Job Analysis and Recruiting Methods

The Legal Environment of Human Resources

Management—Equal Employment Opportunities

In this topic we will emphasize the federal laws and regulations that define the EEO environment.

An HR manager must be aware of many state and local laws and regulations that affect the

organization's EEO decisions. Some states expand on federal regulations that affect affirmative

action, while other states limit affirmative action when dealing with their own state and its

employees. As an example, a number of state and local governments define sexual preference as

being protected from discrimination, but the federal government does not include sexual

preference as a protected status. As an HR manager, you must be aware of the state and local

laws and regulations as they apply to your organization, but in this topic we will emphasize the

federal EEO laws and regulations because they usually pertain to everyone in the United States.

There are six major reasons for an organization to use fair practices when dealing with EEO

issues:

1. Companies that are more diverse have opportunities to be more creative and to appeal to

a broader range of people, often resulting in greater productivity and a larger market

share.

2. Companies that follow unfair practices when dealing with EEO issues risk being sued and

losing a great deal of money.

3. Companies that follow unfair practices when dealing with EEO issues risk receiving

negative publicity.

4. Unfair EEO practices may lead to boycotts of your product(s) and work slowdowns, which

can hurt your company financially.

5. Companies that follow fair practices when dealing with EEO issues are considered

patriotic because they help people to get onto a more equal footing with others

economically, leading to greater participation in our political system.

6. Companies that follow fair practices when dealing with EEO issues are considered by

most people to be doing the right thing, both morally and socially.

The most important federal laws that deal with EEO issues are:

• The Civil Rights Act of 1964, with its 1991 revision, protects individuals from discrimination based on race, color, religion, sex, or national origin.

• The Age Discrimination in Employment Act (ADEA, 1967, and amendments in 1978 and 1986) protects individuals from discrimination because they are over the age of 40.

• The Equal Employment Opportunity Act (1972) extended coverage of other EEO acts to almost all employers and strengthened enforcement of EEO provisions.

• The Vietnam-Era Veterans Readjustment Act of 1974 protects Vietnam-Era veterans from discrimination in those areas in which there is evidence of such discrimination having

occurred in the past.

• The Pregnancy Discrimination Act of 1978 prohibits discrimination on the basis of either pregnancy or the possibility of becoming pregnant.

• The Americans with Disabilities Act of 1990 protects the employment rights of people with disabilities.

• The Uniformed Services Employment and Reemployment Act of 1994 protects the rights of employees who are subject to military-service obligations to return to work and

continue benefits.

A protected class consists of people who are specifically mentioned as being protected against

discrimination in equal employment laws and regulations. Groups of people who have federally

protected status are groups that can show discrimination based on race, color, religion, sex,

national origin, and age over 40, as well as some Vietnam-era veterans, women who are or may

become pregnant, and disabled people. If a person is a member of a protected group, the courts

are more likely to find that the organization discriminated. One of the main ways that members

of protected status groups are protected against discrimination is through the concepts of

disparate treatment and disparate impact.

Disparate treatment occurs when members of a protected class are treated differently from

others in the organization. To protect itself from discrimination lawsuits under disparate

treatment, an organization must make certain that decisions involving employment, promotion,

training, and retention are based on valid and nondiscriminatory evidence. Evidence is

considered valid (or having validity) if a scientific study has been conducted to prove that what

the employer is saying is true. That evidence must be able to hold up as being valid in a court of

law.

Disparate impact occurs when protected-class members are underrepresented in an

organization. When comparing how many members of a protected class are hired in an

organization, disparate impact occurs if there is a significant difference in the hiring rate of

qualified protected-class candidates compared with the hiring rate for qualified candidates of the

most hired group in the organization. The organization can protect itself by being sure to use

valid means to define the qualifications for jobs and to show that any disparate impact is based

on a validated job-related business necessity.

Sexual harassment is treated as discrimination based on sex under the Civil Rights Act of

1964. The courts will allow a sexual harassment lawsuit against an organization even if only one

individual in the organization is committing the sexual harassment. If the courts find that there is

a hostile environment in the organization, the organization may be held liable for the actions of

the individual committing the harassment. The organization may be able to protect itself from

sexual harassment lawsuits if it has taken reasonable care to prevent sexual harassment and if

the sexual harassment did not lead to a tangible employment action. Providing training in sexual

harassment and having a plan to prevent sexual harassment may contribute to the provision of

reasonable care.

Affirmative action (AA) is one of the most controversial and misunderstood parts of equal

employment opportunity. Most of the problems with affirmative action come from managers who

do not know what affirmative action is and what it requires of organizations. Affirmative action

is simply a way for an organization to identify whether there might be discrimination against

their employees and to come up with a plan to help remedy that possible discrimination. If the

organization can prove that good-faith efforts have been made to carry out their AA plan, they

have complied with the requirements of affirmative action. For AA to apply to an organization (at the federal level), they must have at least 50 employees and $50,000 in federal government

contracts.

The Age Discrimination in Employment Act (ADEA) makes anyone over the age of 40 a member

of a protected class. The ADEA applies to employers with more than 20 employees and to other

employers such as unions (more than 25 members) and the federal government. There has been

some question as to whether the ADEA applies to state governments. In Kimel v. Florida (2000),

the U.S. Supreme Court decided that citizens could not sue a state government under the ADEA

because it was a violation of the 11th Amendment to the U.S. Constitution's protection of the

states against suits by their citizens. Kimel was an employee of the state of Florida and sued

under the ADEA.

The Americans with Disabilities Act (ADA) applies to all employers with 15 or more employees,

including state governments. The ADA requires the employer to provide reasonable

accommodations for people with disabilities to be able to perform their jobs. HR managers

should be especially familiar with one very important aspect of the ADA—the need to include

essential job functions in job analyses and job descriptions. If the essential job functions are

not listed and an employee is hired who cannot do the job because of physical or mental

disabilities, the employer may lose a lawsuit and have to keep the disabled employee hired, or

pay damages, even though the disabled employee cannot perform the job.

Two important concepts in dealing with EEO issues are job relatedness and bona fide

occupational qualification (BFOQ). Job relatedness is the concept that every aspect of an

employment decision must be related to a person's ability to successfully perform the job.

Employers can discriminate against members of protected classes if they can prove, in court,

that the employment decision being challenged is job-related. BFOQ is the concept that there

are certain qualifications for jobs that may discriminate against members of protected statuses if

it can be proven, in court, that the qualification in question is a valid requirement or concern. A

good example of a BFOQ is an age restriction (usually 60) on airline pilots flying airplanes

because of health concerns with people who are aging.

Americans working outside the United States for American employers are covered under most of

the EEO provisions we have covered here, unless there is some local practice that supersedes

these EEO provisions (usually specified in agreements or treaties). There is also a practical

aspect to Americans working for American employers overseas in that any lawsuits will probably

have to be brought in the United States, which is expensive and inconvenient if one is living

overseas. The FLSA does not apply to Americans working overseas.

The organization that is most responsible for enforcing EEO laws and regulations is the Equal

Employment Opportunity Commission. Affirmative Action is monitored and enforced by the Office

of Federal Contract Compliance Programs.