1. Equal Opportunity and the Law
Part 1 | Introduction
Chapter 2
Equal Opportunity and the Law
© 2008 Prentice Hall, Inc. All rights reserved.

2. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

3. Equal Employment Opportunity 1964–1991
Title VII of the 1964 Civil Rights Act EEOC
Executive Orders 11246, 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
© 2008 Prentice Hall, Inc. All rights reserved.

4. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

5. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

6. 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
© 2008 Prentice Hall, Inc. All rights reserved.

7. Equal Employment Opportunity 1990–91–present (cont’d)
AIDS
Qualified Individual
Reasonable Accommodation
Employer Defenses
Americans with Disabilities Act (ADA) of 1990
© 2008 Prentice Hall, Inc. All rights reserved.

8. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

9. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

10. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

11. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

12. Proving Sexual Harassment
Quid Pro Quo
Hostile Environment Created by Co-Workers or Nonemployees
Hostile Environment Created by Supervisors
© 2008 Prentice Hall, Inc. All rights reserved.

13. 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:
© 2008 Prentice Hall, Inc. All rights reserved.

14. Sexual Harassment: Court Decisions
Meritor Savings Bank, FSB v. Vinson
Burlington Industries v. Ellerth
Faragher v. City of Boca Raton
Sexual Harassment
© 2008 Prentice Hall, Inc. All rights reserved.

15. 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: 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.
© 2008 Prentice Hall, Inc. All rights reserved.

16. FIGURE 2–2 California State University, Fresno: Complaint Form for Filing a Complaint of Harassment or Discrimination
Source: California State University, Fresno.
© 2008 Prentice Hall, Inc. All rights reserved.

17. Adverse Impact Showing Adverse Impact Disparate Rejection Rates
McDonnell-Douglas Test
Restricted Policy
Showing Adverse Impact
Population Comparisons
© 2008 Prentice Hall, Inc. All rights reserved.

18. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

19. Bona Fide Occupational Qualification
Age
Religion
Gender
National Origin
Bona Fide Occupational Qualification (BFOQ)
© 2008 Prentice Hall, Inc. All rights reserved.

20. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

21. 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.
© 2008 Prentice Hall, Inc. All rights reserved.

22. 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
© 2008 Prentice Hall, Inc. All rights reserved.

23. 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
© 2008 Prentice Hall, Inc. All rights reserved.

24. 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
© 2008 Prentice Hall, Inc. All rights reserved.

25. 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. ( ); 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 ( accessed May 6, 2007.
© 2008 Prentice Hall, Inc. All rights reserved.

26. 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)
© 2008 Prentice Hall, Inc. All rights reserved.

27. 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
© 2008 Prentice Hall, Inc. All rights reserved.

28. 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
© 2008 Prentice Hall, Inc. All rights reserved.

29. 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
© 2008 Prentice Hall, Inc. All rights reserved.

30. 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?
© 2008 Prentice Hall, Inc. All rights reserved.

31. Designing an Affirmative Action Program
Good Faith Effort Strategy
Eliminating the present effects of past practices that excluded or underutilized protected groups.
Identification through numerical analysis.
Proactive elimination of employment barriers.
Increased minority or female applicant flow.
Increasing Employee Support for Affirmative Action
Transparent selection procedures
Communication
Justifications
© 2008 Prentice Hall, Inc. All rights reserved.

32. Steps in an Affirmative Action Program
Issues a written equal employment policy.
Appoints a top official to direct and implement the program.
Publicizes the equal employment policy and affirmative action commitment.
Surveys minority and female employment to determine where affirmative action programs are especially desirable.
Develops goals and timetables to improve utilization of minorities and females.
Develops and implements specific programs to achieve these goals.
Establishes an audit and reporting system to monitor and evaluate progress of the program.
Develops support for the affirmative action program, both inside the company and in the community.
© 2008 Prentice Hall, Inc. All rights reserved.

33. Reverse Discrimination
Discrimination against non-minority applicants and employees by quota-based systems.
Bakke v. Regents of the University of California
Wygant v. Jackson Board of Education
U.S. v. Paradise
Johnson v. Transportation Agency, Santa Clara County
© 2008 Prentice Hall, Inc. All rights reserved.

34. K E Y T E R M S Title VII of the 1964 Civil Rights Act
Equal Employment Opportunity Commission (EEOC)
affirmative action
Office of Federal Contract Compliance Programs (OFCCP)
Equal Pay Act of 1963
Age Discrimination in Employment Act
of 1967 (ADEA)
Vocational Rehabilitation Act of 1973
Vietnam Era Veterans’ Readjustment Act of 1974
Pregnancy Discrimination Act (PDA)
uniform guidelines
sexual harassment
Federal Violence Against Women Act
of 1994
protected class
Civil Rights Act of 1991 (CRA 1991)
mixed motive case
Americans with Disabilities Act (ADA)
qualified individuals
adverse impact
disparate rejection rates
restricted policy
bona fide occupational qualification (BFOQ)
alternative dispute resolution or ADR program
good faith effort strategy
reverse discrimination
© 2008 Prentice Hall, Inc. All rights reserved.