enforcement Process Under the Executive Order 11,246, as Amended, 59 Chi.-Kent L. Rev. 67 (1982).
. For a recent discussion of OFCCP's enforcement efforts of Executive Order 11246, specifically Affirmative Action requirements, see Affirmation Action and the Office of Federal Contract Compliance, Hearing of the Comm. on Labor and Human Resources, United States Senate, 104th Cong. 3-24 (1995) (statement of Shirley Wilcher, Deputy Assistant Secretary for Federal Contract Compliance).
. OFCCP reports that “[a]pproximately 22 percent of the labor force or about 26 million workers is [sic] employed by Federal contractors or subcontractors subject to the laws administered by OFCCP. In fiscal year 1993, OFCCP's covered Federal contractors included 92,500 nonconstruction establishments and an estimated 100,000 construction establishments.” Id. at 4.
. According to 41 C.F.R. s 60-1.20 (1995):
The purpose of a compliance review is to determine if the ... contractor ... maintains nondiscriminatory hiring and employment practices and is taking affirmative action to insure that applicants are employed and that employees are placed, trained, upgraded, promoted, and otherwise treated during employment without regard to race, color, religion, sex, or national origin. It shall consist of a comprehensive analysis and evaluation of each aspect of the aforementioned practices, policies, and conditions resulting therefrom.
This provision of the federal regulations requires contractors to review all aspects of employment practices which negatively impact applicants and employees because of their immutable characteristics. An analysis of race, color, sex and national origin should not be limited to one or the other, but a combination of these when the contractor discriminates against a subgroup.
. 41 C.F.R. s 60-2.12(a) (1995) requires federal contractors to develop goals and timetables as part of their Affirmative Action program to eliminate underutilization of minorities and females.
. Enforcement Guidance: Standing of Job Bias “Testers” to File Charges, EEOC Compl. Man. (CCH) P 2168 (Nov. 20, 1990).
. See Michael J. Yelnosky, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs, 26 U. Mich. J.L. Ref. 403, 468-69, 481 (1993) (proposing that Congress amend Title VII to permit the EEOC to use testers to uncover discrimination in addition to accepting charges from outside testers).
. See Shannon E. Brown, Tester Standing Under Title VII, supra note 258, at 1140-42 (summarizing employers' objection to the use of testers in discovering employment discrimination); EEOC's Endorsement of Testers in Bias Cases Could Lead to Abuses, Employers' Group Charges, [Current Developments] Daily Lab. Rep. (BNA) No. 31, at A10 (Feb. 14, 1991); Kevin M. McCarthy, EEOC Policy Allowing Testers Will Face Increasing Challenges, Nat'l L.J., June 10, 1991, at 28 (concluding there will be legal challenges to the EEOC's policy of testers from employers who are concerned that “[c]ommunity groups could threaten to use testers against companies that do not pledge financial support to such groups; unions might use testers to harass an employer; companies could themselves manipulate the use of testers against a competitor”).
. NAACP Uses “Testers” as a Basis of Bias Complaint Against Miami Stores [[Current Developments] Daily Lab. Rep. (BNA) No. 247, at A5 (Dec. 24, 1990).
. In Indiana Civil Rights Comm'n v. Wellington Village Apartments, the African-American male tester was not given any “ ‘specific information about apartments that would be available soon, the deposit required,’ nor told to check at end of the month.” 594 N.E.2d 518, 530 (Ind. Ct. App. 1992) (quoting record at 509-10, Wellington (No. 49A02-9102-CV-92)). Such information was provided to the caucasian tester, thus giving him “ ‘a better opportunity to rent an apartment”’ than the African-American male. Id. (quoting record at 510, Wellington (No. 49A02-9102-CV-92)). This fact pattern parallels situations where African-American males seek employment. When there is no available opinion at the time of inquiry, they are usually not encouraged directly or indirectly about the possibility of future opportunity.
. Hiring Discrimination Against Young Black Men, supra note 244, at 4-5.
. At least one paragraph in the EEOC Compliance Manual for Equal Opportunity Specialists does state that a charge can be “filed by members of a ‘subclass,’ for example, Asian women.” Equal Employment Opportunity Comm'n, 2 Compliance Manual for Equal Opportunity Specialists 70 (1983) [hereinafter 2 Compliance Manual]. There is, however, no clear definition of “subclass”, examples of other “subclasses, or legal analysis of the term.”
. EEOC Decision No. 85-1, 1984 EEOC LEXIS 23100 (Oct. 24, 1984); EEOC Decision No. 76-137, 1976 EEOC LEXIS 49 (Sept. 20, 1976) (considering a African-American female's allegations of discrimination on the basis of race and sex and filing a class action on behalf of other African-American females who were denied administrative positions).
. EEOC Decision No. 85-1, 1984 EEOC LEXIS 23100, at *2.
. Id. at *3 n.5.
. Id. at *3.
. EEOC Decision No. 76-71, 1975 EEOC LEXIS 53 (Dec. 4, 1975).
. Parker v. Housing Auth. of Kansas City, Kansas, No. 92-3136, 1993 U.S. App. LEXIS 13799 (10th Cir. June 9, 1993); Johnson v. Alcan Aluminum Corp., 21 Fair Empl. Prac. Cas. (BNA) 586 (N.D. Ga. 1979) (granting defendant's motion to dismiss all allegations of sex discrimination because the plaintiff, an African-American male, failed to raise the sex claim with the EEOC).
. 2 Compliance Manual, supra note 276, at 70.
. Closing the Gap, supra note 2, at 21. For examples of other subclasses, see supra notes 206-11.
. See Judith Lichtman & Holly Fechner, For Women, the Civil Rights Act of 1991 is a Move in the Right Direction: Almost There, 19 Hum. Rts. Q. 16 (1992).
. The term “glass ceiling” was first used by the Wall Street Journal. Carol Hymowitz & Timothy D. Schellhardt, The Glass Ceiling: Why Women Can't Seem to Break the Invisible Barrier that Blocks Them from the Top Jobs, Wall St. J., Mar. 24, 1986, at D1, D4-5.
. U.S. Dep't of Labor, A Report on the Glass Ceiling Initiative 1 (1991).
. The Labor Department Glass Ceiling Initiatives are:
To promote a quality, inclusive and diverse workforce capable of meeting the challenge of global competition;
To promote good corporate conduct through an emphasis on corrective and cooperative problem-solving;
To promote equal opportunity, not mandated results; and,
To establish a blueprint of procedures to guide the Department in conducting future reviews of all management levels of the corporate workforce.
Id. at 3.
. U.S. Dep't of Labor, Pipelines of Progress: A Status Report on the Glass Ceiling (1992) [hereinafter Pipelines of Progress]
. Id. at 1.
. In a report on issues facing minority males in corporate America completed for the Glass Ceiling Commission, it was stated:
The one area that has not been fully addressed in the original 16 research studies commissioned [by the Glass Ceiling Commission] for this project includes the exploration of the issues surrounding the obstacles and barriers that exist and prohibit the ascent of minority males beyond “middle management positions” and into managerial and executive positions in US [sic] private sector corporations.
Lucius S. Henderson III, et al., Report on Six Focus Groups with Asian, Black and Hispanic Executives in Three Cities on Issues Related to the Glass Ceiling in Corporate America, at 3 (November 1994) (unpublished manuscript, on file with author).
. See U.S. Glass Ceiling Comm'n, Good For Business: Making Full Use Of The Nation's Human Capital 69 (1995) (finding that “African-Americans ... perceive this barrier as virtually impenetrable for most black men. They view it not as a glass ceiling but as a brick wall”).
. Black Caucus Found. Inst. for Policy, Research and Educ., The Impact of the Glass Ceiling on African American Men and Women (undated) (unpublished manuscript, on file with author).
. Id. at 2.
. See, e.g., Bette Woody & Carol Weiss, Glass Ceiling Comm'n, U.S. Dep't of Labor, Barriers to Workplace Advancement: The Experience of the White Female Workforce 1, 27 (1993); Georgianna McGuire & Siobhan Nicolau, In Their Own Words: CEO Views of Diversity at the Top 5 (unpublished manuscript on file with author) [hereinafter CEO STUDY] (finding that CEO thinks the Glass Ceiling term only applies to females and recommending that “[t]he term Glass Ceiling should be defined and promoted as referring to women and minority males”).
. See Catalyst, Glass Ceiling Comm'n, U.S. Dep't of Labor, Successful Initiatives for Breaking The Glass Ceiling to Upward Mobility For Minorities and Women (1993); Ella L. J. Edmondson Bell et al., Glass Ceiling Comm'n, U.S. Dep't of Labor, Barriers to Workplace Advancement Experienced by African-Americans 56-68 (1994) (analyzing only African-American females under the race plus sex theory) [hereinafter Barriers]; Nancy Hamlin et al., Glass Ceiling Comm'n, U.S. Dep't of Labor, The Impact of Corporate Restructuring and Downsizing of the Managerial Careers of Minorities and Women: Lessons Learned From Nine Corporations 21-29 (1994); Lois B. Shaw et al., Glass Ceiling Comm'n, U.S. Dep't of Labor, The Impact of the Glass Ceiling and Structural Change on Minorities and Women 24-25 (1993) (showing both minority females and minority males filling only 7 percent of management positions each).
. See Donald Tomaskovic-Devey, Glass Ceiling Comm'n, U.S. Dep't. of Labor, Race, Ethnic and Gender Earnings Inequality: The Sources and Consequences of Employment Segregation 16-25 (1994) (analyzing how race, ethnicity and gender impact hiring and promotion decisions).
. U.S. Comm'n. on Civil Rights, The Economic Progress of Black Men in America (1986).
. The Governor's Comm'n on Black Males, Maryland's African-American Males Health, Education, Employment and Economic Development, and Criminal Justice (June 1993); The California Comm'n on the Status of African-American Males, A Preliminary Report on the Status of African-American Males in California, Opportunity or Chaos: A Gerneration in Peril (1992); The Governor's Comm'n on Socially Disadvantaged Black Males, Ohio's African-American Males: A Call to Action (June 1990).
. Johnston & Packer, supra note 2. In 1992, the U.S. Census reported that of the 255,082,000 Americans, 14,990,000 were African-American males. Bureau of the Census, Dep't of Commerce, Statistical Abstract of USA 20 (114th ed. 1994).
. Exec. Order No. 11246, 3 C.F.R. s 340 (1964-1965), reprinted in 42 U.S.C. s 2000e (1994).
. 115 S. Ct. 2097 (1995). While a professor of law at University of Chicago, Justice Scalia commented on restoration argument in favor of Affirmative Action, stating: ‘My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man.‘ Antonin Scalia, Commentary on Equal Employment Opportunity, The Disease as Cure, 1979 Wash. U. L.Q. 147, 152 (1979). Of course, Justice Scalia failed to recognize or acknowledge that even though his father may not have benefitted from the enslavement of African-American males, others did. More importantly, the lingering vestiges of slavery addressed earlier, continue to inhibit African-American males' opportunity for progress. In those situations where racism is too entrenched in our labor system to be erased by saying “we're an equal opportunity employer,” an Affirmative Action plan with a race plus gender (African-American males) provision may be required. See Dwight L. Greene, Justice Scalia and Tonto, Judicial Pluralistic Ignorance, and the Myth of Colorless Individualism in Bostick v. Florida, 67 Tul. L. Rev. 1979 (1993).
. As a result of a number of congressional proposals to eliminate Affirmative Action programs, a number of congressional hearings and discussions in Congress were held. Senator Carol Moseley-Braun provided the following insight on the impact of Affirmation Action on African-American males:
AFRICAN-AMERICAN MEN STILL MOST IN NEED
Mr. President, it is also worth pointing out-when we discuss the program that women have made that African-Americans in general, and African-American men in particular, have benefitted the least of any group from affirmative action. When you say the words, “affirmative action,” many people automatically think of a black man as the beneficiary.
Consider this: Median annual earnings for African-American men have actually shown little or no improvement over the past two decades compared to white men. In 1975, black men earned 74.3 percent of what white males did. In 1985, that figure was 69.7 percent, a drop of almost 5 percent points. In 1993, that figure was back up to 74 percent-but still lower than the 1975 level.
In 1979, 99.1 percent of senior level male employees were white, while 0.2 percent were black. In 1989, the figure for white males had declined slightly to 96.9 percent, while blacks has risen to 0.6 percent-still less than 1 percent.
Unfortunately, the lack of progress by black men applies across the board, regardless of qualifications or education level. And the fact remains that, for black men, professional degrees do not necessarily close the earnings gap: African-American men with professional degrees earn 79 percent of the amount earned by white males who hold the same degree, and who are in the same job category.
And finally, a Wall Street Journal study showed that in the 1990-91 recession, black men were the only group that suffered a net employment loss. They suffered job losses in 36 States, and in 6 of the 9 major industries. They held 59,479 fewer jobs at the end of the recession than they had held at the beginning. I could go on citing statistics. But what these numbers tell us is that, despite the claims of affirmative action opponents, black men are not taking all of the jobs that were formerly held by white men.
This group-black men-is the segment of the population that has faced the most persistent discrimination, that has encountered the toughest problems, and has had the longest road to travel. Without our past efforts to create equal opportunity, black men might be much worse off; at the very least, this is not the time to compound the problem.
141 Cong. Rec. S4940-03 (Mar. 30, 1995) (statement of Carol Moseley-Braun) [[[[hereinafter Senator Moseley-Braun statement].
. Adarand, 115 S. Ct. 2097.
. 480 U.S. 149 (1987). For a full discussion of the Paradise decision, see Neal Devins, Affirmative Action After Reagan, 68 Tex. L. Rev. 353 (1989); Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 Stan. L. Rev. 1105 (1989); Michael Rosenfeld, Decoding Richmond: Affirmative Action and the Elusive Meaning of Constitutional Equality, 87 Mich. L. Rev. 1729 (1989).
. Paradise, 480 U.S. at 153.
. Id. at 167.
. The court outlined the following factors to consider when determining whether a race-conscious remedy is available: “the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” Id. at 171.
. Other cases have determined that the race-conscious provisions meet the scrutiny test. See Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992), cert. denied, 506 U.S. 827 (1992); Stuart v. Roache, 951 F.2d 446 (1st Cir. 1991), cert. denied, 504 U.S. 913 (1992); Alexander v. Prince George's County, Md., 901 F. Supp. 986 (D. Md. 1995).
. 443 U.S. 193 (1979).
. Id. at 204.
. Id. at 208.
. See Alfred W. Blumrosen, Draft Report on Reverse Discrimination Commissioned by Department of Labor, How the Courts Are Handling Reverse Discrimination Claims, Daily Lab. Rep. (BNA) No. 56, at d22 (Mar. 23, 1995) (suggesting that “ ‘reverse discrimination’ is not widespread; and that where it exists, the courts have given relief”).
. 41 C.F.R. pt. 60-2; 41 C.F.R. pt. 60-4; 1 Evelyn M. Idelson, U.S. Equal Employment Opportunity Comm'n, Affirmative Action and Equal Employment: A Guidebook for Employers (1974) (outlining steps in developing an effective Affirmative Action program).
. U.S. Dep't of Commerce, 1990 Census of Population, General Population Characteristics-United States 3 (1992) (finding that the total U.S. population in 1990 was 248,709,873 and the total African-American U.S. population for the same year was 29,986,060 or 12.1 percent).
. For example, the U.S. Department of Labor's policies and procedures for promoting equal opportunity in governmental registered apprenticeship programs states:
The goals and timetables shall be established on the basis of the sponsor's analyses of its underutilization of minorities and women and its entire affirmative action program. A single goal for minorities and a separate single goal for women is acceptable unless a particular group is employed in a substantially disparate manner in which case separate goals shall be established for such group. Such separate goals would be required, for example, if a specific minority group of women were underutilized even though the sponsor had achieved its standards for women generally.
29 C.F.R. s 30.4(f) (1995). This provision encourages organizations to identify discrimination with subgroups, for example, African-American males, and establish programs to eliminate barriers which prohibit their exclusion from employment opportunities.
. 940 F.2d 1394 (11th Cir. 1991), affirmed in part, remanded in part, 26 F.3d 1545 (11th Cir. 1994) (upholding the County's Affirmative Action plan which was challenged on constitutional and Title VII grounds).
. Peightal v. Metro. Dade County, 26 F.3d at 1549.
. 44 F.L.R.A. 1405 (1992) (holding the union proposal was not negotiable).
. The proposal 17 stated:
The Administration will increase the numbers of black males in the administrative series by 5 a year (total 15) thus reaching a UI [ [ [ [underrepresentation index] of at least 80 by the end of the plan.
The Administration shall increase the number of black males in the clerical series by 3 per year (total 15) in order to achieve a UI of 80 by the end of the plan.
Id. at 1462 (alteration in original).
. American Federation of Government Employees Local 1923, 44 F.L.R.A. at 1463 (quoting Agency's Statement of Position at 28).
. Id. at 1464.
. See CEO Study, supra note 295. In response to the CEO's concerns, the study made the following recommendation: “The Glass Ceiling Commission should explore ways in which recruitment of minority males can be made more open .... The Glass Ceiling Commission should undertake or promote research to better understand what appears to be the central problems in achieving parity for qualified minority males who are recruited into business.” Id. at 5-6.
. Robert B. Fitzpatrick, The Future of Employment Discrimination Law as the United States of America Enters the 21st Century, 1993 ALI-ABA Course of Study, Advance Employment Law and Litigation 874 (recommending that communities, schools and other institutions identify and recruit young African-Americans for future employment, if they successfully remain in school).
. Neckerman & Kirschenman, supra note 49, at 433 (surveying employers in the Chicago area and concluding that “[e]mployers commonly direct recruitment efforts to white neighborhoods and avoid recruitment sources that bring them a disproportionately inner-city black law force”).
. Id. at 440-41.
. See Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990) (African-American male alleged that the company has a “revolving door” policy of hiring African-Americans and then involuntarily terminating them through harassment). See also Ceo Study, supra note 295. A summary of the study reported: “The CEOs who were eager to increase African-American male representation were very concerned about retention. Time and again they said that the attrition rate for African-American males is high and they do not understand why.” Id. at 3.
. See Senator Moseley-Braun statement, supra note 303 (citing a number of successful diversity programs implemented by corporations).
. See Matthew T. Crosson, Cultural Diversity Program, Demonstrates Its Merit, New York L.J., May 1, 1992, at s-1 (describing the benefits of a cultural diversity training program to sensitize court employees of cultural differences among co-workers); Steven E. Jones, Black Men: Connections and Disconnections; Workplace Multiculturalism, The Pub. Manager: The New Bureaucrat, Sept. 22, 1994, at 23 (explaining the importance of diversity awareness programs to better understand African-American male workers). See also Pipelines of Progress, supra note 289, at 20 (recommending corporations institute diversity training programs).
. No. 3-89-402, 1991 U.S. Dist. LEXIS 17673 (D. Minn. May 7, 1991) (discussing consent decree requiring diversity training). See, e.g., United States v. TW Services, Inc., No. C-93-2028JW, 1993 U.S. Dist. LEXIS 7882 (N.D. Cal. Apr. 1, 1993) (considering a consent decree to resolve a complaint filed by the United States which alleged that Denny's restaurants, a subsidiary of TW Services, had engaged in a “pattern or practice of denying to black persons, on the basis of their race or color, the use and enjoyment of the facilities, services, and accommodations of Denny's Restaurants on the same basis as they make such available to non-black persons” included a provision for diversity and racial sensitivity training for all levels of employees).
The Pillsbury Co. agreed to establish a cultural-diversity department to resolve a complaint by African-American employees that Pillsbury engaged in a pattern and practice of employment discrimination against African-American employees. Michelle E. Klass, Mabone, et al. v. The Pillsbury Co., Legal Times, Oct. 29, 1990, at 21.
. Report of the National Advisory Commission on Civil Disorders 253-54 (The New York Times ed. 1968).
. Even though I did not discuss Congress' role in remedying employment discrimination against African-American males, Congress has a compelling duty to address this issue. The Constitution mandates a meaningful response.