146 ANALYSING HUMAN RESOURCE MANAGEMENT
covered by legislative protection and the Pfeiffer caveat should assist. However
the American case law does not always provide support for this belief. An
examination of some of the landmark cases is instructive.
The author acknowledges the work of Bales (1994) and Weatherspoon
(2000) in identifying these cases and in the analyses provided by these authors,
which are heavily drawn upon in this chapter.
The decision inHoldenv.Owens-Illinois, Inc.is a frequently cited precedent.
Holden, a female African American, had been hired to manage the firm’s AA
programmes but was apparently fired within 6 weeks of her commencement
for, according to the district court, aggressively pursuing non-discriminatory
employment practices. In this case the district court stated that the employer
was merely practising window dressing by the token employment of minor-
ity individuals and was not serious about the issue. However, the decision
was appealed and the complaint by Holden was dismissed with a statement
from the court that Holden’s activities did not constitute protected activity
under the opposition clause of Title VII because this law does not require
the implementation of AA, notwithstanding that the enforcement of an AA
plan is consistent with the enforcement of Title VII (Weatherspoon 2000).
The basis of this decision has been followed in other cases. For example, the
same rationale was applied in the case ofPhillipsv.Pepsi Cola General Bottlers,
Inc., after which Weatherspoon (2000) concluded that the courts were taking a
very narrow view of the law and that the EEO/AA employee basically had little
or no protection in their roles. Once the term AA comes into the equation the
American courts seem to be very wary and quite protective of employers.
InJohnsonv.University of Cincinnati, a case related to a university vice pres-
ident of human resources and human relations, the operation of the double
standards are clear. In Johnson’s case he was hired not just to ensure com-
pliance with the regulations and the university’s AA plan, but his job was to
change the culture of the organization such that diversity would be accepted.
After a couple of years Johnson became concerned that the AA processes were
not effective so he wrote to the cabinet members of the university questioning
the commitment to AA. Subsequently, his performance was criticized which
culminated in Johnson filing a formal complaint with the EEOC complaining
that he was being discriminated against on the basis of his race and due to
his advocacy on behalf of women and minorities. Just over a month later his
employment was terminated. In the first instance, Johnson was unsuccessful
in that the court determined that the precedent in the Holden case mentioned
above is the one that should apply. This decision was not concurred with by
the court of appeals. His case was differentiated from Holden by the fact that
he explicitly protested that discrimination had occurred in the hiring process.
It is possible that the devil is in the detail though and that the American
courts expect an extremely high level of legal sophistication from plaintiffs(or
complainants), which I would submit is totally unreasonable. It appears that