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CHAPTER 3

Equal Employment Opportunity

Learning Objectives

Identify the major government agencies that enforce employment discrimination laws

Outline key provisions in the Civil Rights Acts of 1964 and 1991 and compare the two theories of unlawful employment discrimination

Show how women are affected by pay, job assignments, and career issues

Learning Objectives (continued)

Distinguish between the two types of sexual harassment and explain how employers can prevent such misconduct

List key elements of disability discrimination laws

Discuss the legal protections to prevent bias and discrimination based on age, religion, national origin, and other factors

Nature of Equal Employment Opportunity

Employment decisions must be made on the basis of job requirements and worker qualifications

Unlawful discrimination occurs when employment decisions are made based on protected characteristics

Protected characteristics: Individual attributes such as race, age, sex, disability, or religion that are protected under E E O laws and regulations

Equal employment opportunity (E E O): Employment that is not affected by illegal discrimination

Sources of Regulation and Enforcement

Federal statutes enacted by Congress

State and city governments

Courts

Interpret the laws

Rule on cases

Sources of Regulation and Enforcement (continued)

Government agencies

Issue guidelines and rules for law implementation

Enforcement bodies for E E O

Equal Employment Opportunity Commission (E E O C) enforces employment laws for employers

Department of Labor (D O L) oversees compliance with employment-related laws

Theories of Unlawful Discrimination

Disparate treatment: Individuals with particular characteristics that are not job related are treated differently from others

Overt and intentional

Follows a pattern or practice

Theories of Unlawful Discrimination (continued)

Disparate impact: When an employment practice that does not appear discriminatory adversely affects individuals with a particular characteristic

Individuals are substantially underrepresented as a result of employment decisions that work to their disadvantage

Unintentional because identical criteria are used, but the results can differ for certain groups

Landmark case: Griggs v. Duke Power (1971)

Equal Employment Opportunity Concepts

Business necessity: Practice necessary for safe and efficient organizational operations

Bona fide occupational qualification (B F O Q)

Legitimate reason an employer can use to exclude persons on otherwise illegal bases of consideration

Burden of proof: Individuals who file suit against employers must establish that illegal discrimination has occurred

Equal Employment Opportunity Concepts (continued)

Sufficient evidence, either factual or statistical, must be provided to the court to support the case and allow the plaintiff to continue with the claim

Retaliation: Punitive actions taken by employers against individuals who exercise their legal rights

To prevent charges of retaliation, employers can:

Create and disseminate an antiretaliation policy

Train supervisors and review performance evaluation

Conduct a thorough internal investigation

Take appropriate action

Civil Rights Act of 1964, Title Seven

States that it is illegal for organizations to discriminate in any way based on a person’s sex, race, national origin, color, and/or religion

Basis for several extensions of E E O law

Coverage of Civil Rights Act of 1964, Title Seven

All private employers of 15 or more employees

All educational institutions, public and private

State and local governments

Public and private employment agencies

Labor unions with 15 or more members

Joint labor–management committees for apprenticeships and training

The Civil Rights Act of 1991

Requires employers to show that an employment practice is job related for the position and is consistent with business necessity

Creates provision to claim compensatory and punitive damages for the victims of intentional discrimination

Executive Orders 11246, 11375, and 11478

Require federal contractors to take affirmative action to compensate for historical discrimination against women, minorities, and handicapped individuals

Affirmative action: Proactive employment practices to compensate for historical discrimination against minorities

Managing Affirmative Action Requirements

Affirmative Action Program (A A P)

Document that outlines proactive steps the organization will take to attract and hire members of underrepresented groups

Objective

To have the company’s workforce demographics reflect as closely as possible the demographics in the labor market from which workers are recruited

Managing Racial and Ethnic Discrimination Issues

Making sure a hiring organization uses recruitment approaches that secure a diverse applicant pool

Using anonymous application procedures

Adopting policies against harassment of any type

Ethnic jokes, vulgar epithets, racial slurs, and physical actions should be categorized as harassment

Sex/Gender Discrimination Laws

The Pregnancy Discrimination Act (P D A)

Treating maternity leave the same as other personal or medical leaves

Family and Medical Leave Act (F M L A)

Giving up to 12 weeks of unpaid family leave and allowing the individual to return to job

Sex/Gender Discrimination Laws (continued)

The Equal Pay Act

Paying similar wage rates for similar work without regard to gender

Differences in pay between men and women in the same jobs are permitted because of:

Differences in seniority, performance, quality, and/or quantity of production

Factors other than sex, such as skill, effort, and working conditions

Pay Equity

Pay equity: Idea that pay for jobs requiring comparable levels of knowledge, skill, and ability should be similar, even if actual duties differ significantly

Called comparable worth

Reason for enforcement

Continued gap between the earnings of women and men

Steps to Reduce Pay Inequities

Include all benefits that are part of pay to calculate total compensation

Ensure that people know how the pay practices work

Base pay on the value of jobs and performance

Benchmark against local and national markets to make pay structures competitive

Conduct frequent audits

Glass Ceiling

Glass ceiling: Discriminatory practices that have prevented women and minority status employees from advancing to executive-level jobs

Glass elevators: Limits that keep women from progressing only in certain fields

Some Ways to Break the Glass

Establish formal mentoring programs

Provide opportunities for career rotation

Include women and minorities in top management

Establish clear goals for retention and progression of women and minorities

Allow for alternative work arrangements for employees

Sexual Orientation

20 states, the District of Columbia, and many cities have passed laws to protect applicants and employees from discrimination on the basis of sexual orientation

Managers and employees should show respect for individuals undergoing transition surgery and therapy

Can be done by ensuring individual privacy and making the right accommodations when needed

Nepotism and Romance at Work

Nepotism: Practice of allowing relatives to work for the same employer

Workplace romance

Managers and employers face a dilemma

Whether they should monitor and/or manage these relationships to protect the firm from potential legal complaints or do they simply ignore these relationships

Risky because workplace romances have great potential for causing conflict

Sexual Harassment

Sexual harassment: Unwelcome verbal, visual, or physical conduct of a sexual nature that is severe and affects working conditions or creates a hostile work environment

Can be perpetrated by boss or subordinate

Can be perpetrated by men or women

Goes unreported because victims are embarrassed or concerned about retaliation

Types of Sexual Harassment

Quid pro quo

Sexual harassment that links employment outcomes to the granting of sexual favors

Hostile environment

Sexual harassment occurs when an individual’s work performance or psychological well-being is unreasonably affected by intimidating or offensive working conditions

Sexual Harassment Issues

Gender stereotyping

Electronic sexual harassment

Sexual harassment may occur when employees e-mail each other, visit social networking sites, and access the Internet

Tolerance can vary from country to country

Ways to Prevent Sexual Harassment

Establish a sexual harassment policy

Communicate the policy regularly

Train employees and managers on issues related to sexual harassment

Encourage reporting with a positive culture

Investigate when complaints are voiced and take appropriate action

Disability Discrimination

Rehabilitation Act of 1973 provided for equal employment opportunity for disabled workers and applicants by federal contractors

Americans with Disabilities Act (A D A)

Applies to private employers, employment agencies, and labor unions with 15 or more employees

A D A Amendments Act

Broadens the definition of individuals with disabilities to include anyone with an impairment that limits life functions without regard for medication/prosthetics

Disability Discrimination (continued 1)

Person with a disability

Individual who:

Has a physical or mental challenge that greatly reduces the ability to perform important life functions

Possesses a record of such a challenge or

Is thought to have such a challenge

Individual is considered to have a disability even if corrective measures are taken

Significant life activities and functions include visible activities and internal bodily functions

Disability Discrimination (continued 2)

Mental disabilities: Mental or psychological disorders

Intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities

Bipolar disorder, depression and anxiety disorder, and temporary impairments

Employees who develop disabilities may shift to jobs where their disabilities do not affect them as much

A D A and Job Requirements

Discrimination is prohibited against individuals with disabilities who can perform the essential job functions

Essential job functions: Fundamental job duties

Reasonable accommodation: Modification to a job or work environment that gives a qualified individual an equal employment opportunity to perform

Determining If a Job Function Is Essential

A job function may be considered essential for any of several reasons

The function may be:

Essential because the reason the position exists is to perform that function

Essential because there is a limited number of employees available who can perform the job function

Highly specialized so that the job incumbent is hired for that expertise or ability to perform the particular function

Determining If a Job Function Is Essential (continued)

Evidence of whether a particular function is essential:

Employer's judgment as to which functions are vital, and written job descriptions prepared before advertising/interviewing applicants for the job

Amount of time spent on the job performing the function, the consequences of not requiring the incumbent to perform the function, and the terms of a collective bargaining agreement

Work experience of past incumbents in the job and current work experience of incumbents in similar jobs

Undue Hardship

Undue hardship: Significant difficulty or expense imposed on an employer when making an accommodation for individuals with disabilities

General guidelines are provided by the A D A

Determined on a case-by-case basis

Common Means of Reasonable Accommodation

Job reassignment

Employer-provided assistance

Additional training time

Job restructuring

Special equipment

Modified work schedules

Key to Making Reasonable Accommodations

Identifying essential functions

Determining which accommodations are reasonable so the individual can perform core job duties

Architectural barriers should not block access

Work tasks must be assigned or modified to allow performance

Work hours and breaks may be adjusted

A D A Restrictions and Medical Information

Restrictions prohibit employers from:

Rejecting individuals because of a disability

Asking job applicants any question about current or past medical history until a conditional job offer is made

Using pre-employment medical exams, except for drug testing, until a conditional job offer is made

Medical information must be stored separately and securely

Genetic Bias Regulations

Employers use genetic screening tests to:

Make workers aware of genetic problems

Terminate employees who may make extensive use of health insurance benefits

Genetic Information Nondiscrimination Act

Limits health insurance plans’ use of genetic information

Prohibits employment discrimination on the basis of genetic information

Age Discrimination Laws

Age Discrimination in Employment (A D E A)

Prohibits discrimination against all individuals age 40 or older employed by an organization having 20 or more workers

Older Workers Benefit Protection Act (O W B P A)

Amendment to the A D E A

Protects employees who sign liability waivers for age discrimination in exchange for severance packages

Managing Age Discrimination

Adopting age-neutral selection and promotion practices

Recruiting older people to return to the workforce through part-time and other attractive scheduling options

Employing phased retirement

Phased retirement: Approach that enables employees to gradually reduce their workloads and pay levels

Religion and Spirituality in the Workplace

Religious discrimination: Hostile remarks or refusal to hire individuals with different beliefs

Religious expression: Express religious beliefs at work in a way that does not harass others

Managing religious diversity

Changing an employee’s job tasks or scheduling

Making an exception to dress and grooming rules and making accommodations related to paying union dues or agency fees, prayer, proselytizing, and other forms of religious expression

Immigration and Discrimination

Immigration Reform and Control Act (I R C A)

Requires that employers verify the employment eligibility status of all employees without any discrimination

Requires that each employee must complete an Employment Eligibility Verification (I-9) form within the first three days of employment

E-Verify federal database verifies the employment eligibility of employees

Has broadened visa requirements to accommodate highly skilled employees

Language Issues

E E O C has issued guidelines stating that employers may require workers to speak only English at certain times or in certain situations

The business necessity of the requirements must be justified

Military Status Protections

Vietnam Era Veterans’ Readjustment Assistance Act

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

U S E R R A Provisions:

Leaves of absence and return to employment rights

Prompt reemployment on return

Protection from discharge and retaliation

Health insurance continuation

Continued seniority rights

Appearance and Weight Discrimination

Employers are allowed to set dress codes and appearance standards as long as they are applied uniformly

Height and weight requirements must be linked to specific job functions

Components of Diversity Training

Legal awareness

Cultural awareness

Sensitivity training

Mixed Results for Diversity Training

May not produce long-term changes in people’s attitudes and behaviors toward others with different characteristics

Has not reduced discrimination and harassment complaints

Perceived as benefiting only women and racial minorities and taking away opportunities for white men

Improving Diversity Training Efforts

Focusing on behavior

Stressing that people can believe whatever they wish, but at work their values are less important than their behaviors

Dealing with diversity is not about what people can and cannot say

It is about being respectful to others

H U M A N R E S O U R C E

MANAGEMENT

V A L E N T I N E M E G L I C H M A T H I S J A C K S O N

S I X T E E N T H E D I T I O N