Equal Opportunity And The Law

中国经济管理大学 MBA公益课堂

（加里·德斯勒）

Equal Opportunity And The Law

Equal Opportunity 

And 

The Law

2

Lecture Outline

Strategic Overview

Equal Opportunity 1964 - 1991

Title VII of the 1964 Civil Rights Act

Executive Orders

Equal Pay Act of 1963

Age Discrimination in Employment Act of 1967

Vocational Rehabilitation Act of 1973

Pregnancy Discrimination Act of 1978

Federal Agency Guidelines

Early Court Decisions Regarding EEO

 Equal Employment Opportunity 1990-91 - Present

The Civil Rights Act of 1991

The Americans with Disabilities Act

Genetic Information Nondiscrimination Act

State and Local EEO Laws

Sexual Harassment

 Defenses Against Discrimination Allegations

The Central Role of Adverse Impact

       Bona Fide Occupational Qualification

Business Necessity

Other Considerations in Discriminatory Practice 

 Illustrative Discriminatory Employment Practices

        A Note on What You Can and Cannot Do

        Recruitment

Selection Standards

        Sample Discriminatory Promotion

        What the Supervisor Should keep in Mind

 The EEOC Enforcement Process

Voluntary Mediation

Mandatory Arbitration of Discrimination Claims

Diversity Management and Affirmative Action   

 Managing Diversity

Workforce Diversity in Practice

EEO versus Affirmative Action

Steps in an Affirmative Action Program

Recruiting Minorities Online

       Reverse Discrimination

In Brief:  This chapter gives a history of equal opportunity legislation, outlines defenses against discrimination allegations, gives examples of discriminatory practices, describes the EEOC enforcement process and suggests proactive programs.

Interesting Issues:  Affirmative Action programs have come under fire in recent years, even by some members of protected groups.  A very critical issue is whether Affirmative Action represents “a leg up” assistance for those who have been historically discriminated against, or if it becomes a "crutch" that hinders their motivation and ability to compete and perform.  While this is a delicate and potentially volatile issue, helping students see and understand both sides of the argument will help them understand the depth of these issues.

ANNOTATED OUTLINE

I. Equal Opportunity 1964-1991

A.  Background

     1. The Fifth Amendment (ratified in 1791) states, “no person shall be deprived of life, liberty, or property, without due process of the law.”

     2.     The Thirteenth Amendment (ratified in 1868) outlawed slavery, and courts have held it bars racial discrimination.

     3.  The Fourteenth Amendment (ratified in 1868) makes it illegal for any state to “make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,” and the courts have generally viewed this law as barring discrimination based on sex, national origin, or race.

     4. Section 1981 of Title 42 of the U.S. Code, passed as the Civil Rights Act of 1866, gives all persons the same right to make and enforce contracts and to benefit from the laws of the land.

B.  Title VII of the 1964 Civil Rights Act

     1. Background

a. The act says it is unlawful to fail or refuse to hire or to discharge an individual or otherwise to discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

      b. The act says it is unlawful to limit, segregate, or classify his/her employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee, because of such individual's race, color, religion, sex, or national origin.

1. Who does Title VII Cover?  It covers: a) all public or private employers of 15 or more persons; b) all private and public educational institutions; c) federal, state, and local governments; d) public and private employment agencies; e) labor unions with 15 or more members; and f) joint labor-management committees.

2. The EEOC (Equal Employment Opportunity Commission) was established byTitle VII.  It consists of five members (serving five-year terms), appointed by the president with the advice and consent of the Senate.  The EEOC investigates job discrimination complaints, and may file charges in court.

A. Executive Orders by various presidents have expanded the effect of equal employment laws in federal agencies.  Johnson’s administration (1963-1969) issued Executive Orders 11246 and 11375, which required contractors to take affirmative action (steps taken for the purpose of eliminating the present effects of past discrimination) to ensure equal employment opportunity.

B. Equal Pay Act of 1963 (amended in 1972) made it unlawful to discriminate in pay on the basis of sex when jobs involve equal work, equivalent skills, effort and responsibility, and are performed under similar working conditions.

E.  Age Discrimination in Employment Act (ADEA) of 1967 made it unlawful to discriminate against employees or applicants for employment who are between 40 and 65 years of age.

F.  Vocational Rehabilitation Act of 1973 required employers with federal contracts over $2500 to take affirmative action for the employment of handicapped persons.

G.  Pregnancy Discrimination Act (PDA) of 1978, an amendment to Title VII of the Civil Rights Act, prohibits sex discrimination based on “pregnancy, childbirth, or related medical conditions.”

H.  Federal Agency Guidelines are uniform guidelines issued by federal agencies charged with ensuring compliance with equal employment federal legislation explaining “highly recommended” employer procedures regarding matters like employee selection, record keeping, pre-employment inquiries, and affirmative action programs.

I.  Early Court Decisions Regarding Equal Employment Opportunity

     1. Griggs v. Duke Power Company, a case heard by the Supreme Court in which the plaintiff argued that his employer's requirement that coal handlers be high school graduates was unfairly discriminatory.  In finding for the plaintiff, the Court ruled that discrimination need not be overt to be illegal, that employment practices must be related to job performance, and that the burden of proof is on the employer to show that hiring standards are job related if it has an unequal impact on members of a protected class.

2. Albemarle Paper Company v. Moody, a Supreme Court case in which it was ruled that the validity of job tests must be documented, and that employee performance standards must be unambiguous.

Ø NOTES Educational Materials to Use

II.          Equal Employment Opportunity 1990-91 - Present

A.  The Civil Rights Act (CRA) of 1991 places burden of proof back on employers and permits compensatory and punitive damages.

     1. Burden of Proof was shifted back to where it was prior to the 1980s with the passage of CRA 1991; thus, the burden is once again on employers to show that the practice (such as a test) is required as a business necessity.   For example, if a rejected applicant demonstrates that an employment practice has a disparate (or “adverse”) impact on a particular group, the employer has the burden of proving that the challenged practice is job related for the position in question.

     2. Money Damages – Section 102 of CRA 1991 provides that an employee who is claiming intentional discrimination (disparate treatment) can ask for 1) compensatory damages and 2) punitive damages, if it can be shown the employer engaged in discrimination “with malice or reckless indifference to the federally protected rights of an aggrieved individual.”

3. Mixed Motives – CRA 1991 states: “An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”  Employers cannot avoid liability by proving it would have taken the same action – such as terminating someone – even without the discriminatory motive.   Plaintiffs in such so-called “mixed motive” cases recently gained an advantage from a U.S. Supreme Court decision in Desert Palace Inc. vs. Costa, where the court decided that the plaintiff did not have to provide evidence of explicitly discriminatory conduct, but could provide circumstantial evidence.

 B. The American with Disabilities Act requires employers to make reasonable accommodations for disabled employees, and it prohibits discrimination against disabled persons.

1. AIDS – The EEOC’s position is that the ADA prohibits discriminating against people with HIV/AIDS.

2. Qualified Individual – The act prohibits discrimination against those who, with or without a reasonable accommodation, can carry out the essential functions of the job.

3. Reasonable Accommodation – If the individual cannot perform the job as currently structured, the employer is required to make a “reasonable accommodation,” unless doing so would present an “undue hardship.”

4. Mental Impairments and the ADA – Mental disabilities now account for the greatest number of claims brought under the ADA.  “Mental impairment includes any mental or psychological disorder, such as emotional or mental illness.”

5. The ADA in Practice – ADA complaints are flooding the EEOC and the courts.  However, 96% of federal court decisions in a recent year were for the employer.

6. Ten ADA Employer Guidelines – The ADA imposes certain legal obligations on employers:

1. An employer must not deny a job to a disabled individual if the person is qualified and able to perform the essential functions of the job; if the person is otherwise qualified but unable to perform an essential function, the employer must make a reasonable accommodation unless doing so would result in undue hardship.  HIV-positive individuals are generally ADA disabled, whether or not they are showing symptoms.

2. Employers are not required to lower existing performance standards or stop using tests for a job as long as those standards or tests are job related and uniformly applied to all employees and candidates for that job.

3. Although employers may not make pre-employment inquiries about a person’s disability, they may ask questions about the person’s ability to perform specific essential job functions.

4. Employers cannot order current employees to take a medical exam if they have not exhibited any behavior that would suggest performance problems.

5. Employers should review job application forms, interview procedures, and job descriptions for illegal questions and statements.

6. The ADA does not require employers to have job descriptions, but it’s probably advisable to have them. Job descriptions should outline the essential functions of the job.

7.   Courts will tend to define “disabilities” quite narrowly.

8.  Employers do not need to allow misconduct or erratic performance even if the behavior is linked to the disability.

9.  The employer does not have to create a new job or allow the employee light duty indefinitely, unless such a position already exists.

10. Employers should not treat employees as if they are disabled. If their condition can be controlled, the courts usually won’t consider them disabled.  

C.  Genetic Information Nondiscrimination Act of 2008 (GINA) – prohibits       discrimination by health insurers and employers based on people’s genetic information.  Specifically, it prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.

D.  State and Local Equal Employment Opportunity Laws – typically, further restrict employers’ treatment of job applicants and employees, especially those not covered by federal legislation.  State and local equal employment opportunities agencies play a role in the equal employment compliance process.

Ø NOTES Educational Materials to Use

           E.  Sexual Harassment 

1. Harassment on the basis of sex that has the purpose or effect of substantially interfering with a person’s work performance or creating an intimidating, hostile, or offensive work environment is sexual harassment.  It includes unwelcome sexual advances, requests for

      favors and other verbal or physical conduct of a sexual nature that                                                                                                                                       takes place under any of the following conditions:

a.  submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.

b.  submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

c. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

     2. Proving Sexual Harassment:  There are 3 main ways an employee can prove sexual harassment:

a. Quid Pro Quo - proves that rejecting a supervisor’s advances adversely affected tangible benefits, like raises or promotions.

b. Hostile Environment Created by Supervisors - shows that even though there were no direct threats or promises in exchange for sexual advances, advances interfered with performance and created an offensive work environment. 

c. Hostile Environment Created by Coworkers or Non-employees - An employer is liable for the sexually harassing acts of its employees and in some cases, customers, if the employer knew or should have known of the harassing conduct.  

     3. Supreme Court Decisions 

a. A tangible job action is not necessary in a quid pro quo case.

b. Employer must show that it took “reasonable care” to prevent and promptly correct any sexually harassing behavior.

c. Employees must take advantage of any preventative or corrective opportunities provided by the employer.

     4. What the Manager/Employer Should Do

a. Take all complaints about harassment seriously.

b. Issue a strong policy statement condemning such behavior.

c. Inform all employees about the policy prohibiting sexual harassment and of their rights under the policy.

d. Develop a compliant procedure.

e. Establish a management response system that includes an immediate reaction and investigation by senior management.

f. Begin training supervisors and managers to increase their own awareness of the issues.

g. Discipline managers and employees involved in sexual harassment.

h. Keep thorough records of complaints, investigations, and actions taken.  A form such as in figure 2.2 can facilitate this process.

     5. What the Employee Can Do

a. File a verbal contemporaneous compliant or protest with the harasser and the harasser’s boss stating that the unwanted overtures should cease because the conduct is unwelcome.

b. Write a letter to the accused.

c. If the unwelcome conduct does not cease, file a report regarding the unwelcome conduct and unsuccessful efforts to get it to stop with the harasser’s manager and/or to the human resource director.

d. If the letters and appeals to the employer do not suffice, the accuser should turn to the local office of the EEOC to file the necessary claim.

e. The employee can also consult an attorney about suing the harasser for assault and battery, intentional infliction of emotional distress, and injunctive relief and to recover compensatory and punitive damages if the harassment is of a serious nature.  The Federal Violence Against Women Act of 1994 provides another avenue women can use to seek relief for violent sexual harassment.

Managing The New Workforce: Enforcing Equal Employment Laws with International Employees - The 1991 Civil Rights Act marked a substantial change in the geographic applicability of equal rights legislation.  Congressional legislation generally only applies within U.S. territorial borders unless specifically stated otherwise.  However, CRA 1991 specifically expanded coverage by amending the definition of employee in Title VII to mean a U.S. citizen employed in a foreign country by a U.S. owned or controlled company.  Theoretically, U.S. citizens working overseas for U.S. companies enjoy the same equal employment opportunity protection as those working within U.S. borders. In practice, however, the laws of the country in which the U.S. citizen is working may take precedence. Table 2-3 provides guidelines for applying EEO law internationally.

III. Defenses Against Discrimination Allegations

A. The Central Role of Adverse Impact – Employer may not institute an employment practice that causes a disparate impact on a particular class of people unless they can show that the practice job related and necessary. 

B.

1. How can Someone Show Adverse Impact? There are four basic approaches:

a. Disparate Rejection Rates - The Four Fifths Rule states that “a selection rate for any racial, ethnic or sex group which is less than 4/5ths or 80% of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact, while a greater than 4/5ths rate will generally not be regarded as evidence of adverse impact. These disparate rejection rates can be demonstrated when there is a discrepancy between rates of rejection of members of a protected group and of others.

b. Restricted Policy is an approach that means demonstrating that the employer’s policy intentionally or unintentionally excluded members of a protected group.

c. Population Comparisons is an approach that compares 1) the percentage of the protected group and white workers in the organization with 2) the percentage of the corresponding groups in the labor market, where the labor market is usually defined as the U.S. Census data for the Standard Metropolitan Statistical Area.

d. McDonnell-Douglas Test - When an applicant is qualified but rejected, and the employer continues seeking applicants, the Court has determined that a prima facie case of disparate treatment has been established under these conditions: the person belongs to a protected class; the person applied and was qualified for the job for which the employer was seeking applicants; despite the qualification, the person was rejected; and that after rejection, the position remained open and the employer continued to seek applications from persons with the individual complainant’s qualifications.

C. Bona Fide Occupational Qualification (BFOQ) – is a defense used to justify an employment practice that may have an adverse impact on members of a protected class. It is a requirement that an employee be of a certain religion, sex, or national origin where that is reasonably necessary to the organization’s normal operation. This is ever more narrowly interpreted by courts.

     1. Age as a BFOQ – ADEA does permit disparate treatment in those instances when age is a BFOQ.  There is a narrowing of exceptions for BFOQ.  FOA (factors other than age) is a defense the employer can use which argues that its actions were “reasonable” based on some factor other than age.

     2. Religion as a BFOQ – is justified in the case of religious organizations or societies that require employees to share their particular religion. 

     3. Gender as a BFOQ for positions requiring specific physical characteristics necessarily possessed by one sex.

     4. National Origin as a BFOQ – A person’s national origin may be a BFOQ.

D. Business Necessity – is a defense created by the courts, which requires an employer to show an overriding business purpose for the discriminatory practice and that the practice is therefore acceptable.

E. Other Considerations in Discriminatory Practice Defenses:  1) good intentions are no excuse; 2) employers cannot count on hiding behind collective bargaining agreements, and 3) employers can react to a charge by agreeing to eliminate the illegal practice and (when required) by compensating the individuals discriminated against.

Ø NOTES Educational Materials to Use

IV. Illustrative Discriminatory Employment Practices

A note on what you can and cannot do – preemployment questions are not inherently legal or illegal. Rather, the impact of the questions is what courts assess in making determinations about discriminatory practice. “Problem questions” are those which screen out members of a protected group. The EEOC approves the use of “testers” posing as applicants to test a firm’s procedures. Care should be taken in devising employment practices and in training recruiters. 

A.  Recruitment - If the workforce is not truly diverse, relying on word of mouth to spread information about job openings can reduce the likelihood of all protected groups having equal access to job openings. It is unlawful to give false or misleading job information. Help wanted ads should be screened for potential age and gender bias

B.  Selection Standards - Educational requirements and tests that are not job related, or which result in adverse impact can be found to be illegal.  Showing preference to relatives may also contribute to a lack of racial diversity; Height, weight, and physical characteristics should be job related.  Felony conviction information can be sought, but arrest records negate the presumption of “innocent until proven guilty” and may result in adverse impact against groups with a high incidence of arrests.  Application forms should not contain questions which may allow potentially discriminatory information to be gathered.  Discharge due to garnishment may result in adverse impact to minority groups. C.Sample Discriminatory Promotion, Transfer, and Layoff Practices – Fair employment laws protect not just job applicants but also current employees.  Employees have filed suits against employers’ dress, hair,  uniform and appearance codes under Title VII, claiming sex discrimination and sometimes racial discrimination. In some cases, the courts have agreed.

C. What the Supervisor Should Keep in Mind – Understand the questions you can and cannot ask when interviewing applicants, and know what constitutes sexual harassment, and how equal opportunity law affects all your human resources decision, including those relating to appraisal, compensation, promotions, disciplinary procedures, and employee dismissals.

V. The EEOC Enforcement Process

A.  Processing a Charge – All managers should have a working knowledge of the steps in the EEOC claim process.

1. File Charge – Under CRA 1991, the charge generally must be timely filed in writing and under oath by (or on behalf of) the person claiming to be aggrieved, or by a member of the EEOC who has reasonable cause to believe that a violation occurred.  

2.  Charge Acceptance - The EEOC can either accept the charge or refer it to the state or local agency. 

4. Serve notice -  After the charge has been filed, the EEOC has 10 days to serve notice on the employer.

5. Investigation/Fact Finding Conference - The EEOC then has 120 days to investigate the charge to determine whether there is reasonable cause to believe it is true. An informal fact finding conference is held early in the investigation to see if negotiation is possible. The emphasis is on settlement.

5.  Cause/No Cause - If charges are dismissed, EEOC must issue the charging party a Notice of Right to Sue. The person has 90 days to file suit on his/her own behalf.  If EEOC finds reasonable cause for the charge, it must attempt conciliation. 

6.  Conciliation - Under Title VII, the EEOC has 30 days to work out a conciliation agreement between the parties before bringing suit.  The conciliation agreement is signed by all parties and submitted for EEOC approval

7.  Notice to Sue - If the EEOC is unable to obtain an acceptable conciliation agreement, it may sue the employer in federal district court or issue a Notice of Right to Sue to the person who filed the charge.

B. Voluntary Mediation -   A neutral third party may aid the parties in reaching voluntary resolution. The EEOC will ask the employer to participate if the claimant agrees to mediation. Employer options  include  mediating the charge, making a settlement offer or preparing a position statement for the EEOC.

C. Mandatory Arbitration of Discrimination Claims  - As many courts come to view compulsory arbitration as an acceptable alternative to litigation, the following are suggestions to employers:

a.   Review all employment discrimination suits filed to determine 

 whether they involve an employee subject to any type of arbitration    agreement. Decide whether to move to compel arbitration of the claim.

b. Consider inserting a mandatory arbitration clause in the employment application or employee handbook.

c. To protect against appeal, institute steps to protect against arbitrator bias; allow the arbitrator to afford a claimant broad relief and allow for a reasonable amount of fact-finding.

Ø NOTES Educational Materials to Use

VI.   Management Guidelines for Addressing Claims

A.  During the EEOC Investigation – there are key things to keep in mind when dealing with a discrimination charge:

1. Three principles – First, ensure there is information in the EEOC’s file which demonstrates that the charge has lack of merit. Second, limit the information supplied to only the issues raised in the charge itself. Third, get as much information as possible about the charging party’s claim.

2. Meet with the employee – to ask specifics about the who, what, and when of the claim, and whether there are witnesses. Summarize the discussion in a written statement and have the employee sign and date it.

3. EEOC authority – Though they cannot make findings, EEOC investigators can make recommendations. Reasonable cooperation is prudent, since a recommendation is often the determining factor in whether the EEOC finds cause in a  discrimination complaint.

4. Submitting documents – It is often in the employer’s best interests to cooperate. However, the EEOC can only legally compel employers to supply documents requested by obtaining a court subpoena.

5. Position statement – A written  statement based on HR’s own investigation,  which details the employer’s policy against discrimination and provides documents  that support the company’s position can be helpful.

B.  During the Fact-Finding Conference – The employer should be aware that: the only official record of the conference is the notes taken by the EEOC investigator; an attorney may be brought to the conference; the conference often occurs before the employer is fully informed of the facts of the charge and the case; and that witnesses, especially supervisors, should be aware of the long-range legal significance of their statements in the conference. 

C. During the EEOC Determination and Attempted Conciliation – If there is a finding of cause management should review it carefully and point out any inaccuracies in writing to the EEOC. Some experts argue against conciliation because it is viewed by the  EEOC as admission of guilt rather than a compromise, and because settlement may occur later, should a suit be filed.

When You’re On Your Own:  HR and Small Business Dealing with Discrimination Issues and the EEOC:  In most companies, employment discrimination issues tend to grow out of actions by individuals supervisors.  Generally speaking, the EEOC enforces equal employment compliance issues against all but the very smallest of employers.  Therefore, most employers are at risk even from “non-discriminatory” actions which can trigger a discrimination claim and lawsuit.   

VII. Diversity Management and Affirmative Action Programs

A. Managing Diversity – means taking steps to maximize diversity’s potential advantages while minimizing the potential barriers, such as prejudices and bias that can undermine the functioning of a diverse workforce.  One diversity expert concluded that five sets of voluntary organizational activities are at the heart of any diversity management program:  1) provide strong leadership; 2) assess the situation; 3) provide diversity training and education; 4) change culture and management systems; 5) evaluate the diversity management program.

B. Workforce Diversity in Practice – Employers use various means to manage workforce diversity, including voluntary affirmative action programs, organizing minority employee’s networks and expansion of multicultural markets..  The aim is to voluntarily enhance employment opportunities for women and minorities.

C. Equal Employment Opportunity Versus Affirmative Action – Equal employment opportunity aims to ensure that anyone, regardless of race, color, sex, religion, national origin, or age, has an equal chance for a job based on his/her qualifications.  Affirmative action goes beyond equal employment opportunity by requiring the employer to make an extra effort to recruit, hire, promote, and compensate those in protected groups to eliminate the present effects of past discrimination.

D. Steps in an Affirmative Action Program – Executive Order 11246 requires that a numerical analysis of the workforce be conducted, and that barriers to equal employment be eliminated through a good faith effort strategy. It is vital that current employees see this program as fair. This is accomplished through good communication, program justification and transparent selection procedures. These are the steps in an affirmative action program:

1. Issue a written equal employment policy

2. Appoint a top official with responsibility and authority to direct and implement the program

3. Publicize the equal employment policy and affirmative action commitment

4. Survey present minority and female employment by department and job classification to determine locations where affirmative action programs are especially desirable.

5. Carefully analyze employer HR practices to identify and eliminate hidden barriers.

6. Develop and implement specific programs to achieve these goals (the heart of the plan) and improve utilization of females and minorities.

7. Use focused recruitment to find qualified applicants from the target group(s).

8. Establish an internal audit and reporting system. 

9. Develop support for the program both internally and externally

Improving Productivity through HRIS: Measuring Diversity -  A number of metrics for assessing the efficiency and effectiveness of the organization’s EEOC and diversity efforts are at the HR manager’s disposal.  They include the number of EEOC claims per year; the cost of HR related litigation; percent minority; women promotions; and various measures for analyzing the survival and loss rate among new diverse employee groups.   HRIS applications provide several diversity-related software options aimed at boosting the accuracy of information to managers. Through such packages, calculations are available to compute cost per diversity hire; a workforce profile index; the numeric impact of voluntary turnover among diverse employee groups; the effectiveness of the company’s supplier diversity initiatives; current diversity measures; and direct and indirect replacement cost per hire.

E. Recruiting Minorities Online – In practice, many minorities are less likely to be using the Internet, for instance, and less likely to hear about good jobs from their friends.  One option is to direct recruiting ads to one or more of the online minority-oriented job markets.

F. Reverse Discrimination – The courts have been grappling with the use of quotas in hiring, and particularly with claims by white males of reverse discrimination.  Many cases addressed these issues, but no consistent answer has emerged.

Ø NOTES Educational Materials to Use

DISCUSSION QUESTIONS

1. Explain the main features of Title VII, Equal Pay Act, Pregnancy Discrimination Act, Americans with Disabilities Act, Civil Rights Act of 1991.  An explanation of these EEO laws can be found in Table 2-1.

2. What important precedents were set by the Griggs v. Duke Power Company case?  The Albemarle Paper Co. v. Moody?  For the Griggs v. Duke Power Company case, the case was heard by the Supreme Court in which the plaintiff argued that his employer's requirement that coal handlers be high school graduates was unfairly discriminatory.  In finding for the plaintiff, the Court ruled that discrimination need not be overt to be illegal, that employment practices must be related to job performance, and that the burden of proof is on the employer to show that hiring standards are job related.  For the Albemarle Paper Co. v. Moody, the Supreme Court ruled that the validity of job tests must be documented and that employee performance standards must be unambiguous.

3. What is adverse impact?  How can it be proved?  The overall impact of employer practices that result in significantly higher percentages of members of minorities and other protected groups being rejected for employment, placement, or promotion.  The complainant need only establish a prima facie case:  showing that the employer's selection procedures did have an adverse impact on a protected minority group.  This is done by one of four basic approaches:  disparate rejection rates; the restricted policy approach; population comparisons; the McDonnell-Douglas Test. 

4. What is sexual harassment?  How can an employee prove sexual harassment?  Sexual harassment is harassment on the basis of sex that has the purpose or effect of substantially interfering with a person’s work performance or creating an intimidating, hostile, or offensive work environment.  An employee can prove sexual harassment in three main ways:  1) quid pro quo – prove that rejecting a supervisor’s advances adversely affected tangible benefits; 2) hostile environment created by supervisors; and 3) hostile environment created by co-workers or nonemployees.

5. What are the two main defenses you can use in the event of a discriminatory practice allegation, and what exactly do they involve?  The two main defenses you can use in the event of a discriminatory practice allegation are bona fide occupational qualification (BFOQ) and business necessity.  BFOQ is a requirement that an employee be of a certain religion, sex, or national origin where that is reasonably necessary to the organization’s normal operation.  Business necessity is a justification for an otherwise discriminatory employment practice, provided there is an overriding legitimate business purpose.

6. What is the difference between disparate treatment and disparate impact?  The main difference is one of intent.  Disparate treatment means that there was an intent to treat different groups differently.  Disparate impact does not require intent, but merely to show that an action has a greater adverse effect on one group than another.

INDIVIDUAL AND GROUP ACTIVITIES

1. Working individually or in groups, respond to these three scenarios based on what you learned in Chapter 2.  Under what conditions (if any) do you think the following constitute sexual harassment?(a) A female manager fires a male employee because he refuses her request for sexual favors. (b) a male manager refers to female employees as “sweetie” or “baby.” (c) Two male employees are overheard by a third female employee exchanging sexually oriented jokes.  In answering the questions, the students should keep in mind the three main ways sexual harassment can be proved, as well as the steps the employee should take in alerting management.

2. Working individually or in groups, discuss how you would set up an affirmative action program.  It is important that students reach a decision of whether to use the good faith effort strategy or the quota strategy.  Most experts would suggest the good faith effort strategy is the most legally acceptable approach.  The following list of six actions should be demonstrated in the student plans: increasing the minority or female applicant flow; demonstrating top management support for the equal opportunity policy; demonstrating the equal opportunity commitment to the local community; keeping employees informed about the specifics of the affirmative action program; broadening the work skills of incumbent employees; and institutionalizing the equal employment policy to encourage supervisors’ support of it.

3. Compare and contrast the issues presented in Bakke with more recent court rulings on affirmative action.  Working individually or in groups, discuss the current direction of affirmative action.  The basic questions addressed in Bakke focused on when preferential treatment becomes discrimination and under what circumstances discrimination will be temporarily permitted.  Neither question was fully answered.  Subsequent cases have continued to address these issues and clarify more specifically the scope and intent of affirmative action.  For example, in the Paradise case, the court ruled that the courts can impose racial quotas to address the most serious cases of racial discrimination.  In Johnson, the court ruled that the public and private employers may voluntarily adopt hiring and promotion goals to benefit minorities and women.  The Johnson ruling may limit claims of reverse discrimination by white males.

4.   Working individually or in groups, write a paper entitled “What the manager should know about how the EEOC handles a person’s discrimination charge.”  The students should include the following information in their paper.  The EEOC can either accept it or refer it to the state or local agency.  After it has been filed, the EEOC has 10 days to serve notice on the employer, and then investigate the charge to determine whether there is reasonable cause to believe it is true within 120 days. If charges are dismissed, EEOC must issue the charging party a Notice of Right to Sue. The person has 90 days to file suit on his/her own behalf.  If EEOC finds reasonable cause for the charge, it must attempt a conciliation. If conciliation is not satisfactory, it can bring a civil suit in federal district court, or issue a Notice of Right to Sue to the person who filed the charge.  Under Title VII, the EEOC has 30 days to work out a conciliation agreement between the parties before bringing suit.  If the EEOC is unable to obtain an acceptable conciliation agreement, it may sue the employer in federal district court.

5. Explain the difference between affirmative action and equal employment opportunity? Equal employment opportunity aims to ensure that anyone, regardless of race, color, sex, religion, national origin, or age has an equal chance for a job based on his or her qualifications.  Affirmative action requires the employer to make an extra effort to hire and promote those in protected groups and includes specific actions designed to eliminate the present effects of past discrimination.

6. Assume you are the manager in a small restaurant; you are responsible for hiring employees, supervising them, and recommending them for promotion.  Working individually or in groups, compile a list of potentially discriminatory management practices you should avoid.  

Acceptable answers include the following:

Ensure that recruitment practices are non-discriminatory, avoiding word-of-mouth dissemination of information about job opportunities when the workforce is substantially white, or all members of some other class.    Avoid giving false or misleading information to members of any group or to fail or refuse to advise them of work opportunities.  Avoid advertising classifications that specify gender or age unless it is a bona fide occupational qualification for the job. 

Avoid asking pre-employment questions about an applicant’s race, color, religion, sex, or national origin. 

Do not deny a job to a disabled individual if the person is qualified and able to perform the essential functions of the job.  Make reasonable accommodations for candidates that are otherwise qualified but unable to perform an essential function unless doing so would result in a hardship.

Apply tests and performance standard uniformly to all employees and job candidates.  Avoid tests if they disproportionately screen out minorities or women and are not job related.

Do not give preference to relatives of current employees if your current employees are substantially non-minority.

Do not establish requirements for physical characteristics unless you can show they are job related.

Do not make pre-employment inquiries about a person’s disability, but do ask questions about the person’s ability to perform specific essential job functions.

Review job application forms, interview procedures, and job descriptions for illegal questions and statements.  Check for questions about health, disabilities, medical histories, or previous workers’ compensation claims.

Do not ask applicants whether they have ever been arrested or spent time in jail.  However, you can ask about conviction records.

7.  The HRCI “Test Specifications” appendix lists the knowledge someone studying for the HRI certification exam needs to know in each area of human resource management.  In groups of 4-5 students, do four things; (1) review that appendix now; (2) identify the material in this chapter that relates to the required knowledge the appendix lists; (3) write four multiple choice exam questions on this material that you believe would be suitable for inclusion in the HRCI exam; and (4) if time permits, have someone from your team post your team’s questions in front of the class, so the students in other teams can take each other’s exam questions.

Student responses to question 2 should include the following:

Employment related laws including Title VII, Civil Rights Act of 1991 (CRA 1991), Equal Pay Act of 1963, Age Discrimination in Employment Act of 1967 (ADEA), Americans with Disabilities Act (ADA), Vocational Rehabilitation Act of 1973, Vietnam Veterans Readjustment Assistance Act of 1974, Pregnancy Discrimination Act (PDA), Federal Violence Against Women Act of 1994; 

Federal Agency guidelines and regulations such as EEOC uniform guidelines and Executive Orders such as 11246 and 11375, and the Office of Federal Contract Compliance Programs, (OFCCP) which implements orders and ensures compliance.

Below are some suggested multiple choice questions in response to question 3:

1. Which of the following is not a discriminatory selection standard?

a. Educational requirements

b. Tests

c. Preference to Relatives

d. Conviction records

Answer:  d – employers may ask about conviction records, however, they may not ask about arrest records as there is always a presumption of innocence until proven guilty, arrest records in general are not valid for predicting job performance, and police have arrested a higher proportion of minorities than whites.

2. Which law states that an employer cannot discriminate based on race, color, religion, sex or national origin?

a. Executive Order 11246

b. ADEA

c. ADA

d. Title VII

Answer:  d - Title VII was one of the first laws that barred discrimination in employment practices.

3. A reasonable accommodation under ADA would be:

a. Modifying or acquiring equipment to assist the person

b. Paying a higher wage to the person

c. Lowering performance standards for the person

d. Conducting regular physical exams to assess their abilities

 Answer:  a – modifying or acquiring equipment to assist the person may be a reasonable accomodation as long as it financially does not place undue hardship on the employer.  None of the other answers do not meet the definition of “reasonable accommodation”.

4. Under which exception to employment practices may factors such as age, gender, religion or national origin be used as an acceptable selection standard ? 

a. Adverse Impact

b. Affirmative Action

c. BFOQ

d. ADA

Answer:  c – Bona Fide Occupational Qualification (BFOQ)

EXPERIENTIAL EXERCISES & CASES

Experiential Exercise: “Space Cadet” or Victim?

1. Divide the class into groups of three to five students.  

2. Each group should develop answers to the following questions:  

a. Based on what you read in this chapter, on what legal basis could the 61-year-old California attorney claim he was a victim of discrimination?

Clearly, age discrimination is one of the claims.   The ADEA made it unlawful to discriminate against employees who are over 40.    Disability discrimination is another potential claim if the claimant relates substandard performance to a disability.

b. On what laws and legal concepts did the employer apparently base its termination of this 61-year-old attorney?

Under the legal concept of management rights, employers have the right to hire, promote, 

assign, discipline, and discharge employees.  Under management rights is the concept of “at-will employment”,  a common law rule used by employers to assert their right to end an employment relationship with an employee at any time for any cause.   The employer in this case has based its termination on job performance, with documentation of complaints from association members about his advice, subsequent complaints over a two year period from association members, and he was fired for mistreating members and providing inadequate legal advice.

c. Based on what laws or legal concepts could you take the position that it is legal to fire someone for poor performance even though there may be a discriminatory aspect to the termination (which is not say that there necessarily was such a discriminatory aspect with this case.)

A person who feels he was discriminated against must prove either that he was subjected to unlawful disparate treatment (intentional discrimination) or that the procedure in question has a disparate impact (unintentional discrimination) upon members of his protected class (in this case, age).  The employer here has provided evidence that its decision to terminate was based on legitimate nondiscriminatory reasons (documented job performance issues) which have nothing to do with the prohibited discrimination alleged.   This is a basic defense that is accepted by the courts, and in fact, was in this case.

d. If you were the judge called on to make a decision on this case, what would your decision be, and why?

Most students will probably come to the same conclusion as the judge in this case, that the Association fired the 61 year old lawyer because of performance.

3. Foster Corporation, a large production company, has had 350 white applicants for open positions 2006. Schlein Enterprises had 400. Foster hired 35 of those applicants in 2006. Schlein hired 40. Foster had only 42 Hispanic applicants in 2006, while Schlein had 65. Foster hired 4 of those applicants in 2006 and Schlein hired 5. Using the 4/5ths rule, is there evidence of adverse impact in selection at Foster? At Schlein? Can there be disparate treatment even if there is no evidence of adverse impact? Justify your answers.

The first step in determining adverse impact is to calculate the selection ratios of each population. At Foster, the ratio is 35 hired white applicants to 350 applicants, or .10. At Schlein, the ratio is 40 to 400 for white applicants, also .10.  The Foster ratio for Hispanics is 4 to 42, or .095, and the Schlein ratio is 5 to 65, or .076. Next, the selection rate for Hispanics must be divided by that for the whites. At Foster,  this means .095 divided by .10, or .95; in other words, the selection rate for minorities (Hispanics) is 95% of the rate for whites. The Schlein rate is .076 divided by .10, which is .76, meaning the selection rate for Hispanics is 76% of the white selection rate.. 

The 4/5ths rule says “a selection rate for any racial, ethnic or sex group which is less than 4/5ths or 80% of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact, while a greater than 4/5ths rate will generally not be regarded as evidence of adverse impact.” Therefore, there is evidence of disparate impact at Schlein, and not at Foster.

Disparate impact is often the result of a policy or procedure that unintentionally allows fewer opportunities for the protected class. Disparate treatment, on the other hand, is overt, and may therefore be present even when disparate impact is not.

Application Case:  A Case of Racial Discrimination?

1. Do you think Ms. Browne Sanders had the basis for sexual harassment suit? Why?  It does appear the Ms Browne Sanders had the basis for a sexual harassment suit.  The timing of her termination is quite suspect.  Given that Madison Square Garden terminated her employment only one month after she complained to top management about the harassment should raise serious concerns.  Also, the reason for her termination that she had “failed to fulfill professional responsibilities” seems vague and generalized.  The Garden also did not present credible witnesses to corroborate the reason for their decision.     

2. From what you know of this case, do you think the jury arrived at the correct decision?  If not, why not?  The jury did arrive at the appropriate decision given the facts that were presented in this case.  The Garden had a responsibility to demonstrate concrete reasons for their termination decision.  It does not appear that any specific reasons were shared with the jury.

3. Based on the few facts that you have, what steps could Garden management have take to protect itself from liability in this matter? A number of steps could be taken. First, the Garden should have conducted a thorough investigation and documented the results in a written report.  Second, the Garden supplied a very generalized response for the termination.  Before terminating an employee for performance, an organization should demonstrate that a number of actions were taken to coach and counsel the employee before termination.  Finally, the Garden should have a policy/program in place to show how claims of sexual harassment are addresses including a clause that prohibits and type of retaliation.

4. Given the fact that each of its stores has only a handful of employees, is her company covered by equal rights legislation.  As long as the total employee population of all stores equals or exceeds 15 employees, all staff are protected by equal rights legislation.  However, adhering to all employment legislation regarding of employee size makes good business sense and will help promote a working environment where all employees are treated fairly.

5. And finally, aside from the specific problems, what other personnel management matters (application forms, training, and so on) have to be reviewed given the need to bring them into compliance with equal rights laws?  All employment paperwork including the application, personnel file information, etc. should be reviewed to assure compliance with all employment and equal rights legislation.  Also, all documents regarding promotions, transfers, termination, etc. should also be reviewed.  All employment forms and documentation could be subpoenaed by a court or other federal, state, or local agency for review when claims of unfair treatment surface. 

Continuing Case:  Carter Cleaning Company

Questions

1. Is it true, as Jack Carter claims, that “we can’t be accused of being discriminatory because we hire mostly women and minorities anyway?”

This is not true at all.  Employers can be accused of discriminatory practices at any time.  In this case, female applicants were being asked questions about childcare that males were not being asked; minority applicants were being asked questions about arrest records and credit histories that non-minorities were not.  In addition, the reports of sexual advances towards women by a store manager and an older employee’s complaint that he is being paid less than other employees who are younger for performing the same job all raise serious issues in terms of discriminatory employment practices.  Potential charges include violation of Title VII, the Equal Pay Act, age discrimination, sexual harassment, and disparate treatment, 

2. How should Jennifer and her company address the sexual harassment charges and problems?

The first step would be to document the complaint and initiate an investigation, and if the finding of the investigation is that sexual harassment did, in fact, occur, then take the appropriate corrective action which could include discipline up to and including discharge.  In addition, the company should develop a strong policy statement and conduct training with all managers.

3. How should she and her company address the possible problems of age discrimination?

The company should review the compensation structure and pay rates to determine whether there is discrimination in their pay system with regard to older workers being paid less than younger workers for performing the same work.  If there are significant differences, then adjustments should be made to the pay system in order to rectify the problem.

4. Given the fact that each of its stores has only a handful of employees, is her company in fact covered by equal rights legislation?

Yes – the EEOC enforces equal employment compliance against all but the very smallest of employers.  All employees including part-time and temporary workers, are counted for purposes of determining whether an employer has a sufficient number of employees. State and local laws prohibit discrimination in most cases where federal legislation does not apply. 

5. And finally, aside from the specific problems, what other personnel management matters (application forms, training, and so on) have to be reviewed given the need to bring them into compliance with equal rights laws?

The company should do several things:

1. Develop an employee handbook which contains policy statements about equal employment opportunity, sexual harassment etc.

2. Develop an employment application which is free from discriminatory questions, as well as a standard interview guide which will ensure consistency of “legal” questions from candidate to candidate.

3. Conduct supervisory/management training to ensure that all managers are educated and aware of their responsibilities under EEO laws and regulations.

4. Develop and implement a complaint procedure and establish a management response system that includes an immediate reaction and investigation by senior management.

KEY TERMS

Title VII of the 1964 The section of the act that says an employer cannot discriminate

 Civil Rights Act on the basis of race, religion, sex, or national origin with respect

  to employment. 

EEOC The commission, created by Title VII, is empowered to investigate job discrimination complaints and sue on behalf of complainants.

affirmative action Steps that are taken for the purpose of eliminating the present effects of past discrimination. 

OFCCP This office is responsible for implementing the executive orders and ensuring compliance of federal contractors. 

Equal Pay Act of 1963 The act requiring equal pay for equal work, regardless of sex.

Age Discrimination in The act prohibiting arbitrary age discrimination

Employment Act of 1967 and specifically protecting individuals over 40 years old. 

Voc. Rehab. Act of 1973 The act requiring certain federal contractors to take affirmative action for disabled persons.  

Pregnancy Discrimination An amendment to Title VII of the Civil Rights Act that prohibits

Act (PDA) sex discrimination based on "pregnancy, childbirth, or related

  medical conditions." 

uniform guidelines Guidelines issued by federal agencies charged with ensuring compliance with federal equal employment legislation explaining recommended employer procedures in detail. 

protected class Persons such as minorities and women protected by equal opportunity laws, including Title VII.

 Civil Rights Act of 1991 This act places the burden of proof back on employers and

(CRA 1991) permits compensatory and punitive damages. 

mixed motive case A discrimination allegation case in which the employer argues that the employment action taken was motivated by a non-discriminatory reason.

Americans with The act requiring employers to make reasonable accommodation

Disabilities Act (ADA) for disabled employees.  It prohibits discrimination against

  disabled persons.

qualified individuals Under the ADA, those who can carry out the essential functions of the job.

sexual harassment Harassment on the basis of sex that has the purpose or effect of substantially interfering with a person's work performance or creating an intimidating, hostile, or offensive work environment.

Federal Violence Against Provides that a person who commits a crime of violence

Women Act of 1994 motivated by gender shall be liable to the party injured.

adverse impact The overall impact of employer practices that result in significantly higher percentages of members of minorities and other protected groups being rejected for employment, placement, or promotion. 

disparate rejection rates One test for adverse impact in which it can be demonstrated that there is a discrepancy between rates of rejection of members of a protected group and of others.

4/5ths rule States that “a selection rate for any racial, ethnic or sex group which is less than four fifths or 80% of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded as evidence of adverse impact.” 

restricted policy Another test for adverse impact, involving demonstration that an employer's hiring practices exclude a protected group, whether intentionally or not.

BFOQ Bona Fide Occupational Qualification.  Allows requirements that an employee be of a certain religion, sex, or national origin where that is reasonably necessary to the organization's normal operation.  Specified by the 1964 Civil Rights Act.

alternative dispute Grievance procedure that provides for binding arbitration

resolution as the last step.

diversity The variety or multiplicity of demographic features that characterize a company’s workforce, particularly in terms of race, sex, culture, national origin, handicap, age, and religion.

managing diversity Means maximizing diversity’s potential benefits (greater cultural awareness, and broader language skills, for instance) while minimizing the potential barriers (such as prejudices and bias) that can undermine the company’s performance. 

good faith effort One of two basic affirmative action plan strategies.  This

strategy emphasizes identifying and eliminating the obstacles to hiring and promoting women and minorities on the assumption that eliminating these obstacles will result in increased utilization of women and minorities.

reverse discrimination Claim that, due to affirmative action quota systems, white males are discriminated against

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