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Discrimination and Affirmative Action

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EQUAL EMPLOYMENT OPPORTUNITY
LEGAL ASPECTS OF HUMAN RESOURCE MANAGEMENT

CHAPTER Overview

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This chapter describes the influences of the legal environment on HRM. Particular attention is paid to EEO programs that are designed to eliminate bias in HRM programs, especially as they apply to women and minorities. In my opinion using the analogy of the human body, the law is the “head” vital to the rest of the body. Likewise adherence to the law, and legal knowledge is vital to HR. This knowledge in combination with the advisory role that HR plays in any organization is crucial. It can save the organization of millions of dollars arising from workplace violation, potential lawsuits and negative publicity. Numerous Supreme Court cases that influence HRM practices are presented, including:

(a) Griggs v. Duke Power (1971)

(b) McDonnell Douglas v. Green (1973)

(c) Diaz v. Pan Am World Airways (1971)

(d) B Regents of the University of California v. Bakke (1987)

(e) International Union, UAW v. Johnson Controls, Inc. (1991)

This chapter also includes information on sexual harassment and pregnancy discrimination laws to illustrate that equal opportunity is a diverse concept and covers a wide range of employees. CHAPTER LEARNING OBJECTIVES

After reading this chapter, students should be able to

1. Determine three major reasons why equal employment opportunity (EEO) programs have evolved.

2. Describe two major criteria used to determine EEO and affirmative action compliance or noncompliance.

3. Explain what is meant by the term discrimination.

4. List the enforcement agencies responsible for administering Title VII of the Civil Rights Act, Executive Order 11246, and the Americans with Disabilities Act.

5. Outline how an organization can implement an affirmative action program.

KEY TERMS

affirmative action
Preferential treatment in hiring, recruitment, promotion, and development for groups that have been discriminated against. Age Discrimination Employment Act of 1967
Amended in 1978 and 1986. Protects workers between the ages of 40 and 70 against job discrimination. Americans with Disabilities Act, 1990
A comprehensive anti-discrimination law aimed at integrating the disabled into the workplace. It prohibits all employers from discriminating against disabled employees or job applicants when making employment decisions. bona fide occupational qualification (BFOQ)

A defense against discrimination only where age, sex, religion, or national origin is an actual qualification to perform the job. Civil Rights Act of 1964, Title VII
An important law that prohibits employers, unions, employment agencies, and joint labor-management committees controlling apprenticeship or training programs from discriminating on the basis of race, color, religion, sex, or national origin. Civil Rights Act of 1991

Allows for compensatory and punitive damages in international discrimination cases; allows for jury trials when damages are sought. disparate impact
A form on unintentional discrimination that occurs when a neutral employment practice has the effect of disproportionately excluding a group based upon a protected category. disparate treatment
The view that discrimination occurs due to different treatment given to a person because of race, sex, national origin, age, or disability factors.

Equal Employment Opportunity Commission (EEOC)
The Civil Rights Act, Title VE, 1964, gave the EEOC limited powers to resolve charges of discrimination and interpret the meaning of Title VH. In 1972, Congress gave the EEOC the power to sue employers in the federal courts. Equal employment opportunity (EEO) programs

Programs implemented by employers to prevent employment discrimination in the workplace or to take remedial action to offset past employment discrimination. Equal Pay Act
The Equal Pay Act requires equal pay for equal work performed by men and women. four-fifths rule
This rule states that discrimination typically occurs if the selection rate for one group is less than 80% of the selection rate for another group. Pregnancy Discrimination Act of 1978
This law makes it illegal to discriminate on the basis of pregnancy, childbirth, or related medical conditions in employment decisions. Rehabilitation Act 1973
An act that is enforced by the Office of Federal Contract Compliance Programs (OFCCP). It requires that all employers with government contracts of $2,500 or more set up affirmative action programs for the disabled. Retaliation

Adverse action against an employee after the employee engages in a protected activity, such as filing a formal discrimination complaint or requesting a reasonable accommodation for a disability or religion. sexual harassment

Unwelcome sexual attention that causes the recipient distress and results in an inability on the part of the recipient to effectively perform the job.

Lecture OUTLINE
Introduction

The best way to study the relationship between HRM and the law is to devote time and attention to equal employment opportunity (EEO) EEO impacts almost every HRM activity: hiring, recruiting, training, terminating, compensating, evaluating, planning, disciplining, and collective bargaining EEO programs are implemented to prevent employment discrimination or to take remedial action to offset employment discrimination EEO cuts across every HRM activity. All you students that end up in working world will most likely supervise someone during your employed life. That is why HR officials and managers in every function of the organization must get involved in EEO
issues and programs to: Ensure that the organization complies with the law

Avoid fines
Establish a discrimination-free workplace
Operating managers must assist by:
Changing their attitudes about protected-category employees Helping all employees adjust to the changes EEO brings to the workplace

HOW DID EEO EMERGE?
Three main factors that led to the development of EEO:
Changes in societal values
The economic status of women and minorities
The emerging role of government regulation

Societal Values and EEO
Our society has always embraced at least in principle that people are equal and therefore should be rewarded according to the worth of their contributions. This may be particularly true with children believing in the American dream: that anybody, through hard work, can aspire to be anything or anybody they desire to be, including president of the United States. Profit motives also encouraged equal opportunity. It’s not by coincidence or purely by luck that many minorities have advanced. Most prominence and publicity are acquired by minorities in professional sports and in the entertainment industries. It made economical sense to have Jackie Robinson break the color bar in major league baseball. The color of money often times overrides the color of a person’s skin. Read about online enrollment system proposal

Furthermore nondiscrimination makes good business sense. Giving opportunities only to white males means losing access to the vast reservoir of talent women and minorities have. In fact my classmate in the PhD program suggested in her research on Japanese businesses, that US firms in Japan would be able to tap into the potential female labor pool. This is an opportunity to acquire scarce Japanese talent where traditionally women are not promoted to higher level of authority and they are expected to quit working upon marriage. Adopting nondiscrimination in businesses helps eliminate such societal problems as poverty, crime, high taxes, and civic disorder, which also hurt the business community. The differences between American ideals and American realities collided in the 1960s in the form of the civil rights movement that most of you have some knowledge of. After numerous demonstrations, marches, and confrontations with the police, the majority of Americans were ready for social change. Overt discrimination gradually declined as recognition of the problems faced by minorities grew. The business community shared in this attitude change, voluntarily supporting such EEO-related efforts as the National Alliance of Businessmen. As Congress turned its attention to civil rights, laws were passed prohibiting discrimination in education, voting, public accommodations, employment, and the administration of federal programs. Read about Effects of the Equal Pay Act

Economic Status of Minorities: Before 1964
The dire economic inequality helped focus national attention on employment as a specific area of discrimination. Unemployment figures for African-Americans were double that for whites, and they were higher still among nonwhite youth. Similar statistical differences existed for other minorities, such as Hipics and Native Americans. Back in 1962, the average family income for African- Americans was $3,000, compared with nearly $6,000 for whites. These inequalities could not be attributed entirely to differences in education levels because the average income of an African-American high school graduate was lower than the average income of a white elementary school graduate.

The Government
Organizations spend billions of dollars to comply with federal regulations The growing requirements of EEO laws comprise a large portion of human resource managers' compliance responsibilities The growth of equal employment opportunity has given employees specific rights in their relationship with their employers. EQUAL EMPLOYMENT OPPORTUNITY LAWS: CONTENT AND COURT INTERPRETATIONS

Title VII of the 1964 Civil Rights Act
Prohibits covered entities from discriminating against employees on the basis of race, color, religion, sex, or national origin Prohibits discrimination with regard to any employment condition, including hiring, firing,
promotion, transfer, compensation, and training Covered organizations include:

Private employers with 15 or more employees
Labor organizations with 15 or more members
Employment agencies
Federal, state and local government employers.
Title VII specifically exempts:
Private membership clubs
Native American tribes (that is partially why native corporations can advertise native preference in the recruiting and selection process) The selection decisions of religious organizations (in some cases)

Discrimination: Current Legal Definitions
Title VII and other EEO laws have not provided definitions of illegal discrimination, so this task has fallen upon the courts The civil rights conflict clearly identifies the problems: economic inequality and the denial of employment opportunities to minorities Courts have held that both intentional (disparate treatment) and unintentional (disparate impact) acts of covered entities may constitute illegal employment discrimination Disparate Treatment

Occurs when employers apply different standards or treatment to groups of employees or applicants based upon a protected category (e.g., race, color, religion, sex, national origin) Disparate Impact

Occurs when a racially neutral employment practice has the effect of disproportionately excluding a group based upon a protected category The concept of disparate impact discrimination was clarified by subsequent Supreme Court cases and codified by Congress in the 1991 Civil Rights Act. Prima facie is the presumption of guilt and in this case, the presumption of discrimination.

Prima Facie is established through the use of:

Disparate Treatment Disparate Impact
i.belongs to minority group i.Comparative Statistics
ii.applied for job opening ii.Demographic Statistics
iii. rejected despite qualification iii.Concentration Statistics iv.employer still looking

Walking through the discrimination case process

Plaintiff (the one filing suit) files a suit against a defendant The plaintiff must demonstrate prima facie.
Adverse impact - 3 methods
When adverse impact is demonstrated - burden of proof shifts

The concept of adverse impact was formulated by the court in the landmark case, Griggs v Duke Power Co. (1971). Adverse or disparate impact can be established one of three ways and a common method described in the text is the use of comparative statistics. In utilizing comparative stats, the four-fifths rule is commonly applied. It is also referred to as the 80% criterion and this stands to reason since four fifths is equal to 80%.

The four-fifths rule states that discrimination typically occurs if the selection rate for one group is less than 80 percent of the selection rate for another group To avoid adverse impact, if 20 out of 100 white applicants were selected, at least 16 (4/5, or 80 percent of 20) nonwhite applicants should be selected If a plaintiff proves that a disparate impact exists, an organization may defend its employment practices by showing validation or business necessity If the defendant successfully demonstrates business necessity, the plaintiff may prevail by proving that the defendant refused to adopt an alternative practice The Supreme Court noted in Watson v. Fort Worth Bank and Trust that cost, burdens, and effectiveness are factors that may be used to evaluate alternative practices

It is important to remember that establishing prima facie does not imply guilt. It merely sends up a red flag that employers need to follow up on as the burden of proof (aka. burden of persuasion) now shifts to the defendant
(almost always the defendant is the employer). The defendant may have a legitimate reason to explain for the violation of the four fifths rule. Listed below are several defenses that defendants can use.

Defense(s) against charges of discrimination

job relatedness (Washington vs. Davis)
business necessity (Levin vs. Delta Air Lines)
BFOQ (Diaz vs. Pan American Airways)
BFSS (Firefighters Local Union 1784 vs. Stotts)
voluntary AAPs (Weber vs. Kaiser Aluminum)

BFOQ stands for Bona Fide Occupational Qualification. For example in the US social rules and mores dictate the male locker room should be staffed by male attendants. Courts have applied the BFOQ defense very narrowly. A BFOQ defense is most likely to be accepted when exclusion of a protected group relates to the ability to safety perform a job, particularly when the safety of third parties is at risk. A BFOQ defense may also be upheld for customer preferences in narrow situations related to authenticity (e.g., actors, actresses, models)

BFSS the other acronym on the list stands for Bona Fide Seniority System which applies mainly in situations concerning layoffs. In the case of Firefighters Local Union 1784 v. Stotts (1984), BFSS was applied as a defense against the layoff of minorities with less seniority than their white colleagues. Seniority was argued as being color blind so long as it was based on a legitimate system that was applied equally to white employees in the past.

Retaliation
Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) prohibit retaliation against employees who oppose discriminatory practices or participate in a protected investigation, proceeding, or hearing. Retaliation claims filed with the EEOC have risen significantly over the past decade, increasing from 7,900 in 1991 to over 22,000 in 2004. These claims can be quite costly because employees may seek both compensatory and punitive damages The EEOC recently outlined three essential elements of a retaliation claim: Protected employee activity

Adverse action by an organization
A causal connection between the protected activity and adverse action Employee activities that are considered protected include opposition to discrimination and participation in a protected proceeding. Opposition is protected if the manner of opposition is reasonable and if the employee has a reasonable good faith belief that the opposed employment practice was discriminatory. Examples of protected opposition:

Threatening to file a charge or other formal complaint alleging discrimination Complaining to anyone about alleged discrimination against oneself or others Refusing to obey an order because of a reasonable belief that it is discrimination Requesting a reasonable accommodation for a disability or religion Protected participation activities include "filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing" under Title VII, ADEA, ADA, and EPA These activities are protected regardless of whether underlying discrimination claims are valid Employees are protected for participation activities involving claims against both current and former employers Adverse employment actions which may be considered retaliatory: Termination

Denial of promotion
Denial of job benefits
Refusal to hire
Demotion
Suspension
Threats
Reprimands
Negative evaluations
Harassment
Limiting access to internal complaint or grievance procedures Providing
negative job references with retaliatory motives

Both direct and circumstantial evidence may be used to prove that a causal connection exists Direct evidence typically consists of written or oral statements expressing a retaliatory motive A causal connection may be inferred if the adverse action occurred shortly after the protected activity, and the person who undertook the adverse action was aware of the complainant's protected activity before taking the action

Review Questions
1.The ADA could be a very costly law for employers to comply with in terms of making reasonable accommodations. What could be some of the costs that employers must bear? 2.Do you believe that Muslims working in the United States need legal protection against retaliation? Why? 3.What could be some of the psychological effects of being discriminated against because of race, sex, or age? 4.Examine the equal opportunity laws of another country, such as France, Japan, or Libya. Are the laws in other countries as much a concern for HRM specialists as they are in the United States? 5.What can employers do to minimize their chance of litigation and being found negligent with regard to sexual harassment?

Application Case 3-1
Meeting the Challenge of Sexual Harassment
1.Many experts assert that reported cases of sexual harassment represent only a small percentage of the total number of incidents that actually occur in the workplace. If their assertion is true, why do so many cases go unreported? How would your HRM policy on harassment address this situation? 2.As research indicates, people differ widely in their perceptions of sexual harassments. What is a harmless remark to one individual can be an annoying, even infuriating insult, to another. In your view, what separates harmless conduct from harassing behavior? In the same vein, when does a sexist environment become a hostile, harassing one?

Title VII and Sexual Harassment
Sexual harassment allegations made by Anita Hill against Clarence Thomas and by a female naval officer against the Tailhook Association caught the
attention of the nation in the 1990s Since then, sexual harassment claims filed with the EEOC have steadily increased, rising from 10,532 in 1992 to 13,136 in 2004 The EEOC has recently reached some high-profile multimillion-dollar settlements: In 1999, Ford Motor Company agreed to pay $7.5 million to compensate women subjected to sexual harassment at two of its Chicago plants In 1998, Mitsubishi Motors agreed to pay $34 million women who were harassed at their Normal, Illinois, plant Sexual harassment is considered a form of sex discrimination and is actionable whether it occurs between the same or opposite sex individuals There are two forms of sexual harassment:

Quid pro quo harassment—is the exchange of sexual favors for job benefits Hostile work environment—is the creation of an offensive working environment Quid Pro Quo  Employers are always liable for quid pro quo sexual harassment because a supervisor's acts are viewed as acts of the employer. Five elements, provided in Pease v. Alford Photo Industries, Inc., must exist for the plaintiff to successfully prove quid pro quo harassment: The plaintiff is a member of a protected class;

The plaintiff was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors from a supervisor or individual with authority over the plaintiff; The harassment complained of was based on sex;

Submission to the unwelcome advances was an express or implied condition for receiving some form of job benefits, or refusal to submit to sexual demands resulted in a tangible job detriment; and The employer knew or should have known of the harassment

Hostile Work Environment
Hostile work environment as a form of sexual harassment was first recognized by the U.S. Supreme Court in the case of Meritor Savings Bank v. Vinson. A tangible job detriment does not have to exist for sexual harassment to be actionable Unwelcome conduct constituting hostile work environment
harassment must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" Examples include making sexually oriented jokes or comments, displaying sexually oriented calendars or posters, and touching of a sexual nature Distinguishing between hostile work environment and quid pro quo sexual harassment is important for determining employer liability Employers can be liable for hostile work environment harassment caused by a supervisor, employees, or third parties if the employer knew or should have known of the harassing conduct and failed to take appropriate corrective action An employer may fulfill fits duty to prevent or remedy hostile work environment harassment by: Developing an anti-harassment policy

Promptly and thoroughly investigating harassment allegations Properly disciplining offenders
Recent Developments
Recent U.S. Supreme Court decisions have highlighted the importance of effective human resource policies prohibiting sexual harassment in the workplace In Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, the Supreme Court held that employers are vicariously liable for sexual harassment by a supervisor who has authority over the harassed employee The court also established the following two-part affirmative defense that employers may assert if the harassment resulted in no tangible loss: The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise Note: This defense is not available to employers if the employee failed to complain due to a reasonable fear of retaliation It is now critical for organizations to update and strengthen their anti-harassment policies to include: Specific definitions and prohibition of sexual harassment

Strong prohibitions of retaliation for reporting allegations of harassment Multiple channels for making complaints
Assurances of prompt investigations and appropriate remedial actions Provisions for confidentiality and privacy
Title VII and Pregnancy Discrimination
The Pregnancy Discrimination Act of 1978 amended Title VII to protect pregnant women from employment discrimination Under this act, employers must:
Avoid discrimination in providing benefits, such as vacation time, sick leave, and health insurance Allow women to work until their pregnancy results in physical disability that interferes with their job performance and is the same level of disability that would cause workers with other medical problems to have to stop working Allow employees to return to work after childbirth on the same basis as for other disabilities Title VII and Religious Minorities

The number of religious discrimination cases filed with the EEOC has been increasing in recent years The cases largely concern employers telling employees to work on days or at times that conflict with their religious beliefs Example: Orthodox Jews, Seventh Day Adventists, or members of the Worldwide Church of God cannot work from sunset Friday through sundown Saturday Although lower than in the 1950s, religious participation has been steadily increasing since 1987, and policies on religion in the workplace are becoming common Wal-Mart reached a settlement with an employee who claimed that he was forced to quit his job after refusing to work on Sunday, his Sabbath. The case settlement was startling in that Wal-Mart agreed to: Provide discrimination training to all Wal-Mart managers and give managers a handout that specifically addressed religious discrimination Send regional trainers into Wal-Mart stores to train assistant managers, support-team managers, and hourly supervisors on discrimination laws and employees' rights to have their religious beliefs reasonably accommodated Prepare a training manual on the topic of scheduling and staffing to be used in the company's computer-based learning program The change in attitudes about Arab Americans and Muslims post-September 11, 2001 is pointed out in the HR Journal in the text, Arab Americans and Harassment Title VII and "English-Only" Rules

A rising number of organizations are implementing "English-only" rules, requiring employees to exclusively speak English in the workplace. Organizations supporting English-only rules claim that they are needed to
promote: Harmony among employees

Effective communication and supervision
Safe working conditions.
Applied too broadly, these rules create controversy among employees and may result in claims of disparate impact national origin discrimination The EEOC presumes that English-only rules violate Title VII unless justified by a business necessity, such as safety considerations. Federal courts, however, have not consistently adopted this perspective. In Garcia v. Gloor the Fifth Circuit upheld an English-only rule which applied to bilingual employees and allowed exceptions for employee breaks and communications with Spanish-speaking customers. The Ninth Circuit reached a similar decision in Garcia v. Spun Steak, finding that the plaintiffs, whose spoken language was a matter of choice, were unable to prove a disparate impact on the terms, conditions, or privileges of employment of a protected class Civil Rights Act of 1991

The Civil Rights Act of 1991 (CRA 1991) was enacted because Congress wished to provide additional remedies to: Deter harassment and intentional employment discrimination
Codify some disparate impact discrimination concepts
Expand the scope of existing EEO statutes
Major provisions of CRA 1991:
Allows plaintiffs to seek compensatory and punitive damages when an organization engages in intentional discrimination with malice or reckless indifference. Allows plaintiffs to demand a jury trial for claims involving intentional discrimination Codified disparate impact concepts in accordance with the law prior to Wards Cove Packing Co. v. Antonio, reversing the Supreme Court's decision in that case Prohibited adjusting test scores or using different cutoff scores on the basis of a protected category Clarified the concept of mixed motive in disparate treatment cases When a plaintiff proves intentional discrimination but the respondent proves that it would have taken the same action for a legitimate reason, the plaintiff may recover only declaratory and injunctive relief, plus attorney's fees Extended the coverage of Title VII and the ADA to U.S. citizens employed by covered entities operating in foreign countries Charged the EEOC with providing technical assistance training, education, and outreach Expanded the coverage of Title VII to the House of Representatives and agencies of the legislative branch Encouraged the use of alternative dispute resolution including negotiation, facilitation, mediation, fact-finding mini-trials, and arbitration Executive Order 11246 (1965)

Issued by President Lyndon B. Johnson in 1965
Prohibits employment discrimination on the basis of race, color, religion, sex, or national origin by federal contractors, subcontractors, and federally assisted construction contracts Prohibits the same actions as Title VII, but carries the additional requirement that contractors must develop a written plan of affirmative action and establish numerical goals and timetables to achieve integration and equal opportunity Equal Pay Act of 1963

The Equal Pay Act (EPA) is designed to eliminate wage differentials between men and women performing the same work Employers shall not discriminate between employees on the basis of sex by paying employees at a rate less than the rate paid to employees of the opposite sex for equal work This applies to jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions Exceptions are allowed when mandated by a:

Seniority system
Merit system
System which measures earnings by quantity or quality of production Differential based on any other factor other than sex
Age Discrimination in Employment Act of 1967 (ADEA)
ADEA protects individuals 40 years of age and older from employment discrimination based upon their age The act covers the actions of:
Private employers with 20 or more employees
Employment agencies
Labor organizations with at least 25 members
Federal, state, and local governments
As in Title VII, Native American tribes are exempt from coverage. Proving disparate treatment claims of age discrimination parallels the process described for Title VII claims. Reductions in force (RIFS) associated with organizational downsizing has emerged as a major issue in age discrimination cases Financial concerns underlying downsizing tend to result in the termination of higher paid employees who often are the more experienced, older workers. Plaintiffs may defend the termination of protected employees with legitimate reasons other than age, such as performance Employees can overcome this defense by demonstrating that the stated reason was a pretext for discrimination (see Brown v. Delaware and Hudson Railway Co.) Barriers facing older workers in many organizations.

Company economics
Management attitudes
Stereotypes
Economic reasons include the added expense of funding pensions for older workers and increased premiums for health and life insurance plans Attitude problems are more difficult to pin down.
Some managers feel that older workers are becoming less effective on the job. Advantages to hiring older workers:
Lower turnover
Greater consciousness of safety
Longer work experience
More maturity
More loyalty to the enterprise
McDonald's capitalizes on these advantages and actively recruits older workers Americans with Disabilities Act of 1990 (ADA)
Prior to the passage of the ADA, over 43 million Americans had one or more physical or mental disabilities The number of Americans with disabilities will increase as our population ages Society has historically isolated and discriminated against the disabled, who often had no legal recourse Title I of the ADA was passed to protect individuals with disabilities from workplace discrimination Covered Entities and Protected Individuals

The ADA prohibits discrimination against qualified individuals with disabilities on the basis of those disabilities This applies to job application procedures, hiring, advancement, discharge, compensation, training, and other terms, conditions, and privileges of employment Covered entities include private sector employers with 15 or more employees, state and local government employers, and the U.S. Congress Additional requirements for federal government employers and contractors with federal contracts exceeding $2,500 are contained in the Rehabilitation Act of 1973 Both the Rehabilitation Act and the ADA define an individual with a disability as someone who: Has a physical or mental impairment that substantially limits one or more major life activities, Has a record of such an impairment, or

Is regarded as having such an impairment
Examples of physical disabilities: visual and hearing impairments, cancer, and HIV/AIDS Examples of mental impairments: major depression, bipolar disorder, anxiety disorders, schizophrenia, and personality disorders Reasonable Accommodations

The ADA states that employers must make reasonable accommodations for the known disabilities of a qualified individual with a disability A qualified individual is someone with a disability who, with or without reasonable accommodation, can perform the essential functions of a job Organizations are not required to make disability accommodations if doing so would create undue hardship for the employer Reasonable accommodations may include:

Making existing facilities accessible
Restructuring jobs
Modifying work schedules
Reassigning employees
Providing readers or interpreters
Research indicates that more than 50 percent of these accommodations cost virtually nothing, while 30 percent cost less than $500 The cost of providing accommodations is one factor in making a determination regarding whether an undue hardship exists Other factors include:

Financial resources of the facility and the employer
The number of employees
The effects of expenses and resources
The impact of accommodations on operations
The employer’s type of operation, including the composition, structure, and functions of the workforce Ongoing Developments

Three cases, each decided by the Supreme Court on June 22, 1999, narrowed the definition of a disability under the ADA by excluding correctable conditions, such as visual impairments and high blood pressure In Sutton et al. v. United Airlines, twin sisters were rejected as commercial airline pilots because they failed to meet a minimum uncorrected vision requirement In Albertsons, Inc. v. Kirkingburg, a truck driver was discharged for failing to meet the Department of Transportation's (DOT) vision standards for commercial truck drivers In Murphy v. United Parcel Service Inc., a mechanic who was discharged because his blood pressure exceeded minimum health certification requirements Lower courts must now apply these rulings to subsequent cases involving disabilities and the amount of control provided by corrective measures The issue of whether corrective measures must fully control an impairment to preclude ADA coverage remains unclear State Laws

In 41 states, plus the District of Columbia and Puerto Rico, there are comprehensive "fair employment" laws similar to Title VII Some of these state laws antedate Title VII
If a state's law is strong enough, the federal government turns discrimination cases over to the state fair employment practices agency for investigation

ENFORCING THE LAW
Most laws regarding employment discrimination provide enforcement agencies that issue the regulations that affect HR administrators The U.S. Equal Employment Opportunity Commission (EEOC) enforces: Title VII

The Civil Rights Act of 1991
The Equal Pay Act
The Age Discrimination in Employment Act
The Americans with Disabilities Act
The Office of Federal Contract Compliance Programs (OFCCP) enforces: Executive Order 11246
Federal courts enforce and interpret EEO laws
Equal Employment Opportunity Commission (EEOC)
Title VII originally gave EEOC the limited powers of resolving charges of discrimination and interpreting the meaning of Title VII In 1972, Congress gave EEOC the power to bring lawsuits against employers in the federal courts The agency does not have the power to issue directly enforceable orders EEOC cannot order an employer to discontinue a discriminatory practice Nor can it direct an employer to give back pay to victims of discrimination However, the EEOC has won on these issues in out-of-court settlements, and effectively used the limited powers it does have EEOC has the power to:

Require employers to report employment statistics
Process charges of discrimination
Investigation process:
Preinvestigation division interviews the complainants
Investigation division collects facts from all parties concerned If the charge appears valid, the EEOC attempts an out-of-court settlement through conciliation If conciliation fails, the EEOC can sue the employer

Any person has 180 days from the occurrences of the discriminatory act to file a charge with the EEOC or with the state or local EEO agency In 2001, the EEOC:
Resolved 90,106 claims in its caseload
Received 80,840 new charges
Filed 431 lawsuits
Won $247.8 million in monetary benefits for charging parties A substantial backlog of cases remains
The agency has implemented a mediation program as an alternative to the time consuming investigative process Today, each district office utilizes a combination of both internal and external mediation The Courts

Besides federal and state agencies, the courts are constantly interpreting the laws Appellate courts then reconcile any conflicts
All employment discrimination laws provide for court enforcement, often as a last resort if agency enforcement fails With regard to Title VII, the federal courts are involved in two ways: Settling disputes between the EEOC and employers

Deciding the merits of discrimination charges when out-of-court conciliation fails Legal maneuvering often makes the picture confusing, largely because every step of the process can be appealed With three parties involved?the EEOC, the plaintiff, and the defendant?appeals are commonplace All these possibilities for trial, appeal, retrial, and even appeal of the retrial can cause several years' delay before an issue is settled Once a final court decision is reached in a Title VII case, it can provide drastic remedies: Back pay

Hiring quotas
Reinstatement of employees
Promotion of employees
Abolition of testing programs
Creation of special recruitment or training programs
The court-ordered action depends on the facts surrounding the case If the employer is making voluntary efforts to comply with antidiscrimination laws, the court may impose less stringent measures

AFFIRMATIVE ACTION IN ORGANIZATIONS
What Is Affirmative Action?
Affirmative action is "those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity” Some contend that affirmative action grants special treatment to some individuals to the detriment of others The legality of special treatment depends in part on whether the affirmative action is involuntary or voluntary Any employer having a federal contract of at least $50,000 and employing at least 50 individuals must have a written affirmative action
plan (AAP) Some businesses have elected to implement affirmative action as an indication of being a socially responsible business Voluntary Affirmative Action Plans

In United Steelworkers of America v. Weber (1979), the Supreme Court held that Title VII allows organizations to implement voluntary AAPS The permissible characteristics of voluntary plans were further clarified by the court in Johnson v. Transportation Agency (1987) The defendant promoted Diane Joyce to the position of road dispatcher even though a male candidate received higher ratings by a panel of interviewers The court upheld the defendant's voluntary AAP because of an absence of women in road dispatcher positions The Supreme Court established the following criteria for lawful voluntary AAPs in organizations: The AAP must exist to eliminate past imbalances based upon a protected group category The AAP must not unnecessarily trammel the rights of the majority The plan must be temporary

The plan must not provide for set-aside positions
Involuntary Affirmative Action Plans
The following steps are an integral part of an affirmative action plan. Step I: Analyze underrepresentation and availability
Step 2: Set goals
Step 3: Specify how goals are to be attained
Update on Affirmative Action
In 1995, the Supreme Court fueled the debate over affirmative action with its decision in Adarand Constructors Inc. v. Peña. Adarand submitted the lowest bid for a Department of Transportation job, but a minority-owned business was awarded the subcontract under a program that sets aside 5 percent of federal funding for businesses deemed "economically and socially disadvantaged" The court held that any governmental action based on race should be scrutinized to ensure that the personal right to equal protection under the law is not infringed In 1995, the Department of Justice issued an opinion letter distinguishing programs and laws, such as Executive Order 11246, from the type of programs prone to preferences, numerical quotas, and percentages In Hopwood v. State of Texas:

Four white applicants to the University of Texas Law School alleged that they had not been admitted because of the school's affirmative action program The district court ruled that the affirmative action program was unconstitutional because separate admission committees reviewed minority and nonminority applicants The 1996 United States Court of Appeals decided that the affirmative action plan unconstitutionally discriminated against whites and nonpreferred minorities The court held that classifying persons on the basis of race for the purpose of diversity frustrates the constitutional goals of equal protection The U.S. Supreme Court chose not to stop enforcement of California's Proposition 209, which prohibits the use of affirmative action in college admissions, state and local government employment, and in state contract awards Although the long-term effects of Proposition 209 remain unclear, the California State University system already reports declines in numbers of minority faculty. Other states are now paying close attention to the aftermath of Proposition 209 and the Hopwood Decision

Answers to Discussion Questions
1.The ADA could be a very costly law for employers to comply with in terms of making reasonable accommodations. What could be some of the costs that employers must bear? Research suggests that over 50% of accommodations for disabled workers, such as restructuring jobs and modifying work schedules, cost virtually nothing. Another 30% cost less than $500. The remaining 20%, the most expensive, involve the purchase of special equipment or physical modification of the building or workspace. For instance, adding elevators or ramps in older buildings that are not wheelchair accessible, widening doorways and bathrooms, or providing readers for sightless employees. 2.Do you believe that Muslims working in the United States need legal protection against retaliation? Why? Open answer. Expect strong emotion from students and differing opinions from Muslims and non-Muslims or from those who have and have not personally experienced discrimination. 3.What could be some of the effects of being discriminated against because of race, sex, or age? Student answers will vary. Psychological effects could be shock, anger, frustration, depression, or a sense of hopelessness. Monetary effects could be reduced benefits or lower salary due to missed promotion opportunities.
Discrimination could also bring about retaliation from the employee through reduced effort on the job or sabotage. 4.Examine the equal opportunity laws of another country, such as France, Japan, or Libya. Are laws in other countries as much a concern for HRM specialists as they are in the United States? After students answer this question, it is enlightening to have a guest from another culture to discuss U.S. employment laws. Remind students that the ownership of a company makes U.S. EEO laws more complicated, especially if there is partial ownership from two countries. Remind students that the intent of EEO laws is to be fair to jobseekers; they were not intended as a judgment of other cultures. This is an excellent lead-in to the next chapter, which covers global human resource management. 5.What can managers do to minimize their chance of litigation and being found negligent with regard to sexual harassment? The courts are particularly concerned with (1) the preventive measures that are evident within a company’s policies and procedures and (2) whether the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Therefore, it is critical that organizations update and strengthen their antiharassment policies to include the following components: (a) Specific definitions and prohibition of sexual harassment; (b) Strong prohibitions of retaliation for reporting allegations of harassment; (c) Multiple channels for making complaints; (d) Assurances of prompt investigations and appropriate remedial actions; and (e) Provisions for confidentiality and privacy. 6.Why is the decision in Griggs v. Duke Power Company considered a landmark? This is a landmark case because it resulted in an expansion of the definition of employment discrimination. Specifically, it resulted in the recognition of disparate impact, which is the intentional discrimination that occurs when a racially neutral employment practice disproportionately excludes members of a protected group. 7.In a workplace with a diverse workforce, how could an English-only rule create lower morale, poorer communication, and lower productivity? There are a number of ways that an English-only rule can lower morale, result in poorer communication, and lowered productivity. For instance, workers who do not speak English well may communicate less often, and they may not be able to ask other workers for clarification of work instructions in their native tongue. They may feel that they are being singled out or that their language and culture is considered inferior.
Response times may be slower as these workers try to process information and instructions from English into their native language. The degree of impact from this rule often relates directly to the English fluency level of the affected workers. Note: To balance the students’ perspective, you may wish to point out that few U.S. expatriates speak the host country language fluently when they are given overseas assignments. 8.What is meant by the term bona fide occupational qualification (BFOQ)? The term bona fide occupational qualification means that organizations may hire employees based on religion, sex, or national origin in certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of a business or enterprise. For instance, it is reasonable to hire only women as attendants in the women’s restroom. 9.Should the rulings in Faragher v. City of Boca Raton be considered significant for the HRM area of an organization? Yes. In this case, the Supreme Court held that employers are vicariously liable for the sexually harassing actions of a supervisor who has authority over the harassed employee. 10.Affirmative action has become a political, economic, and emotional issue. What are some of the reasonable arguments in favor of and opposed to affirmative action. A reasonable argument for affirmative action is that it seeks to right injustices of the past, although trammeling the rights of a few in the present. Requirements that protect the majority include (a) the action must not trammel the rights of the majority, (b) the action must be temporary, and (c) the action must not allow for set-aside positions. A reasonable argument against affirmative action is that, regardless of the protections put in place, it allows less-qualified individuals to obtain positions, resulting in reverse discrimination.

Suggested Answers For Application Case 3-1:
Meeting The Challenge of Sexual Harassment
1.Assume that you are an HR executive for a company that manufactures and sells agricultural products (for example, fertilizers and grain feeds). The company’s workforce of 1,200 employees is 70 percent male and 30 percent female. Drawing from this case and the chapter content, develop an anti-harassment policy and program. What are the major challenges you see in implementing the program? This question is better suited to a project than a
discussion question because the topic of “harassment” is so broad; it includes such topics as hazing, sexual harassment, and religious persecution. To narrow the scope, you may wish to limit the topic to sexual harassment. Depending on your instructions and the student, the content and the policy will vary. However, students should touch on some or all of the following issues: An internal complaint procedure that ensures fast action, confidentiality, and a reporting procedure that allows reporting to a manager who is not involved in the harassment Guidelines for handling and documenting harassment incidents. Speedy, corrective action that solves the problem.

The policy itself should include (a) a definition of harassment, (b) the company’s position prohibiting harassment, (c) the grievance procedure, and (d) penalties. Communication procedures that will ensure that the policy is communicated to, and understood by, all employees. Anti-harassment training programs; what they will cover, who should attend, and whether or not they are mandatory 2.Many experts assert that reported cases of sexual harassment represent only a small percentage of the total number of incidents that actually occur in the workplace. If their assertion is true, why do so many cases go unreported? How would your HRM policy on harassment address this situation? Although it is not discussed in the text, it is safe to assume that most incidents are not reported for one or more of these reasons: Fear of retaliation

Potential job loss
Fear of not being believed
Belief that reporting the incident will not bring about change The best way to address this situation is to acknowledge these fears in the anti-harassment policy and to stress that complaints will be taken seriously, that employees will not be fired for reporting an incident, that retaliation is grounds for punishment or dismissal, and that swift action will be taken. It may also be helpful to point out that others may also have been subjected to the offending behavior; unless each incident is reported, HR cannot distinguish isolated incidents from a pattern of behavior. 3.As research indicates, people differ widely in their perceptions of sexual
harassments. What is a harmless remark to one individual can be an annoying, even infuriating insult, to another. In your view, what separates harmless conduct from harassing behavior? In the same vein, when does a sexist environment become a hostile, harassing one? The answers to these questions will vary, depending on the gender, age, and experience of the student. However, all students should mention that harmless conduct becomes harassment when the offended person asks for the conduct to stop and it does not. A sexist environment becomes a hostile, harassing one when the offensive conduct becomes “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Examples of such conduct include making sexually oriented jokes or comments, displaying sexually oriented calendars or posters, and touching of a sexual nature.

Presentation

1. The impact of the law on the HRM function

Lawsuits against companies have increased dramatically since 1960 How to avoid being the target of such a suit
EEO having greatest impact: implications for every HRM activity

2. How did EEO emerge

a. Societal values and EEO

b. American dream

economic status of minorities before 1964
inequality of employment opportunities & salaries
lower status of jobs held by minorities

c. Profit motive

d. Civil Rights

e. The Government

3. Equal Employment Opportunities Laws: content & court interpretations a.Title VII of the 1964 Civil Rights Act

prohibits discrimination based on race, color, religion, sex, national origin

b.The Equal Employment Opportunity Act of 1972

amendment to Title VII
strengthened enforcement & expanded coverage

c.Discrimination: current legal definitions

disparate/unequal treatment
disparate/unequal impact

Prima Facie is established through the use of:

Disparate Treatment Disparate Impact
i.belongs to minority group i.Comparative Statistics
ii.applied for job opening ii.Demographic Statistics
iii. rejected despite qualification iii.Concentration Statistics iv.employer still looking

d.Walking through the discrimination case process

Plaintiff files a suit against a defendant
The plaintiff must demonstrate prima facie.
Adverse impact - 3 methods
When adverse impact is demonstrated - burden of proof shifts

4. Defense(s) against charges of discrimination

job relatedness (Washington vs. Davis)
business necessity (Levin vs. Delta Air Lines)
BFOQ (Diaz vs. Pan American Airways)
BFSS (Firefighters Local Union 1789 vs. Stotts)
voluntary AAPs (Weber vs. Kaiser Aluminum)

5. Retaliation

federal laws prohibits retaliation against employees who seek the protection of discriminatory legislation, participates in protected activities & oppose discriminatory practices

Protected opposition (examples)

threaten to file discriminatory charge
complain to others about alleged discrimination (about self/others) refuse to obey order(s) in with reasonable belief that its discriminatory requesting reasonable accommodation for religion or disability

Participation in protected activities (examples)

filing a charge
testifying against the firm
assisting/participating in investigation(s)

6. Title VII and sexual harassment

a. quid pro quo

1.plaintiff is a member of a protected class
2.plaintiff subject to unwelcome sexual attention/harassment 3.harassment complaints based on sex
4.submission, condition for job benefits or rejection-detrimental to job 5.employer knew or should have known of the harassment

b. environmental sexual harassment (hostile work environment)

c. recent developments

employer is responsible/liable for action of supervisor when he/she has authority over the harassed employee

employers may have some degree of defense is they exercised reasonable care to prevent & remedy harassment

employee failed to take advantage of preventive & corrective measures (unless their inaction is due to fear of retaliation)

d. anti-harassment policy should include:

specific definitions & prohibitions of sexual harassment
strong prohibitions of retaliation for reporting alleged harassment have multiple channels for making complaints
have assurances of prompt investigations and remedial actions assurances of confidentiality and privacy

7. Title VII and Pregnancy Discrimination

Pregnancy Discrimination Act of 1978 (amendment to Title VII)

requires employers to be nondiscriminatory in providing benefits for pregnant employees

employers must allow women to work until their pregnancy results in their inability to perform/complete their assignments

prohibits discrimination on the basis of pregnancy, childbirth or related medical condition

8. Titles VII and Religious Minorities

disputes arise from time and days of work which conflict with religious beliefs

courts side with employers who attempt to make reasonable accommodation (consider undue hardship to employer)

9. Title VII and “English-Only” Rules

controversial topic with mixed messages & inconsistency

EEOC Guidelines on Discrimination Because of National Origin presumes these rules to violate Title VII unless it’s a business necessity

courts have ruled in favor of employers applying this rule

10. Civil Rights Act of 1991

amended Title VII, providing additional remedies for employment discrimination allows compensatory & punitive damages in cases of intentional discrimination

allows for jury trail for claims involving intentional discrimination

overruling or modifying a number of Supreme Court cases affirming Griggs decision

extended coverage of Title VII and ADA to US citizens employed by covered entities operating in foreign countries

making federal anti-discrimination law applicable to the executive branch and Congress (yeah!)

encourage the use of alternative dispute resolution techniques to resolve employment discrimination disputes (ex. negotiation, mediation, arbitration)

11. Executive Order 11246 of 1965

similar to Title VII of CRA in prohibiting discrimination (however applying to federal contractors & subcontractors, plus requiring them to develop a written plan of affirmative action, establishing goals & timetables to fulfill equal opportunity)

12. Equal Pay Act of 1963

prohibits discrimination in pay on the basis of sex if equal work (ie. equal skill, responsibility, effort and similar working conditions) is performed

Exceptions:
seniority
merit system
system measuring quality or quantity
factor other than sex (training, shift differential)

13. Age Discrimination Act of 1967

amended in 1978, protects individuals aged 40-70 from discrimination related to age

amended in 1986, protects individuals aged 40+ from discrimination related to age

Exceptions:
age is a BFOQ
factor other than age (illness)
key decision-maker
disciplinary reasons

14. Americans with Disabilities Act of 1990

prohibits discrimination based on physical or mental handicap (ex. HIV/AIDS, cancer, mental & anxiety disorders)

applies to employers and patterned after Section 504 of Rehab. Act

employers must make "reasonable accommodations" to the known disabilities unless it can be shown to lead to "undue hardship".

15. Enforcing the law

a.EEOC

can bring lawsuits against employers in federal courts
require employers to report employment statistics (EEO-1 form) process charges of discrimination

b.Office of Federal Contract Compliance Programs (OFCCP)

created to enforce EO 11246
also covering employment of veterans & the handicapped

16. Affirmative Action in organizations

those actions necessary to overcome effects of past/present practices, policies, barriers to equal employment opportunity

i. recruitment of underrepresented groups
ii.changing management attitudes
iii.removing discriminatory obstacles
iv.preferential treatment

a. Differences between equal opportunity and affirmative action

EEOAAP

- legal obligation - voluntary

- neutral w/respect to - preference to individuals based
protected characteristics on protected characteristics

- prohibitory in nature - promotional towards protected group

- permanent obligation - temporary remedy

b. Voluntary AAP

must exist to eliminate past imbalances based upon a protected group category

must not unnecessarily trammel the rights of the majority

plan must be temporary

past must not provide for set-aside positions

c. Involuntary AAP

Three affirmative action planning steps

i.Utilization analysis to determine under-representation
ii.Goals and timetables set
iii.Action steps on how goals are to be attained

17. Cost benefit analysis of EEO programs

eligibility for government contracts

increased availability pool of potential employees

improved public relations and goodwill

better protection from potential lawsuits

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