Employment Law Report

Equal Opportunity Laws En‐ acted from 1964 to 1991

Learning Objective 2-1 Explain the importance of and list the basic features of Ti‐ tle VII of the 1964 Civil Rights Act and at least five other equal employment laws.

Hardly a day goes by without equal opportunity

lawsuits at work. One survey of corporate counsels found that such lawsuits were their biggest litigation fears. Performing day-to-day su‐ pervisory tasks like hiring employees without understanding these laws is fraught with peril.

Actually, laws barring discrimination against minorities in the United States are nothing new. The Fifth Amendment to the U.S. Constitution

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(ratified in 1791) states that “no person shall be deprived of life, liberty, or property, without due process of the law.” The Thirteenth Amend‐ ment (1865) outlawed slavery, and courts have held that it bars racial discrimination. The Civil Rights Act of 1866 gives all persons the same right to make and enforce contracts and to benefit from U.S. laws. But as a practical matter, Congress and presidents avoided dramatic action on implementing equal employment until the early 1960s. At that point, civil unrest among minorities and women and changing traditions prompted them to act. Congress passed a multitude of new civil rights laws.

Title VII of the 1964 Civil Rights Act Title VII of the 1964 Civil Rights Act was one of the first of these laws. As amended by the 1972 Equal Employment Opportunity Act, Ti‐ tle VII states that an employer cannot discriminate based on race, color, religion, sex, or national origin. Specifically, it states that it shall be an unlawful employment practice for an employer:

1. To fail or refuse to hire or to discharge an individual or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

2. To limit, segregate, or classify employees or applicants for em‐ ployment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely

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affect his or her status as an employee, because of such individ‐ ual’s race, color, religion, sex, or national origin.

Title VII bars discrimination on the part of most employers, including all public or private employers of 15 or more persons and most labor unions. It also covers all private and public educational institutions, the federal government, and state and local governments. It bars public and private employment agencies from failing or refusing to refer for employment any individual because of race, color, religion, sex, or na‐ tional origin.

Title VII established the Equal Employment Opportunity Commission (EEOC) to adminis‐ ter and enforce the Civil Rights Act at work. It consists of five members appointed by the president with the advice and consent of the Senate. Each member serves a 5-year term. In popular usage, the EEOC also includes the thousands of staff the EEOC has around the United States. They receive and investigate job discrimination complaints from ag‐ grieved individuals. When the EEOC finds reasonable cause that the charges are justified, it attempts (through conciliation) to reach an agreement. If this fails, it can go to court. The EEOC may file discrimi‐ nation charges on behalf of aggrieved individuals, or the individuals may file on behalf of themselves. We’ll discuss the EEOC procedure later in this chapter.

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Executive Orders Various U.S. presidents signed executive orders expanding equal em‐ ployment in federal agencies. For example, the Johnson administration (1963–1969) issued Executive Orders 11246 and 11375. These required that government contractors with contracts of more than $50,000 and 50 or more employees take affirmative action to ensure employ‐ ment opportunities for those who may have suffered past discrimina‐ tion. They also established the Office of Federal Contract Compliance Programs (OFCCP) . It im‐ plements the orders and ensures compliance.

Equal Pay Act of 1963 Under the Equal Pay Act of 1963 (amended in 1972), it is unlawful to discriminate in pay on the basis of sex when jobs involve equal work; require equivalent skills, effort, and responsibility; and are performed under similar working conditions. Pay differences derived from seniority systems, merit systems, and systems that measure earnings by pro‐ duction quantity or quality or from any factor other than sex do not vio‐ late the act. Unfortunately, this act notwithstanding, women still earn only about 70% as much as men in similar jobs; we’ll address this in‐ equity and how to deal with it in our chapter on establishing strategic pay plans.

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Age Discrimination in Employment Act of 1967 The Age Discrimination in Employment Act of 1967 (ADEA) made it unlawful to discriminate against employees or applicants who are be‐ tween 40 and 65 years of age. Subsequent amendments effectively ended most mandatory retirement at age 65. Most states and local agencies, when acting as employers, must also adhere to the ADEA.

You can’t get around the ADEA by replacing employees who are, say, 60 with someone over 40. In one case the U.S. Supreme Court held that an employee who is over 40 years of age might sue for discrimina‐ tion if a “significantly younger” employee replaces him or her, even if the replacement is also over 40. The Court didn’t specify what “signifi‐ cantly younger” meant. Here the plaintiff was replaced by someone 16 years younger.

Younger managers especially may have to guard against ageist preju‐ dices. For example, a 54-year-old former manager alleged that Google fired him because his supervisor said he wasn’t a “cultural fit.” Such comments prompted the California Court of Appeals to let the manag‐ er’s case proceed.

Lawyers like the ADEA. It allows jury trials and double damages to those proving “willful” discrimination.

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Vocational Rehabilitation Act of 1973 The Vocational Rehabilitation Act of 1973 requires employers with federal contracts of more than $2,500 to take affirmative action in em‐ ploying handicapped persons. It does not require hiring unqualified people. It does require an employer to take steps to accommodate a handicapped worker unless doing so imposes an undue hardship on the employer.

Pregnancy Discrimination Act of 1978 The Pregnancy Discrimination Act of 1978 prohibits using preg‐ nancy, childbirth, or related medical conditions to discriminate in hiring, promotion, suspension, or discharge, or in any term or condition of em‐ ployment. Furthermore, under the act, if an employer offers its employ‐ ees disability coverage, then it must treat pregnancy and childbirth like any other disability, and include it in the plan as a covered condition.

More women are suing under this act, and progressive human re‐ sources notwithstanding, it’s easy to see why. As one example, an auto dealership fired an employee after she said she was pregnant. The reason? Allegedly, “In case I ended up throwing up or cramping in one of their vehicles. They said pregnant women do that sometimes, and I could cause an accident. . . .” Managers therefore should base such decisions on “medical documentation, not on a manager’s interpreta‐ tion.”

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Federal Agency Guidelines The federal agencies charged with ensuring compliance with these laws and executive orders have their own implementing guidelines. These spell out recommended procedures for complying with the law.

The EEOC, Civil Service Commission, Department of Labor, and De‐ partment of Justice together issued Uniform Guidelines . These set forth “highly recommended” procedures for things like employee selection and record keeping. As an example, they specify that employ‐ ers must validate any employment selection devices (like tests) that screen out disproportionate numbers of women or minorities, and they explain how to do so. (We explain this procedure in Chapter 6 .) The EEOC and other agencies also periodically issue updated guidelines clarifying and revising their positions on matters such as sexual harass‐ ment. The American Psychological Association has its own (non–legally binding) Standards for Educational and Psychological Testing.

Early Court Decisions Regarding Equal Employment Opportunity Several court decisions between 1964 and 1991 helped clarify courts’ interpretations of equal employment opportunity (EEO) laws such as Ti‐ tle VII.

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GRIGGS V. DUKE POWER COMPANY Griggs was a landmark case because the Supreme Court used it to define unfair discrimination. Lawyers sued the Duke Power Company on behalf of Willie Griggs, an applicant for a job as a coal handler. The company required its coal handlers to be high school graduates. Griggs claimed this requirement was illegally discriminatory. He said it wasn’t related to success on the job, and it resulted in more blacks than whites being rejected for these jobs. Griggs won the case. The Court’s decision was unanimous. In his written opinion, Chief Justice Burger laid out three crucial guidelines af‐ fecting equal employment legislation.

First, the Court ruled that the discrimination does not have to be overt to be illegal. The plaintiff does not have to show that the em‐ ployer intentionally discriminated against the employee or applicant. Instead, the plaintiff just has to show that discrimination took place. Second, the Court held that an employment practice (in this case, requiring the high school degree) must be job related if it has an un‐ equal impact on members of a protected class . (For example, if arithmetic is not required to perform the job, don’t test for arithmetic.) Third, Chief Justice Burger’s opinion placed the burden of proof on the employer to show that the hiring practice is job related. Thus, the employer must show that the employment practice (in this case, requiring a high school degree) is necessary for satisfactory job per‐ formance if the practice discriminates against members of a pro‐ tected class. Said Justice Burger,

The act proscribes not only overt discrimination, but also practices that are fair in

form, but discriminatory in operation. The touchstone is business necessity. If an

employment practice which operates to exclude Negroes cannot be shown to

be related to job performance, the practice is prohibited.

For employers, Griggs established these five principles:

1. A test or other selection practice must be job related, and the burden of proof is on the employer.

2. An employer’s intent not to discriminate is irrelevant. 3. If a practice is “fair in form but discriminatory in operation,” the

courts will not uphold it. 4. Business necessity is the defense for any existing program that

has adverse impact. The court did not define business necessity. 5. Title VII does not forbid testing. However, the test must be job

related (valid), in that performance on the test must relate to per‐ formance on the job.

ALBEMARLE PAPER COMPANY V. MOODY In the Albemarle case, the Court provided more details on how employers could prove that tests or other screening tools relate to job performance. For example, the Court said that if an employer wants to test candidates for a job, then the employer should first clearly document and understand the job’s duties and responsibilities. Furthermore, the job’s performance standards should be clear and unambiguous. That way, the employer can identify which employees are performing better than others. The Court’s ruling also established the EEOC (now Federal) Guidelines on validation as the procedures for validating employment practices.

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The Laws Enacted from 1991 to the Present

Learning Objective 2-2 Describe post-1990 employment laws including the Amer‐ icans with Disabilities Act and how to avoid accusations of sexual harassment at work.

The Civil Rights Act of 1991 Several subsequent Supreme Court rulings in the 1980s limited the pro‐ tection of women and minority groups under equal employment laws. For example, they raised the plaintiff’s burden of proving that the em‐ ployer’s acts were in fact discriminatory. This prompted Congress to pass a new Civil Rights Act. President George H. W. Bush signed the Civil Rights Act of 1991 (CRA 1991) into law in November 1991. The effect of CRA 1991 was to roll back equal employment law to where it stood before the 1980s decisions, and to place more responsi‐ bility on employers.

BURDEN OF PROOF First, CRA 1991 addressed the issue of burden of proof. Burden of proof—what the plaintiff must show to establish possible illegal discrimination, and what the employer must show to de‐ fend its actions—plays a central role in equal employment cases. To‐ day, in brief, once an aggrieved applicant or employee demonstrates that an employment practice (such as “must lift 100 pounds”) has an adverse impact on a particular group, then the burden of proof shifts to the employer, who must show that the challenged practice is job relat‐ ed. For example, the employer has to show that lifting 100 pounds is required for performing the job in question, and that the business could not run efficiently without the requirement—that it is a business neces‐ sity.

MONEY DAMAGES Before CRA 1991, victims of intentional discrimi‐ nation (which lawyers call disparate treatment) who had not suffered fi‐ nancial loss and who sued under Title VII could not then sue for com‐ pensatory or punitive damages. All they could expect was to have their jobs reinstated (or to get a particular job). They were also eligible for back pay, attorneys’ fees, and court costs.

CRA 1991 makes it easier to sue for money damages in such cases. It provides that an employee who is claiming intentional discrimination can ask for (1) compensatory damages and (2) punitive damages, if he or she can show the employer engaged in discrimination “with malice or reckless indifference to the federally protected rights of an aggrieved individual.”

MIXED MOTIVES Some employers in “mixed-motive” cases had taken the position that even though their actions were discriminatory,

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other factors like the employee’s dubious behavior made the job action acceptable. Under CRA 1991, an employer cannot avoid liability by proving it would have taken the same action—such as terminating someone—even without the discriminatory motive. If there is any such motive, the practice may be unlawful.

The Americans with Disabilities Act The Americans with Disabilities Act (ADA) of 1990 prohibits em‐ ployment discrimination against qualified disabled individuals. It pro‐ hibits employers with 15 or more workers from discriminating against qualified individuals with disabilities, with regard to applications, hiring, discharge, compensation, advancement, training, or other terms, condi‐ tions, or privileges of employment. It also says employers must make “reasonable accommodations” for physical or mental limitations unless doing so imposes an “undue hardship” on the business.

The ADA does not list specific disabilities. Instead, EEOC guidelines say someone is disabled when he or she has a physical or mental im‐ pairment that “substantially limits” one or more major life activity. Initial‐ ly, impairments included any physiological disorder or condition, cos‐ metic disfigurement, or anatomical loss affecting one or more of several body systems, or any mental or psychological disorder, but the list is growing. The act specifies conditions that it does not regard as dis‐ abilities, including homosexuality, compulsive gambling, pyromania, and certain disorders resulting from the current illegal use of drugs.

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Mental disabilities account for the greatest number of ADA claims. Under EEOC ADA guidelines, “mental impairment” includes “any men‐ tal or psychological disorder, such as . . . emotional or mental illness.” Ex‐ amples include major depression, anxiety disorders, and personality disorders. The ADA also protects employees with intellectual disabili‐ ties, including those with IQs below 70–75. The guidelines say em‐ ployers should be alert to the possibility that traits normally regarded as undesirable (such as chronic lateness, hostility, or poor judgment) may reflect mental impairments. Reasonable accommodation might then in‐ clude providing barriers between work spaces.

QUALIFIED INDIVIDUAL Just being disabled doesn’t qualify someone for a job, of course. Instead, the act prohibits discrimination against qualified individuals —those who, with (or without) a reasonable ac‐ commodation, can carry out the essential functions of the job. The indi‐ vidual must have the requisite skills, educational background, and ex‐ perience. A job function is essential when, for instance, it is the reason the position exists, or it is so highly specialized that the employer hires the person for his or her expertise or ability to perform that particular function. For example, when an Iowa County highway worker had an on-the-job seizure, his driver’s license was suspended and the court ruled he had no ADA claim because he couldn’t perform the essential functions of the job.

REASONABLE ACCOMMODATION If the individual can’t perform the job as currently structured, the employer must make a “reasonable ac‐ commodation” unless doing so would present an “undue hardship.” Reasonable accommodation might include redesigning the job, modify‐ ing work schedules, or modifying or acquiring equipment or other de‐

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vices; widening door openings or permitting telecommuting are exam‐ ples. For example, about 70% of working-age blind adults are unem‐ ployed or underemployed. Existing technologies such as screen-read‐ ing programs might enable most to work successfully.

Attorneys, employers, and the courts continue to work through what “reasonable accommodation” means. In one classic case, a Walmart door greeter with a bad back asked if she could sit on a stool while on duty. The store said no. The federal district court agreed door greeters must act in an “aggressively hospitable manner,” which can’t be done from a stool. Standing was an essential job function. You can use technology and common sense to make reasonable accommodation (see Figure 2-1 ).

Figure 2-1 Examples of How to Provide Reasonable Accommodation

THE ADA AMENDMENTS ACT OF 2008 (ADAAA) Employers tradi‐ tionally prevailed in almost all—96%—federal circuit court ADA deci‐ sions. One case typifies what plaintiffs faced. An assembly worker sued Toyota, arguing that carpal tunnel syndrome prevented her from doing her job. The U.S. Supreme Court ruled that the ADA covers carpal tunnel syndrome only if her impairments affect not just her job performance, but also her daily living activities. The employee admitted

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that she could perform personal chores such as washing her face and fixing breakfast. The Court said the disability must be central to the em‐ ployee’s daily living (not just to his or her job).

However, the ADA Amendments Act of 2008 (ADAAA) has made it easi‐ er for employees to show that their disabilities are influencing one of their “major life activities,” such as reading and thinking. For example, sensitivity to perfume might be considered a disability. Employers must therefore redouble their efforts to ensure they’re complying with the ADA.

Many employers simply take a progressive approach. Common em‐ ployer concerns about people with disabilities (for instance, that they are less productive and have more accidents) are generally baseless. For example, Walgreens tries to fill at least one-third of the jobs at its large distribution centers with people with disabilities.

Figure 2-2 summarizes some important ADA guidelines for man‐ agers and employers.

Figure 2-2 ADA Guidelines for Managers and Employers

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Technology enables employers to accommodate disabled employees. John Lee/First Light/AGE Fotostock

Uniformed Services Employment and Reemployment Rights Act Under the Uniformed Services Employment and Reemployment Rights Act (1994), employers are generally required, among other things, to re‐ instate employees returning from military leave to positions comparable to those they had before leaving.47

Genetic Information Nondiscrimination Act of 2008 (GINA) The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination by health insurers and employers based on people’s ge‐ netic information. Specifically, it prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic informa‐ tion about applicants and employees, and imposes strict confidentiality requirements.

State and Local Equal Employment Opportunity Laws In addition to federal laws, all states and many local governments pro‐ hibit employment discrimination. The state or local laws usually cover employers (like those with less than 15 employees) not covered by fed‐ eral legislation.

Employers ignore city and state EEO laws at their peril. In New York City, for instance, city law applies to employers with as few as 4 em‐ ployees (not 15, as under Title VII). Connecticut recently became the first state to require that employers provide paid sick leave to employ‐ ees. Hawaii and Massachusetts prohibit employers from asking about criminal convictions on applications. Managers use manuals such as

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HR Compliance Basics: Your State and Federal Employment Law Manu‐ al (available from the SHRM) to understand local EEO requirements.

State and local equal employment opportunity

agencies (often called Human Resources Commissions or Fair Employ‐ ment Commissions) also play a role in equal employment compliance. When the EEOC receives a discrimination charge, it usually defers it for a limited time to the state and local agencies that have comparable ju‐ risdiction. If that doesn’t achieve satisfactory remedies, the charges go back to the EEOC for resolution.

In Summary: Religious and Other Types of Discrimination The EEOC enforces laws prohibiting discrimination based on age, dis‐ ability, equal pay/compensation, genetic information, national origin, pregnancy, race/color, religion, retaliation, sex, and sexual harassment. The EEOC has also held that discrimination against an individual be‐ cause that person is transgender is discrimination because of sex and therefore covered under Title VII. The Commission has also found that

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sexual orientation claims by lesbian, gay, and bisexual individuals alleg‐ ing sex stereotyping have a sex discrimination claim under Title VII.

Religious discrimination involves treating someone unfavorably be‐ cause of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical, or moral beliefs. Unless it would be an undue hardship on the employer, an employer must reasonably accom‐ modate an employee’s religious beliefs or practices. This applies to schedule changes or leave for religious observances, as well as to such things as religious dress or grooming practices. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). Religious discrimination claims are increasing. In one case truck drivers claimed that requiring them to deliver alcoholic drinks violated their religious faith.

Recent Trends in Discrimination Law Some trends are broadening the impact of equal employment laws, while others are forming new headwinds.

In terms of the former, the U.S. Supreme Court held that the federal De‐ fense of Marriage Act’s exclusion of state-sanctioned, same-sex mar‐ riages was unconstitutional. In a guidance from the Department of

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Labor (DOL), the DOL said that under the Employee Retirement Income Security Act (ERISA), “The term ‘spouse’ will be read to refer to any in‐ dividuals who are lawfully married under any state law, including those married to someone of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that doesn’t recognize such marriages.” In 2014, President Obama signed an executive order barring federal contractors from discriminat‐ ing against lesbian, gay, bisexual, and transgender employees, for in‐ stance in terms of benefits. The DOL recently passed final regulations requiring that federal contractors adopt quantifiable hiring goals for in‐ dividuals with disabilities. Employers who don’t employ a minimum of 7% disabled workers may face penalties, possibly including loss of their contracts unless they take immediate remedial actions. The 2013–2016 Equal Employment Opportunity Commission enforcement priorities focus on (among other things) eliminating hiring barriers, such as credit history checks, that might unfairly discriminate.

But other recent decisions may produce headwinds. For example, the U.S. Supreme Court upheld a Michigan constitutional amendment that bans affirmative action in admissions to the state’s public universities. One effect would seem to be to permit voters in individual states to eliminate affirmative action–based admissions to their public universi‐ ties. And in two other recent decisions, the U.S. Supreme Court made it more difficult for someone to bring a retaliation claim against an employer; it also more strictly defined “supervisor,” reducing the likeli‐ hood someone could show that an employer was responsible for a “su‐ pervisor’s” harassing behavior. Table 2-1 summarizes selected equal employment opportunity laws, actions, executive orders, and agency guidelines.

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Sexual Harassment Under Title VII, sexual harassment generally refers to harassment on the basis of sex when such conduct has the purpose or effect of substantially interfering with a person’s work performance or creating an intimidating, hostile, or offensive work environment. In one recent year, the EEOC received 11,717 sexual harassment charges, about 15% of which were filed by men. (The U.S. Supreme Court held, in Oncale v. Sundowner Offshore Services Inc., that same-sex sexual ha‐ rassment is also actionable under Title VII. ) One study found “women experienced more sexual harassment than men, minorities experienced more ethnic harassment than whites, and minority women experience more harassment overall than majority men, minority men, and majority women.”

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Table 2-1 Summary of Important Equal Employment Opportunity Actions

Source: Based on The actual laws. From www.usa.gov/Topics/ReferenceShelf/ Laws.shtml, accessed September 21, 2013.

Under EEOC guidelines, employers have an affirmative duty to maintain workplaces free of sexual harassment and intimidation. CRA 1991 per‐ mits victims of intentional discrimination, including sexual harassment, to have jury trials and to collect compensatory damages for pain and suffering and punitive damages, where the employer acted with “malice or reckless indifference” to the person’s rights. The Federal Violence Against Women Act of 1994 further provides that

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a person “who commits a crime of violence motivated by gender and thus deprives another” of her rights shall be liable to the party injured.

WHAT IS SEXUAL HARASSMENT? EEOC guidelines define sexual ha‐ rassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that takes place under any of the following conditions:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.

2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

3. Such conduct has the purpose or effect of unreasonably interfer‐ ing with an individual’s work performance or creating an intimi‐ dating, hostile, or offensive work environment.

PROVING SEXUAL HARASSMENT There are three main ways some‐ one can prove sexual harassment:

1. Quid Pro Quo. The most direct is to prove that rejecting a super‐ visor’s advances adversely affected what the EEOC calls a “tan‐ gible employment action,” such as hiring, firing, promotion, de‐ motion, and/or work assignment. In one case, the employee showed that continued job success and advancement were de‐ pendent on her agreeing to the sexual demands of her supervi‐ sors. “Sexual harassment” generally requires that the behavior be pervasive or severe. Thus, in one case, the court ruled that although the supervisor had touched the employee’s shoulder

twice as he drove her back from work and also mentioned that she “owed him” for hiring her, she did not have a trial-able sexual harassment claim.

2. Hostile Environment Created by Supervisors. The harassment need not have tangible consequences such as demotion. For ex‐ ample, one court found that a male supervisor’s behavior had substantially affected a female employee’s emotional and psy‐ chological ability to the point that she felt she had to quit her job. Therefore, even though the supervisor made no direct threats or promises in exchange for sexual advances, his advances inter‐ fered with the woman’s performance and created an offensive work environment. That was sufficient to prove sexual harass‐ ment. Courts generally do not interpret as sexual harassment sexual relationships that arise during the course of employment but that do not have a substantial effect on that employment. The U.S. Supreme Court also held that sexual harassment law doesn’t cover ordinary “intersexual flirtation.” In his ruling, Jus‐ tice Antonin Scalia said courts must carefully distinguish be‐ tween “simple teasing” and truly abusive behavior.

3. Hostile Environment Created by Coworkers or Nonemploy‐ ees. Coworkers or nonemployees can trigger such suits. One court held that a mandatory sexually provocative uniform led to lewd comments by customers. When the employee refused to wear the uniform, she was fired. The employer couldn’t show there was a job-related necessity for the uniform, and only fe‐ male employees wore it. The court ruled that the employer, in ef‐ fect, was responsible for the sexually harassing behavior. Such abhorrent client behavior is more likely when the clients are in positions of power, and when they think no one will penalize

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them. Employers are also liable for the sexually harassing acts of nonsupervisory employees if the employer knew or should have known of the conduct.

WHEN IS THE ENVIRONMENT “HOSTILE”? Hostile environment sex‐ ual harassment generally means the intimidation, insults, and ridicule were sufficiently severe to alter the employee’s working conditions. Courts look at several things. These include whether the discriminatory conduct is frequent or severe; whether it is physically threatening or hu‐ miliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Courts also consid‐ er whether the employee subjectively perceives the work environment as being abusive. For example, did he or she welcome the conduct or immediately complain?

SUPREME COURT DECISIONS The U.S. Supreme Court used a case called Meritor Savings Bank, FSB v. Vinson to endorse broadly the EEOC’s guidelines on sexual harassment. Two other Supreme Court decisions further clarified sexual harassment law.

In the first, Burlington Industries v. Ellerth, the employee accused her supervisor of quid pro quo harassment. She said her boss proposi‐ tioned and threatened her with demotion if she did not respond. He did not carry out the threats, and she was promoted. In the second case, Faragher v. City of Boca Raton, the employee accused the employer of condoning a hostile work environment. She said she quit her lifeguard job after repeated taunts from other lifeguards. The Court ruled in favor of the employees in both cases.

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The Court’s written decisions have two implications for employers and managers. First, in quid pro quo cases it is not necessary for the em‐ ployee to suffer a tangible job action (such as a demotion) to win the case. Second, the Court laid out an important defense against harass‐ ment suits. It said the employer must show that it took “reasonable care” to prevent and promptly correct any sexually harassing behavior and that the employee unreasonably failed to take advantage of the employer’s policy.

IMPLICATIONS FOR EMPLOYERS AND MANAGERS These deci‐ sions suggest an employer can defend itself against sexual harassment liability by showing two things:

First, it must show “that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Second, it must demonstrate that the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities pro‐ vided by the employer.” The employee’s failure to use formal report‐ ing systems would satisfy the second component.

Prudent employer steps therefore include:

Take all complaints about harassment seriously. Issue a strong policy statement condemning such behavior. De‐ scribe the prohibited conduct, assure protection against retaliation, describe a confidential complaint process, and provide impartial in‐ vestigation and corrective action. Take steps to prevent sexual harassment from occurring. For exam‐ ple, communicate to employees that the employer will not tolerate

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sexual harassment, and take immediate action when someone complains. Establish a management response system that includes an immedi‐ ate reaction and investigation. Train supervisors and managers to increase their awareness of the issues, and discipline managers and employees involved in sexual harassment.

WHEN THE LAW ISN’T ENOUGH Unfortunately, two practical consid‐ erations often outdo the legal requirements. First, “Women perceive a broader range of socio-sexual behaviors (touching, for instance) as ha‐ rassing.” In one study, about 58% of employees reported experienc‐ ing potentially harassment-type behaviors at work. Overall, about 25% found it flattering and about half viewed it as benign. But on closer ex‐ amination, about four times as many men as women found the behavior flattering or benign. Sexual harassment training and policies can re‐ duce this problem.

A second problem is that employees often won’t complain. For exam‐ ple, two Air Force generals recently appeared before the U.S. Con‐ gress’ House Armed Services Committee to explain (among other things) how 23 instructors at an Air Force base could engage in unpro‐ fessional relationships or sexual assaults against 48 female trainees. The Air Force blamed both a climate of fear among female personnel (who believed that reporting the offenses to superior officers would be futile or counterproductive) and “a weak command structure.”

WHAT THE EMPLOYEE CAN DO First, complain. Remember that courts generally look to whether the harassed employee used the em‐

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ployer’s reporting procedures to file a complaint promptly. If the em‐ ployer has an effectively communicated complaint procedure, use it and then cooperate in the investigation. In that context, steps an em‐ ployee can take include:

1. File a verbal contemporaneous complaint with the harasser and the harasser’s boss, stating that the unwanted overtures should cease because the conduct is unwelcome.

2. If the unwelcome conduct does not cease, file verbal and written reports regarding the unwelcome conduct and unsuccessful ef‐ forts to get it to stop with the harasser’s manager and/or the hu‐ man resource director.

3. If the letters and appeals to the employer do not suffice, contact the local office of the EEOC to file the necessary claim. In very serious cases, the employee can also consult an attorney about suing the harasser for assault and battery, intentional infliction of emotional distress, and injunctive relief, and to recover compen‐ satory and punitive damages.

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Watch It! How does an employer actually deal with problems such as sexual harassment? If your professor has assigned this, go to the Assignments section of www.mymanagementlab.com to complete the video exercise titled Equal Employment (UPS).

Trends Shaping HR: Digital

and Social Media

For employers, social media brings both benefits and reasons for caution. For one thing, some employees will use Facebook and other accounts to harass and bully coworkers (as with dis‐ paraging comments). Here, employers must distinguish between illegal online harassment (that applying to race, religion, national origin, age, sex/gender, genetic information, and disability dis‐ crimination) and common personality conflicts. However, at a

minimum, employers should have a zero-tolerance policy on bul‐ lying.

On the positive side, we’ll see that social media has been a boon for staffing, for instance for finding candidates on LinkedIn or for checking out current applicants on Facebook. However, viewing an applicant’s social media profile can be problematic, as it may reveal information on things like religion, race, and sex‐ ual orientation. Some states forbid employers from requiring or even requesting employees’ or applicants’ passwords. It’s there‐ fore sensible to put in place policies restricting who can check out candidates online and how they can do it. And supervisors should think twice about doing such checking themselves.

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Defenses Against Discrimina‐ tion Allegations

Learning Objective 2-3 Illustrate two defenses you can use in the event of dis‐ criminatory practice allegations, and cite specific discrimi‐ natory personnel management practices in recruitment, selection, promotion, transfer, layoffs, and benefits.

To understand how employers defend themselves against employment discrimination claims, we should first briefly review some basic legal terminology.

Discrimination law distinguishes between disparate treatment and dis‐ parate impact. Disparate treatment means intentional discrimination. Disparate treatment “exists where an employer treats an individual dif‐ ferently because that individual is a member of a particular race, reli‐ gion, gender, or ethnic group.” A rule that says “we don’t hire drivers over 60 years of age” exemplifies this.

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Disparate impact means that “an employer engages in an employment practice or policy that has a greater adverse impact (effect) on the members of a protected group under Title VII than on other employees, regardless of intent.” A rule that says “employees must have college degrees to do this particular job” exemplifies this (because more white males than some minorities earn college degrees).

Disparate impact claims do not require proof of discriminatory intent. Instead, the plaintiff must show that the apparently neutral employment practice (such as requiring a college degree) creates an adverse impact —a significant disparity—between the proportion of (say) minorities in the available labor pool and the proportion you hire. Thus, disparate im‐ pact allegations require showing that the act produced an adverse im‐ pact. If it has, then the employer will probably have to defend itself (for instance, by arguing that there is a business necessity for the practice). Adverse impact “refers to the total employment process that results in a significantly higher percentage of a protected group in the candidate population being rejected for employment, placement, or promotion.” Then the burden of proof shifts to the employer.

The Central Role of Adverse Impact Showing that one of the employer’s employment practices or policies has an adverse impact therefore plays a central role in discriminato‐ ry practice allegations. Under Title VII and CRA 1991, a person who believes that (1) he or she was a victim of unintentional discrimination because of an employer’s practices need only (2) establish a prima fa‐

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cie case of discrimination. This means showing, for instance, that the employer’s selection procedures (like requiring a college degree for the job) did have an adverse impact on the protected minority group.

Employees who believe they are victims of harassment should have a mechanism for filing a complaint. Maurice van der Velden/Getty Images

So, for example, if a minority applicant feels he or she was a victim of discrimination, the person need only show that the employer’s selection process resulted in an adverse impact on his or her group. (For exam‐ ple, if 80% of the white applicants passed the test, but only 20% of the black applicants passed, a black applicant has a prima facie case prov‐

ing adverse impact.) Then the burden of proof shifts to the employer. It becomes the employer’s task to prove that its test (or application blank or the like) is a valid predictor of performance on the job (and that it ap‐ plied its selection process fairly and equitably to both minorities and nonminorities).

In practice, an applicant or employee can use one of the following five methods to show that one of an employer’s procedures (such as a se‐ lection test) has an adverse impact on a protected group.

DISPARATE REJECTION RATES The disparate rejection rate method compares the rejection rates for a minority group and another group (usually the remaining nonminority applicants).

Federal agencies use a “4/5ths rule” to assess disparate rejection rates: “A selection rate for any racial, ethnic, or sex group which is less than four-fifths or 80% of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded as evidence of ad‐ verse impact.” For example, suppose the employer hires 60% of male applicants but only 30% of female applicants. Four-fifths of the 60% male hiring rate would be 48%. Because the female hiring rate of 30% is less than 48%, adverse impact exists as far as these federal agen‐ cies are concerned.

THE STANDARD DEVIATION RULE Similarly, the courts have used the standard deviation rule to confirm adverse impact. (The standard devia‐ tion is a statistical measure of variability. It is a measure of the disper‐ sion of a set of data from its mean. Suppose we calculate the average

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height of students in your management class. In simplest terms, the standard deviation helps to describe, among other things, how wide a range there is in height between the shortest and tallest students and the class’s average student height.) In selection, the standard deviation rule holds that, as a rule of thumb, the difference between the numbers of minority candidates we would have expected to hire and whom we actually hired should be less than two standard deviations.

Consider this example. Suppose 300 applicants apply for 20 openings; 80 of the applicants are women, and the other 220 are men. We use our screening processes and hire 2 females and 18 males. Did our selection process have an adverse impact? To answer this, we can compute the standard deviation:

In our example, women are 26% (80/300) of the applicant pool. We should therefore expect to hire 26% of the 20 people hired, or about 5 women. We actually hired 2 women. The difference between the num‐ bers of women we would expect to hire and whom we actually hired is 5 − 2 = 3. We can use the standard deviation rule to gauge if there is adverse (disparate) impact. In our example, the standard deviation is

𝑆𝐷 = $𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑚𝑖𝑛𝑜𝑟𝑖𝑡𝑦 𝑎𝑝𝑝𝑙𝑖𝑐𝑎𝑛𝑡𝑠7

$𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑡𝑜𝑡𝑎𝑙 𝑎𝑝𝑝𝑙𝑖𝑐𝑎𝑛𝑡𝑠7 × $𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑛𝑜𝑛 − 𝑚𝑖𝑛𝑜𝑟𝑖𝑡𝑦 𝑎𝑝𝑝𝑙𝑖𝑐𝑎𝑛𝑡𝑠7

$𝑁𝑢𝑚𝑏𝑒𝑟 𝑜𝑓 𝑡𝑜𝑡𝑎𝑙 𝑎𝑝𝑝𝑙𝑖𝑐𝑎𝑛𝑡𝑠7:

In our case:

𝑆𝐷 = F 80

300 × 220 300 × 20K: = $0.2667 × 0.7333 × 207O

= 3.911√ = 𝑆𝐷 = 1.977

1.977. Again, the standard deviation rule holds that as a rule of thumb, the difference between the numbers of minority candidates we would have expected to hire and whom we actually hired should be less than two standard deviations. Two times 1.9777 is about 4. Since the differ‐ ence between the number of women we would have expected to hire (5) and actually hired (2) is 3, the results suggest that our screening did not have adverse impact on women. (Put another way, in this case, hir‐ ing just 2 rather than 5 is not a highly improbable result.)

RESTRICTED POLICY The restricted policy approach means demonstrating that the employer’s policy intentionally or unintentionally excluded members of a protected group. Here the problem is usually obvious—such as policies against hiring guards less than 6 feet tall. Ev‐ idence of restricted policies such as these is enough to prove adverse impact and to expose an employer to litigation.

POPULATION COMPARISONS This approach compares (1) the per‐ centage of minority/protected group and white workers in the organiza‐ tion with (2) the percentage of the corresponding group in the labor market.

“Labor market,” of course, varies with the job. For some jobs, such as secretary, it makes sense to compare the percentage of minority em‐ ployees with the percentage of minorities in the surrounding communi‐ ty, since they will come from that community. But determining whether an employer has enough black engineers might involve determining the number available nationwide, not in the surrounding community.

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Employers use workforce analysis to analyze the data regarding the firm’s use of protected versus nonprotected employees in various job classifications. The process of comparing the percentage of minority employees in a job (or jobs) at the company with the number of similar‐ ly trained minority employees available in the relevant labor market is utilization analysis.

MCDONNELL-DOUGLAS TEST Lawyers in disparate impact cases use the previous approaches (such as population comparisons) to test whether an employer’s policies or actions have the effect of uninten‐ tionally screening out disproportionate numbers of women or minori‐ ties. Lawyers use the McDonnell-Douglas test for showing (intentional) disparate treatment, rather than (unintentional) disparate impact.

This test grew out of a case at the former McDonnell-Douglas Corpora‐ tion. The applicant was qualified, but the employer rejected the person and continued seeking applicants. Did this show that the hiring compa‐ ny intentionally discriminated against the female or minority candidate? The U.S. Supreme Court set four rules for applying the McDonnell-Dou‐ glas test:

1. that the person belongs to a protected class; 2. that he or she applied and was qualified for a job for which the

employer was seeking applicants; 3. that, despite this qualification, he or she was rejected; and 4. that, after his or her rejection, the position remained open and

the employer continued seeking applications from persons with the complainant’s qualifications.

If the plaintiff meets all these conditions, then a prima facie case of dis‐ parate treatment is established. At that point, the employer must articu‐ late a legitimate nondiscriminatory reason for its action, and produce evidence but not prove that it acted based on such a reason. If it meets this relatively easy standard, the plaintiff then has the burden of proving that the employer’s articulated reason is merely a pretext for engaging in unlawful discrimination.

ADVERSE IMPACT EXAMPLE Assume you turn down a member of a protected group for a job with your firm. You do this based on a test score (although it could have been interview questions or something else). Further, assume that this person feels he or she was discriminat‐ ed against due to being in a protected class, and decides to sue your company.

Basically, all he or she must do is show that your procedure (such as the selection test) had an adverse impact on members of his or her mi‐ nority group. The plaintiff can apply five approaches here. These are disparate rejection rates, the standard deviation rule, restricted policy, population comparisons, and, for disparate treatment cases, the Mc‐ Donnell-Douglas test. Once the person proves adverse impact (to the court’s satisfaction), the burden of proof shifts to the employer. The em‐ ployer must defend against the discrimination charges.

There is nothing in the law that says that because your procedure has an adverse impact on a protected group, you can’t use it. In fact, it may well happen that some tests screen out disproportionately higher num‐ bers of, say, blacks than they do whites. What the law does say is that once your applicant has made his or her case (showing adverse im‐

pact), the burden of proof shifts to you. Now the employer must defend use of the procedure.

There are then two basic defenses employers use to justify an employ‐ ment practice that has an adverse impact on members of a minority group: the bona fide occupational qualification (BFOQ) defense and the business necessity defense.

Bona Fide Occupational Qualification An employer can claim that the employment practice is a bona fide occupational qualification (BFOQ) for performing the job. Title VII specifically permits this defense. Title VII provides that “it should not be an unlawful employment practice for an employer to hire an employee … on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide oc‐ cupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”

However, courts usually interpret the BFOQ exception narrowly. It is usually a defense to a disparate treatment case based upon direct evi‐ dence of intentional discrimination, rather than to disparate impact (un‐ intentional) cases. As a practical matter, employers use it mostly as a defense against charges of intentional discrimination based on age.

AGE AS A BFOQ The Age Discrimination in Employment Act (ADEA) permits disparate treatment in those instances when age is a BFOQ.89

For example, age is a BFOQ when the Federal Aviation Agency sets a compulsory retirement age of 65 for commercial pilots. Actors re‐ quired for youthful or elderly roles suggest other instances when age may be a BFOQ. However, courts set the bar high: The reason for the age limit must go to the essence of the business. A court said a bus line’s maximum-age hiring policy for bus drivers was a BFOQ. The court said the essence of the business was safe transportation of pas‐ sengers, and, given that, the employer could strive to employ the most qualified persons available.

RELIGION AS A BFOQ Religion may be a BFOQ in religious organiza‐ tions or societies that require employees to share their particular reli‐ gion. For example, religion may be a BFOQ when hiring persons to teach in a religious school. But again, courts construe this defense very narrowly.

GENDER AS A BFOQ Gender may be a BFOQ for positions like actor, model, and restroom attendant requiring physical characteristics pos‐ sessed by one sex. However, for most jobs today, it’s difficult to claim that gender is a BFOQ. For example, gender is not a BFOQ just be‐ cause the position requires lifting heavy objects. A Texas man filed a complaint against Hooters of America alleging that one of its fran‐ chisees would not hire him as a waiter because it “merely wishes to ex‐ ploit female sexuality as a marketing tool to attract customers and en‐ sure profitability” and so was limiting hiring to females. Hooters ar‐ gued a BFOQ defense before reaching a confidential settlement.

NATIONAL ORIGIN AS A BFOQ A person’s country of national origin may be a BFOQ. For example, an employer who is running the Chinese

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pavilion at a fair might claim that Chinese heritage is a BFOQ for per‐ sons to deal with the public.

Business Necessity “Business necessity” is a defense created by the courts. It requires showing that there is an overriding business purpose for the discrimina‐ tory practice and that the practice is therefore acceptable.

It’s not easy to prove business necessity. The Supreme Court made it clear that business necessity does not encompass such matters as avoiding an employer inconvenience, annoyance, or expense. For ex‐ ample, an employer can’t generally discharge employees whose wages have been garnished merely because garnishment (requiring the em‐ ployer to divert part of the person’s wages to pay his or her debts) cre‐ ates an inconvenience. The Second Circuit Court of Appeals held that business necessity “must not only directly foster safety and efficiency” but also be essential to these goals. Furthermore, “the business pur‐ pose must be sufficiently compelling to override any racial impact….”

However, many employers use the business necessity defense suc‐ cessfully. In an early case, Spurlock v. United Airlines, a minority candi‐ date sued United Airlines. He said that its requirements that pilot candi‐ dates have 500 flight hours and college degrees were unfairly discrimi‐ natory. The court agreed that the requirements did have an adverse im‐ pact on members of the person’s minority group. But it held that in light of the cost of the training program and the huge human and economic

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risks in hiring unqualified candidates, the selection standards were a business necessity and were job related.

In general, when a job requires a small amount of skill and training, the courts closely scrutinize any preemployment standards or criteria that discriminate against minorities. There is a correspondingly lighter bur‐ den when the job requires a high degree of skill, and when the econom‐ ic and human risks of hiring an unqualified applicant are great.

Attempts by employers to show that their selection tests or other em‐ ployment practices are valid are examples of the business necessity defense. Here the employer must show that the test or other practice is job related—in other words, that it is a valid predictor of performance on the job. Where the employer can establish such validity, the courts have generally supported using the test or other employment practice as a business necessity. In this context, validity means the degree to which the test or other employment practice is related to or predicts performance on the job; Chapter 6 explains validation. The following Know Your Employment Law feature sums up how to apply all this.

Know Your Employment Law

Examples of What You Can and Cannot Do

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Before proceeding, we should review what

federal fair employment laws allow (and do not allow) you to say and do.

Federal laws like Title VII usually don’t expressly ban preemploy‐ ment questions about an applicant’s race, color, religion, sex, or national origin. In other words, “with the exception of personnel policies calling for outright discrimination against the members of some protected group,” it’s not the questions but their im‐ pact. Thus, illustrative inquiries and practices like those on the next few pages are not illegal per se. For example, it isn’t illegal to ask a job candidate about her marital status (although such a question might seem discriminatory). You can ask. However, be prepared to show either that you do not discriminate or that you can defend the practice as a BFOQ or business necessity.

But, in practice, there are two reasons to avoid such questions. First, although federal law may not bar such questions, many state and local laws do.

Second, the EEOC has said that it will disapprove of such prac‐ tices, so just asking the questions may draw its attention. Such questions become illegal if a complainant can show you use them to screen out a greater proportion of his or her protected

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group’s applicants, and you can’t prove the practice is required as a business necessity or BFOQ.

Let’s look now at some of the potentially discriminatory prac‐ tices to avoid.

Recruitment Word of Mouth You cannot rely upon word-of-mouth dissemina‐ tion of information about job opportunities when your workforce is all (or mostly all) white or all members of some other class such as all female, all Hispanic, and so on. Doing so reduces the likelihood that others will become aware of the jobs.

Misleading Information It is unlawful to give false or misleading information to members of any group, or to fail or refuse to ad‐ vise them of work opportunities and the procedures for obtain‐ ing them.

Help-Wanted Ads “Help wanted—male” and “help wanted— female” ads are violations unless gender is a bona fide occupa‐ tional qualification for the job. The same applies to ads that sug‐ gest age discrimination. For example, you cannot advertise for a “young” man or woman.

Selection Standards Educational Requirements Courts have found educational qualifications to be illegal when (1) minority groups are less likely to possess the educational qualifications (such as a high school degree) and (2) such qualifications are also not job related. How‐

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ever, there may be jobs for which educational requirements (such as college degrees for pilot candidates) are a necessity.

Tests Courts deem tests unlawful if they disproportionately screen out minorities or women and they are not job related. Ac‐ cording to a former U.S. Supreme Court Chief Justice,

Nothing in the [Title VII] act precludes the use of testing or measuring

procedures; obviously they are useful. What Congress has forbidden is

giving these devices and mechanisms controlling force unless they are

demonstrating a reasonable measure of job performance.

The employer must be prepared to show that the test results are job related—for instance, that test scores relate to on-the-job performance.

Preference to Relatives Do not give preference to relatives of current employees with respect to employment opportunities if your current employees are substantially nonminority.

Height, Weight, and Physical Characteristics Physical require‐ ments such as minimum height are unlawful unless the employer can show they’re job related. For example, a U.S. Appeals Court upheld a $3.4 million jury verdict against Dial Corp. Dial rejected 52 women for entry-level jobs at a meat-processing plant be‐ cause they failed strength tests, although strength was not a job requirement. Maximum weight rules generally don’t trigger adverse legal rulings. To qualify for reasonable accommodation, obese applicants must be at least 100 pounds above their ideal weight or there must be a physiological cause for their disability.

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However, legalities aside, managers should be vigilant. Stud‐ ies show that obese individuals are less likely to be hired, less likely to receive promotions, more likely to get undesirable sales assignments, and more likely to receive poor customer service.

Arrest Records Unless the job requires security clearance, do not ask an applicant whether he or she has been arrested or spent time in jail, or use an arrest record to disqualify a person automatically. Due to racial and ethnic disparities in arrest and prison rates, both the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) recently set forth new guidance discouraging employers from using blanket exclusions against individuals with criminal records.

Application Forms Employment applications generally shouldn’t contain questions about applicants’ disabilities, work‐ ers’ compensation history, age, arrest record, or U.S. citizenship. It’s generally best to collect personal information required for le‐ gitimate reasons (such as emergency contact) after you hire the person.

Discharge Due to Garnishment Disproportionate numbers of minorities suffer garnishment procedures (in which creditors make a claim to some of the person’s wages). Therefore, firing a minority member whose salary is garnished is illegal, unless you can show some overriding business necessity.

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Sample Discriminatory Promotion, Trans‐

fer, and Layoff Practices Fair employment laws protect not just job applicants but also current employees. For example, the Equal Pay Act requires that equal wages be paid for substantially similar work performed by men and women. Therefore, courts may hold that any employ‐ ment practices regarding pay, promotion, termination, discipline, or benefits that

1. are applied differently to different classes of persons, 2. adversely impact members of a protected group, and 3. cannot be shown to be required as a BFOQ or business

necessity are illegally discriminatory.

Personal Appearance Regulations and Title VII Employees sometimes file suits against employers’ dress and appearance codes under Title VII. They usually claim sex discrimination, but sometimes claim racial or even religious discrimination. A sam‐ pling of court rulings follows:

Dress. In general, employers do not violate the Title VII ban on sex bias by requiring all employees to dress conservative‐ ly. For example, a supervisor’s suggestion that a female at‐ torney tone down her attire was permissible when the firm consistently sought to maintain a conservative dress style and counseled men to dress conservatively. However, Alamo Rent-A-Car lost a case when it tried to prevent a Muslim woman employee from wearing a headscarf.

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Hair. Courts usually favor employers here. For example, em‐ ployer rules against facial hair do not constitute sex discrimi‐ nation because they discriminate only between clean-shaven and bearded men, discrimination not qualified as sex bias under Title VII. Courts have also rejected arguments that pro‐ hibiting cornrow hairstyles infringed on black employees’ ex‐ pression of cultural identification. Uniforms. When it comes to discriminatory uniforms and/or suggestive attire, however, courts frequently side with em‐ ployees. For example, requiring female employees (such as waitresses) to wear sexually suggestive attire as a condition of employment has been ruled as violating Title VII in many cases. Tattoos and body piercings. About 38% of Millennials in one survey had tattoos as compared with 15% of baby boomers. About 23% of Millennials had body piercings as compared with 1% of baby boomers. One case involved a waiter with religious tattoos on his wrists at Red Robin Gourmet Burgers. The company insisted he cover his tattoos at work; he re‐ fused. Red Robin settled the suit after the waiter claimed that covering the tattoos would be a sin based on his religion.

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If your professor has assigned this, go to the Assignments section of mymanagementlab.com to complete these discussion questions.

Talk About It 1: Have you ever had an experience in which an em‐ ployer apparently violated one or more of the guidelines above—for example, told you to change your hairstyle—or have you ever simply noticed a violation (such as a store posting a sign that said “delivery boy wanted”)? What was your reaction? What did you do? Are there situations in which the employer may have been within the law to do what he or she did?

Finally, keep three other things in mind:

1. Good intentions are no excuse. As the Supreme Court held in the Griggs case, Good intent or absence of discriminatory intent does not redeem procedures that operate as built-in headwinds for minority groups and are unrelated to measuring job capability.

2. One cannot claim that a union agreement necessitates some dis‐ criminatory practice. Equal employment opportunity laws

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prevail. 3. A strong defense is not your only recourse. The employer can

agree to eliminate the illegal practice and (when required) to compensate the people discriminated against.

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The EEOC Enforce‐ ment Process

Learning Objective 2-4 List the steps in the EEOC enforcement process.

Even careful employers eventually face employment discrimination claims and have to deal with the EEOC. All managers (not just hu‐ man resource managers) play roles in this process. Figure 2-3 pro‐ vides an overview of this EEOC enforcement process.

File Charge. The process begins when someone files a claim with the EEOC. Either the aggrieved person or a member of the EEOC who has reasonable cause to believe that a violation occurred must file the claim in writing and under oath. Under CRA 1991, the dis‐ crimination claim must be filed within 300 days (when there is a sim‐ ilar state law) or 180 days (where there is no similar state law) after

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the alleged incident took place (2 years for the Equal Pay Act). The U.S. Supreme Court, in Ledbetter v. Goodyear Tire & Rubber Company, held that employees claiming Title VII pay discrimination must file their claims within 180 days of when they first receive the allegedly discriminatory pay. Congress then passed, and President Obama signed, the Lilly Ledbetter Fair Pay Act into law. Employees can now file such claims anytime, as long as they’re still receiving an “infected” paycheck. (In fiscal year 2012, individuals filed 99,412 charges with the EEOC; the two largest categories were for retalia‐ tion [37,836 charges] and racial discrimination [33,512]. ) One may obtain employment practices liability insurance against discrimina‐ tion claims. Figure 2-3 The EEOC Charge-Filing Process

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Note: Parties may settle at any time. Source: Based on www.eeoc.gov.

Figure 2-4 Questions to Ask When an Employer Receives Notice That the EEOC Has Filed a Bias Claim

Source: Based on Bureau of National Affairs, Inc., “Fair Employment Practices: Summary of Latest Developments,” January 7, 1983, p. 3; Kenneth Sovereign, Personnel Law (Upper Saddle River, NJ: Prentice Hall, 1999), pp. 36–37; Equal Employment Opportunity Commission, “The Charge Handling Process,” http:// www.eeoc.gov/employers/process.cfm, accessed August 30, 2013.

Charge Acceptance. The EEOC’s common practice is to accept a charge and orally refer it to the state or local agency on behalf of the charging party. If the agency waives jurisdiction or cannot obtain a

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satisfactory solution, the EEOC processes it upon the expiration of the deferral period. Serve Notice. After a charge is filed (or the state or local deferral period has ended), the EEOC has 10 days to serve notice on the employer. Attorneys advise against submitting lengthy statements in response to a charge. Instead, provide a concise explanation de‐ scribing why the actions were lawful. Figure 2-4 lists some questions to ask after receiving a bias complaint from the EEOC.

Investigation/Fact-Finding Conference. The EEOC then investi‐ gates the charge to determine whether there is reasonable cause to believe it is true; it has 120 days to decide. Early in the investiga‐ tion, the EEOC holds an initial fact-finding conference. The EEOC’s focus here is often to find weak spots in each party’s position. It uses these to push for a settlement. Cause/No Cause. If it finds no reasonable cause, the EEOC must dismiss the charge, and must issue the charging party a Notice of Right to Sue. The person then has 90 days to file a suit on his or her own behalf. Conciliation. If the EEOC does find cause, it has 30 days to work out a conciliation agreement. The EEOC conciliator meets with the employee to determine what remedy would be satisfactory. It then tries to negotiate a settlement with the employer. Notice to Sue. If this conciliation is not satisfactory, the EEOC may bring a civil suit in a federal district court, or issue a Notice of Right to Sue to the person who filed the charge.

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Voluntary Mediation The EEOC refers about 10% of its charges to a voluntary mediation mechanism, “an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution of a charge of discrimination.” If the parties don’t reach agreement (or one of the parties rejects participation), the EEOC processes the charge through its usual mechanisms.

Faced with an offer to mediate, the employer has three options: Agree to mediate the charge; make a settlement offer without mediation; or prepare a “position statement” for the EEOC. If the employer does not mediate or make an offer, the position statement is required. It should include a robust defense, including information relating to the compa‐ ny’s business and the charging party’s position; a description of any rules or policies and procedures that are applicable; and the chronology of the offense that led to the adverse action.

Mandatory Arbitration of Discrimination Claims

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Many employers, to avoid EEOC litigation, require applicants and em‐ ployees to agree to arbitrate such claims. The EEOC does not favor mandatory arbitration. However, the U.S. Supreme Court’s decisions (in Gilmer v. Interstate/Johnson Lane Corp. and similar cases) make it clear that “employment discrimination plaintiffs [employees] may be com‐ pelled to arbitrate their claims under some circumstances.” Given this, employers “may wish to consider inserting a mandatory arbitration clause in their employment applications or employee handbooks.” To protect such a process against appeal, the employer should institute steps to protect against arbitrator bias, allow the arbitrator to offer a claimant broad relief (including reinstatement), and allow for a reason‐ able amount of prehearing fact finding.

Rockwell International has a grievance procedure that provides for binding arbitration as the last step. Called (as is traditional) an alternative dispute resolution or ADR program , Rockwell gradual‐ ly extended the program to all nonunion employees at some locations. New hires at Rockwell must sign the agreement. Current employees must sign it prior to promotion or transfer. U.S. federal agencies must have ADR programs. ADR plans are popular, although the EEOC generally prefers mediation for handling bias claims.

The accompanying HR Tools feature provides some guidelines to follow in addressing EEOC claims.

IMPROVING PERFORMANCE: HR TOOLS FOR L INE MAN ‐ AGERS AND SMALL BUSINESSES

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Chances are the EEOC won’t file a suit, but getting a notice say‐ ing it’s investigating is still scary. Whether you are managing one team or your own small business, every manager should know in advance what the EEOC will be looking for and what to do. A checklist follows.

During the EEOC Investigation: Conduct your own investigation to get the facts. Ensure that there is information in the EEOC’s file demon‐ strating lack of merit of the charge. Limit the information supplied to only those issues raised in the charge itself. Get as much information as possible about the charging par‐ ty’s claim. Meet with the employee who made the complaint to clarify all the relevant issues. For example, what happened? Who was involved? Remember that the EEOC can only ask (not compel) employ‐ ers to submit documents and ask for the testimony of wit‐ nesses under oath. Give the EEOC a position statement. It should contain words to the effect that “the company has a policy against discrimi‐ nation and would not discriminate in the manner charged in the complaint.” Support the statement with documentation.

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During the Fact-Finding Conference: Because the only official record is the notes the EEOC inves‐ tigator takes, keep your own records. Bring an attorney. Make sure you are fully informed of the charges and facts of the case. Before appearing, witnesses (especially supervisors) need to be aware of the legal significance of the facts they will present.

During the EEOC Determination and At‐

tempted Conciliation: If there is a finding of cause, review it carefully, and point out inaccuracies in writing to the EEOC. Use this letter to try again to convince the parties that the charge is without merit. Conciliate prudently. If you have properly investigated the case, there may be no real advantage in settling at this stage. Remember: Odds are that no suit will be filed by the EEOC.

Finally, prudent supervisors should keep two other things in mind. First, know that courts may hold you personally liable for your actions. Management malpractice is aberrant managerial conduct that has serious consequences for the employee’s per‐ sonal or physical well-being, or that “exceeds all bounds usually

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tolerated by society.” In one outrageous example, the em‐ ployer demoted a manager to janitor and took other steps to hu‐ miliate him. The jury awarded the man millions. Supervisors who commit management malpractice may be personally liable for paying some of the judgment.

Second, retaliation is illegal. The EEOC says, “All of the laws we enforce make it illegal to fire, demote, harass, or otherwise ‘retal‐ iate’ against people because they filed a charge, complained to their employer…or because they participated in a discrimination investigation or lawsuit.” Retaliation is the most common charge filed with the EEOC. In one case, the employee com‐ plained to the employer that she was paid less than male coun‐ terparts. The employer soon fired her fiancé. Finding for the em‐ ployee, the U.S. Supreme Court decision said, “A reasonable worker might be dissuaded from engaging in protected activity” if she knew that her fiancé would be fired.

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If your professor has assigned this, go to the Assignments section of mymanagementlab.com to complete these discussion questions.

Talk About It 2: Check with the EEOC’s website and compile a list of the biggest financial settlements this past year for retaliation claims. About how much was the av‐ erage claim? What you would do to avoid doing something that prompted the EEOC to become in‐ terested in your company?

Diversity Management

Learning Objective 2-5 Discuss why diversity management is important and how to install a diversity management program.

White males no longer dominate the labor force. Women and minorities will account for most labor force growth in the near future. Employ‐ ers today therefore often strive for diversity not just because the law says they must but due to self-interest. Diversity means being diverse or varied and at work means having a workforce composed of two or more groups of employees with various racial, ethnic, gender, cultural, national origin, handicap, age, and religious backgrounds. We introduce diversity and diversity management here, and then ad‐ dress them in features throughout the book.

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Potential Threats to Diversity Workforce diversity produces both benefits and problems for employ‐ ers. Unmanaged, it can produce behavioral barriers that reduce coop‐ eration. Potential problems include:

Stereotyping . Here someone ascribes specific behavioral traits to individuals based on their apparent membership in a group. For example, “older people can’t work hard.” Prejudice is a bias to‐ ward prejudging someone based on that person’s traits, as in “we won’t hire him because he’s old.” Some people’s biases are subcon‐ scious. To check, try asking questions like, “Do I typically hire the same type of person?” and “To whom do I generally assign the best projects?”

Discrimination is prejudice in action. It means taking specific actions toward or against the person based on the person’s group. Of course, it’s generally illegal to discriminate at work based on someone’s age, race, gender, disability, or national origin. But in practice, discrimination may be subtle. For example, many argue that a “glass ceiling,” enforced by an “old boys’ network” (friendships built in places like exclusive clubs), hinders women from reaching top management. Discrimination against Muslim employ‐ ees is prohibited under Title VII. The number of such charges in ris‐ ing quickly.

Tokenism means a company appoints a small group of women or minorities to high-profile positions, rather than more aggressively

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seeking full representation for that group.

Ethnocentrism is the tendency to view members of other social groups less favorably than one’s own. Thus, in one study, managers attributed the performance of some minorities less to their abilities and more to help they received from others. The same managers at‐ tributed the performance of nonminorities to their own abilities.

Discrimination against women goes beyond glass ceilings. Working women also confront gender-role stereotypes , the tendency to associate women with certain (frequently nonmanagerial) jobs.

On the other hand, diversity can be an engine of performance, as the following feature shows.

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IMPROVING PERFORMANCE: HR AS A PROF IT CENTER

Diversity can actually drive higher profits. In one study, re‐ searchers examined the diversity climate in 654 stores of a large U.S. retail chain. They defined diversity climate as the extent to which employees in the stores said the firm promotes equal op‐ portunity and inclusion. They found the highest sales growth in stores with the highest pro-diversity climate, and the lowest in stores where subordinates and managers reported less hos‐ pitable diversity climates. Another study found racial discrimi‐ nation to be related negatively to employee commitment, al‐ though organizational efforts to support diversity reduced such negative effects.

More than 50 of the largest U.S. companies, including GE, Mi‐ crosoft, and Walmart, recently filed briefs with the U.S. Supreme Court arguing that affirmative action produces increased sales and profits. Thus, when Merck needed halal certification for one of its medicines, it turned to its Muslim employees. They helped Merck bring the product to market faster and helped ensure its acceptance among Muslims.

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If your professor has assigned this, go to the Assignments section of mymanagementlab.com to complete these discussion questions.

Talk About It 3: What do you think accounts for the fact that diver‐ sity apparently seems to produce higher profits? Do you think that would always be the case? Why or why not?

Managing Diversity The key to deriving such benefits is properly managing diversity’s po‐ tential problems. Managing diversity means maximizing diversity’s potential benefits while minimizing the potential problems—such as prejudice—that can undermine cooperation. In practice, diversity man‐ agement involves both compulsory and voluntary actions. However, compulsory actions (particularly EEO law compliance) can’t guarantee cooperation. Managing diversity therefore usually relies on taking volun‐ tary steps to encourage employees to work together productively.142

Typically, this starts at the top. The employer institutes a diversity man‐ agement program. A main aim is to make employees more sensitive to and better able to adapt to individual cultural differences.

Here one writer advocates a four-step “AGEM” diversity training process: Approach, Goals, Executive commitment, and Mandatory at‐ tendance. First, determine if diversity training is the solution or if some other approach is more advisable. If training is the solution, then set measurable program goals, for instance, having training participants evaluate their units’ diversity efforts. Next, make sure a high-visibility executive commits to the program. Finally, make training mandatory.

To expand on this, five sets of voluntary organizational activities often constitute such company-wide diversity management programs:

Provide strong leadership. Companies with exemplary reputations in managing diversity typically have CEOs who champion the cause of diversity. Leadership here means, for instance, becoming a role model for the behaviors required for the change. One study con‐ cluded that top managers who excelled at creating inclusive organi‐ zations were also those who were personally passionate about en‐ couraging inclusion and diversity.

Assess the situation. One study found that the most common tools for assessing a company’s diversity include equal employment hir‐ ing and retention metrics, employee attitude surveys, management and employee evaluations, and focus groups.

Provide diversity training and education. The most common starting point for a diversity management effort is usually some type

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of employee education program.

Change culture and management systems. Combine education programs with other concrete steps aimed at changing the organi‐ zation’s culture and management systems. For example, change the performance appraisal procedure to appraise supervisors based partly on their success in reducing intergroup conflicts.

Evaluate the diversity management program. For example, do employee attitude surveys now indicate any improvement in em‐ ployees’ attitudes toward diversity?

McDonald’s Corp. doesn’t call its diversity program a “program” at all— because it says diversity management should be an ongoing effort. At McDonald’s, employee attendance at the company’s Intercultural Learning Lab facilitates dialogue and communication among employ‐ ees.

One expert helps turn high-potential minority employees into senior leaders; he says employers tend to make four mistakes when cultivat‐ ing minorities for higher positions. Rather than centralizing diversity management, they distribute diversity tasks among various recruiting teams, while limiting their diversity departments primarily to retention and inclusiveness; the solution here is more central direction. They fo‐ cus on “inputs” such as mentoring programs, rather than on outcomes such as the number of diversity candidates who gained promotions; goal setting is one solution. They focus on “fixing the culture,” which is typically a multiyear process; cultural change should be just one ele‐ ment of the process. Finally, they often staff their diversity departments

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with new minority employees; the solution is to rotate high-performance minority or nonminority line executives into diversity roles.

The following HR as a Profit Center feature provides another example of diversity management’s benefits.

IMPROVING PERFORMANCE: HR AS A PROF IT CENTER

Workforce diversity makes strategic sense. With strong top- management support, IBM created several minority task forces focusing on groups such as women and Native Americans. One effect of these teams has been internal: In the 10 or so years since forming them, IBM has boosted the number of U.S.-born ethnic minority executives by almost 2 ½ times.

However, the firm’s diversity program also aided IBM’s strategy of expanding its markets and business results. For example, one task force decided to focus on expanding IBM’s market among multicultural and women-owned businesses. It did this in part by providing “much-needed sales and service support to small and midsize businesses, a niche well populated with minority and fe‐ male buyers.” As a direct result, this IBM market grew from $10 million to more than $300 million in revenue in just 3 years.

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If your professor has assigned this, go to the Assignments section of mymanagementlab.com to complete this dis‐ cussion question.

Talk About It 4: In terms of reducing costs and/or boosting sales, what other benefits do you think diversity manage‐ ment could bring to an employer?

Implementing the Affirmative Action Program Equal employment opportunity aims to ensure that anyone, regardless of race, color, disability, sex, religion, national origin, or age, has an equal opportunity based on his or her qualifications. Affirmative action means taking actions (in recruitment, hiring, promotions, and compen‐ sation) to eliminate the current effects of past discrimination.

Affirmative action is still a significant workplace issue today. The inci‐ dences of major court-mandated affirmative action programs are down,

but courts still use them. Furthermore, many employers must still en‐ gage in voluntary programs. For example, Executive Order (EO) 11246 (issued in 1965) requires federal contractors to take affirmative action to improve employment opportunities for groups such as women and racial minorities. It covers about 22% of the U.S. workforce.

Under guidelines such as EO 11246, the key aims of affirmative action programs are (1) to use numerical analysis to determine which (if any) target groups the firm is underutilizing relative to the relevant labor mar‐ ket, and (2) to eliminate the barriers to equal employment. Many em‐ ployers pursue these aims with a good-faith effort strategy ; this emphasizes identifying and eliminating the obstacles to hiring and pro‐ moting women and minorities, and increasing the minority or female ap‐ plicant flow. Reasonable steps to take include those shown in Figure 2-5 .

It’s useful to place recruiting ads on online minority-oriented job sites. For example, Recruiting-Online.com lists dozens of online diversity candidate resources (www.recruiting-online.com/course55.html). Di‐ versity candidate websites with job banks include the National Urban League, Hispanic Online, Latino Web, Society of Hispanic Engineers, Gay.com, Association for Women in Science, and Minorities Job Bank.

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Diversity management can blend a diverse workforce into a close-knit and productive community. Jetta Productions/Getty Images

EMPLOYEE RESISTANCE Avoiding employee resistance to affirmative action programs is important. Here, studies suggest that current em‐ ployees need to believe the program is fair. Transparent selection pro‐ cedures (making it clear what selection tools and standards the compa‐ ny uses) help in this regard. Communication is also crucial. Show that the program doesn’t involve preferential selection standards. Provide details on the qualifications of all new hires (both minority and nonmi‐ nority). Justifications for the program should emphasize redressing past

discrimination and the practical value of diversity, not underrepresenta‐ tion.

PROGRAM EVALUATION How can one tell if the diversity initiatives are effective? Some commonsense questions can be asked:

Are there women and minorities reporting directly to senior managers? Do women and minorities have a fair share of the jobs that are the traditional stepping-stones to successful careers in the company? Figure 2-5 Steps in an Affirmative Action Program

Do women and minorities have equal access to international assignments? Is the employer taking steps that ensure that female and minority candidates will be in the company’s career development pipeline? Are turnover rates for female and minority managers the same or lower than those for white males?

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Do employees report that they perceive positive behavior changes as a result of the diversity efforts?

Reverse Discrimination Reverse discrimination means discriminating against nonminority applicants and employees. Many court cases addressed these issues, but until recently, few consistent answers emerged.

In one of the first such cases, Bakke v. Regents of the University of Cali‐ fornia (1978), the University of California at Davis Medical School de‐ nied admission to white student Allen Bakke, allegedly because of the school’s affirmative action quota system, which required that a specific number of openings go to minority applicants. In a 5-to-4 vote, the U.S. Supreme Court struck down the policy that made race the only factor in considering applications for a certain number of class openings and thus allowed Bakke’s admission.

Bakke was followed by many other cases. In June 2009, the U.S. Supreme Court ruled in an important reverse discrimination suit brought by Connecticut firefighters. In Ricci v. DeStefano, 19 white firefighters and one Hispanic firefighter said the city of New Haven should have promoted them based on their successful test scores. The city argued that certifying the tests would have left them vulnerable to lawsuits from minorities for violating Title VII. The Court ruled in favor of the (pre‐ dominantly white) plaintiffs. In New Haven’s desire to avoid making pro‐ motions that might appear to adversely impact minorities, Justice

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Kennedy wrote that “the city rejected the test results solely because the higher scoring candidates were white.” The consensus of observers was that the decision would make it harder for employers to ignore the results obtained by valid tests, even if the results disproportionately im‐ pact minorities.

The bottom line seems to be that employers should emphasize the ex‐ ternal recruitment and internal development of better-qualified minority and female employees, “while basing employment decisions on legiti‐ mate criteria.”

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Chapter Review

MyManagementLab

Go to mymanagementlab.com to complete the prob‐

lems marked with this icon.

Chapter Section Summaries 2-1. Several of the most important equal employment opportu‐ nity laws became law in the period from 1964 to 1991.

Of these, Title VII of the 1964 Civil Rights Act was pivotal, and states that an employer cannot discriminate based on race, color, religion, sex, or national origin. This act estab‐ lished the Equal Employment Opportunity Commission, and covers most employees. Under the Equal Pay Act of 1963 (amended in 1972), it is un‐ lawful to discriminate in pay on the basis of sex when jobs

®

involve equal work, skills, effort, and responsibility and are performed under similar working conditions. The Age Discrimination in Employment Act of 1967 made it unlawful to discriminate against employees or applicants who are between 40 and 65 years of age. The Vocational Rehabilitation Act of 1973 requires most em‐ ployers with federal contracts to take affirmative action when employing handicapped persons. The Pregnancy Discrimination Act of 1978 prohibits using pregnancy, childbirth, or related medical conditions to dis‐ criminate in hiring, promotion, suspension, or discharge or in any term or condition of employment. The EEOC, Civil Service Commission, Department of Labor, and Department of Justice together issued Uniform Guide‐ lines that set forth “highly recommended” procedures regard‐ ing HR activities like employee selection, record keeping, and preemployment inquiries. One of the most important cases during this early period was Griggs v. Duke Power Company. Here, Chief Justice Burger held that in employment, discrimination does not have to be overt to be illegal, and an employment practice that discrimi‐ nates must be job related.

2-2. Equal employment law continues to evolve, with important new legislation being enacted since 1990–1991.

The Civil Rights Act of 1991 reversed the effects of several Supreme Court rulings—for instance, underscoring that the burden of proof is the employer’s once a plaintiff establishes possible illegal discrimination.

The Americans with Disabilities Act prohibits employment discrimination against qualified disabled individuals. It also says employers must make “reasonable accommodations” for physical or mental limitations unless doing so imposes an “undue hardship” on the business. Although Title VII made sexual harassment at work illegal, the Federal Violence Against Women Act of 1994 provided women with another way to seek relief for (violent) sexual ha‐ rassment. Basically, sexual harassment refers to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that takes place, for instance, when such conduct is made either explicitly or im‐ plicitly a term or condition of an individual’s employment. Three main ways to prove sexual harassment include quid pro quo, hostile environment created by supervisors, and hostile environment created by coworkers who are not employees.

2-3. Employers use various defenses against discrimination allegations. In defending themselves against discrimination alle‐ gations, employers need to distinguish between disparate treat‐ ment (intentional discrimination) and disparate impact (a policy that has an adverse impact regardless of intent). Plaintiffs show adverse impact by the standard deviation rule or by showing dis‐ parate rejection rates, restricted policy, or population compar‐ isons, or by applying the McDonnell-Douglas test. Employers de‐ fend themselves by showing that the employment practice is a bona fide occupational qualification (for instance, gender is a BFOQ for a position such as model). Or they may defend them‐

selves by using the business necessity defense, which requires showing that there is an overriding business purpose. Given this, it is useful to have a working knowledge of discrimi‐ natory employment practices. For example, in recruitment, em‐ ployers no longer use “help wanted—male” ads and endeavor to ensure that educational requirements are necessary to do the job. Similarly, in promotion and transfer, the Equal Pay Act re‐ quires that equal wages be paid for substantially similar work performed by men and women. 2-4. All managers play an important role in the EEOC enforce‐ ment process. The basic steps in this process include filing the charge, charge acceptance by the EEOC, serving notice on the employer, the investigation/fact-finding conference, a finding of cause/no cause, conciliation efforts, and (if necessary) a notice to sue. The EEOC refers about 10% of its charges to voluntary mediation mechanisms. 2-5. With an increasingly diverse workforce, diversity manage‐ ment is a key managerial skill. Managing diversity means maxi‐ mizing diversity’s potential benefits while minimizing the potential barriers. In one typical approach, the steps include providing strong leadership, assessing the situation, providing diversity training and education, changing the culture and management systems, and evaluating the diversity management program’s re‐ sults. Affirmative action generally means taking actions to elimi‐ nate the present effects of past discrimination. Many employers still pursue voluntary, good-faith effort strategies in identifying and eliminating the obstacles to hiring and promoting women and minorities, while some employers are under court-mandated requirement to do so.

Discussion Questions

2-1. What important precedents were set by the Griggs v.

Duke Power Company case? The Albemarle v. Moody case?

2-2. Explain each of the four examples of a bona fide occu‐

pational qualification. 2-3. What is sexual harassment? How can an employee prove sexual harassment? 2-4. What is the difference between disparate treatment and dis‐ parate impact?

Individual and Group Activities 2-5. Working individually or in groups, respond to these three scenarios based on what you learned in this chapter. Under what conditions (if any) do you think the following constitute sexual harassment? (a) A female manager fires a male employee be‐ cause he refuses her requests for sexual favors. (b) A male man‐ ager refers to female employees as “sweetie” or “baby.” (c) A fe‐ male employee overhears two male employees exchanging sex‐ ually oriented jokes. 2-6. Working individually or in groups, discuss how you would set up an affirmative action program. 2-7. Compare and contrast the issues presented in Bakke with more recent court rulings on affirmative action. Working individu‐

ally or in groups, discuss the current direction of affirmative action. 2-8. Working individually or in groups, write a one-page paper titled “What the Manager Should Know About How the EEOC Handles a Person’s Discrimination Charge.” 2-9. Explain the difference between affirmative action and equal employment opportunity. 2-10. Assume you are the manager in a small restaurant; you are responsible for hiring employees, supervising them, and recom‐ mending them for promotion. Working individually or in groups, compile a list of potentially discriminatory management practices you should avoid.

2-11. Appendices A and B at the end

of this book (pages 612–629) list the knowledge someone study‐ ing for the HRCI (Appendix A ) or SHRM (Appendix B ) cer‐ tification exam needs to have in each area of human resource management (such as in Strategic Management, and Workforce Planning). In groups of several students, do four things: (1) re‐ view Appendix A and/or B ; (2) identify the material in this chapter that relates to the Appendix A and/or B required knowledge lists; (3) write four multiple-choice exam questions on this material that you believe would be suitable for inclusion in the HRCI exam and/or the SHRM exam; and, (4) if time permits,

have someone from your team post your team’s questions in front of the class, so that students in all teams can answer the exam questions created by the other teams.

Experiential Exercise “Space Cadet” or Victim? Discrimination lawsuits are rarely simple, because the employer will of‐ ten argue that the person was fired due to poor performance rather than discrimination. So, there’s often a “mixed-motive” element to such situations. The facts of a case illustrate this (Burk v. California Associa‐ tion of Realtors, California Court of Appeals, number 161513, unpub‐ lished, 12/12/03). The facts were as follows. The California Association of Realtors maintained a hotline service to provide legal advice to real estate agents. One of the 12 lawyers who answered this hotline was a 61-year-old California attorney who worked there from 1989 to 2000. Until 1996 he received mostly good reviews. At that time, association members began filing complaints about his advice. His supervisor told him to be more courteous.

Two years later, association members were still complaining about this individual. Among other things, association members who called in filed complaints referring to him as “a space cadet” and “incompetent.” Subsequently, his supervisor contacted six association members whom the 61-year-old lawyer had recently counseled; five of the six said they

had had bad experiences. The association fired him for mistreating as‐ sociation members and providing inadequate legal advice.

The 61-year-old lawyer sued the association, claiming that the firing was age related. To support his claim, he noted that one colleague had told him that he was “probably getting close to retirement” and that an‐ other colleague had told him he was “getting older.” The appeals court had to decide whether the association fired the 61-year-old lawyer be‐ cause of his age or because of his performance.

Purpose: The purpose of this exercise is to provide practice in analyzing and ap‐ plying knowledge of equal opportunity legislation to a real problem.

Required Understanding: Be thoroughly familiar with the material presented in this chapter. In ad‐ dition, read the preceding “space cadet” case on which this experien‐ tial exercise is based.

How to Set Up the Exercise/Instructions: Divide the class into groups. Each group should develop answers to the following questions:

2-12. Based on what you read in this chapter, on what legal ba‐ sis could the 61-year-old California attorney claim he was a vic‐

tim of discrimination? 2-13. On what laws and legal concepts did the employer appar‐ ently base its termination of this 61-year-old attorney? 2-14. Based on what laws or legal concepts could you take the position that it is legal to fire someone for poor performance even though there may be a discriminatory aspect to the termi‐ nation? (This is not to say that there necessarily was such a dis‐ criminatory aspect with this case.) 2-15. If you were the judge called on to make a decision on this case, what would your decision be, and why?

The court’s decision follows, so please do not read this until you’ve completed the exercise.

In this case, the California State Appeals court held that “the only rea‐ sonable inference that can be drawn from the evidence is that [plaintiff] was terminated because he failed to competently perform his job of providing thorough, accurate, and courteous legal advice to hotline callers.”

Based on “On Appeal, Hotheaded Hotline Lawyer Loses Age, Disability Discrimi‐ nation Claims,” BNA Human Resources Report, January 12, 2004, p. 17.

Application Case An Accusation of Sexual Harassment in Pro Sports

The jury in a sexual harassment suit brought by a former high-ranking New York Knicks basketball team executive awarded her more than $11 million in punitive damages. Officials of Madison Square Garden (which owns the Knicks) said they would appeal the verdict. However, even if they were to win on appeal (which one University of Richmond Law School professor said was unlikely), the case still exposed the organiza‐ tion and its managers to a great deal of unfavorable publicity.

The federal suit pitted Anucha Browne Sanders, the Knicks’ senior vice president of marketing and business operations (and former Northwest‐ ern University basketball star), against the team’s owner, Madison Square Garden, and its president, Isiah Thomas. The suit charged them with sex discrimination and retaliation. Ms. Browne Sanders accused Mr. Thomas of verbally abusing and sexually harassing her over a 2- year period. She said the Garden fired her about a month after she complained to top management about the harassment. At the trial, the Garden cited numerous explanations for the dismissal, saying she had “failed to fulfill professional responsibilities.” At a news conference, Browne Sanders said that Thomas “refused to stop his demeaning and repulsive behavior and the Garden refused to intercede.” Mr. Thomas vigorously insisted he was innocent. According to one report of the trial, her claims of harassment and verbal abuse had little corroboration from witnesses, but neither did the Garden’s claims that her performance had been subpar. After the jury decision came in, Browne Sanders’s lawyers said, “This [decision] confirms what we’ve been saying all along, that [Browne Sanders] was sexually abused and fired for com‐ plaining about it.” The Garden’s statement said, in part, “We look for‐ ward to presenting our arguments to an appeals court and believe they will agree that no sexual harassment took place.”

Questions 2-16. Do you think Ms. Browne Sanders had the basis for a sex‐ ual harassment suit? Why? 2-17. From what you know of this case, do you think the jury ar‐ rived at the correct decision? If not, why not? If so, why? 2-18. Based on the few facts that you have, what steps could Garden management have taken to protect itself from liability in this matter? 2-19. Aside from the appeal, what would you do now if you were the Garden’s top management? 2-20. “The allegations against Madison Square Garden in this case raise ethical questions with regard to the employer’s ac‐ tions.” Explain whether you agree or disagree with this state‐ ment, and why.

Sources: “Jury Awards $11.6 Million to Former Executive of Pro Based on “Jury Awards $11.6 Million to Former Executive of Pro Basketball Team in Harassment Case,” BNA Bulletin to Management, October 9, 2007, p. 323; Richard Sandomir, “Jury Finds Knicks and Coach Harassed a Former Executive,” New York Times, www.nytimes.com/2007/10/03/sports/basketball/03garden.html? em&ex1191556800&en41d47437f805290d&ei5087%0A accessed November 30, 2007. and “Thomas Defiant in Face of Harassment Claims,” espn.com ac‐ cessed November 30, 2007.

Continuing Case Carter Cleaning Company

A Question of Discrimination One of the first problems Jennifer faced at her father’s Carter Cleaning Centers concerned the inadequacies of the firm’s current HR manage‐ ment practices and procedures.

One problem that particularly concerned her was the lack of attention to equal employment matters. Each store manager independently han‐ dled virtually all hiring; the managers had received no training regarding such fundamental matters as the types of questions they should not ask of job applicants. It was therefore not unusual for female applicants to be asked questions such as “Who’s going to take care of your chil‐ dren while you are at work?” and for minority applicants to be asked questions about arrest records and credit histories. Nonminority appli‐ cants—three store managers were white males and three were white females—were not asked these questions, as Jennifer discerned from her interviews with the managers. Based on discussions with her father, Jennifer deduced two reasons for the laid-back attitude toward equal employment: (1) her father’s lack of insight about the legal requirements and (2) the fact that, as Jack Carter put it, “Virtually all our workers are women or minority members anyway, so no one can come in here and accuse us of being discriminatory, can they?”

Jennifer decided to mull that question over, but before she could, she was faced with two serious equal rights problems. Two women in one store privately confided to her that their manager was making unwel‐ come sexual advances toward them. One claimed he had threatened to fire her unless she “socialized” with him after hours. And during a fact- finding trip to another store, an older gentleman—he was 73 years old

—complained of the fact that although he had almost 50 years of expe‐ rience, he was paid less than people half his age in the same job. Jen‐ nifer’s review of the stores resulted in the following questions.

Questions

2-21. Is it true, as Jack Carter claims, that “virtually all our work‐ ers are women or minority members anyway, so no one can come in here and accuse us of being discriminatory”? 2-22. How should Jennifer and her company address the sexual harassment charges and problems? 2-23. How should she and her company address the possible problems of age discrimination? 2-24. Given the fact that each of its stores has only a handful of employees, is her company covered by equal rights legislation? 2-25. And finally, aside from the specific problems, what other personnel management matters (application forms, training, and so on) have to be reviewed given the need to bring them into compliance with equal rights laws?

MyManagementLab

Go to mymanagementlab.com for Auto-graded writing questions as well as the following Assisted-graded writing questions:

2-26. Explain the main features of Title VII, the Equal Pay Act, the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Civil Rights Act of 1991. 2-27. What are the two main defenses you can use in the event of a discriminatory practice allegation, and what exactly do they involve? 2-28. MyManagementLab Only—comprehensive writing assignment for this chapter.

Try It! How would you apply the concepts and skills you learned in this chapter? If your professor has assigned this, go to the As‐ signments section of mymanagementlab.com to complete the simulation: HR and Diversity.

Personal Inventory Assessments

Intercultural Sensitivity Scale How sensitive to different cultures are you? Complete this assessment to learn more about your personality.

Key Terms

Title VII of the 1964 Civil Rights Act , 32 Equal Employment Opportunity Commission (EEOC) , 32 affirmative action , 32 Office of Federal Contract Compliance Programs (OFCCP) , 32 Equal Pay Act of 1963 , 33 Age Discrimination in Employment Act of 1967 (ADEA) , 33 Vocational Rehabilitation Act of 1973 , 33 Pregnancy Discrimination Act , 33 Uniform Guidelines , 33 protected class , 34 Civil Rights Act of 1991 (CRA 1991) , 35 “mixed-motive” case , 35 Americans with Disabilities Act (ADA) , 35 qualified individuals , 36 sexual harassment , 38 Federal Violence Against Women Act of 1994 , 39 adverse impact , 42 disparate rejection rates , 43 4/5ths rule , 43 restricted policy , 44 bona fide occupational qualification (BFOQ) , 45 alternative dispute resolution or ADR program , 52 diversity , 53 stereotyping , 53 discrimination , 53 tokenism , 53 ethnocentrism , 53

gender-role stereotypes , 53 managing diversity , 54 good-faith effort strategy , 55 reverse discrimination , 57

Endnotes 1. Michael Winerip, “Pushed Out of a Job Early,” New York Times, December 7, 2013, pp. B1, B2. 2. For example, see http://eeoc.gov/eeoc/newsroom/index.cfm. As anoth‐ er example, in a recent conciliation agreement between FedEx Corp. and the De‐ partment of Labor’s Office of Federal Contract Compliance Programs, FedEx agreed to pay $3 million and amend its practices to settle charges that it discrimi‐ nated against thousands of applicants. “FedEx to Pay $3 Million, Amend Prac‐ tices to Settle OFCCP Charges of Bias in Hiring,” Bloomberg BNA Bulletin to Management, March 27, 2012, p. 97. 3. Betsy Morris, “How Corporate America Is Betraying Women,” Fortune, Jan‐ uary 10, 2005, pp. 64–70. 4. Based on or quoted from International Association of Official Human Rights Agencies, Principles of Employment Discrimination Law (Washington, DC.). See also Bruce Feldacker, Labor Guide to Labor Law (Upper Saddle River, NJ: Pren‐ tice Hall, 2000); “EEOC Attorneys Highlight How Employers Can Better Their Nondiscrimination Practices,” BNA Bulletin to Management, July 20, 2008, p. 233; and www.eeoc.gov, accessed August 4, 2013. Plaintiffs still bring equal employment claims under the Civil Rights Act of 1866. For example, in 2008 the U.S. Supreme Court held that the act prohibits retaliation against someone who complains of discrimination against others when contract rights (in this case, an employment agreement) are at stake. Charles Louderback, “U.S. Supreme Court

Decisions Expand Employees’ Ability to Bring Retaliation Claims,” Compensation & Benefits Review, September/October 2008, p. 52. Employment discrimination law is a changing field, and the appropriateness of the rules, guidelines, and con‐ clusions in this chapter may also be affected by factors unique to the employer’s operation. They should be reviewed by the employer’s attorney before implementation. 5. For a recent conciliation agreement, see “FedEx to Pay $3 Million, Amend Practices to Settle OFCCP Charges of Bias in Hiring,” Bloomberg BNA Bulletin to Management, March 27, 2012, p. 97. 6. Individuals may file under the Equal Employment Act of 1972. 7. “The Employer Should Validate Hiring Tests to Withstand EEOC Scrutiny, Officials Advise,” BNA Bulletin to Management, April 1, 2008, p. 107. President Obama’s administration recently directed more funds and staffing to the OFCCP. “Restructured, Beefed Up OFCCP May Shift Policy Emphasis, Attorney Says,” BNA Bulletin to Management, August 18, 2009, p. 257. 8. See, for example, “Divided EEOC Approves Draft of Rule Amending Age Discrimination Regulations,” BNA Bulletin to Management, November 22, 2011, p. 369. 9. “High Court: ADEA Does Not Protect Younger Workers Treated Worse Than Their Elders,” BNA Bulletin to Management 55, no. 10 (March 4, 2004), pp. 73– 80. See also D. Aaron Lacy, “You Are Not Quite as Old as You Think: Making the Case for Reverse Age Discrimination Under the ADEA,” Berkeley Journal of Em‐ ployment and Labor Law 26, no. 2 (2005), pp. 363–403; Nancy Ursel and Marjorie Armstrong-Stassen, “How Age Discrimination in Employment Affects Stockhold‐ ers,” Journal of Labor Research 17, no. 1 (Winter 2006), pp. 89–99; and www.eeoc.gov/laws/statutes/adea.cfm, accessed October 3, 2011. 10. “Google Exec Can Pursue Claim,” BNA Bulletin to Management, October 20, 2007, p. 342; and “Fired Google Manager May Proceed with Age Bias Suit, California Justices Rule,” BNA Bulletin to Management, August 10, 2010, p. 249.

11. www.eeoc.gov/laws/statutes/adea.cfm, accessed October 3, 2011. 12. The U.S. Supreme Court ruled in California Federal Savings and Loan As‐ sociation v. Guerra that if an employer offers no disability leave to any of its em‐ ployees, it can (but need not) grant pregnancy leave to a woman disabled for pregnancy, childbirth, or a related medical condition. 13. John Kohl, Milton Mayfield, and Jacqueline Mayfield, “Recent Trends in Pregnancy Discrimination Law,” Business Horizons 48, no. 5 (September 2005), pp. 421–429; and www.eeoc.gov/eeoc/statistics/enforcement/pregnan‐ cy.cfm, accessed October 3, 2011. 14. Nancy Woodward, “Pregnancy Discrimination Grows,” HR Magazine, July 2005, p. 79. 15. “Pregnancy Claims Rising; Consistent Procedures Paramount,” BNA Bul‐ letin to Management, November 23, 2010, p. 375. 16. www.uniformguidelines.com/uniformguidelines.html, accessed No‐ vember 23, 2007. 17. The EEOC and the OFCCP agreed to coordinate their efforts more closely and to share information on employers with federal contracts or subcontracts. “EEOC, OFCCP Issue Updated Agreement on Coordinated Enforcement, Data Sharing,” BNA Bulletin to Management, November 22, 2011, p. 371. 18. Griggs v. Duke Power Company, 3FEP cases 175. 19. This is applicable only to Title VII and CRA 91; other statutes require intent. 20. James Ledvinka, Federal Regulation of Personnel and Human Resources Management (Boston: Kent, 1982), p. 41. 21. Bruce Feldacker, Labor Guide to Labor Law (Upper Saddle River, NJ: Prentice Hall, 2000), p. 513. 22. “The Eleventh Circuit Explains Disparate Impact, Disparate Treatment,” BNA Fair Employment Practices, August 17, 2000, p. 102. See also Kenneth York, “Disparate Results in Adverse Impact Tests: The 4/5ths Rule and the Chi

Square Test,” Public Personnel Management 31, no. 2 (Summer 2002), pp. 253– 262; and “Burden of Proof Under the Employment Non-Discrimination Act,” www.civilrights.org/lgbt/enda/burden-of-proof.html, accessed August 8, 2011. 23. We’ll see that the process of filing a discrimination charge goes something like this: The plaintiff (say, a rejected applicant) demonstrates that an employ‐ ment practice (such as a test) has a disparate (or “adverse”) impact on a particu‐ lar group. Disparate impact means that an employer engages in an employment practice or policy that has a greater adverse impact (effect) on the members of a protected group under Title VII than on other employees, regardless of intent. (Requiring a college degree for a job would have an adverse impact on some mi‐ nority groups, for instance.) Disparate impact claims do not require proof of dis‐ criminatory intent. Instead, the plaintiff’s burden is to show two things. First, he or she must show that a significant disparity exists between the proportion of (say) women in the available labor pool and the proportion hired. Second, he or she must show that an apparently neutral employment practice, such as word-of- mouth advertising or a requirement that the jobholder “be able to lift 100 pounds,” is causing the disparity. Then, once the plaintiff fulfills his or her burden of showing such disparate impact, the employer has the heavier burden of prov‐ ing that the challenged practice is job related. For example, the employer has to show that lifting 100 pounds is actually required for effectively performing the po‐ sition in question, and that the business could not run efficiently without the re‐ quirement—that it is a business necessity. 24. Commerce Clearing House, “House and Senate Pass Civil Rights Com‐ promise by Wide Margin,” Ideas and Trends in Personnel, November 13, 1991, p. 179. 25. Mark Kobata, “The Civil Rights Act of 1991,” Personnel Journal, March 1992, p. 48.

26. Again, though, if the “employer shows that it would have taken the same action even absent the discriminatory motive, the complaining employee will not be entitled to reinstatement, back pay, or damages”; www.eeoc.gov/policy/ docs/caregiving.html#mixed, accessed September 24, 2011. 27. Elliot H. Shaller and Dean Rosen, “A Guide to the EEOC’s Final Regula‐ tions on the Americans with Disabilities Act,” Employee Relations Law Journal 17, no. 3 (Winter 1991–1992), pp. 405–430; and www.eeoc.gov/ada, accessed November 20, 2007. 28. “ADA: Simple Common Sense Principles,” BNA Fair Employment Prac‐ tices, June 4, 1992, p. 63; and www.eeoc.gov/facts/ada17.html, accessed September 24, 2011. 29. Shaller and Rosen, “A Guide to the EEOC’s Final Regulations,” p. 408. Other specific examples include “epilepsy, diabetes, cancer, HIV infection, and bipolar disorder”; www1.eeoc.gov//laws/regulations/adaaa_fact_sheet, ac‐ cessed October 3, 2011. 30. Shaller and Rosen, “A Guide to the EEOC’s Final Regulations,” p. 409. Thus, one court recently held that a worker currently engaging in illegal use of drugs was “not a qualified individual with a disability” under the ADA. “Drug Ad‐ dict Lacks ADA Protection, Quarter Firms,” BNA Bulletin to Management, April 26, 2011, p. 133. 31. James McDonald Jr., “The Americans with Difficult Personalities Act,” Em‐ ployee Relations Law Journal 25, no. 4 (Spring 2000), pp. 93–107; and Betsy Bates, “Mental Health Problems Predominate in ADA Claims,” Clinical Psychiatry News, May 2003, http://findarticles.com/p/articles/mi_hb4345/is_5_31/ ai_n29006702, accessed September 24, 2011. For a detailed discussion of deal‐ ing with this issue, see www.eeoc.gov/facts/intellectual_disabilities.html, ac‐ cessed September 2, 2011. 32. “EEOC Guidance on Dealing with Intellectual Disabilities,” Workforce Man‐ agement, March 2005, p. 16.

33. “Driver Fired After Seizure on Job Lacks ADA Claim,” BNA Bulletin to Management, January 4, 2011, p. 6. 34. www.ada.gov/reg3a.html#Anchor-Appendix-52467, accessed January 23, 2009. 35. See “EEOC Guidance on Telecommuting as ADA Accommodation Dis‐ cussed,” Bloomberg BNA Bulletin to Management, October 16, 2012, p. 335. 36. Martha Frase, “An Underestimated Talent Pool,” HR Magazine, April 2009, pp. 55–58; and Nicole LaPorte, “Hiring the Blind, While Making a Green State‐ ment,” New York Times, March 25, 2012, p. b3. 37. M. P. McQueen, “Workplace Disabilities Are on the Rise,” Wall Street Jour‐ nal, May 1, 2007, p. A1. 38. “No Sitting for Store Greeter,” BNA Fair Employment Practices, December 14, 1995, p. 150. For more recent illustrative cases, see Tillinghast Licht, “Rea‐ sonable Accommodation and the ADA-Courts Draw the Line,” at http://li‐ brary.findlaw.com/2004/Sep/19/133574.html, accessed September 6, 2011. 39. For example, a U.S. circuit court recently found that a depressed former kidney dialysis technician could not claim ADA discrimination after the employer fired him for attendance problems. The court said he could not meet the essential job function of predictably coming to work. “Depressed Worker Lacks ADA Claim, Court Decides,” BNA Bulletin to Management, December 18, 2007, p. 406. See also www.eeoc.gov/press/5-10-01-b.html, accessed January 8, 2008. 40. Toyota Motor Manufacturing of Kentucky, Inc. v. Williams. 534 U.S. 184 (2002). 41. “Supreme Court Says Manual Task Limitation Needs Both Daily Living, Workplace Impact,” BNA Fair Employment Practices, January 17, 2002, p. 8. 42. “EEOC Issued Its Final Regulations for ADA Amendments Act,” Workforce Management, June 2011, p. 12.

43. “Rise in ADA Cases Calls for Focus on Accommodations, Job Descrip‐ tions,” Bloomberg BNA Bulletin to Management, September 25, 2012, p. 310. 44. Lawrence Postol, “ADAAA Will Result in Renewed Emphasis on Reason‐ able Accommodations,” Society for Human Resource Management Legal Report, January 2009, pp. 1–3. 45. Mark Lengnick-Hall et al., “Overlooked and Underutilized: People with Disabilities Are an Untapped Human Resource,” Human Resource Management 47, no. 2 (Summer 2008), pp. 255–273. 46. Susan Wells, “Counting on Workers with Disabilities,” HR Magazine, April 2008, p. 45. 47. “Wachovia Violated USERRA by Failing to Reinstate Reservist to Compa‐ rable Job,” BNA Bulletin to Management, September 20, 2011, p. 297. 48. www.eeoc.gov/press/2-25-09.html, accessed April 3, 2009; and Susan Hauser, “Sincerely Yours, Gina,” Workforce Management, July 2011, pp. 16–18. 49. James Ledvinka and Robert Gatewood, “EEO Issues with Preemployment Inquiries,” Personnel Administrator 22, no. 2 (February 1997), pp. 22–26. 50. “Employers More Vulnerable Under New York City Statute,” BNA Bulletin to Management, July 31, 2012, p. 245. 51. Joanne Deshenaux and Dori Meinert, “States, Cities Go Beyond Federal Government,” HR Magazine, February 2013, pp. 28–32. 52. Quoted or paraphrased from www.eeoc.gov/laws/types/index.cfm; www.eeoc.gov/laws/types/religion.cfm; www.eeoc.gov/eeoc/internal_eeo/ index.cfm; and www.eeoc.gov/federal/otherprotections.cfm, all accessed May 9, 2013. 53. Melanie Trottman, “Religious Discrimination Claims on the Rise,” Wall Street Journal, October 28, 2013, p. B1. 54. “Employer Should Respond to DOMA with Steps That Offset Risks, Attor‐ neys Say,” Bloomberg BNA Bulletin to Management, July 2, 2013, pp. 209–210.

55. “DOL Says ‘Spouse’ and ‘Marriage’ in ERISA Include Same-Sex Legally Married Couples,” Bloomberg BNA Bulletin to Management, September 24, 2013, p. 305. 56. “OFCCP Announces Final Rule Protecting LGBT Federal Contractor Work‐ ers from Bias,” Bloomberg BNA Bulletin to Management, December 9, 2014. 57. “OFCCP Announces ‘Higher Historic’ Final Rules on Contractor Hiring of Veterans, Disabled,” Bloomberg BNA Bulletin to Management, September 3, 2013, p. 281. 58. Lauren Weber, “Are You Disabled? Now Your Boss Wants to Know,” Wall Street Journal, March 19, 2014, p. B1. 59. “Lipnic Says EEOC Intends to Combat Hiring Barriers, Explore Accommo‐ dation,” Bloomberg BNA Bulletin to Management, May 7, 2013, p. 145. 60. Adam Liptak, “Justices Back Ban on Race as Factor in College Entry,” New York Times, April 23, 2014, pp. A1, A12. 61. Melanie Trottman and Lauren Weber, “Bar Is Raised in Worker Bias Cas‐ es,” Wall Street Journal, June 25, 2013, p. B1, B8. 62. www.eeoc.gov/types/sexual_harassment.html, accessed April 24, 2009; and www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm, accessed October 3, 2011. 63. Richard Wiener et al., “The Fit and Implementation of Sexual Harassment Law to Workplace Evaluations,” Journal of Applied Psychology 87, no. 4 (2002), pp. 747–764. Recently, for instance, a U.S. Court of Appeals told a male Walmart employee that he could proceed with his claim that a female supervisor had sex‐ ually harassed him. “Man’s Harassment Claims Advanced,” BNA Bulletin to Man‐ agement, September 6, 2011, p. 285. 64. Jennifer Berdahl and Celia Moore, “Workplace Harassment: Double Jeop‐ ardy for Minority Women,” Journal of Applied Psychology 91, no. 2 (2006), pp. 426–436.

65. Larry Drake and Rachel Moskowitz, “Your Rights in the Workplace,” Occu‐ pational Outlook Quarterly (Summer 1997), pp. 19–29. 66. “EEOC: “Boss’s Shoulder Touching Not Sexual Harassment,” Bloomberg BNA Bulletin to Management, February 11, 2014, p. 45. 67. Patricia Linenberger and Timothy Keaveny, “Sexual Harassment: The Em‐ ployer’s Legal Obligations,” Personnel 58 (November/December 1981), p. 64; and “Court Examines Workplace Flirtation,” http://hr.blr.com/HR-news/Discrimina‐ tion/Sexual-Harassment/Court-Examines-Workplace-Flirtation, accessed Octo‐ ber 2, 2011. 68. Edward Felsenthal, “Justice’s Ruling Further Defines Sexual Harassment,” Wall Street Journal, March 5, 1998, p. B5. 69. Hilary Gettman and Michele Gelfand, “When the Customer Shouldn’t Be King: Antecedents and Consequences of Sexual Harassment by Clients and Customers,” Journal of Applied Psychology 92, no. 3 (2007), pp. 757–770. 70. See the discussion in “Examining Unwelcome Conduct in a Sexual Ha‐ rassment Claim,” BNA Fair Employment Practices, October 19, 1995, p. 124. See also Michael Zugelder et al., “An Affirmative Defense to Sexual Harassment by Managers and Supervisors: Analyzing Employer Liability and Protecting Employ‐ ee Rights in the U.S.,” Employee Responsibilities and Rights 18, no. 2 (2006), pp. 111–122. 71. Ibid.; “Examining Unwelcome Conduct in a Sexual Harassment Claim,” p. 124. 72. For example, a server/bartender filed a sexual harassment claim against Chili’s Bar & Grill. She claimed that her former boyfriend, also a restaurant em‐ ployee, had harassed her. The court ruled that the restaurant’s prompt response warranted ruling in favor of it. “Ex-Boyfriend Harassed, but Employer Acted Promptly,” BNA Bulletin to Management, January 8, 2008, p. 14. 73. See Mindy D. Bergman et al., “The (Un)reasonableness of Reporting: An‐ tecedents and Consequences of Reporting Sexual Harassment,” Journal of Ap‐

plied Psychology 87, no. 2 (2002), pp. 230–242. See also www.eeoc.gov/policy/ docs/harassment-facts.html, accessed October 2, 2011. 74. Adapted from Sexual Harassment Manual for Managers and Supervisors (Riverwood, IL: CCH Incorporated, a WoltersKluwer Company, 1991); www.eeoc.gov/types/sexual_harassment.html, accessed May 6, 2007; and www.eeoc.gov/policy/docs/harassment-facts.html, accessed October 2, 2011. 75. Maria Rotundo et al., “A Meta-Analytic Review of Gender Differences in Perceptions of Sexual Harassment,” Journal of Applied Psychology 86, no. 5 (2001), pp. 914–922. See also Nathan Bowling and Terry Beehr, “Workplace Ha‐ rassment from the Victim’s Perspective: A Theoretical Model and Meta Analysis,” Journal of Applied Psychology 91, no. 5 (2006), pp. 998–1012. 76. Jennifer Berdahl and Karl Aquino, “Sexual Behavior at Work: Fun or Fol‐ ly?” Journal of Applied Psychology 94, no. 1 (2009), pp. 34–47. 77. Jathan Janov, “Sexual Harassment and the Three Big Surprises,” HR Magazine 46, no. 11 (November 2001), p. 123ff. California mandates sexual ha‐ rassment prevention training for supervisors: See “California Clarifies Training Law; Employers Take Note,” BNA Bulletin to Management, November 20, 2007, p. 375. 78. Ana Campoy and Julian Barnes, “Air Force Combats Sex Misconduct,” Wall Street Journal, November 15, 2012, p. A-8; and James Risen, “Air Force Leaders Testify on Culture That Led to Sexual Assaults of Recruits,” New York Times, January 24, 2013, p. A-15. 79. Mary Rowe, “Dealing with Sexual Harassment,” Harvard Business Review, May–June 1981, p. 43; the quoted material goes on to say that “the employer still bears the burden of proving that the employee’s failure was unreasonable. If the employee had a justifiable fear of retaliation, his or her failure to utilize the com‐ plaint process may not be unreasonable” and is quoted from www.uiowa.e‐

du/~eod/policies/sexual-harassment-guide/employer-liablity.htm, accessed Oc‐ tober 3, 2011. 80. “Employers Should Address Inappropriate Behavior on Social Sites,” Bloomberg BNA, February 19, 2013, p. 62. 81. “Be Careful with Social Media When Vetting Potential Workers,” Bloomberg BNA Bulletin to Management, June 25, 2013, p. 206. 82. John Moran, Employment Law (Upper Saddle River, NJ: Prentice Hall, 1997), p. 166. 83. “The Eleventh Circuit Explains Disparate Impact, Disparate Treatment,” p. 102. 84. John Klinefelter and James Thompkins, “Adverse Impact in Employment Selection,” Public Personnel Management, May/June 1976, pp. 199–204; and www.eeoc.gov/policy/docs/factemployment_procedures.html, accessed Oc‐ tober 2, 2011. 85. Moran, Employment Law, p. 168. 86. Employers use several types of statistics in addressing adverse impact. (For a discussion, see Robert Gatewood and Hubert Feild, Human Resource Se‐ lection [Fort Worth, TX: The Dryden Press, 1994], pp. 40–42, and Jean Phillips and Stanley Gulley, Strategic Staffing [Upper Saddle River, NJ: Pearson, 2012], pp. 68–69.) For example, stock statistics might compare at a single point in time (1) the percentage of female engineers the company has, as a percentage of its total number of engineers, with (2) the number of trained female engineers in the labor force as a percentage of the total number of trained engineers in the labor force. Here, the question of relevant labor market is important. For example, the relevant labor market if you’re hiring unskilled assemblers might be the local la‐ bor market within, say, 20 miles from your plant, whereas the relevant labor mar‐ ket for highly skilled engineers might well be national and possibly international. Flow statistics measure proportions of employees, in particular, groups at two points in time: before selection and after selection takes place. For example,

when comparing the percentage of minority applicants who applied with the per‐ centage hired, the employer is using flow statistics. An employer’s company- wide minority hiring statistics may be defensible company-wide but not depart‐ mentally. The employer therefore may employ concentration statistics to drill down and determine the concentration of minorities versus nonminorities in par‐ ticular job categories. 87. One study found that using the 4/5ths rule often resulted in false-positive ratings of adverse impact, and that incorporating tests of statistical significance could improve the accuracy of applying the 4/5ths rule. See Philip Roth, Philip Bobko, and Fred Switzer, “Modeling the Behavior of the 4/5ths Rule for Deter‐ mining Adverse Impact: Reasons for Caution,” Journal of Applied Psychology 91, no. 3 (2006), pp. 507–522. 88. The results must be realistic. In this example, hiring 2 out of 5 women suggests there is no adverse impact. But suppose we had hired only 1 woman. Then the difference between those we would be expected to hire (5) and whom we actually hired (1) would rise to 4. Hiring just one less woman might then trig‐ ger adverse impact issues, because twice the standard deviation is also about 4. However, realistically, it probably would not trigger such concerns, because with such small numbers, one person makes such a difference. The point is that tools like the 4/5ths rule and the standard deviation rule are only rules of thumb. They do not themselves determine if the employer’s screening process is discriminato‐ ry. This fact may work both for and against the employer. As the Uniform Guide‐ lines (www.uniformguidelines.com/qandaprint.html) put it, “Regardless of the amount of difference in selection rates, unlawful discrimination may be present, and may be demonstrated through appropriate evidence….” 89. The ADEA does not just protect against intentional discrimination (dis‐ parate treatment). Under a Supreme Court decision (Smith v. Jackson, Miss., 2005), it also covers employer practices that seem neutral but that actually bear more heavily on older workers (disparate impact). “Employees Need Not Show

Intentional Bias to Bring Claims Under ADEA, High Court Says,” BNA Bulletin to Management 56, no. 14 (April 5, 2005), p. 105. 90. The Fair Treatment for Experienced Pilots Act raised commercial pilots’ mandatory retirement age from 60 to 65 in 2008. Allen Smith, “Congress Gives Older Pilots a Reprieve,” HR Magazine, February 2008, p. 24. 91. Usery v. Tamiami Trail Tours, 12FEP cases 1233. Alternatively, an employer faced with an age discrimination claim may raise the factors other than age (FOA) defense. Here, it argues that its actions were “reasonable” based on some factor other than age, such as the terminated person’s poor performance. 92. www.foxnews.com/story/0,2933,517334,00.html, accessed January 7, 2010. 93. Howard Anderson and Michael Levin-Epstein, Primer of Equal Employ‐ ment Opportunity (Washington, DC: The Bureau of National Affairs, 1982), pp. 13–14. 94. U.S. v. Bethlehem Steel Company, 3FEP cases 589. 95. Robinson v. Lorillard Corporation, 3FEP cases 653. 96. Spurlock v. United Airlines, 5FEP cases 17. 97. Anderson and Levin-Epstein, Primer of Equal Employment Opportunity, p. 14. 98. Ledvinka and Gatewood, “EEO Issues with Preemployment Inquiries,” pp. 22–26. 99. Ibid.; www.eeoc.gov/laws/practices/index.cfm, accessed August 2, 2013. 100. “Eighth Circuit OKs $3.4 Million EEOC Verdict Relating to Pre-Hire Strength Testing Rules,” BNA Bulletin to Management, November 28, 2006, p. 377. 101. Svetlana Shkolnikova, “Weight Discrimination Could Be as Common as Racial Bias,” www.usatoday.com/news/health/weightloss/2008-05-20-over‐ weight-bias_N.htm, accessed January 21, 2009.

102. Jenessa Shapiro et al., “Expectations of Obese Trainees: How Stigma‐ tized Trainee Characteristics Influence Training Effectiveness,” Journal of Applied Psychology 92, no. 1 (2007), pp. 239–249. See also Lisa Finkelstein et al., “Bias Against Overweight Job Applicants: Further Explanations of When and Why,” Hu‐ man Resource Management 46, no. 2 (Summer 2007), pp. 203–222. For an inter‐ esting study, see T. A. Judge and D. M. Cable, “When It Comes to Pay, Do the Thin Win? The Effect of Weight on Pay for Men and Women,” Journal of Applied Psychology, January 2011. 103. “OFCCP Issues Criminal Records Directive, Cautions Contractors on Blanket Exclusions,” Bloomberg BNA Bulletin to Management, February 12, 2013, p. 49; and “EEOC to Focus on Hiring, Pay and Harassment,” HR Magazine, February 2013, p. 11. 104. See, for example, www.eeoc.gov/policy/docs/guidance-in‐ quiries.html, accessed June 28, 2009. 105. This is based on BNA Fair Employment Practices, April 13, 1989, pp. 45– 47; and “Crossed: When Religion and Dress Code Policies Intersect,” www.m‐ cguire_woods.com/news-resources/item.asp?item=3108, accessed October 2, 2011. 106. Eric Matusewitch, “Tailor Your Dress Codes,” Personnel Journal 68, no. 2 (February 1989), pp. 86–91; Matthew Miklave, “Sorting Out a Claim of Bias,” Workforce 80, no. 6 (June 2001), pp. 102–103, and “Laws and Cases Affecting Appearance,” www.boardmanlawfirm.com/perspectives_articles/appear‐ ance.php, accessed September 8, 2011. 107. Rita Pyrillis, “Body of Work,” Workforce Management, November 7, 2010, pp. 20–26. 108. This isn’t ironclad, however. For example, the U.S. Supreme Court, in Stotts, held that a court cannot require retention of black employees hired under a court’s consent decree in preference to higher-seniority white employees who were protected by a bona fide seniority system. It’s unclear whether this decision

also extends to personnel decisions not governed by seniority systems. Firefight‐ ers Local 1784 v. Stotts (BNA, April 14, 1985). 109. In its most recent plan, the EEOC said it would focus on hiring, and par‐ ticularly enforcing its guidance on indiscriminate use of criminal conduct in back‐ ground screening; on gender-based pay discrepancies; and on enforcing its re‐ quirements against harassment based on race, ethnicity, religion, age, and dis‐ ability. “EEOC to Focus on Hiring, Pay and Assessment,” p. 11. 110. Prudent employers often purchase employment practices liability insur‐ ance to insure against some or all of the expenses involved with defending against discrimination, sexual harassment, and wrongful termination–type claims. Antone Melton-Meaux, “Maximizing Employment Practices Liability Insurance Coverage,” Compensation & Benefits Review, May/June 2008, pp. 55–59. 111. Litigants must watch the clock. In an equal pay decision, the U.S. Supreme Court held (in Ledbetter v. Goodyear Tire & Rubber Company) that the employee must file a complaint within 180 (or 300) days of the employer’s deci‐ sion to pay the allegedly unfair wage. The clock starts with that first pay decision, not with the subsequent paychecks that the employee receives. “Justices Rule 5–4 Claim-Filing Period Applies to Pay Decision, Not Subsequent Paycheck,” BNA Bulletin to Management 58, no. 23 (June 5, 2007), pp. 177–184; and www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm, accessed May 1, 2012. A recent U.S. Supreme Court case will make it more difficult for plaintiffs to file class-action claims for discrimination. See “Supreme Court Hands Wal-Mart Big Victory: Reverses Approval of Class-Action Claim,” BNA Bulletin to Manage‐ ment, June 21, 2011, p. 193. 112. In 2007, the U.S. Supreme Court, in Ledbetter v. Goodyear Tire & Rubber Company, held that employees claiming Title VII pay discrimination must file their claims within 180 days of when they first receive the allegedly discriminatory pay. As of 2009, Congress was working to formulate new legislation enabling an em‐

ployee to file a claim at any time, as long as the person is still receiving an “in‐ fected” paycheck. 113. www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm, accessed March 20, 2013. 114. “EPLI Now Established Employer Litigation Strategy,” BNA Bulletin to Management, November 29, 2011, p. 382. 115. If the charge was filed initially with a state or local agency within 180 days after the alleged unlawful practice occurred, the charge may then be filed with the EEOC within 30 days after the practice occurred or within 30 days after the person received notice that the state or local agency has ended its proceedings. 116. “Attorneys: Employer Should Handle EEOC Discharges Strategically,” Bloomberg BNA Bulletin to Management, October 15, 2013, p. 334. 117. “EEOC Attorneys Stress the Importance of Cooperation During Investi‐ gations,” BNA Bulletin to Management, March 8, 2011, p. 73. 118. www.eeoc.gov/mediate/facts.html, accessed June 29, 2009. 119. “EEOC’s New Nationwide Mediation Plan Offers Option of Informal Set‐ tlements,” BNA Fair Employment Practices, February 18, 1999, p. 21; and www.eeoc.gov/employees/mediation.cf, accessed October 2, 2011. 120. Timothy Bland, “Sealed Without a Kiss,” HR Magazine, October 2000, pp. 85–92. 121. Stuart Bompey and Michael Pappas, “Is There a Better Way? Compulso‐ ry Arbitration of Employment Discrimination Claims After Gilmer,” Employee Re‐ lations Law Journal 19, no. 3 (Winter 1993–1994), pp. 197–216, and www.eeoc.‐ gov/policy/docs/mandarb.html, accessed September 5, 2011. The EEOC says here, for instance, that “the employer imposing mandatory arbitration is free to manipulate the arbitral mechanism to its benefit.” 122. See Bompey and Pappas, pp. 210–211.

123. David Nye, “When the Fired Fight Back,” Across-the-Board, June 1995, pp. 31–34; and www.eeoc.gov/federal/fed_employees/adr.cfm, accessed Oc‐ tober 3, 2011. 124. “EEOC Opposes Mandatory Arbitration,” BNA Fair Employment Prac‐ tices, July 24, 1997, p. 85; and www.eeoc.gov/employees/mediation.cfm, ac‐ cessed October 2, 2011. 125. Sources: “Tips for Employers on Dealing with EEOC Investigations,” BNA Fair Employment Practices, October 31, 1996, p. 130; “Conducting Effective Investigations of Employee Bias Complaints,” BNA Fair Employment Practices, July 13, 1995, p. 81; Commerce Clearing House, Ideas and Trends, January 23, 1987, pp. 14–15; http://eeoc.gov/employers/investigations.html, accessed Octo‐ ber 4, 2009; and www.eeoc.gov/employers/process.cfm, accessed August 1, 2012. 126. Kenneth Sovereign, Personnel Law, 4th edition (Upper Saddle River, NJ: Prentice Hall, 1999), p. 220. Perhaps surprisingly, more senior managers than nonmanagers report suffering retaliation when reporting workplace misconduct. Bloomberg BNA Bulletin to Management, September 11, 2012, p. 294. This in‐ cludes what one report calls “traceable retaliation,” such as demotions, physical harm, and online harassment. 127. www.eeoc.gov/laws/types/retaliation.cfm, accessed August 19, 2011; and Adam Liptak, “Fiancé’s Firing Is Ruled an Illegal Reaction to a Discrimination Claim,” New York Times, January 25, 2011, p. A16. 128. See “Retaliation Becomes Most Common Charge,” HR Magazine, March 2011, p. 16. For instance, there were recently 37,836 private-sector retaliation charges filed, 33,512 race discrimination charges, and 33,566 discrimination charges. “Retaliation Most Frequent EEOC Charge in Fiscal Year 2012,” Bloomberg BNA Bulletin to Management, February 5, 2013, p. 45. 129. Liptak, “Fiancé’s Firing,” p. A16.

130. See, for example, “Diversity Is Used as Business Advantage by Three Fourths of Companies, Survey Says,” BNA Bulletin to Management, November 7, 2006, p. 355; and Claire Armstrong et al., “The Impact of Diversity and Equality Management on Firm Performance: Beyond High Performance Work Systems,” Human Resource Management 49, no. 6 (November–December 2010), pp. 977– 998. 131. Brian O’Leary and Bart Weathington, “Beyond the Business Case for Di‐ versity in Organizations,” Employee Responsibilities and Rights 18, no. 4 (Decem‐ ber 2006), pp. 283–292. 132. See, for example, Michael Carrell and Everett Mann, “Defining Work- Force Diversity in Public Sector Organizations,” Public Personnel Management 24, no. 1 (Spring 1995), pp. 99–111; Richard Koonce, “Redefining Diversity,” Training and Development Journal, December 2001, pp. 22–33; and Kathryn Canas and Harris Sondak, Opportunities and Challenges of Workplace Diversity (Upper Saddle River, NJ: Pearson, 2008), pp. 3–27. Others list race and ethnicity diversity, gender diversity, age diversity, disability diversity, sexual diversity, and cultural and national origin diversity as examples. Lynn Shore et al., “Diversity in Organizations: Where Are We Now and Where Are We Going?” Human Resource Management Review 19 (2009), pp. 117–133. 133. Taylor Cox Jr., Cultural Diversity in Organizations (San Francisco, CA: Berrett Kohler Publishers, Inc., 1993), p. 88; also see Stefanie Johnson et al., “The Strong, Sensitive Type: Effects of Gender Stereotypes and Leadership Pro‐ totypes on the Evaluation of Male and Female Leaders,” Organizational Behavior and Human Decision Processes 106, no. 1 (May 2008), pp. 39–60. 134. “Outsmarting Our Brains: Overcoming Hidden Biases to Harness Diversi‐ ty’s True Potential,” Ernst & Young LLP, 2013; and Dana Wilkie, “Bringing Bias into the Light,” HR magazine, December 2014, pp. 32–27. 135. Cox, Cultural Diversity in Organizations, p. 64.

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136. “Workplace Bias Against Muslims Increasingly a Concern for Employ‐ ers,” BNA Bulletin to Management, October 26, 2010, p. 337. See also Robert Grossman, “Valuable but Vulnerable,” HR Magazine, March 2011, pp. 22–27. 137. Cox, Cultural Diversity in Organizations, pp. 179–80. 138. J. H. Greenhaus and S. Parasuraman, “Job Performance Attributions and Career Advancement Prospects: An Examination of Gender and Race Af‐ fects,” Organizational Behavior and Human Decision Processes 55 (July 1993), pp. 273–298. Much research here focuses on how ethnocentrism prompts con‐ sumers to avoid certain products based on their country of origin. See, for exam‐ ple, T. S. Chan et al., “How Consumer Ethnocentrism and Animosity Impair the Economic Recovery of Emerging Markets,” Journal of Global Marketing 23, no. 3 (July/August 2010), pp. 208–225. 139. Patrick McKay et al., “A Tale of Two Climates: Diversity Climate from Subordinates’ and Managers’ Perspectives and Their Role in Store Unit Sales Performance,” Personnel Psychology 62 (2009), pp. 767–791. 140. Maria del Carmen Triana, Maria Fernandez Garcia, and Adrian Colella, “Managing Diversity: How Organizational Efforts to Support Diversity Moderate the Effects of Perceived Racial Discrimination on Affective Commitment,” Per‐ sonnel Psychology 63 (2010), pp. 817–843. 141. “Selling the Supremes on Diversity,” Bloomberg Businessweek, October 20– October 28, 2012, p. 38. 142. As another example, leaders who facilitated high levels of power sharing within their groups helped to reduce the frequently observed positive relationship between increased diversity and increased turnover. But leaders who were inclu‐ sive of only a select few followers “may actually exacerbate the relationship be‐ tween diversity and turnover” (p. 1422). Lisa Nishii and David Mayer, “Do Inclu‐ sive Leaders Help to Reduce Turnover in Diverse Groups? The Moderating Role of Leader—Member Exchange in the Diversity to Turnover Relationship,” Journal of Applied Psychology 94, no. 6 (2009), pp. 1412–1426.

143. Faye Cocchiara et al., “A Gem for Increasing the Effectiveness of Diversi‐ ty Training,” Human Resource Management 49, no. 6 (November–December 2010), pp. 1089–1106. 144. For diversity management steps, see Cox, Cultural Diversity in Organiza‐ tions, p. 236. See also Patricia Digh, “Creating a New Balance Sheet: The Need for Better Diversity Metrics,” Mosaics, Society for Human Resource Manage‐ ment, September/October 1999, p. 1; and Richard Bucher, Diversity Conscious‐ ness (Upper Saddle River, NJ: Pearson Prentice Hall, 2004), pp. 109–137. 145. Boris Groysberg and Katherine Connolly, “Great Leaders Who Make the Mix Work,” Harvard Business Review, September 2013, pp. 68–76. 146. Susan Hauser, “The Clone Danger,” Workforce Management, April 2013, p. 40. 147. John Rice, “Why Make Diversity So Hard to Achieve?” Harvard Business Review, June 2012, p. 40. 148. David Thomas, “Diversity as Strategy,” Harvard Business Review, Sep‐ tember 2004, pp. 98–104; see also J. T. Childs Jr., “Managing Global Diversity at IBM: A Global HR Topic That Has Arrived,” Human Resource Management 44, no. 1 (Spring 2005), pp. 73–77. 149. Ibid., p. 99. 150. David Harrison et al., “Understanding Attitudes Toward Affirmative Action Programs in Employment: Summary and Meta-Analysis of 35 Years of Research,” Journal of Applied Psychology 91, no. 5 (2006), pp. 1013–1036; and Margaret Fi‐ ester et al., “Affirmative Action, Stock Options, I-9 Documents,” HR Magazine, November 2007, p. 31. 151. David Harrison et al., “Understanding Attitudes Toward Affirmative Action Programs in Employment: Summary and Meta-Analysis of 35 Years of Research,” Journal of Applied Psychology 91, no. 5 (2006), pp. 1013–1036. 152. Bill Leonard, “Ways to Tell If a Diversity Program Is Measuring Up,” HR Magazine, July 2002, p. 21; and Ye Yang Zheng and Brenda White, “The Evalua‐

tion of a Diversity Program at an Academic Library,” Library Philosophy and Prac‐ tice, 2007, http://unllib.unl.edu/LPP/yang.pdf, accessed October 2, 2011. 153. http://newsfeedresearcher.com/data/articles_n17/tests-city- court.html, accessed April 24, 2009. 154. Adam Liptak, “Supreme Court Finds Bias Against White Firefighters,” New York Times, June 30, 2009, pp. A1, A13. 155. Ibid., p. 560.