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Equal Employment Opportunity and Human Resources Management

Outline

The EEO Laws and Regulations

Outline key provisions in the Civil Rights Acts of 1964 and 1991.

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

Identify the major government agencies that enforce employment discrimination laws.

What is Equal Employment Opportunity

Equal employment opportunity means that employment decisions must be made on the basis of job requirements and worker qualifications.

Employment decisions

Unlawful discrimination

Unlawful discrimination – Making employment decisions on the basis of other factors

Protected Characteristics

Protected characteristics: Individual attributes that are protected under EEO laws and regulations

Religion

Race

Color

Gender

National origin

Age

Disability

Pregnancy

Military status or experience

Genetic information

Protected Classes

Federal Laws and Executive Orders

Equal Pay Act

Title VII Civil Rights Act

Age Discrimination in Employment Act

Americans with Disabilities Act (ADA)

Pregnancy Discrimination Act

Family and Medical Leave Act (FMLA)

Genetic Information Nondiscrimination Act (GINA)

Immigration Reform and Control Act

Executive Order 11246

Equal Pay Act of 1963

Men and women in an organization doing the equal work must be paid equally.

Jobs are considered “equal” when they require substantially the same skill, effort, and responsibility under similar working conditions and in the same establishment.

Permits differences in wages if payment is based on seniority, merit, quantity and quality of production, or a differential due to any other factor than gender.

Each paycheck is essentially considered a new act of discrimination. Lawmakers recognized that because pay information is often secret, it might take months or even years for an employee to discover the inequity. The successful plaintiff can recover up to two years of back pay.

Lilly Ledbetter Fair Pay Act of 2009

Employees can claim discrimination after years of getting unfair pay and recover up to two years of back pay.

Discussion: Hypothetical Situation A

You have two open positions. The best applicant is a man who negotiates the salary fairly aggressively. The second candidate is a woman who does not. You like them both. Can you pay the man more because he negotiated harder?

From https://californiaemploymentlaw.foxrothschild.com/2016/01/articles/advice-counseling/dont-hire-a-california-fair-pay-act-claim/

Discussion: Hypothetical Situation B

Your company has been trying to fill a position for months. None of the candidates you’ve seen have the right qualifications. It’s frustrating for management and for the workers who have to do extra work while the position is vacant.

Then a candidate comes in and he seems perfect. He has great job experience, is smart, interviews well, and seems genuinely interested in the position and your company. The only drawback is that he’s currently making more than you typically pay for the position. But to get a great candidate in this hard-to-fill position, it’s worth it to you to pay him more. Right?

The answer depends on what the real costs are. Because if you have women in your organization doing substantially similar work for less money than you’re paying this new hire, you’ve exposed yourself to a claim under California’s Fair Pay Act. Salary history is not a proper justification for a pay disparity.

From https://californiaemploymentlaw.foxrothschild.com/2016/01/articles/advice-counseling/dont-hire-a-california-fair-pay-act-claim/

Title VII Civil Rights Act of 1964

Prohibits employers (private sector employers with 15 or more employees, federal government employers, employment agencies, and labor organizations) from discriminating based on:

Race

Religion

Color

Sex

National origin

Cover conditions of employment as selection, placement, promotion, discharge, training, and pay and benefits.

Keystone federal legislation; covers disparate treatment and disparate impact discrimination.

It created the Equal Employment Opportunity Commission

Disparate treatment, Section 703(a)(1) – Intentional discrimination and treating one class of employees differently from other employees

Disparate impact, Section 703(a)(2) – Unintentional discrimination involving employment practices that appear to be neutral but adversely affect a protected class of people

Organizations covered by the provisions of Title VII:

All private employers of 15 or more people who are employed 20 or more weeks per year

All public and private educational institutions

State and local governments

Public and private employment agencies

Labor unions that maintain and operate a hiring hall or hiring office or have 15 or more members

Joint labor–management committees for apprenticeships and training

Managing Racial and Ethnic Discrimination Issues

All employment inquiries and decisions should be based on job-related factors, not personal characteristics.

Under federal law, discriminating against people because of skin color is just as illegal as discriminating because of race.

The EEOC found that a trucking delivery company failed to hire qualified black applicants for dockworker positions because factors unrelated to job performance were used in their hiring decisions. The company had to pay $120,000 to settle the lawsuit.

Sometimes racial discrimination is very subtle. Some firms have tapped professional and social networking sites to fill open positions. However, networking sites may not be easily accessible to some people, resulting in disparate impact. The use of employee referral programs can lead to a more homogenous workforce because employees may be more likely to refer people who are similar to themselves. One solution is to make sure a hiring organization uses recruitment approaches that secure a diverse applicant pool. This can be done by avoiding procedures that make it difficult for some groups to learn about and apply for open positions.

Amendments to the Civil Rights Act of 1964

Equal Employment Opportunity Act of 1972

The coverage of the act was broadened.

The law strengthened the enforcement powers of the EEOC.

Title VII Civil Rights Act of 1991

Employees who can prove they were intentionally discriminated against can seek compensatory monetary damages.

Equal Employment Opportunity Act of 1972

The coverage of the act was broadened to include state and local governments and public and private educational institutions.

The law strengthened the enforcement powers of the EEOC by allowing the agency itself to sue employers in court to enforce the provisions of the act.

However, some states have not changed their nondiscriminatory laws to allow for punitive damages, which can limit plaintiffs’ ability to receive them in a lawsuit. For example, a recent ruling related to the Iowa Civil Rights Act indicated that three individuals could not receive punitive damages for sex discrimination, sexual harassment, and workplace retaliation because the laws in the state had not been revised.

Glass Ceiling Act of 1991

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature

Same-sex sexual harassment (male-to-male, female-to-female) is covered under Title VII.

When charges of sexual harassment have been proved, victims forced out of their jobs can be awarded back pay, lost benefits, attorney’s fees, and interest charges, and they may be reinstated in their jobs.

Employer is guilty of sexual harassment when

The employer knew or should have known about the unlawful conduct and failed to remedy it or to take corrective action.

They allow nonemployees (customers or salespeople) to sexually harass employees.

*Two Forms of Sexual Harassment

Quid Pro Quo ("something for something" in Latin)

is sexual harassment that links employment outcomes to the granting of sexual favors.

Hostile Environment

Occurs when unwelcome sexual conduct “has the purpose or effect of unreasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment.”

Discussion: What Type of Sexual Harassment This Is?

Harassment in the Workplace (Part 1)

Harassment in the Workplace (Part 2)

Organization and Employer’s Responsibilities for Harassment Prevention

Establish a sexual harassment policy.

Communicate the policy regularly.

Train employees and managers on avoiding sexual harassment.

Investigate and take action when complaints are voiced.

Treat allegations seriously and confidentially.

Do not ignore any allegation.

Be proactive, monitor workplace behaviors.

Post/disseminate EEO Policy.

Respond to allegations immediately.

Investigate, as appropriate, and document.

Take appropriate corrective action, follow-up.

Ensure no retaliation.

Document your actions.

Employee’s Responsibilities for Harassment Prevention

Avoid sexual, racial, ethnic, cultural, age/disability related jokes, epithets, comments, and e-mails.

Respect a person’s indication that conduct or attention is not welcome.

Do not invade another individual’s personal space.

Clearly inform those engaging in offensive behavior that you find it objectionable.

Report observed instances of behavior that you believe qualify as harassment.

Age Discrimination in Employment Act of 1967

Protects applicants and employees over 40 years or older.

ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government.

Organizations covered by the ADEA:

Private employers of 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year

Labor organizations

Employment agencies

State and local governments

Federal government agencies, with certain differences; for example, federal employees cannot be forced to retire at any age

It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination.

The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

Companies should provide training to managers and employees to educate them about age-related biases and stereotypes. It is also important to encourage them to not make comments that could be seen as biased against older workers. Providing older workers with interesting employment opportunities can also promote diversity in the workplace.

Americans with Disabilities Act (ADA) of 1990

Employers must provide reasonable accommodations for disabled employees who can perform the essential job functions unless the employer demonstrates that this would constitute an undue hardship on business operations.

This act applies to private employers, employment agencies, and labor unions with 15 or more employees.

This act applies to private employers, employment agencies, and labor unions with 15 or more employees; it is enforced by the EEOC. Those employed by state governments are not covered by the Americans with Disabilities Act (ADA). This means that they cannot sue in federal courts for relief and damages. However, they may still bring suits under state laws in state courts. Many of the concepts and definitions included in the ADA were based on the Rehabilitation Act.

Protects individuals with disabilities from being discriminated against in the workplace.

Discrimination is prohibited against individuals with disabilities who can perform the essential job functions—the fundamental job duties—of the employment positions that those individuals hold or desire.

Who Is Disabled?

A person must meet one of the following three conditions:

has a mental or physical 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

A person is considered to have a disability even if any corrective measures are used to reduce the impact of the disability, such as a wheelchair or medication.

Include emotional and mental illness, mental retardation, HIV-POSITIVE and learning disability.

Does not include compulsive gambling, sexual behavior disorder, kleptomania, homosexuality, and bisexuality (a recurrent urge to steal, typically without regard for need or profit.) With regard to substance abuse, the ADA protects individuals who are recovering from addictions. But the law does not protect current users of illegal drugs and substances, so drug policies can still be enforced.

EEOC will examine the nature, severity, duration, and impact of the given impairment on a case-by-case basis

Significant life activities and functions include not just visible activities like seeing, breathing, and walking but also internal bodily functions such as those of the neurological, immune, and endocrine systems along with normal cell growth. The definition of disability no longer rests on the individual’s inability to do something but on his or her medical condition, whether or not it limits functioning. This expanded definition of disability now encompasses a much larger percentage of workers, meaning that employers are likely to encounter situations that require action.

More ADA complaints are being filed by individuals who have or claim to have mental disabilities. Two of the top seven disabilities most frequently cited in EEOC claims for disability discrimination are mental: depression and anxiety disorder. Regardless of the type of employees’ claims, it is important to treat mental disabilities in the same way as physical disabilities. Obtain medical verification of worker limitations and engage in an interactive process to establish reasonable accommodations.

More temporary impairments such as injuries that significantly impair life activities for shorter periods of time can also be covered by the ADA. For instance, a warehouse stocker who suffers a serious leg injury in a motorcycle accident may request reasonable accommodations. Employees can sometimes be shifted to other jobs where their disabilities do not affect them as much. For instance, the warehouse firm might transfer the injured stocker to a sedentary purchasing inventory job so that climbing and lifting are unnecessary. But the problem for employers is what to do with the next worker who develops problems if an alternative job within the organization is not available. Even if the accommodations are just for one employee, the coworkers’ reactions must be considered.

What are Reasonable Accommodations?

Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities.

Example:

Making existing facilities used by employees readily accessible to and usable by persons with disabilities.

Job restructuring, modifying work schedules, reassignment to a vacant position.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:

A deaf applicant may need a sign language interpreter during the job interview.

An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.

A blind employee may need someone to read information posted on a bulletin board.

An employee with cancer may need leave to have radiation or chemotherapy treatments.

Undue Hardship

Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

Family and Medical Leave Act of 1993

Provides a job-protected absence for up to 12 weeks to eligible employees for a qualifying medical condition or for parental leave.

The FMLA applies to both men and women.

COVERED EMPLOYERS

The FMLA only applies to employers that meet certain criteria. A covered employer is a: • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer; • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or • Public or private elementary or secondary school, regardless of the number of employees it employs.

Pregnancy Discrimination Act of 1978

Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.

Pregnant workers rights at center of Supreme Court case

Discussion

If you were an HR manager at UPS, how would you have handled the situation described in the case?

What can HR professionals do to mitigate concerns about pregnancy discrimination in the workplace?

Genetic Information Nondiscrimination Act of 2008 (GINA)

The act prohibits these actions by employers. Specifically,

Employers may not use genetic information in making decision related to the terms, conditions, or privileges of employment.

Because the developments in the fields of genetics and medicine, more is known about genes associated with risks for developing particular diseases. This is helpful for individuals who can begin to take precautions but raises concerns that employers could use this information when making employment-related decisions.

The Genetic Information Nondiscrimination Act of 2008 prohibits these actions by employers. Specifically,

Employers may not use genetic information in making decision related to the terms, conditions, or privileges of employment

Includes a person’s genetic tests, genetic test of the person’s family members, and family medial histories

Forbids unintentional collection of this data

Forbids harassment of employee because of genetic information

Immigration Reform and Control Act of 1986

Employers with 4 or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship.

Employers with four or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship.

Makes it illegal to hire, recruit, or refer for U.S. employment anyone known to be an unauthorized immigrant

Proving Illegal Discrimination

Disparate Treatment

An employer’s intentional unequal treatment or evaluation by different standards of protected-class members.

Disparate Impact

Occurs when an employment practice that does not appear to be discriminatory adversely affects individuals with a particular characteristic so that they are substantially underrepresented as a result of employment decisions that work to their disadvantage.

Disparate treatment, occurs when individuals with particular characteristics that are not job related are treated differently from others. This type of discrimination is typically overt and intentional, and it often follows a pattern or practice. For example, if female applicants are asked interview questions regarding child care plans while male applicants are not, then disparate treatment may be occurring.

Disparate Impact

This type of discrimination is often unintentional because identical criteria are used, but the results can differ for certain groups. For example, using a test for firefighters that requires candidates to carry a 100-pound sack down a ladder could result in more women being eliminated from selection. The same job-related test is used for all candidates, with markedly different result

The Court also stated that the employer has the burden to show that a selection practice is directly job related as a business necessity. Considering the firefighter test that women failed at a higher rate, the test is a true reflection of a job-related duty—carrying a person out of a burning building. Therefore, the test would be lawful even though women would not pass at the same rate as men. A thorough job analysis and a search for alternate selection practices are important steps when disparate impact occurs. The employer must demonstrate that there is no reasonable nondiscriminatory method available to use on the basis of sex.

Disparate Treatment Discrimination

Exists when similarly situated individuals are treated differently because of their membership in a protected class.

To win a disparate treatment case, the plaintiff must prove that the employer’s actions intended to discriminate, which is often difficult.

For example, disparate treatment would arise when an employer hires men but not women with school-aged children. Allowing men to apply for craft jobs, such as carpentry or electrical work, but denying this opportunity to women would also show disparate treatment.

Complainant must establish a prima facie case by showing that:

He/she is a member of a protected class.

He/she suffered some adverse action.

A similarly situated individual outside of his/her class was treated more favorably.

Shifting Burden: Once a prima facie case is established the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for taking the action; then shifts back to complainant to argue pretext.

*How to Show Adverse Impact

Adverse Rejection Rate, or Four-Fifths Rule

According to the Uniform Guidelines, a selection program has an adverse impact when the selection rate for any racial, ethnic, or sex class is less than four-fifths (or 80 percent) of the rate of the class with the highest selection rate.

Uniform Guidelines on Employee Selection Procedures

The four-fifths rule is not a legal definition of discrimination, rather it is used to monitor severe discrimination practices. Rule of thumb followed by the EEOC in determining adverse impact for use in enforcement proceedings.

Is a procedural document assist employers in complying with federal regulations against discriminatory actions.

Applies to employee selection procedures

Basic Way To Show That Adverse Impact Exists: Four-Fifths Rule

A commonly used test of disparate impact is the four-fifths rule.

This test finds evidence of discrimination if the hiring rate for a minority group is less than four-fifths the hiring rate for the majority group.

Keep in mind that this test compares rates of hiring, not numbers of employees hired.

Figure 3.4 illustrates how to apply the four-fifths rule.

Four-Fifth Rules Exercise

100 people applied for an Accountant position. 50 females and 50 males. Of all the applicants, only 20 males passed an assessment test during the hiring process, while 48 females passed.

Is there a discrimination?

Adverse Impact Case- Griggs v. Duke Power Co.

Griggs was an African American male;

He was denied a ditch digger job because he failed to meet selection criteria (possession of high school diploma or passing grade on a written test);

Supreme Court found that the facially neutral employment criteria violated Title VII because:

It had a disproportionate impact on Griggs’ protected group

It was not job-related or consistent with business necessity.

Equal Employment Opportunity Concepts

Business Necessity

Practice necessary for safe and efficient organizational operations

Bona Fide Occupational Qualification (BFOQ)

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

Bona Fide Occupational Qualification (BFOQ)

The law recognizes that in very limited circumstances, a protected characteristic is necessary to perform a certain job. An employer is allowed to discriminate when a certain religion, national origin, age, or gender is a bona fide occupational qualification (BFOQ) and necessary for the employer’s business operations. This is called the BFOQ defense.

hiring female employees as attendants in women’s restrooms or locker rooms

having an age cut-off for police officers and airline pilots (for safety reasons), and

hiring only Christians as ministers of the church.

The BFOQ defense is never available in race discrimination cases. In the eyes of the law, there is no legitimate, nondiscriminatory reason for only hiring people of a particular race.

Retaliation

EEOC prohibits retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

Retaliation claims now constitute many of the charges filed with the EEOC. This is because they can be added to all antidiscrimination charges, and a wide range of workplace decisions might be interpreted as retaliatory. An important aspect of retaliation charges is that the charging party may lose the case on the basis of discrimination but still win if the employer took punitive action against him or her.

Retaliation Case- Burlington Northern v. White

Facts: White, the only woman working in her department, operated a forklift at the Tennessee yard of Burlington.

After she complained of sexual harassment, her immediate supervisor was disciplined.

Thereafter, White was removed from forklift duty to less desirable (more arduous and dirtier) duties as a track laborer, although her job classification remained the same.

Further, she was suspended for 37 days without pay for alleged insubordination but was eventually reinstated and given back pay in full.

On June 22, 2006, the U.S. Supreme Court issued a significant decision establishing a new standard on what actions constitute retaliation under Title VII.

Burlington Northern v. White (cont.)

The Court held that White suffered retaliatory discrimination when she was reassigned to less desirable duties and suspended without pay.

Although, the duties were within the same job classification and pay was eventually reinstated, the actions were sufficiently harsh to constitute discrimination and deter a reasonable employee from complaining about discrimination.

Executive Order 11246

Prohibits federal contractors and subcontractors with contracts of $10,000 or more from discriminating based on race, color, religion, sex, or national origin.

The Executive Order also requires Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.

Affirmative Action Plan(Program)

Policy that goes beyond equal employment opportunity by requiring organizations to comply with the law and correct past discriminatory practices by increasing the numbers of minorities and women in specific positions.

The overall objective of the AAP is to have the company’s workforce demographics reflect as closely as possible the demographics in the labor market from which workers are recruited.

Utilization Analysis and Availability Analysis

Affirmative action plan includes four parts:

Utilization analysis

Availability analysis

An identification of problem areas

Correct actions with goals and timetables

Sample Affirmative Action Programs (AAPs)

If the employer’s racial workforce composition is below external figures, then the protected class is said to be underutilized, and the employer should take steps to correct the imbalance.

Utilization Analysis

Identify the number of men, women, and minorities who are employed in each job group within the company

Availability Analyses

Availability of men, women, and minorities in the relevant labor market

Other Equal Employment Opportunity Issues

Discrimination against obesity (Study on Discrimination Against Obese Women)

English-only rule

Such a policy may violate guidelines from the Equal Employment Opportunity Commission (EEOC) pertaining to discrimination based on national origin.

Many employers receive complaints that their employees talk among themselves in a language other than English. These employers are tempted to establish a restrictive policy requiring employees to speak only English in the workplace. Such a policy may violate guidelines from the Equal Employment Opportunity Commission (EEOC) pertaining to discrimination based on national origin. Any policy pertaining to employees speaking a language other than English while at work must be carefully designed, based on business necessity, and applied solely for the intended purpose of facilitating communications with customers, vendors and co-workers.

Policy Statements on English-Only Rules - Is it acceptable?

XYZ Textile Corp. requires employees to speak only English while in the workplace, including when speaking to co-workers during breaks or when making personal telephone calls. XYZ places workers whose primary language is not English under close scrutiny to ensure compliance and replaces workers who violate the rule with workers whose primary language is English.

Policy Statements on English-Only Rules - Is it acceptable?

XYZ Petroleum Corp. operates an oil refinery and has a rule requiring all employees to speak only English during an emergency. The rule also requires that employees speak in English while performing job duties in laboratories and processing areas where there is the danger of fire or explosion. The rule does not apply to casual conversations between employees in the laboratory or processing areas when they are not performing a job duty.

Enforcing Equal Employment Opportunity Legislation

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing most of the EEO laws.

Office of Federal Contract Compliance Procedures (OFCCP) is responsible for enforcing executive orders that call for affirmative action by companies that do business with the federal government.

U.S. Equal Employment Opportunity Commission Case Figures, Fiscal Years 1997-2016

* The number for total charges reflects the number of individual charge filings. Because individuals often file charges under multiple bases, the number of total charges for any given fiscal year will be less than the total of the eight bases listed.

State and Local Regulation on Equal Employment

Review and discuss the similarity and difference between Federal EEO requirement and California Department of Fair Employment and Housing (DFEH)