Equal Opportunity and the Law www.assignmentpoint.com

After studying this chapter, you should be able to: Cite the main features of at least five employment discrimination laws. Define adverse impact and explain how it is proved and what its significance is. Explain and illustrate two defenses you can use in the event of discriminatory practice allegations. Avoid employment discrimination problems. Cite specific discriminatory personnel management practices in recruitment, selection, promotion, transfer, layoffs, and benefits. Define and discuss diversity management. www.assignmentpoint.com

Equal Employment Opportunity 1964–1991 Title VII of the 1964 Civil Rights Act EEOC Executive Orders 11246, 11375 OFCCP 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 Equal Employment Opportunity www.assignmentpoint.com

Early Court Decisions Regarding Equal Employment Opportunity Griggs v. Duke Power Company 1 2 Burden of proof is on the employer. 3 Employer’s intent is irrelevant. 4 “Fair in form” practice must also be nondiscriminatory. 5 Business necessity is a defense for adverse impact. Test or practice must be related to job performance. www.assignmentpoint.com

Early Court Decisions Regarding Equal Employment Opportunity (cont’d) Albemarle Paper Company v. Moody If a test is used to screen candidates, then the job’s specific duties and responsibilities must be analyzed and documented. The performance standards for the job should be clear and unambiguous. Federal guidelines on validation are to be used for validating employment practices. www.assignmentpoint.com

Equal Employment Opportunity 1990–91–present Civil Rights Act of 1991 Burden of Proof Disparate Impact Mixed Motives Desert Palace Inc. v. Costa Money Damages Compensatory Punitive www.assignmentpoint.com

Equal Employment Opportunity 1990–91–present (cont’d) AIDS Qualified Individual Reasonable Accommodation Employer Defenses Americans with Disabilities Act (ADA) of 1990 www.assignmentpoint.com

Employer Obligations Under ADA An employer must make a reasonable accommodation for a qualified disabled individual unless doing so would result in undue hardship. Employers are not required to lower existing performance standards or stop using tests for a job. Employers may ask pre-employment questions about essential job functions but can not make inquiries about disability. Medical exams (or testing) for current employees must be job-related. Employers should review job application forms, interview procedures, and job descriptions for illegal questions and statements. Employers should have up-to-date job descriptions that identify the current essential functions of the job. www.assignmentpoint.com

Disabilities and ADA Courts will tend to define “disabilities” quite narrowly. Employers are not required to tolerate misconduct or erratic performance, even if the behaviors can be attributed to the disability. Employers do not have to create a new job for the disabled worker nor reassign that person to a light-duty position for an indefinite period, unless such a position exists. Employers should not treat employees as if they are disabled so that they will not be “regarded as” disabled and protected under the ADA. www.assignmentpoint.com

State and Local Equal Employment Opportunity Laws State and Local Laws Cannot conflict with federal law but can extend coverage to additional protected groups. The EEOC can defer a discrimination charge to state and local agencies that have comparable jurisdiction. www.assignmentpoint.com

Title VII: 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. Employers have an affirmative duty to maintain workplaces free of sexual harassment and intimidation. Federal Violence Against Women Act of 1994 A person who commits a violent crime motivated by gender is liable to the party injured. www.assignmentpoint.com

Proving Sexual Harassment Quid Pro Quo Hostile Environment Created by Co-Workers or Nonemployees Hostile Environment Created by Supervisors www.assignmentpoint.com

TABLE 2–2 Summary of Important Equal Employment Opportunity Actions Title VII of 1964 Civil Rights Act, as amended Executive orders Federal agency guidelines Supreme Court decisions: Griggs v. Duke Power Co., Albemarle v. Moody Equal Pay Act of 1963 Age Discrimination in Employment Act of 1967 State and local laws Vocational Rehabilitation Act of 1973 Pregnancy Discrimination Act of 1978 Vietnam Era Veterans’ Readjustment Assistance Act of 1974 Ward Cove v. Atonio Price Waterhouse v. Hopkins Americans with Disabilities Act of 1990 Civil Rights Act of 1991 Note: The actual laws (and others) can be accessed at: http://www.usa.gov/Topics/Reference_Shelf.shtml#Laws. www.assignmentpoint.com

Sexual Harassment: Court Decisions Meritor Savings Bank, FSB v. Vinson Burlington Industries v. Ellerth Faragher v. City of Boca Raton Sexual Harassment www.assignmentpoint.com

FIGURE 2–1 HR in Practice: What Employers Should Do to Minimize Liability in Sexual Harassment Claims Take all complaints about harassment seriously. Have the victim inform the harasser directly that the conduct is unwelcome and must stop. Conduct a thorough investigation of any complaint of harassment. Issue a strong policy statement condemning harassing behaviors. Inform all employees about the policy prohibiting sexual harassment and of their rights under the policy. Communicate to employees that sexual harassment will not be tolerated. Establish a management response system that includes an immediate reaction and investigation by senior management. Provide training to supervisors and managers to increase their awareness of the issues. Discipline managers and employees involved in sexual harassment. Keep thorough records of complaints, investigations, and actions taken. Conduct exit interviews that uncover any complaints. Re-publish the sexual harassment policy periodically. Encourage upward communication to discover evidence of sexual harassment Do not retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in an investigation, proceeding, or litigation under Title VII. Sources: www.eeoc.gov/types/sexual_harrasment.html, accessed May 6, 2007, and © 1991by CCH Incorporated. All rights reserved. Reprinted with permission from Sexual Harassment Manual for Managers and Supervisors, published in 1991, by CCH Incorporated, a WoltersKluwer Company. www.assignmentpoint.com

FIGURE 2–2 California State University, Fresno: Complaint Form for Filing a Complaint of Harassment or Discrimination Source: California State University, Fresno. www.assignmentpoint.com

Adverse Impact Showing Adverse Impact Disparate Rejection Rates McDonnell-Douglas Test Restricted Policy Showing Adverse Impact Population Comparisons www.assignmentpoint.com

Showing Disparate Treatment McDonnell-Douglas Test for Prima Facie Case 1 2 The person belongs to a protected class. 3 The person applied and was qualified for the job. 4 The person was rejected despite qualification. The employer continued seeking applications. www.assignmentpoint.com

Bona Fide Occupational Qualification Age Religion Gender National Origin Bona Fide Occupational Qualification (BFOQ) www.assignmentpoint.com

Business Necessity “Business Necessity” Validity A defense requiring employers to show that there is an overriding business purpose (i.e., “irresistible demand”) for a discriminatory practice. Spurlock v. United Airlines Validity The degree to which the test or other employment practice is related to or predicts performance on the job can serve as a business necessity defense. www.assignmentpoint.com

Other Considerations in Discriminatory Practice Defenses Good intentions are no excuse. Employers cannot hide behind collective bargaining agreements—equal opportunity laws override union contract agreements. Firms should react by agreeing to eliminate an illegal practice and (when required) by compensating the people discriminated against. www.assignmentpoint.com

Discriminatory Employment Practices Recruitment Word of Mouth Misleading Information Help Wanted Ads Selection Educational Requirements Tests Preference to Relatives Height, Weight, and Physical Characteristics Arrest Records Application Forms Discharge Due to Garnishment Personal Appearance Dress Hair Uniforms www.assignmentpoint.com

The EEOC Enforcement Process EEOC Claim and Enforcement Process 1 3 2 File Charge 4 Charge Acceptance 5 Serve Notice 6 Investigation/Fact-Finding 7 Cause/No Cause Conciliation Notice to Sue www.assignmentpoint.com

FIGURE 2–4 The EEOC Charge- Filing Process Applicant or employee files charge EEOC advises employer of charge and if mediation is an option Successful mediation Unsuccessful mediation EEOC may ask employer to submit statement of position of employer’s side of story EEOC may ask employer to respond to request for information (personnel files, etc.) EEOC may ask employer to permit onsite visit by EEOC and to provide information for witness interview EEOC completes investigation Finds no reasonable cause Finds reasonable cause Issues charging party Dismissal and Notice of Rights Charging party may file lawsuit in Federal Court within 90 days Issues Letter of Determination Offers parties conciliation Conciliation fails Conciliation successful EEOC may litigate in Federal Court within 180 days of charge EEOC may decide not to litigate Sends charging party notice of Right to Sue Party may sue within 90 days Note: Parties may settle at any time. Source: Based on information at www.eeoc.gov. www.assignmentpoint.com

FIGURE 2–3 Questions to Ask When an Employer Receives Notice That EEOC Has Filed a Bias Claim Exactly what is the charge and is your company covered by the relevant statutes? What protected group does the employee belong to? Is the EEOC claiming disparate impact or disparate treatment? Are there any obvious bases upon which you can challenge and/or rebut the claim? If it is a sexual harassment claim, are there offensive comments, calendars, posters, screensavers, and so on, on display in the company? Who are the supervisors who actually took the allegedly discriminatory actions and how effective will they be as potential witnesses? Sources: Fair Employment Practices Summary of Latest Developments, January 7, 1983, p. 3, Bureau of National Affairs, Inc. (800-372-1033); Kenneth Sovereign, Personnel Law (Upper Saddle River, NJ: Prentice Hall, 1999), pp. 36–37; “EEOC Investigations—What an Employer Should Know,” Equal Employment Opportunity Commission (http://www.eoc.gov/employers/investigations.html), accessed May 6, 2007. www.assignmentpoint.com

Mandatory Arbitration Gilmer v. Interstate/Johnson Lane Corp. Employers can compel employees to agree to mandatory arbitration of employment-related disputes. Recommendations Request party be compelled to arbitrate claim. Insert arbitration clause in employment applications and employee handbooks. Protect arbitration process from appeal. Alternative Dispute Resolution (ADR) www.assignmentpoint.com

Addressing EEOC Claims During the EEOC Investigation: 1 3 2 Follow Three Principles 4 Meet with the Employee 5 Limits of EEOC Authority Submitting Documents Position Statement www.assignmentpoint.com

Addressing EEOC Claims (cont’d) During the Fact-Finding Conference: During EEOC Determination and Attempted Conciliation: 1 1 3 2 Official Records 2 Review Carefully 4 Employer’s Attorney Conciliate Prudently Information Witnesses www.assignmentpoint.com

Diversity Management Program Steps in a Diversity Management Program: 1 3 2 Provide strong leadership 4 Assess the situation 5 Provide diversity training and education Change culture and management systems Evaluate the diversity management program www.assignmentpoint.com

Is the Diversity Initiative Effective? Are there women and minorities reporting directly to senior managers? Do women and minorities have a fair share of job assignments that are stepping stones to successful careers in the company? Do women and minorities have equal access to international assignments? Are female and minority candidates in the company’s career development pipeline? Are turnover rates for female and minority managers the same or lower than those for white male managers? www.assignmentpoint.com