synopsis for chapter 3,4

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Human Resource Management

Fifteenth Edition

Chapter 3

Equal Employment Opportunity, Affirmative Action, and Workforce Diversity

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Learning Objectives (1 of 2)

3.1 Explain the concept of equal employment opportunity (E E O) and identify the federal laws affecting E E O.

3.2 Discuss who is responsible for ensuring equal employment opportunity.

3.3 Define the types of illegal employment discrimination and discuss affirmative action.

Learning Objectives (2 of 2)

3.4 Explain the Uniform Guidelines related to various types of illegal employment discrimination, including sexual harassment, national origin, religion, and caregiver (family responsibility) discrimination.

3.5 Describe the concept of diversity and diversity management.

3.6 Explain the various elements of a diverse workforce.

Equal Employment Opportunity: An Overview

Equal employment opportunity (E E O): Laws and policies that require all individuals’ rights to equal opportunity in the workplace, regardless of:

Race, color, sex, religion, national origin, age, and disability

Affirmative action

Diversity

The workforce of today has become truly diverse. But, this was not the case in the early 1960s; in fact, little of the workforce of those days remotely resembled that of today. Then, few mainstream opportunities were available to women, minorities, and those with disabilities.

Equal employment opportunity (EEO) refers to the set of laws and policies that requires all individuals’ rights to equal opportunity in the workplace, regardless of race, color, sex, religion, national origin, age, disability, or genetic information.

Affirmative action creates the expectation and program requirements that companies make a positive effort to recruit, hire, train, and promote employees form groups who are underrepresented in the labor force.

Diversity refers to any actual or perceived difference among people: age, race, religion, functional specialty, profession, sexual orientation, gender identity, geographic origin, lifestyle, tenure with the organization or position, and any other perceived difference, including values an nontraditional work experiences. Characteristics of diversity go well beyond protected classes. Unlike EEO and Affirmative Action, promoting a diverse workforce is not required by law. Diversity management is aimed at creating a workplace in which every employee fits, feels accepted, has value, and contributes.

Federal Laws Affecting Equal Employment Opportunity

Diversity did not just happen. Legislation (federal, state, and local), Supreme Court decisions, and executive orders have encouraged both public and private organizations to tap the abilities of a workforce that was largely underused before the mid-1960s. The concept of equal employment opportunity has undergone much modification and fine-tuning since the passage of the Equal Pay Act of 1963, the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967. Numerous amendments to these acts have been passed, as well as other acts in response to oversights in the initial legislation. Major Supreme Court decisions interpreting the provisions of the acts have also been handed down. A Presidential executive order was signed into law that provided for affirmative action. Five decades have passed since the introduction of the first legislation, and equal employment opportunity has become an integral part of the workplace.

Numerous national laws have been passed that reflect society’s attitude that everyone should have an equal opportunity for employment. The most significant of these laws will be described in the following sections.

Civil Rights Act of 1866

Oldest federal legislation affecting staffing

Based on Thirteenth Amendment

No statute of limitations

Employment is a contractual arrangement

Extended to cover private parties in 1968

The oldest federal legislation affecting staffing is the Civil Rights Act of 1866, which is based on the Thirteenth Amendment to the U.S. Constitution. The Civil Rights Act of 1866 granted citizenship and the same rights enjoyed by white citizens to all male persons in the United States, “without distinction of race or color, or previous condition of slavery or involuntary servitude.”

Title VII of Civil Rights Act of 1964, Amended in 1972

Three notable exceptions to Title VII discrimination:

Bona fide occupational qualifications (B F O Q)

Bona fide seniority system

Professionally developed ability tests as long as there was no intention to engage in illegal discrimination

Created Equal Employment Commission (E E O C)

Title VII covers employers engaged in interstate commerce that have 15 or more employees. Also included in the definition of employers are state and local governments, schools, colleges, unions, and private employment agencies. All private employers that are subject to the Civil Rights Act of 1964 must submit an annual employment report (called the EEO-1), containing the numbers of employees in racial, ethnic, and gender categories for different job types. The EEOC was created to enforce Title VII.

Under Title VII, it is illegal for employers to discriminate based on race, color, sex, religion, or national origin.

Three notable exceptions to Title VII are bona fide occupational qualifications, seniority and merit systems, and testing and educational requirements. According to the Act, it is not unlawful to hire on the basis of religion, sex, or national origin in those instances where these are bona fide occupational qualifications. For example, religious institutions may legally refuse to hire teachers whose religious persuasions are different from that of the hiring institution. However, the burden of proving the necessity for a BFOQ rests entirely on the employer.

The second exception to discrimination under Title VII is a bona fide seniority system. The system can be invalidated only by evidence hat the actual motives of the parties to the agreement were to discriminate.

In the matter of testing and educational requirements, Title VII states that they must be job related. And when adverse impact is shown, the burden of proof is on the employer to establish that a demonstrable relationship exists between actual job performance and the test or educational requirement.

The Civil Rights Act of 1964 also created the Equal Employment Opportunity Committee (EEOC) and assigned enforcement of Title VII to this agency.

Equal Pay Act of 1963, Amended in 1972

Cannot pay women less money than men if both employees do work that is substantially the same

Work must:

Require equal skill

Require equal effort

Involve equal responsibility

Be performed under similar working conditions

Passed as an amendment to the Fair Labor Standards Act, the Equal Pay Act of 1963 prohibits an employer from paying an employee of one gender less than an employee of the opposite gender if both employees do the same work. The Act was passed largely to overcome the outdated belief that a man should be paid more than a woman because he was the primary breadwinner.

More recently, new approaches to minimize the pay gap between women and men performing comparable work are being undertaken. For instance, Massachusetts’ Pay Equity Act prohibits companies from inquiring about an applicant’s pay history on job applications, interviews, and during pay negotiations.

The EEOC enforces the EPA.

Lilly Ledbetter Fair Pay Act of 2009

Each paycheck that unfairly pays a worker less than it should is a discriminatory act

The act gives the worker a fresh 180-day period during which time discrimination charges must be filed

Recognition of an unfair paycheck at any time starts the period

Lilly Ledbetter worked as a supervisor for Goodyear Tire from 1979 until 1998. Just before retirement, she received information that compared her salary with salaries of male co-workers. She sued, claiming pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. In the 2007 Supreme Court case of Ledbetter v. Goodyear Tire & Rubber Co., Inc., the Court said that discrimination charges must be filed within 180 days after the allegedly discriminatory pay decision. Lilly Ledbetter had worked for Goodyear for many years but she did not realize until she was close to retirement that she was being discriminated against because of pay.

In order to reverse the Ledbetter decision, the Lilly Ledbetter Fair Pay Act was passed by Congress and signed into law in 2009. The law creates a rolling or open time frame for filing wage discrimination claims. Each paycheck that unfairly pays a worker less than it should is a discriminatory act.

Pregnancy Discrimination Act of 1978

Amendment to Title VII of Civil Rights Act

Pregnancy, childbirth, or related medical condition

Prohibits questions about family plans, birth control techniques, etc.

Employee benefits are also covered

The Pregnancy Discrimination Act prohibits discrimination in employment based on pregnancy, childbirth, or related medical conditions. The basic principle of the act is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees based on their ability or inability to work. Questions regarding a woman’s family and childbearing plans should not be asked. The same principle applies in the employee benefits area.

Civil Rights Act of 1991

Provided appropriate remedies for intentional discrimination and unlawful harassment

Codified “business necessity” and “job-relatedness”

Confirmed authority and guidelines for finding disparate impact under Title VII

The Civil Rights Act of 1991 provides remedies for intentional discrimination and unlawful harassment in the workplace. It also formally defines the concepts of business necessity and job-related as they apply to enforcement of the Act. The Act establishes who has statutory authority, and provides guidelines for the resolution of disparate impact under Title VII. It expands the scope of relevant civil rights statutes to provide adequate protection to victims of discrimination.

The Act applies to U.S. companies operating in other countries, but only if compliance would not cause the employer to violate the laws of the country in which the workplace is located. The Act also extends the nondiscrimination principles to Congress and other government agencies.

Age Discrimination in Employment Act of 1967, Amended in 1978, 1986, and 1990

Illegal to discriminate against anyone 40 years or older

Enforced by the E E O C

Pertains to employers who have 20 or more employees

Provides for trial by jury

Class action suits are possible

Age can be a B F O Q

As originally enacted, the Age Discrimination in Employment Act (ADEA) prohibited employers from discriminating against individuals who were 40 to 65 years old. The 1978 amendment provided protection for individuals who were at least 40, but less than 70 years old. In a 1986 amendment, employer discrimination against anyone age 40 or older was made illegal. Questions asked about an applicant’s age are usually off-limits, but a firm may ask for age information to comply with child labor laws. The Older Workers Benefit Protection Act (the 1990 amendment to the ADEA) focused on employer benefits practices.

The Act pertains to employers who have 20 or more employees; unions with 25 or more members; employment agencies; and federal, state, and local government subunits.

The EEOC is responsible for administering the ADEA.

Age can be a bona fide occupational qualification when it is reasonably necessary to do the job, and when the employer has a rational basis for believing that all, or substantially all, people within an age class would not be able to perform satisfactorily. Courts have continued to rule that the Federal Aviation Administration has adequately explained its long-standing rule that it can force commercial pilots to retire at age 65. This ruling supported the 1974 Seventh Circuit Court decision that Greyhound did not violate the ADEA when it refused to hire persons 35 years of age or older as intercity bus drivers. Again, the likelihood of risk or harm to its passengers was involved. Greyhound presented evidence concerning degenerative physical and sensory changes that humans undergo at about age 35 that have a detrimental effect on driving skills, and that the changes are not detectable by physical tests. These skills would gradually deteriorate with increased age.

Rehabilitation Act of 1973

Prohibits discrimination against disabled workers working for government contractors and organizations

Contracts exceeding $2,500: Employer required to post affirmative action notices

Contracts exceeding $50,000, or if contractor has 50 or more employees: Employer must prepare written affirmative action plan

Administered by Office of Federal Contract Compliance Programs (O F C C P)

The Rehabilitation Act prohibits discrimination against disabled workers who are employed by government contractors and organizations that receive federal grants in excess of $2,500. Individuals are considered disabled if they have a physical or mental impairment that substantially limits one or more major life activities. Protected under the Act are conditions such as epilepsy, cancer, cardiovascular disorders, AIDS, blindness, deafness, mental retardation, emotional disorders, and dyslexia. There are two primary levels of the Act. All federal contractors exceeding the $2,500 base are required to post notices that they agree to take affirmative action to recruit, employ, and promote qualified disabled individuals. If the contract exceeds $50,000, or if the contractor has 50 or more employees, the employer must prepare a written affirmative action plan for review by the Office of Federal Contract Compliance Programs.

Vietnam Era Veteran’s Readjustment Assistance Act of 1974 (V E V R A A)

Requires covered federal government contractors and subcontractors to take affirmative action to employ and advance veterans

Priority in referral

Expanded definition to include campaign or expedition

Utilization goal

Under VEVRAA, federal contractors and subcontractors are required to take affirmative action in hiring covered veterans. VEVRAA also requires contractors to compile and submit annually a report on the number of current employees who are covered veterans.

Now the definition of “protected” or “covered” veteran has been expanded to include those who have served in a campaign or expedition for which a campaign badge was issued.

The final regulations require contractors to establish a nationwide 7 percent utilization goal for disabled individuals and veterans in each job group of their workforce.

Americans with Disabilities Act of 1990 (A D A) and Americans with Disabilities Act Amendments Act of 2008 (A D A A A)

A D A prohibits discrimination against qualified individuals with disabilities

Disabled individual: Person who has, or is regarded as having, a physical or mental impairment that substantially limits one or more major life activities, and has a record of such an impairment

A D A A A:

Expanded the definition of “disability”

More eligible for reasonable accommodations

The Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities. The ADA prohibits discrimination in all employment practices, including hiring, firing, advancement, compensation, training, and other conditions of employment in organizations with 15 or more employees. These provisions apply to private employers, state and local governments, employment agencies, and labor unions.

The Americans with Disabilities Act Amendments Act brought millions more people under the ADA’s protection. The Amendments Act expands the definition of “disability,” and many more applicants and employees are now eligible for reasonable accommodations. The Amendment broadened the definition of disability by expanding the term “major life activities,” and doing away with the “substantially limited” requirement. The only exception to this rule is that if a person’s vision can be corrected with eyeglasses or contact lenses, he or she will not be considered disabled.

Immigration Reform and Control Act (I R C A) of 1986

Illegal for certain employers to fire or refuse to hire based on national origin or citizenship

Illegal to target certain origins for employment verification

The Immigration Reform and Control Act (IRCA) makes it illegal for certain employers to fire or refuse to hire a person based on that person’s national origin or citizenship. This law also makes it illegal for an employer to request employment verification only from people of a certain national origin or only from people who appear to be from a foreign country. An employer who has citizenship requirements or gives preference to U.S. citizens also may violate IRCA.

Uniformed Services Employment and Reemployment Rights Act (U S E R R A) of 1994

Protections for Reservists and National Guard called to active duty

Workers entitled to return to civilian employment after military service

Intended to eliminate or minimize employment disadvantages to civilian careers

Escalator principle: Can return to job he/she would have attained

The Uniformed Services Employment and Reemployment Rights Act provides protection to Reservists and National Guard members. Under this Act, those workers are entitled to return to their civilian employment after completing their military service. The Act is intended to eliminate or minimize employment disadvantages to civilian careers that can result from service in the uniformed services. As a general rule, a returning employee is entitled to reemployment in the same job position that he or she would have attained with reasonable certainty if not for the absence to serve in the military. Known as the escalator principle, this requirement is designed to ensure that a returning employee is not penalized for the time, not exceeding five years, spent on active duty.

Genetic Information Nondiscrimination Act of 2008 (G I N A)

Protection from discrimination based on genetic information

Title I of G I N A applies to employer-sponsored group health plans

Title II of G I N A prohibits the use of genetic information in making employment decisions

The Genetic Information Nondiscrimination Act (GINA) of 2008 protects job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information by making unlawful the misuse of genetic information to discriminate in health insurance and employment. GINA contains two titles – I and II.

Title I generally prohibits discrimination in group premiums based on genetic information and the use of genetic information as a basis for determining eligibility or setting health insurance premiums

Title I also places limitations on genetic testing and the collection of genetic information.

Title II of GINA prohibits the use of genetic information in the employment setting for making employment decisions such as hiring decisions, compensation, training, and termination

GINA further restricts the deliberate acquisition of genetic information by employers and others covered by Title II, and strictly limits them from disclosing genetic information

State and Local Laws

State and local laws affect E E O

Fair employment practice laws

When E E O C regulations conflict with state or local civil rights regulations, legislation more favorable to women and minorities applies

Numerous state and local laws also affect equal employment opportunity. A number of states and some cities have passed fair employment practice laws prohibiting discrimination on the basis of race, color, religion, sex, or national origin. Even prior to federal legislation, several states had antidiscrimination legislation relating to age and gender. For instance, New York protected individuals between the ages of 18 and 65 prior to the passing of the ADEA, and California had no upper limit on protected age. San Francisco has voted to ban weight discrimination. The Board of Supervisors added body size to city laws that already bar discrimination based on race, color, religion, age, ancestry, sex, sexual orientation, disability, place of birth, or gender identity. The State of California has a law that requires sexual harassment prevention training.

When EEOC regulations conflict with state or local civil rights regulations, the legislation more favorable to women and minorities applies.

Responsibility for Ensuring E E O

Equal Employment Opportunity Commission (E E O C)

Office of Federal Contract Compliance Programs (O F C C P)

Employers

The main groups that take responsibility for establishing and supporting EEO include the government (EEOC and OFCCP) and employers.

Title VII of the Civil Rights Act, as amended, created the EEOC, which is charged with administering most of the EEO laws. Under Title VII, filing a discrimination charge initiates EEOC action. The EEOC continually receives complaints.

The purpose of the OFCCP is to enforce the requirements of affirmative action and EEO required of those who do business with the federal government. The OFCCP is an agency within the U.S. DOL.

Despite a company’s best efforts to treat employees fairly, suits are still brought and won because of mistakes in adherence to these standards. To limit the prospect of an EEO lawsuit, an organization can do a few things. First, it must have an enforce a strong EEO policy against discrimination. Even with a policy, breakdowns may occur. When they do, it becomes an opportunity to provide training in how to handle an employee-relations problem better the next time.

Steps in Handling a Discrimination Case

When a charge is filed, the EEOC first attempts a no-fault settlement. Essentially, the organization charged with the violation is invited to settle the case with no admission of guilt. Most charges are settled at this stage. Failing settlement, the EEOC investigates the charges. Once the employer is notified that an investigation will take place, no records relating to the charge may be destroyed. During the investigative process, the employer is permitted to present a position statement. After the investigation, the district director of the EEOC will issue a probable cause or a no probable cause statement. In the event of a probable cause statement, the next step involves attempted conciliation. In the even this effort fails, the case will be reviewed for litigation potential. Some of the factors that determine whether the EEOC will pursue litigation are the number of people affected by the alleged practice; the amount of money involved in the charge; other charges against the employer; and the type of charge. Recommendations for litigation are then passed on to the general counsel of the EEOC. If the recommendation is against litigation, a right-to-sue notice will be issued to the charging party.

Uniform Guidelines on Employee Selection Procedures

Single set of principles

Designed to assist employers, labor organizations, employment agencies, and licensing and certification boards

Comply with federal prohibitions against employment practices that discriminate based on race, color, religion, sex, and national origin

In 1978, the EEOC, the Civil Service Commission, the Department of Justice, and the DOL adopted the Uniform Guidelines on Employee Selection Procedures. These guidelines cover several federal EEO statutes and executive orders, including Title VII of the Civil Rights Act, EO 11246, and the Equal Pay Act.

The Uniform Guidelines provide a single set of principles to assist employers in complying with federal prohibitions against discriminatory employment practices. The Guidelines provide a framework for making legal employment decisions about hiring, promotion, retention, licensing and certification, the proper use of tests, and other selection procedures.

Types of Unlawful Employment Discrimination

Disparate treatment, often thought of as intentional discrimination

Adverse or disparate impact, often thought of as unintentional discrimination

Four-fifths or 80 percent rule

Disparate treatment means that an employer treats some employees less favorably than others because of race, religion, color, sex, national origin, or age. It is the most easily understood form of discrimination. Oftentimes, disparate impact is thought of as intentional discrimination against one or more protected class individuals.

Adverse impact takes place when an employment decision, practice or policy has a disproportionately negative effect on a protected class. Oftentimes, this type of discrimination is thought to be unintentional and is caused by some unintended effect of a company’s selection procedures.

Adverse impact can occur if women and minorities are not hired at the rate of at least 80 percent of the best-achieving group. The Guidelines describe “adverse impact” in terms of selection rates, the selection rate being the number of qualified applicants hired or promoted divided by the total number of qualified applicants. This has also been called the four-fifths rule, which is actually a guideline subject to interpretation by the EEOC.

Adverse Impact Example

During 2017, 300 African Americans and 300 Caucasians were hired

1,500 qualified African American applicants

1,000 qualified Caucasian applicants

Using the adverse impact formula, you have:

Thus, adverse impact likely exists

As you can see by this example, adverse impact is determined not only by the number of people hired, but also by how many qualified applicants there are in each category.

Affirmative Action

Requires covered employers to take positive steps to ensure that employment of applicants and treatments of employees are without regard to race, creed, color, or national origin

Executive Order: Directive issued by the president that has the force and effect of law enacted by Congress as it applies to federal agencies and federal contractors

President Lyndon Johnson signed Executive Order 11246

Affirmative Action Program: Approach to demonstrate that workers are employed in proportion to their representation in firm's relevant labor market

Affirmative action officially it began in 1965 when President Lyndon B. Johnson signed EO 11246, which establishes the policy of the U.S. government as providing equal opportunity in federal employment for all qualified people. It prohibits discrimination in employment because of race, creed, color, or national origin. The order also requires promoting the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency. The policy of equal opportunity applies to every aspect of federal employment policy and practice.

An affirmative action program is an approach developed by organizations with government contracts to demonstrate that workers are employed in proportion to their representation in the firm’s relevant labor market. An AAP may be voluntarily implemented by an organization. In such an event, goals are established and actions taken to hire and move minorities and women up in the organization. In other situations, an AAP may be mandated by the OFCCP. The degree of control the OFCCP will impose depends on the size of the contract, with contracts of $10,000 or less not covered.

The primary focus of any affirmative action program is on goals and timetables, with the issue being how many people employed and by when. These goals and timetables should be attainable; that is, they should be based on results that the firm, making good-faith efforts, could reasonably expect to achieve. Two types of goals must be established regarding underutilization: annual and ultimate. The annual goal is to move toward elimination of underutilization, whereas the ultimate goal is to correct all underutilization.

Underutilization Analysis

If utilization analysis shows availability of African Americans for certain job group is 30%, the organization should have at least 30% African American employment in that group

If actual employment is less than 30%, underutilization exists, and the firm should set a goal of 30% African American employment for that job group

An Affirmative Action Policy statement reflects the CEO’s attitude regarding equal employment opportunity, assigns overall responsibility for preparing and implementing the program, and provides for reporting and monitoring procedures. The policy should state that the firm intends to recruit, hire, train, and promote persons in all job titles without regard to race, color, religion, gender, or national origin, except where gender is a bona fide occupational qualification. The policy should guarantee that all human resource actions, such as compensation, benefits, transfers, layoffs, return from layoffs, company-sponsored training, education, and tuition assistance, will be administered without regard to race, color, religion, gender, or national origin.

An acceptable AAP must include an analysis of deficiencies in the utilization of minority groups and women.

The first step in conducting a utilization analysis is to conduct a workforce analysis. The second step involves an analysis of all major job groups. An explanation of the situation is required if minorities or women are currently being underutilized.

Underutilization is defined as having fewer minorities or women in a particular job group than would reasonably be expected by their availability. The utilization analysis is important because the calculations determine whether underutilization exists.

Uniform Guidelines on Sexual Harassment

Title VII generally prohibits gender discrimination in employment

E E O C issued interpretative guidelines

Two types of sexual harassment:

Hostile work environment

A quid pro quo situation

Title VII of the Civil Rights Act generally prohibits discrimination in employment on the basis of gender. The EEOC has also issued guidelines that state that employers have a duty to maintain a workplace that is free from sexual harassment. There are two distinct types of sexual harassment: when a hostile work environment is created, and when there is a quid pro quo, for example, an offer of promotion or pay raise in exchange for sex.

Employers are liable for the acts of their supervisors, regardless of whether the employer is aware of the sexual harassment.

Courts expect employers to carefully train supervisors so they do not engage in any type of behavior that could be construed as sexual harassment. As with the Civil Rights Act, retaliation is forbidden against an employee who has participated in an investigation.

Where co-workers are concerned, the employer is responsible for such acts if the employer knew, or should have known, about them. However, the employer is not responsible when it can show that it took immediate and appropriate corrective action on learning of the problem. Another important aspect of these guidelines is that employers may be liable for acts committed by nonemployees in the workplace if the employer knew, or should have known, of the conduct and failed to take appropriate action.

Uniform Guidelines on Discrimination Because of National Origin

Discrimination on basis of national origin is denial of equal employment opportunity due to:

Individual’s ancestors or place of birth

Individual’s physical, cultural, or linguistic characteristics

English-only rule

National origin protection covers employment discrimination based on a person’s national origin; marriage or association with a person of a specific national origin; membership in organizations promoting the interests of national groups; participation in schools, churches, temples, or mosques generally used by persons of a national origin group; and use of an individual’s or spouse’s name that is associated with a national origin group.

Of interest with regard to national origin is the English-only rule. Courts have generally ruled in the employer’s favor if the rule would promote safety and product quality or stop harassment. In Montes v. Vail Clinic, Inc., the tenth circuit court agreed with the English-only rule prohibiting housekeepers from speaking Spanish while working in the operating room. However, English-only policies that are not job-related have been challenged and eliminated.

Uniform Guidelines on Discrimination Because of Religion

Obligation to accommodate religious practices unless employer can demonstrate a resulting hardship

Methods for accommodating religious practices

The most common claims filed under the religious accommodation provisions involve employees objecting to either Sabbath employment or membership in or financial support of labor unions. Consideration is given to identifiable costs in relation to the size and operating costs of the employer and the number of individuals who actually need the accommodation. These guidelines recognize that regular payment of premium wages constitutes undue hardship, whereas these payments on an infrequent or temporary basis do not.

Basically, employers that refuse to accommodate an employee’s religious practice may need to provide evidence that doing so would constitute an undue burden.

The guidelines identify several means of accommodating religious practices that prohibit working on certain days, such as: voluntary substitutes, flexible scheduling, lateral transfer, and change of job assignments.

Uniform Guidelines on Caregiver (Family Responsibility) Discrimination

Discrimination based on employee obligations to care for family members

E E O C’s guideline: “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities”

Not binding

Offers “best practices” measures

Caregiver (Family Responsibility) discrimination is discrimination against employees based on their obligations to care for family members. The EEOC has issued a technical assistance document titled “Employer Best Practices for Workers with Caregiving Responsibilities” on how employers of workers with caregiving responsibilities can avoid violations of Title VII of the 1964 Civil Rights Act and other fair employment laws and reduce the likelihood of discrimination complaints. This form of discrimination makes an assumption based on what a person assumes to be true about a group, including people with family responsibilities. According to the EEOC, the guidance “is not binding on employers but rather offers “best practices” that are “proactive measures that go beyond federal nondiscrimination requirements.” Federal law does not prohibit discrimination on the basis of “caregiver status” but rather it is concerned when workers with caregiving responsibilities are treated differently based on a characteristic that is protected by laws, such as gender, race, or association with an individual with a disability.

This has become the new battleground in employment claims.

Diversity and Diversity Management

Diversity: Any actual or perceived difference among people

More than equal employment and affirmative action

Creates workforces that mirror populations and customers

Diversity management: Ensuring factors are in place to provide for and encourage the continued development of a diverse workforce and to meld actual and perceived differences among workers

Diversity refers to any actual or perceived difference among people in terms of age, race, religion, profession, sexual orientation, gender identity, geographic origin, lifestyle, tenure with the organization, or any other perceived characteristic. Diversity is more than equal employment opportunity.

The challenge for managers is to recognize that people with characteristics that are common, but are different from those in the mainstream,may often think, act, learn, and communicate quite differently. Because every person, culture, and business situation is unique, there are no simple rules for managing diversity, but employers need to develop patience, open-mindedness, acceptance, and cultural awareness.

Diversity management is ensuring that factors are in place to provide for and encourage the continued development of a diverse workforce. This means pursuing an inclusive culture in which newcomers feel welcome, and creating a supportive culture in which all employees can be effective. Achieving diversity is more than being politically correct; it is about fostering a culture that values individuals and their wide array of needs and contributions.

Elements of the Diverse Workforce (1 of 4)

Single parents and working mothers

Women in business

Mothers returning to the workforce

Dual-career families

There are a number of components that make up the diverse workforce.

Managers need to be sensitive to the needs of employees who are also parents. Many women who formerly remained at home to care for children now need to work outside the home. If this valuable segment of the workforce is to be effectively utilized, organizations must address work–family issues. Businesses have found that providing childcare services and workplace flexibility may help attract and retain valuable employees.

In 2010, for the first time ever, women made up the majority of the American workforce. However, many are opting out of corporate life. This does not mean that they are opting out of business careers. Instead, they are making their own career paths that allow them to combine work and family life. As a result, organizations are losing talented employees in whom they have made substantial investments. Women-owned businesses now account for nearly one-third of all enterprises in the market today. The American Express Open State of Women-Owned Businesses Report shows the number of women-owned firms from 2007 to 2016 increased by 45 percent.

Today, more new mothers are leaving the labor force only to return later. To get them to return, companies are going beyond federal law and giving mothers a year or more for maternity leave. Other businesses are specifically trying to recruit them to return to the labor force. Returnships are being used to let organizations try out professionals who are resuming their careers.

The increasing number of dual-career families presents both challenges and opportunities for organizations. Both husband and wife have jobs and family responsibilities.

Today, employees are turning down relocations because of spouses’ jobs and concerns about children. Family or a spouse’s career is cited almost twice as often as concern with the employee’s career or compensation as the reason for declining a relocation. As a result, firms are developing polices to assist the spouse of an employee who is transferred.

Elements of the Diverse Workforce (2 of 4)

Ethnicity and race

Older workers

There are a number of components that make up the diverse workforce.

According to the U.S. Bureau of Labor Statistics, the percentage of the U.S. labor force made up of whites will decline while growth is expected for other racial groups. Workers of various ethnicities and races (including Hispanics, African Americans, and Asians) are at times stereotyped. They may encounter misunderstandings and expectations based on ethnic or cultural differences. Members of ethnic or racial groups are socialized within their particular culture. People’s attitudes are influenced by the ancestral and cultural experiences of their childhood.

In 2011, the first Baby Boomers turned 65, and approximately 10,000 more will continue to do so every day for the next 20 years. In recent years, many Boomers deferred retirement because of a faltering economy and concerns about the Social Security retirement program. The U.S. BLS estimates that nearly 13.5 million workers 65 and older will be working in 2024, up from about 8 million today.

Despite massive layoffs resulting from the recent recession, many companies try to keep the over 55 worker. This may be due, in part, to legal concerns based on the Age Discrimination in Employment Act, which protects workers 40 and older against discrimination. However, a large part of this movement is the desire to keep the experienced workers on board.

Elements of the Diverse Workforce (3 of 4)

People with disabilities

Immigrants

Foreign workers

There are a number of components that make up the diverse workforce.

According to the U.S. BLS, approximately 20 percent of the labor force possesses one or more disabilities. Common disabilities include limited hearing or sight, limited mobility, and mental deficiencies. In jobs for which they are qualified, disabled workers do as well as unimpaired workers in terms of productivity, attendance, and average tenure. A recent Department of Labor survey found that a majority of businesses hiring people with disabilities are discovering that costs for accommodations differ very little from those for the general employee population.

Large numbers of immigrants from Asia and Latin America have come to the United States in recent years. Some are highly skilled and well educated, and others are only minimally qualified. They all bring the attitudes and values of their home country cultures, and therefore require time to adapt. Wherever they settle, members of these ethnic groups soon begin to become part of the regular workforce in certain occupations and break out of their isolation. They begin to adopt the English language and American customs. They learn new skills and adapt old skills to their new country. Managers can place these individuals in jobs appropriate to their skills, with excellent results for the organization. As corporations employ more foreign nationals in this country, managers must work to understand the different cultures of their employees.

In 2017, the H-1B employment visa brings in approximately 80,000 skilled foreign workers annually, including some 20,000 researchers and academicians not subject to the annual visa cap set by Congress. Of those 80,000, the majority are distributed to employers through a lottery system each April held by U.S. Citizenship and Immigration Services, an arm of the U.S. Department of Homeland Security. However, the exact number of H-1B visa holders is difficult to determine. A three-year initial visa can be renewed for another three years, and if a worker is on track for a green card, H-1B status can be renewed annually. Until the recent recession, demand far outpaced supply, and companies constantly encouraged Congress to raise the cap. Many employers say the H-1B visa program provided the only practical avenue for finding high-tech workers with cutting-edge skills.

Elements of the Diverse Workforce (4 of 4)

Young persons, some with limited education or skills

Baby Boomers, Gen X, Gen Y, and Gen Z

A lower labor force participation rate for young people is being experienced for all people less than 24 years of age and not merely persons with limited education and skills as was so often the case in the past. The recent recession delayed many young workers the opportunity of entering the workforce so a large number decided to gain additional education to be more competitive. The downturn was especially harsh for 16-to-24-year-olds when the unemployment rate was the highest recorded since the government began tracking it in the 1940s.

Although the negative attributes of these workers at times seem to outweigh the positive ones, they are a permanent part of the workforce. A well-known example of de-skilling is McDonald’s use of pictures on its cash register keys.

Baby boomers were born just after World War II through the mid-1960s. Corporate downsizing in the 1980s and 1990s cast aside millions of baby boomers. Companies now want to keep the boomers. Employers seek out boomers because they bring a wealth of skills and experience to the workplace, as well as having low turnover rates and high engagement levels. Companies today place considerable value on their skill, experience, and a strong work ethic, characteristics that many boomers possess.

Generation X is the label affixed to the approximately 41 million American workers born between the mid-1960s and late 1970s. Many organizations have a growing cadre of Generation X employees who possess lots of energy and promise. They are one of the most widely misunderstood phenomena facing management today. Generation Xers differ from previous generations in some significant ways, including their natural affinity for technology and their entrepreneurial spirit. Job instability and the breakdown of traditional employer–employee relationships brought a realization to Generation Xers that it is necessary to approach the world of work differently from past generations. Generation Xers recognize that their careers cannot be founded securely on a relationship with any one employer. They are very skeptical, particularly when it comes to the business world and job security. They worry about their jobs being outsourced and how they are going to pay for their children’s education. They think of themselves more as free agents in a mobile workforce and expect to build career security, not job security, by acquiring marketable skills and expertise.

Generation Y comprises people born between the late 1970s and late 1990s. They have never wound a watch, dialed a rotary phone, or plunked the keys of a manual typewriter. But, without a thought, they download music from the Internet and upload pictures of events on Facebook. They cannot imagine how the world ever got along without computers. These individuals are the leading edge of a generation that promises to be the richest, smartest, and savviest ever. Generation Yers, often referred to as the “echo boomers,” “Millennials,” and “nexters,” are the coddled, confident offspring of post–World War II baby boomers. Generation Y individuals are a most privileged generation, who came of age during the hottest domestic economy in memory. Gen Yers tend to have a strong sense of morality and civic-mindedness. They are more ethnically diverse than previous generations, and nearly one-third of them have been raised in single-parent households. They want a workplace that is both fun and rewarding.

Generation Z or Digital Natives, the Internet-assimilated children born between 1995 and 2009. Gen Zers are more worldly, high-tech, and confident in their ability to multitask; they tend to have short attention spans and desire speed over accuracy; and they enjoy media that provides live social interaction. They tend to use social networks to avoid the complications of dealing with face-to-face situations. Digital Natives do not trust politicians, social institutions, the media, or corporations. Rather, they rely largely on themselves and their peers to decide what to think, what to do, and what to buy.

Multigenerational Diversity

Four generations are now in the workforce

Each has different defining characteristics and nicknames

Managers need to be aware of and skilled in dealing with the different generations

Four generations are now participating in the workforce and each has different defining characteristics and nicknames. The concept of generational differences as a legitimate workplace diversity issue has gained increasing recognition. Baby Boomers are remaining on the job longer because of the economy and often find themselves working with Generation Y employees. Traditionally, discussions of workplace diversity tended to focus on topics of race, ethnicity, gender, sexual orientation, and disability. Shirley A. Davis, SHRM’s director of diversity and inclusion initiatives, said, “In all parts of the world, there is another category of diversity that cannot be overlooked: multigenerational diversity.” Today, there are greater numbers of workers from each segment that bring both new opportunities and challenges. If organizations want to thrive in this competitive environment of global talent management, they need employees and managers who are aware of and skilled in dealing with the different generations that make up the workforce.

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