Employment law for human resource practice, 5e David Walsh Employment law for human resource practice, 5e © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Affirmative Action Chapter 8 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Chapter Outline When is Affirmative Action Required? Distinguishing Legal Affirmative Action from Reverse Discrimination Ingredients of Affirmative Action Plans Effects of Affirmative Action Diversity and Affirmative Action © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Affirmative Action Affirmative action has been defined as: “Those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.” Such efforts must be taken pursuant to a formal affirmative action plan Affirmative action is controversial A majority express support for affirmative action, but responses are sensitive to wording © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

When is Affirmative Action Required? Affirmative action is required of: Most companies that have contracts to sell goods or services to the federal government A firm when a discrimination suit results in a settlement or court order that includes affirmative action as a remedy Affirmative action plans may also be voluntarily undertaken by a firm Even voluntary affirmative action plans must comply with certain legal requirements © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

When is Affirmative Action Required? - Government Contractors (1 of 3) Companies that contract with the federal government must comply with Executive Order 11246, which requires that: Companies with contracts worth at least $10,000 must include a nondiscrimination clause in their contracts, and abide by it, and Must include that clause in their contracts with subcontractors, who must also abide by it. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

When is Affirmative Action Required? - Government Contractors (2 of 3) Executive Order 11246 Contractors promise that they: “…will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during their employment without regard to their race, color, religion, sex, or national origin…” © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

When is Affirmative Action Required? - Government Contractors (3 of 3) Affirmative action plans under Executive Order 11246 monitored by the Office of Federal Contract Compliance Programs (OFCCP) All facilities of a contract firm must comply, not only the facility that will be doing contract work OFCCP collects workforce data from employers, conducts compliance reviews, and can initiate lawsuits © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Settlements and Court Orders Affirmative action is one of the remedies available to courts in discrimination cases It can be imposed either as a remedy following a determination of discrimination, or As part of a judicially approved settlement between the parties, called a consent decree Court-imposed affirmative action is not common, but many police and fire departments have operated under such decrees © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Distinguishing Legal Affirmative Action from Reverse Discrimination (1 of 3) Many steps taken in support of affirmative action are neutral (announcing hiring or promotion announcements widely, encouraging diverse applicants) and do not leave anyone worse off or raise issue of discrimination Some employers go further and apply a preference for women and minorities to achieve affirmative action goals This is legally problematic © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Distinguishing Legal Affirmative Action from Reverse Discrimination (2 of 3) In reverse discrimination cases, an employee who believes he was passed over for an employment opportunity because of affirmative action alleges disparate treatment The employer has taken a protected class into account in making its employment decision The question is whether this use of affirmative action was legal or discriminatory © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Distinguishing Legal Affirmative Action from Reverse Discrimination (2 of 3) Using affirmative action does not mean establishing quotas or reserving opportunities solely for persons with the desired class characteristic, regardless of their qualifications Instead, the inquiry is whether, and to what extent, may protected class characteristics be taken into account for the purpose of undoing past discrimination toward women and people of color © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

The Legality of Affirmative Action Under Title VII To undertake a voluntary affirmative action plan, the employer must have: Have an affirmative action plan The plan was remedial in nature The plan was designed to address a “manifest imbalance” in the protected class composition of the employer’s workforce (underutilization) The plan must be a temporary measure that must not continue after the underutilization has been eliminated © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

The Legality of Affirmative Action Under the U.S. Constitution In constitutional cases, courts review racial preferences with strict scrutiny – the most stringent form of judicial review of government actions A public employer must show: The plan serves a compelling governmental interest, and The measures employed are narrowly tailored Student body diversity can also be a compelling governmental interest © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans (1 of 2) EEOC guidelines require that affirmative action plans have 3 main components: A reasonable self-analysis, A reasonable basis for concluding that action is appropriate, and Reasonable action © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans (2 of 2) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans Ingredients of Affirmative Action Plans – Reasonable Self-Analysis (1 of 3) EEOC does not mandate a certain type of self-analysis, but a good model includes: An organizational profile Job group analysis Documentation of the protected class characteristics of incumbents Identification of problem areas The analysis is done at the individual establishment level © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans Ingredients of Affirmative Action Plans – Reasonable Self-Analysis (2 of 3) Organizational profile Portrays staffing patterns in the organization Organizational display Depicts the structure of a firm, like an organizational chart For each unit, information must be provided on the demographics of the supervisor, the total number of males and females, broken down by race and ethnicity © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans Ingredients of Affirmative Action Plans – Reasonable Self-Analysis (3 of 3) Alternatively, a workforce analysis, requires: Individual job titles are listed for each department or other unit For each job title the same demographic information is provided for the organizational display In a job group analysis, the individual job titles are combined into fewer groupings Identification of problem areas © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans – Reasonable Basis for Action Underutilization exists when the percentage of women or persons of color is lower than the percentage of women or persons of color with the necessary skills for that type of employment How large does the discrepancy have to be? No single answer, but the Supreme Court consistently refers to the need for evidence of a “manifest imbalance” © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans Ingredients of Affirmative Action Plans Reasonable Affirmative Action (1 of 1) Reasonable actions include: Identifying goals for improvement Timetables for achieving the goals Goals should be reasonably attainable through good faith effort Employers with affirmative action plans should establish goals as benchmarks against which progress can be measured, not mindless adherence to numerical goals © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Ingredients of Affirmative Action Plans Ingredients of Affirmative Action Plans Reasonable Affirmative Action (2 of 2) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Effects of Affirmative Action Despite the belief that affirmative action hires are not qualified, a major study found that firms using affirmative action: …in recruiting, had somewhat comparable educational credentials …in hiring, hired workers with somewhat lower educational credentials Job performance levels were equal to or exceeded job performance levels of others in the firm Greater training by such firms appears to counteract any lower educational credentials of people hired © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Diversity and Affirmative Action Affirmative action overlaps with the idea of valuing diversity in the workplace Cases in which diversity efforts are not grounded in affirmative action plans lead to reverse discrimination claims, and these are likely to become more common Employers with diversity programs should be aware that valuing diversity does not justify actions that would otherwise be discriminatory © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

What Would You Do? You are the manager of a small restaurant owned by a local family. The restaurant is very much in the mold of Hooter’s, where virtually all of the servers are female and scantily clad. But you have just read that, following a suit brought by EEOC against Hooters for sex discrimination against men, Hooter’s agreed to settle the case in part by agreeing to hire males to work as servers. Since your restaurant is very similar to the Hooter’s brand, hiring only women as servers, you can see that you have a problem. What would you do? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Next: Chapter 9 – Harassment When does joking become harassment? When is the company liable for the actions of a manager who engages in harassment? The answers to these questions and more are next. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.