Employee Discrimination: Keeping the Organization

Human Resource organizations should have thorough knowledge of the laws and regulations in place that affect not only human resource management but also all aspect of the company. It is the responsibility of HR to ensure that the company complies and understand laws that restrict the notion of employment discriminatory practices. General information should be given to employees throughout the organization by means of ongoing training or "pow-wow" sessions to maintain 100% awareness of laws geared to stop employment discrimination. Many organizations are placing employees in management level positions that graduate outside of the business discipline and may not have been exposed to topics relating to employment discrimination. This paper is directed towards those who have little or no knowledge of employment discrimination.

Introduction

Discrimination can be defined as a distinction in favor of or against a person or thing on a categorical basis rather than according to actual merit. Though intentional or unintentional, discrimination occurs and is present in all walks of life. Equal employment opportunities are the basis for the laws and regulations that were created to protect employees from discriminatory practices. These laws have a great impact on human resource management since it is HR who is responsible to have and maintain a thorough knowledge of the laws that governs how a company conduct business and treat their employees.

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Even though everyone within an organization should be exposed to the knowledge of employment laws, first line supervisors to the CEO should be kept informed. HR should ensure that the decisions made are consistent with fair employment practices and equal opportunity laws to ensure that the decisions later become the basis for extensive, costly, time-consuming and embarrassing discrimination litigation.

A continuous job analysis can assist HR in identifying those in the organization who needs to be introduced to employment laws or receive refresher courses to maintain their alertness to changes in the law as it may affect their daily decision-making. Employees should be able to identify the agency that enforces the laws, the most significant laws, the company's defenses and tips to preventing discrimination in the workplace.

EEOC - Equal Employment Opportunity Commission

With any type of rule, policy or law, it has to be enforced by a person, group or in the case of employment, an agency. The Equal Employment Opportunity Commission, better known as the EEOC, was created as a result of an amendment to Title VII of the Civil Rights Act with the purpose to enforce Title VII and other equal employment opportunity laws. By law the EEOC is required to accept and address all complaints filed. Initially after a charge is received, the EEOC acts a mediator and attempts to settle the charge with the accused organization. If a settlement can't be reached, the EEOC takes the next step of investigating the employee's charge.

The investigation can lead to a decision of no probable cause or probable cause. A result of probable cause calls for the EEOC to attempt to overcome the hostility of discrimination involved with the charge. In the next step, determining to the potential for litigation, the EEOC will look at certain factors such as the number of employees possibly affected or other charges against the employer. Depending on the results of the EEOC's review, a recommendation may be sent notifying the employee of their right to sue or the EEOC may seek action towards the employer.

The EEOC, along with other agencies, implemented the Uniform Guidelines on Employee Selection Procedures. These guidelines provide a foundation for making legal employment decisions about hiring, promoting, demoting, proper use of test and other selection procedures. The EEOC enforces the law and also is a great resource to the laws and regulations that promote equal employment opportunities. The HR unit communicates with this agency constantly to maintain a high degree of information on hand to ensure compliance of laws and regulations. This resource would not be possible if it was not for Title VII of the Civil Rights Act of 1964.

Title VII of the Civil Rights Act of 1964

Perhaps the most important statute dealing with employment discrimination and practices within the workplace is Title VII of the Civil Rights Act of 1964. Title VII can be summarized as the following: Title VII made it an "unlawful employment practice for an employer. . .to fail or refuse to hire or to discharge an individual, or otherwise to discriminate . . . with respect to [employment], because of such individual's race, color, religion, sex or national origin"(Arrendondo, 2002, 263).

It is illegal for an employer to discriminate in hiring, promoting, terminating employees based on race, color, sex, religion or national origin. Besides creating the EEOC, this act also generated two proving theories, one of which, an employee must show when they feel they have been discriminated against, disparate treatment and disparate impact. Disparate treatment is the employee's belief or concept that they have experienced discrimination based upon a prohibited reason (race, color, sex, religion or national origin). If proven, this theory can be direct or indirect. An applicant may allege that the hiring manager stated that they do not hire women.

An employee may over hear their manager talking with a co-worker, discussing how they refused to promote the employee because they were of Irish decent. In both examples, the discrimination, if true, is intentional on based on a prohibited reason. The hiring manager just completed interviewing 5 applicants for a position. Of the 5 applicants, the top applicant practices Islam. The hiring manager rejects the notion to hire the top applicant for the position and continues to conduct interviews to fill the position. In this case, it can be ruled out the lack of qualifications because the applicant is qualified and job availability because the hiring manager is still conducting interviews. The only assumption is that since the applicant practices Islam, religion, they didn't get the position.

Disparate impact has more of a group concept than individual. The employee has to show that even though the organization appears to have no intent to discriminate, there is an impact on a protected group. Under this theory, once again, the intent to discriminate is irrelevant, however, a decision that appeared neutral must demonstrate whether it's work related or a business necessity. For example, a company may have a policy stating that the employee is required to be of particular height and weight size. Men and women differ in height and weight and this policy eliminates the number of women applicants at a faster rate than men presenting disparate impact on women.

The Civil Rights Act of 1991 gave the opportunity for punitive damages to be awarded to the employee who accused the employer of discrimination providing the employee substantiate that the employer participated in discriminatory practices with malice or in a reckless manner with no regards to the law. This statute also created a group, the Glass Ceiling Commission, focused on the invisible barrier present in most organizations that prevents many women and minorities from achieving top-level management positions, also known as the glass ceiling. How businesses fill management positions, promote development practices to improve qualifications for advancement are examples that the commission view in steps to remove the glass ceilings in organizations.

Equal Pay Act of 1963 ( EPA ) The HR unit of an organization uses a job analysis to determine the dollar value of positions in company based on the significance of the duties & responsibilities and market value, just to name a few. The HR unit also takes in consideration the Equal Pay Act of 1963 to ensure there's no discrimination within the compensation system. The Equal Pay Act is as follows:

The EPA, passed in 1963, established the minimum wage and prohibited gender-based wage discrimination. It states in part: "No employer having employees subject to any provisions of this section shall discriminate . . . between employees on the basis of sex by paying wages to employees . . .at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work . . . under similar working conditions (Arrendondo, 2002, 263).

Jobs that require equal skill, effort, and responsibility and performed under the same conditions are considered substantially the same. Employers may not bypass the law to justify pay differences by simply labeling the same job with different titles when performed by men and women. The burden falls upon the employer to prove that the pay differences are a result of an excusable instance outlined by the EPA.

Unequal responsibility, seniority and merit pay system are the basis for which the EPA allows pay differences in the workplace. For an employer to claim unequal work, they must prove the skill/responsibility is substantially greater in one of the jobs compared, the tasks involving the skill/responsibility consume a significant amount of time for employees with questionable wages and the skill/responsibility must have value attached with the questioned pay differences.

The EPA raised the concept of comparable worth. Comparable worth is the employer's comparison of the worth of jobs to determine its pay rate. It allows jobs that are not the same, but of comparable worth to the employee, be examined for wage discrepancies. One may say that a secretary position within an organization is paid less and female dominated; at the same time, a construction position within the same organization is paid more and male dominated.

The employer is able to bypass the EPA limitation comparing jobs that are the same. Employers should be aware that there are harsh penalties waiting in the rear for those who violate the EPA. In 1999, following a Department of Labor audit, Texaco agreed to pay $3.1 million to female employees who had been consistently paid less than male counterparts; $2.2 million in back pay/interest and $900,000 in salary increases (Bland, 1999, 138).

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