HR Employment Law Assignment

when he learned he may be fired for poor performance. He may even file a retaliation claim after being fired, doubling your workload in investigating and responding to the complaint. Retaliation can be expensive, too. Hope Bailey-Rhodeman won $804,214 in a settlement for discrimination and retaliation against Xerox after she was demoted from sales manager to a sales position that paid $100,000 less per year after complaining that other sales managers were bullying her because of her race and gender. Bailey-Rhodeman continued to work at Xerox over the next five years while the complaint made its way through the courts. The moral of the story is that HR needs to have clear discrimination policies and train managers and supervisors not only how to prevent discrimination and harassment, but how to handle complaints. It’s possible to think you’re doing the right thing, yet make the situation worse. 1 Looking Ahead Is it possible to eliminate discrimination in the workplace? Should employers be held accountable for discrimination even if it’s unintentional?

3 58 Chapter 3 Equal Employment Opportunity

Introduction If you’ve ever experienced the adverse effects of favoritism in the workplace, you know that it can be very frustrating when a coworker receives favorable treatment, such as a better schedule, a raise, or promotion, for no justifiable reason. It doesn’t seem fair to employees who are just as qualified and may even work harder than the person who management favors, yet don’t have the same opportunities or rewards because of an employer bias. It doesn’t seem to be a very wise business move either. Workers who are qualified and work hard have more to contribute to the organization than those who are hired or promoted simply because management likes them more. Certainly management needs to make hiring decisions based on who would be a better employee, but those decisions should be made by hiring or promoting the best employees based on their qualifications and how well they fit the job requirements, rather than irrelevant criteria or personal bias against a person’s gender, color, age, religion, or any other protected status. If you were to do a little research on the companies that have been sued for discrimination in the last couple of years, you would find a surprisingly long list that includes Walmart, Costco, Target, Walgreens, UPS, FedEx, Marriott, Disney, Abercrombie & Fitch, Microsoft, Apple, Google, Best Buy, Home Depot, and even the Equal Employment Opportunity Commission (EEOC). These organizations all claim to value diversity in race, gender, national origin, disability, religion, and sexual orientation, so what went wrong? The Equal Employment Opportunity Commission (EEOC) reports that charges of job discrimination are at an all time high, reaching nearly 100,000 every year. 2 This should serve as a warning to employers to update their knowledge of the laws protecting workers from discrimination, our focus in this chapter. Laws concerning other areas of HR, including pay, safety, benefits, and labor relations will be covered in the appropriate chapters throughout the book.

Keep in mind that our discussion will be mostly limited to federal employment legislation. State or municipal laws may go beyond what the federal government requires. For example, although the Civil Rights Act does not include sexual orientation as one of the protected classes, nearly half the states, plus over 180 cities and counties, protect employees from discrimination based on sexual orientation in the workplace. 3 Approximately sixteen countries around the world also have laws that protect gays, lesbians, and bisexuals from employment discrimination. 4 Many companies have gone beyond any legal requirements by voluntarily implementing policies that protect employees on the basis of sexual orientation. These include 94 percent of Fortune 500 companies, including most of the companies listed above.

Laws Affecting Discriminatory Practices Illegal discrimination is the process of making employment decisions such as hiring, firing, discipline, pay, promotions, leaves, or layoffs based on criteria such as race, religion, gender, national origin, skin color, or any other criteria that has been identified as a protected category by equal employment laws or regulations. Discrimination is becoming an increasing concern as the U.S. workforce becomes more diverse. Let’s take a look at the laws that define illegal discrimination in employment and the protection they provide. The Importance of the Civil Rights Act of 1964 No single piece of legislation has had a greater effect on reducing employment discrimination than the Civil Rights Act of 1964. It was divided into parts called titles—each dealing with a particular type of discrimination. For HRM purposes, Title VII of the act is especially relevant. Civil Rights Act of 1964 Outlawed racial segregation and discrimination in employment, public facilities, and education Title VII The most prominent piece of legislation regarding HRM, it states the illegality of discriminating against individuals based on race, religion, color, sex, or national origin. Laws Affecting Discriminatory Practices 59 Title VII prohibits discrimination in hiring, promotion, dismissal, benefits, compensation, or any other terms, conditions, or privileges of employment based on race, religion, color, gender, or national origin. Title VII also prohibits retaliation against an individual who files a charge of discrimination, participates in an investigation, or opposes any unlawful practice. Most organizations, both public and private, are bound by the law. The law, however, specifies compliance based on the number of employees in the organization. Any organization with fifteen or more employees is covered. This minimum number of employees serves as a means of protecting, or removing from the law, small, family-owned businesses. Let’s take a closer look at the types of employment protection provided in Title VII. Race and Color Discrimination The U.S. has come a long way since the fight for civil rights began in the 1950s, to the election of President Barack Obama in 2008. But evidence of employment discrimination based on race and color isn’t hard to find. In fact, racial discrimination is one of the most common discrimination complaints filed with the Equal Employment Opportunity Commission. Racial and color discrimination involves treating an employee or applicant differently because of a personal characteristic that is related to race such as hair texture, skin color, or facial features. It may also arise from cultural characteristics like a person’s name, attire, or accent. Employees need not belong to a racial minority to be protected. Employees that are subject to discrimination

because they are married to a minority, or Caucasians working in a minority-owned organization may be protected as well. 5 Employees are even protected from discrimination if the employee and employer are of the same race or color. For example, people of the same racial or ethnic group may discriminate against each other because of lighter or darker skin tone. Supermarket chain Albertson’s paid $8.9 million in 2009 to resolve three race- and color-related lawsuits filed by 168 minority employees who were given harder work assignments and disciplined more severely than their Caucasian coworkers. The EEOC found that employees who complained about the discriminatory treatment were given harder job assignments, passed over for promotion, or fired. 6 Religious Discrimination Claims of religious discrimination in the workplace increased sharply following the terrorist attacks of September 11, 2001. Many Muslim employees found themselves subject to suspicion and job discrimination. In one case, a woman was fired from Alamo Car Rental for refusing to remove her head scarf during the month of Ramadan. She was awarded $287,000 by a jury who found that she should not have been required to sacrifice her religious beliefs to keep her job. 7 The U.S. is becoming more religiously diverse, requiring employers to understand how work practices may be discriminatory and establish policies that respect an employee’s religion and protect employer and employee rights. Religious discrimination includes treatment of applicants or employees differently because of religious beliefs and how they are practiced. Traditional, organized religions such as Christianity, Buddhism, Hinduism, Islam, and Judaism are protected as well as atheism and smaller, less well-known religious groups. As long as the beliefs the employee holds and the practices he or she adheres to are “sincerely held,” and his or her employer is informed of those beliefs, that employee cannot be discriminated against for religious reasons. Employers are required to make reasonable accommodations in the workplace for employees unless doing so creates a burden on the operations of the business. This may include dress and appearance accommodations such as allowing religious head coverings for men and women, facial hair for men, or religious requirements to wear or not to wear certain articles of clothing. Employers do not need to make accommodations if safety is an issue, such as rules and regulations in the manufacturing industry. Tattoos may even be protected if required by religious belief. 8 There are situations in which scheduling accommodations can be made for employees whose religion requires that they do not work after sundown on Friday, on Saturday, or on Sunday, as long as it does not create an undue hardship on the employer. Employees may also No single piece of legislation has had a greater effect on reducing employment discrimination than the Civil Rights Act of 1964. 60 Chapter 3 Equal Employment Opportunity request time and space for prayers during the work day. For extended time off during holidays when the business is open, employees may be required to take vacation or paid time off (PTO). National Origin Discrimination National origin discrimination involves issues of citizenship and permanent residence status, and is often related to race or color discrimination. One example is when employers discriminate against employees because of their name, dress, or accent. Foreign accents should not be used in employment decisions unless it seriously interferes with job performance. For example, an employee who was fired after nine years of employment for failing to present a “positive, friendly, and enthusiastic image” to customers filed a complaint that she had been ridiculed for her accented English, instructed not to speak Spanish to anyone, even customers, unless the customer initiated the conversation in Spanish. A jury awarded her $500,000 because the discrimination was based on her national origin. Employers may only require English fluency if English is required to perform the essential job functions or for safe and efficient operation of the business.

Sex or Gender Discrimination In addition to Title VII of the Civil Rights Act, sex and gender discrimination are also defined and protected by other laws. These include the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1978, the Lilly Ledbetter Fair Pay Act of 2009, and more that will be covered further in this and other chapters. The U.S. Bureau of Labor Statistics reports that 59 percent of working-age Exhibit 3-1 Summary of Primary Federal Laws Affecting Discrimination Title VII of the Civil Rights Act of 1964 began a series of laws and Executive Orders that have attempted to eliminate discrimination in the workplace. Many of these laws prevent employers from making job related decisions on hiring, promotion, and pay on factors that are not related to the employee’s ability to do the job, such as race, religion, gender, or disability. Civil Rights Act of 1964 Title VII prohibits employment discrimination in hiring, compensation, and terms, conditions, or privileges of employment based on race, religion, color, sex, or national origin. Equal Pay Act Requires equal pay for equal work regardless of gender. Executive Order (E.O.) 11246 Prohibits discrimination on the basis of race, religion, color, and national origin by federal agencies as well as those working under federal contracts. Executive Order 11375 Added sex-based discrimination to E.O. 11246. Age Discrimination in Employment Protects employees 40–65 years of age from discrimination. Later amended Act of 1967 to age 70 (1978), then amended (1986) to eliminate the upper age limit altogether. Executive Order 11478 Amends part of E.O. 11246, states practices in the federal government must be based on merit; also prohibits discrimination based on political affiliation, marital status, or physical handicap. Equal Employment Opportunity Granted the enforcement powers for the EEOC. Act of 1972 Age Discrimination in Employment Increased madatory retirement age from 65 to 70. Later amended (1986) to Act of 1978 eliminate the upper age limit. Pregnancy Discrimination Affords EEO protection to pregnant workers and requires pregnancy to be Act of 1978 treated like any other disability. Americans with Disabilities Act of 1990 Prohibits discrimination against an essentially qualified individual, and and ADA Amendments Act of 2008 requires enterprises to reasonably accommodate individuals Civil Rights Act of 1991 Nullified selected Supreme Court decisions. Reinstates burden of proof by employer. Allows for punitive and compensatory damages through jury trials. Family and Medical Leave Permits employees in organizations of 50 or more workers to take up to 12 Act of 1993 weeks of unpaid leave for family or medical reasons each year. Uniformed Services Employment Allows veterans the right to return to their job in the private sector when and Reemployment Rights act of 1994 returning from military service Genetic Information Nondiscrimination Prohibits discrimination based on employee’s genetic information. Act of 2008 Laws Affecting Discriminatory Practices 61 women in the United States are in the labor force. This percentage has increased from 43 percent four decades ago. 9 Equality in the workplace for women has progressed in that time, yet the EEOC reports that gender discrimination accounts for approximately 30 percent of discrimination claims every year. 10 Some of these are large cases, such as Dukes v. Walmart Stores ; which claimed systematic sexual discrimination against women at Walmart who sought training and promotions to management positions on behalf of over 1.6 million women. Some cases are as small as a female truck driver who filed a claim against her employer because she was fired after she failed a physical test that was not required of her male colleagues. Although the overwhelming majority of these discrimination situations involve women, some do involve men. Sex or gender discrimination takes many forms. The wage gap between men and

women in the U.S. shows that in spite of decades of attempts to create equity in pay, women still earn 77 cents for every dollar that men earn. 11 There are many possible reasons for the pay gap, including differences in education, experience, time in the workforce, and larger numbers of women in sales, clerical, and service jobs that traditionally pay less. 12 But when the earnings of women who work full time in salaried jobs were compared to the earnings of men by the U.S. Bureau of Labor Statistics, the women only moved up to 80 cents for every dollar that the men earned. 13 Time spent out of the workforce as a family caregiver and working in lower paying jobs may explain part of the wage gap, but women in the workforce still find that opportunities are not quite equal, and, therefore, pay isn’t equal either. 14 Exhibit 3-2 Ratio of women’s to men’s earnings in selected occupations Equal pay for equal work has been the law of the land since 1963, yet in many professions, women have not closed the pay gap. The pay gaps between men and women in selected occupations are shown here. Ratio of women’s to men’s earnings, selected occupations, 2010 86.5% 83.2% 81.8% 81.2% 66.7% 65.3% 64.7% Combined food preparation and serving workers Bill and account collectors Stock clerks and order fillers Postal service clerks Social workers Editors Registered nurses Pharmacists Computer and information systems managers Total, 16 years and over Postsecondary teachers Lawyers Insurance sales agents Property, real estate, and community association managers Retail salespersons Personal financial advisors 0 20 40 60 80 100 120 Percent 112.1% 109.5% 105.1% 94.5% 91.1% 88.3% 77.3% 77.1% 58.4% Source: U.S. Bureau of Labor Statistics, http://www.bls.gov/spotlight/2011/women/ 62 Chapter 3 Equal Employment Opportunity Any job requirement that holds one sex to a different procedure, standard, or qualification than the other may be discriminatory. In addition to the pay issue discussed earlier, possible discriminatory practices include differences in policies regarding leaves of absence, benefits, unique job categories and promotions, dress codes, training opportunities, and more.

EEOA/EEOC By 1972, after realizing that the Civil Rights Act left much to interpretation, Congress passed an amendment to the act called the Equal Employment Opportunity Act (EEOA). This act provided a series of amendments to Title VII. 15 Probably the greatest consequence of the EEOA was the granting of enforcement powers to the Equal Employment Opportunity Commission (EEOC), which was able to force employers who were reluctant to comply with the law. In addition, the EEOA also expanded Title VII coverage to include employees of state and local governments, employees of educational institutions, and employees of labor organizations with fifteen or more employees or members. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against applicants and employees based on race, religion, color, sex, national origin, age, disability, or genetic information. The top priority for EEOC investigation is systemic discrimination, which means that the employer or industry has a pattern or practice that broadly discriminates against a protected group. This would include barriers to recruitment, hiring, or training that effectively limit the opportunities of a specific group. One example is an employer who rarely offers advancement or training to women beyond a certain level in an organization, similar to the plaintiff ’s claims in the Dukes v. Walmart class discrimination lawsuit. If an investigation by the EEOC finds that an employer is engaging in a discriminatory practice, it may file a civil suit against the organization if unable to resolve discrimination charges within 120 days. Individuals may also file suit themselves if the EEOC declines to sue. In addition to investigating charges of discrimination, the EEOC works to prevent discrimination through outreach and education programs for employers, providing guidance to federal agencies to assure compliance with EEOC regulations and assistance with affirmative action employment programs. 16 Equal Employment Opportunity Act (EEOA) Granted enforcement powers to the Equal Employment Opportunity Commission. Equal Employment Opportunity Commission (EEOC) The arm of the federal government empowered to handle discrimination in employment cases.

CONTEMPORARY CONNECTION Discrimination Claims Going Up Discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) have increased sharply over the past five years, increasing the workload for both HR professionals and the EEOC. A combination of factors seem to be responsible, including difficult economic conditions resulting in high unemployment and a new online filing process, making it easier for employees to file claims. Although all claims are investigated, over 80 percent are dismissed because they are found to be without merit, are duplicate claims, or are withdrawn. The remaining 20 percent are settled by awarding the em`ployee who made the claim back pay, promotion, or reinstatement of seniority or a job, totaling over $404 million in benefits. The categories of claims are changing along with the increased numbers. Employer retaliation is currently the largest category of complaints, passing racial discrimination for the first time in 2010. 17 Consider this: Because an overwhelming number of claims are without merit, should the process be made more difficult?

Why do you think there has been an increase in retaliation claims? EEOC Claims GINA Equal pay act Religion National origin Age Disability Sex Race Retaliation 201 1044 3790 11304 23264 25165 29029 35890 36258 Laws Affecting Discriminatory Practices 63 Relevant Executive Orders Executive Orders are issued by the president of the United States to provide guidance to government agencies on specific topics. Executive Order 11246 prohibits discrimination on the basis of race, religion, color, or national origin by federal agencies as well as by contractors and subcontractors who work under federal contracts. Executive Order 11375 added sex-based discrimination to the above criteria. Executive Order 11478 superseded part of Executive Order 11246 and states that employment practices in the federal government must be based on merit and must prohibit discrimination based on race, color, religion, sex, national origin, political affiliation, marital status, or physical disability. These orders cover all organizations that have contracts of $10,000 or more with the federal government. Additionally, organizations with 50 or more employees and/or $50,000 in federal grants must have an active affirmative action program. The Office of Federal Contract Compliance Program (OFCCP) administers the order’s provisions and provides technical assistance. Age Discrimination in Employment Act of 1967 The Age Discrimination in Employment Act (ADEA) of 1967 prohibits the widespread practice of requiring workers to retire at age 65. 18 It also gives protected-group status to individuals between the ages of 40 and 65. Since 1967, this act has been amended twice—once in 1978, which raised the mandatory retirement age to 70, and again in 1986, where the upper age limit was removed altogether. People under 40 are not protected by the act, but some states have laws protecting younger workers from age discrimination. 19 Organizations with 20 or more employees, state and local governments, employment agencies, and labor organizations are covered by the ADEA. Another area of concern involves pension benefits for older workers. In 1990, the ADEA was amended by the Older Workers Benefit Protection Act (OWBPA) to prohibit organizations from excluding employee benefits for older workers. However, the law does permit benefit reduction based on age so long as the cost of benefits paid by the organization is the same for older as it is for younger employees. 20 We’ll look at employee benefits in greater detail in Chapter 12. Like other types of discrimination previously discussed, age discrimination limits

opportunities to workers. The EEOC reports that nearly 25 percent of the discrimination claims they receive concern age, and the percentage is increasing. 21 One likely reason is that as the baby boomer generation reaches retirement age, there are a larger number of older workers. Common types of age discrimination include policies that affect older workers more than younger workers, including physical fitness requirements that are not relevant to the position, and offering different health benefits or changing job requirements in order to convince older workers to quit and make room for younger employees. In addition, when a company needs to lay off workers in tough economic times, it’s tempting to look to the highest paid workers first, and these tend to be more senior, and most likely older, workers. A layoff that targets older workers disproportionately is considered discriminatory. Older workers may also feel discriminated against if workers are allowed to use nicknames like “gramps,” “geezer,” “old lady,” “hag,” or even by celebrating landmark birthdays with an “over the hill” theme. Some employers that offer early retirement packages to older workers have begun to require them to sign a document waiving the right to sue for age discrimination as a condition of accepting the package. Any waiver attached to retirement benefits must follow the requirements of the Older Workers Benefit Protection Act of 1990 (OWBPA), Age Discrimination in Employment Act (ADEA) This act prohibits arbitrary age discrimination, particularly among those over age 40. Why does the Age Discrimination in Employment Act permit certain exceptions, like requiring commercial airline pilots to retire upon reaching their 65th birthday? The rationale focuses on the potential for a pilot’s skills to lessen after age 65. That, coupled with concern for air safety of traveling passengers, has resulted in an exception to the law. ( Source: © Digital Vision/Getty Images, Inc.) 64 Chapter 3 Equal Employment Opportunity which prohibits discrimination in the types of benefits offered to older workers compared with younger workers. In some circumstances, specialized employees such as commercial pilots may be required to leave their current positions because of strict job requirements. Pilots may no longer captain a commercial airplane when they reach the age of 65. This was increased from age 60 in 2007 for several reasons, including the fact that people are much healthier at age 65 now than when the rule was written in 1950. The FAA was also responding to a shortage of qualified pilots and foreign airlines that have higher age limits. 22 Equal Pay Act The Equal Pay Act was enacted in 1963 with the intent of eliminating the practice of paying women lower wages for the same or similar jobs held by men. It was common practice to alter jobs slightly to justify higher pay for men because they had a family to support. The Equal Pay Act requires that as long as the jobs are substantially equal, the pay must also be equal. The job descriptions do not need to be identical

if the jobs require “equal skill, effort, and responsibility, and . . . are performed under similar working conditions within the same establishment.” 23 Unfortunately, pay discrimination still exists in spite of specific laws designed to prevent it. One notable example is Lilly Ledbetter, who worked at Goodyear Tire & Rubber as an overnight production supervisor for nearly twenty years. When she was about to retire in 1998, she received an anonymous note informing her that she was earning substantially less than three male counterparts who held the same position. Ledbetter sued Goodyear, but the Supreme Court held that she was not entitled to compensation because her claim of discrimination needed to be filed within 180 days of the first discriminatory paycheck she received, which was twenty years before she discovered the discrimination. In response to the Supreme Court case, Congress passed the Lilly Ledbetter Fair Pay Act in 2009, allowing workers to file pay discrimination claims within 180 days (300 days in some states) of any discriminatory paycheck. Pregnancy Discrimination Unbelievable as it sounds, it used to be common to ask women in job interviews or on applications if they were pregnant. 24 Employers were motivated by the desire to reduce work disruptions due to women who took time off for pregnancy complications, childbirth, or care of a newborn. In 1978, the Pregnancy Discrimination Act amended Title VII of the Civil Rights Act to prohibit sex discrimination on the basis of pregnancy. As a result, employers may not refuse to hire a pregnant woman because of the pregnancy or the perceptions of coworkers, clients, or customers who may be uncomfortable working with a pregnant woman. Pregnancy must be treated the same as any other health issue. It may not be excluded from health plans or disability leaves, and women must be allowed to work as long as they are able to perform their jobs. 25 When returning to work from leave, women are allowed to return to the same job. If the exact job she left is unavailable, a similar one must be provided. It is interesting to note that this law is highly contingent on other benefits the company offers. Should the organization not offer health or disability-related benefits such as sick leave to its employees, it is exempt from this part of the law. However, any type of health or disability insurance offered, no matter how much or how little, requires compliance. For instance, if a company offers a benefit covering 40 percent of the costs associated with any short-term disability, then it must include pregnancy in that coverage. Employers are required to make reasonable accommodations to the work environment for pregnant workers, similar to the accommodations required by the Americans with Disabilities Act. Failure to do so amounts to discrimination, and a claim may be filed with the EEOC. For example, Yaire Lopez, a route driver delivering baked products to retail Pregnancy Discrimination Act of 1978 Law prohibiting discrimination based on pregnancy. Lilly Ledbetter sued her employer, Goodyear Tire & Rubber, after discovering that she was being paid less than coworkers with similar jobs. This photo shows Ledbetter directly behind President Obama as he signs the act into law. ( Source: Ron Edmonds/©AP/ Wide World Photos) Laws Affecting Discriminatory Practices 65 stores for Bimbo Bakeries USA Inc., was restricted from lifting more than twenty pounds when she became pregnant. Shortly after providing the written restriction to her supervisor, she was directed by the human resource manager to go home and use Family Medical Leave (FMLA). Lopez was then fired, even though she told her employer that she wanted to work. Lopez sued Bimbo for failing to accommodate her pregnancy, despite the availability of a work program for disabled employees. Lopez was awarded $2.34 million for wrongful firing and for failing to accommodate her pregnancy as

other disabilities had been accommodated. 26 The Americans with Disabilities Act of 1990 and The ADA Amendments Act of 2008 This act and its accompanying amendment prohibit employment discrimination on the basis of disability in employment for private employers, state and local governments, and labor organizations with fifteen or more employees. To be protected by the ADA, an individual with a disability must be qualified and able to perform the essential functions of the job with or without reasonable accommodations. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activity, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment. Several terms involved with the ADA require further definition. 27 Qualified individuals must meet the basic skill, training, licensure, experience, education, or other job-related requirements for the position. For instance, an accountant applying for a position as a C.P.A. must have passed the C.P.A. exam. Major life activities may include, but are not limited to, caring for oneself (showering, using the toilet), seeing, hearing, eating, walking, standing, lifting, bending, learning, speaking, breathing, concentrating, communicating, and working. Essential job functions are required for the successful performance of the job. These need to be specified in job descriptions so applicants know what is required and employers can prove that they are necessary to the job and not arbitrarily applied. Reasonable accommodations include activities or modifications to the work environment that allow the qualified individual to perform the work. They may be relevant to the size and financial position of the organization. For example, a small business may not be required to make expensive structural modifications like installing an elevator, yet it may be required of a large business. Examples of modifications may include purchase of modification equipment such as lifts or ramps, modified work schedules, reassignment to a vacant position, modifications to training and testing procedures, leaves of absence, hiring readers or interpreters, widening door frames and installing hand rails. Generally, these accommodations must be requested by the employee. 28 It’s important, however, to recognize that ADA doesn’t protect all forms of disability. For example, illegal drug use is not included, but employees who no longer use drugs and have successfully participated in a supervised drug rehabilitation program may be included. Some psychiatric disabilities (like pyromania and kleptomania) may disqualify an individual from protection, but others may need minimal accommodations such as the ability to leave work early once a week to visit a therapist. 29 Correctable conditions such as poor eyesight or high blood pressure are not included. 30 The ADA Amendments Act of 2008 (ADAAA) is intended to give broader protections for disabled workers and “turn back the clock” on court rulings that Congress deemed too restrictive. It is now easier for individuals to establish the existence of a disability, especially The Americans with Disabilities Act of 1990 This act extends employment protection to most forms of disability status . reasonable accommodations Changes to the workplace that allow qualified workers with disabilities to perform their jobs. Years ago, an employee in a wheelchair may have had

difficulty obtaining employment. However, with the passage of the Americans with Disabilities Act of 1990, employees cannot be discriminated against simply because of a disability or the perception of a disability. (Source: John Lee/Age Fotostock America, Inc.) 66 Chapter 3 Equal Employment Opportunity regarding impairments such as cancer, diabetes, epilepsy, HIV infection, and bipolar disorder. Major bodily functions are included such as cell growth, immune system function, digestive, bladder and bowel function, neurological and brain functions, respiratory and circulatory functions, and endocrine and reproductive functions. In Chapter 7, we will discuss the importance of understanding the ADA as it pertains to the employee selection process. Obesity is an employment as well as a health concern in the American workplace. The Centers for Disease Control estimates that nearly 64 percent of Americans are overweight. Although obesity is not covered under the ADA, workers who are morbidly obese with a Body Mass Index (BMI) of 40 or above have successfully claimed that their obesity prevents them from performing one or more essential life functions. Although workers with a BMI under 40 are not protected, the state of Michigan and the District of Columbia have enacted laws to specifically protect workers from discrimination based on size or appearance. 31 The Civil Rights Act of 1991 The Civil Rights Act of 1991 was passed to restore rights of employees who sued employers for discrimination after a series of Supreme Court decisions limited those rights. A number of other employment discrimination related issues were addressed, including prohibition of discrimination on the basis of race and racial harassment on the job. The act also returned the burden of proof that discrimination did not occur back to the employer and reinforced the illegality of employers who make hiring, firing, or promoting decisions on the basis of race, ethnicity, sex, or religion. Possibly the most drastic change was to allow discrimination victims who have been intentionally discriminated against under Title VII or the ADA to seek compensatory and punitive damages in a jury trial. The Family and Medical Leave Act of 1993 (FMLA) The Family and Medical Leave Act of 1993 (FMLA) was passed in 1993 to provide workers an opportunity to balance family responsibilities and work. It allows unpaid leave for specific family related reasons like childbirth, adoption, the employee’s own illness, or to care for a sick family member, with a guarantee of retaining an employee’s job when he or she returns from leave. The FMLA benefits were extended in 2008 to include family members of military personnel who are on active duty. Employees who require a leave of absence from work in order to care for a wounded service member are also included. Several states already had laws in place similar to the new FMLA rules. 33 Nearly 80 percent of all U.S. workers are covered under FMLA. The act allows workers of organizations that employ 50 or more workers within a 75-mile radius of the organization the opportunity to take up to 12 weeks of unpaid leave in a 12-month period for qualifying reasons. 34 Public agencies and schools are included regardless of the number of employees. To be eligible for these benefits, an employee must have worked for an employer for a total of 12 months (not necessarily consecutively) and must have worked for the organization for at least 1,250 hours in the past 12 months. Employees are generally guaranteed their current job or one equal to it on their return, and may retain employer provided healthcare coverage during the leave. If an organization can show that it will suffer significant economic damage by having a “key” employee out on FMLA leave, the organization may not be required to restore the employee to the previous position. 35 Employers are required to inform employees of their rights and responsibilities under the FMLA by posting notices such as the poster in Exhibit 3-3, including FMLA information in handbooks, and providing new employees with a copy of the notice. Employees may use FMLA leave for one or more of the following reasons: 36

Birth or adoption of a child or placement of foster child

Care for a spouse, son, daughter, or parent with a serious health condition Serious health condition of the employee Situations that arise because the employee’s spouse, son, daughter, or parent is on

active military duty such as deployment, welcome home ceremonies, counseling, or time to make necessary financial or legal arrangements because of deployment

Caring for a spouse, son, daughter, parent, or next of kin who is a member of the armed forces with a serious injury or illness for up to 26 weeks Civil Rights Act of 1991 Employment discrimination law that nullified selected Supreme Court decisions. It reinstated burden of proof by the employer and allowed for punitive and compensatory damage through jury trials. The Family and Medical Leave Act of 1993 Federal legislation that provides employees with up to 12 weeks of unpaid leave each year to care for family members or for their own medical reasons. “A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to coworkers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight.” — Supreme Court Justice Ruth Bader Ginsberg, dissenting with the majority opinion that found Ledbetter’s case was invalid, May 29, 200732 Laws Affecting Discriminatory Practices 67 Exhibit 3-3 Family and Medical Act Poster The U.S. Department of Labor provides employers with posters like this that inform employees of their rights. The Department of Labor website has posters available for free download at www.dol.gov. They also offer assistance in determining which posters you may be required to display in your business. Source: U.S. Department of Labor For additional information: 1-866-4US-WAGE (1-866-487-9243) TTY: 1-877-889-5627 WWW.WAGEHOUR.DOL.GOV U.S. Department of Labor | Employment Standards Administration | Wage and Hour Division WHD Publication 1420 Revised January 2009 EMPLOYEE RIGHTS AND RESPONSIBILITIES UNDER THE FAMILY AND MEDICAL LEAVE ACT Basic Leave Entitlement FMLA requires covered employers to provide up to 12 weeks of unpaid, jobprotected leave to eligible employees for the following reasons: For incapacity due to pregnancy, prenatal medical care or child birth; To care for the employee’s child after birth, or placement for adoption or foster care; To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or For a serious health condition that makes the employee unable to perform the employee’s job. Military Family Leave Entitlements Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending

certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings. FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12-month period. A covered servicemember is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform his or her duties for which the servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list. Benefits and Protections During FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work. Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms. Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave. Eligibility Requirements Employees are eligible if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles. Definition of Serious Health Condition A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment. Use of Leave An employee does not need to use this leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent basis. Substitution of Paid Leave for Unpaid Leave Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s normal paid leave policies. Employee Responsibilities Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call-in procedures. Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave. Employer Responsibilities Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility. Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLAprotected, the employer must notify the employee. Unlawful Acts by Employers FMLA makes it unlawful for any employer to: Interfere with, restrain, or deny the exercise of any right provided under FMLA; Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.

Enforcement An employee may file a complaint with the U.S. Department of Labor or may bring a private lawsuit against an employer. FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights. FMLA section 109 (29 U.S.C. § 2619) requires FMLA covered employers to post the text of this notice. Regulations 29 C.F.R. § 825.300(a) may require additional disclosures. 68 Chapter 3 Equal Employment Opportunity Employees must give employers notice of intent to use FMLA leave in advance if possible. If it isn’t possible to give advanced notice, the employer must be notified as soon as possible, usually within a day or two. Employers may require certification from a health care provider to authenticate that the condition is a serious health condition that qualifies for FMLA leave. Serious health conditions that qualify are illnesses or injuries that involve medical treatment overnight in a hospital, hospice care, or stay in a residential medical care facility. Illnesses or injuries that require absence from work of more than three days, pregnancy, or a serious or chronic illness also qualify. Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) The Act enacted to clarify and strengthen the rights of veterans who served in the Reserves or National Guard. Veterans have the right to return to their jobs in the private sector when they return from military service, and are entitled to the same seniority, status, and pay they would have attained during their military service. They may also retain their insurance benefits, although they may be required to pay for the premiums. The USERRA also prohibits employers from discriminating or retaliating against a job applicant or employee based on prior military service. The process for filing a complaint against employers who do not comply with the act is also spelled out. In 2004, the Veterans’ Benefits Improvement Act (VBIA) clarified the health insurance rights of veterans and required that employers display the USERRA poster along with other information notifying employees of their rights. 37 Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Clarifies and strengthens the rights of veterans to return to their jobs in the private sector when they return from military service.

CONTEMPORARY CONNECTION When Our Troops Come Home Your small business supported employees who joined the National Guard. You participated in the community send-off when they were deployed. You displayed yellow ribbons while they were gone, helped their families when they were wounded, and celebrated when they came home. What are your obligations now that they’ve returned? Do you have to hire them back when they return? About 17 percent of returning veterans have some service-related disability , 20 percent of those are quite serious. 38 What if they can’t do their old jobs? You’re just a small business with limited resources. Is help available for them? Is help available for you? Large companies may have experts that handle questions regarding veterans in the workplace, but often the small employer is left wondering what to do. Everyone wants to treat returning veterans fairly and should be educated about the state and federal regulations regarding their employment. Anyone who has been absent from work because of service in the military is protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA) and by the Veterans Benefits Improvement Act (VBIA). Veterans deployed less

than 180 days must notify employers within two weeks of their return from the service that they intend to resume work. Those deployed over 181 days must notify employers within 90 days. In most situations, employers must re-employ the veteran within an additional two weeks. 39 The Americans with Disabilities Act (ADA) provides additional protection for those veterans whose injuries require some type of accommodation in the workplace. The employer may be required to make reasonable accommodations, just as they would for any other qualified person with a disability. This may require modifying offices and restrooms, or acquiring adaptive equipment such as lifts or voice recognition software. Veterans with post-traumatic stress disorder may need to modify work schedules and take time for visits with health care professionals. Help is available for both the employer and veteran when a disability requires adjustment in the workplace. The U.S. Department of Veterans Affairs provides employer assistance including paying part of the cost of retraining a disabled veteran, tax credits for hiring veterans, and deductions for the cost of making the workplace accessible. 40 Many employers find that veterans have learned valuable skills in the military that are helpful to civilian employers too. Consider this: Do you go to school or work with veterans? Are they aware of these rights? How do they feel about them? (Source: Jeff Hutchens/Getty Images, Inc.) Preventing Discrimination 69 Genetic Information Nondiscrimination Act (GINA) of 2008 Most employees wouldn’t think a thing about their employer showing concern regarding a parent’s serious illness such as breast cancer, heart disease, or Alzheimer’s disease. Unfortunately, not all employers have such innocent motives. In 2001 it was discovered that Burlington Northern Santa Fe (BNSF) Railway was using genetic testing to determine if employees had a genetic predisposition to carpal-tunnel syndrome, a common reason for Workers Compensation claims for the railroad. Employees complained to the EEOC that their rights were being violated under the Americans with Disabilities Act, and the testing was stopped. 41 The Genetic Information Nondiscrimination Act (GINA) was passed in 2008. GINA prohibits employers with fifteen or more employees from discriminating on the basis of genetic information when making any employment-related decisions, including insurance covered participation in wellness programs. Voluntary participation in health screenings is not covered. Fortunately the law makes an exception for employers who accidentally learn of relevant genetic information, but employers should be careful about discussing the health of employees and their family members. Since the law is relatively new and genetic research is evolving rapidly, HR managers should stay tuned for further developments and court cases. 42

Preventing Discrimination The number of laws and regulations makes it critical for HRM to stay informed on the best way to prevent discriminatory practices in the workplace and train managers and supervisors in the latest laws. The best prevention is an organizational culture that encourages equal employment opportunity, tolerance, acceptance, and good communication. Recall from our earlier discussion that employment discrimination may stem from any employment decision based on factors other than those relevant to the job. Should that occur frequently, the organization may face charges that it discriminates against some members of a protected group. Uniform Guidelines on Employee Selection Procedures In 1979, several government agencies with responsibilities for enforcing equal employment laws issued a document called Uniform Guidelines on Employee Selection Procedures. This

document makes it clear that HR hiring policies and employee selection procedures must be tied to specific job-related factors and cannot be discriminatory. It also outlines the Genetic Information Nondiscrimination Act (GINA) Prohibits employers from making employment decisions based on information about an employee’s genetic information. HR managers often end up reacting to an event or, in the case of a discrimination charge, a legal matter. Although they usually have policies in place on how to handle such events, a more fundamental question arises. That is, are there signs that something is brewing? The answer is often yes—if HR managers are paying close attention to what’s happening in the organization. There may be a problem if:

large numbers of employees (often individuals who share something in common—a personal characteristic, the same supervisor, etc.) ask for their personnel files;

significant increases are witnessed in the use of the company’s complaint procedure; Is a Problem Brewing? TIPS FOR SUCCESS

a union campaign has just failed; or employees are using blogs to bash the organization.

Each of the above items might not always indicate a legal action is forthcoming, but should be considered warnings of potential problems, and HR needs take action. Being proactive— investigating things before they reach a fever pitch—is often the best defense. 44 Things to think about: What are the benefits of being proactive? Do you think employees appreciate management efforts to make things right before discrimination complaints are filed? 70 Chapter 3 Equal Employment Opportunity requirements necessary for employers to prove that hiring and employee selection practices observe equal employment laws. In addition, it addresses standards for employment testing that are not biased against or in favor of any particular group, and provides ways to determine if an employment test or qualification is valid. The Uniform Guidelines are not law, but are referenced by courts in cases of employment discrimination. 43 Determining Potential Discriminatory Practices Adverse impact can be described as any employment consequence that discriminates against employees who are members of a group protected by equal employment law. As an example of an adverse impact, many years ago, police departments had a height requirement that required applicants to be 5’ 10” or greater. The requirement eliminated women and men of some ethnic groups at higher rates than Caucasian men, significantly reducing job opportunities for them. The courts found no evidence of tall officers being more effective at law enforcement than shorter colleagues. The concept of adverse impact results from a seemingly neutral, even unintentional consequence of an employment practice. 45 Another issue differs from adverse impact but follows a similar logic. This is called adverse (disparate) treatment . Adverse treatment occurs when a member of a protected group receives less favorable outcomes in an employment decision than a nonprotected group member. For example, if a protected group member is more often evaluated as performing poorly or receives fewer organizational rewards, adverse treatment may have occurred.

The 4/5ths Rule One of the first measures of determining potentially discriminatory practices is called the 4/5ths rule. Issued by the EEOC in its Uniform Guidelines on Employee Selection Procedures, the 4/5ths rule helps assess whether an adverse impact has occurred. Of course, the 4/5ths rule is not a definition of discrimination. It is, however, a quick analysis to help assess HR practices in an organi zation. Moreover, in applying the 4/5ths rule, the Supreme Court ruled in Connecticut v. Teal (1984) that decisions in each step of the selection process must conform to the 4/5ths rule. 46 To see how the 4/5ths rule works, suppose there are two pools of applicants for jobs as management information systems analysts. The applicants’ backgrounds reflect the following: 40 applicants are classified in the majority, and 15 applicants are classified as members of minority populations. 47 After the testing and interview process, 22 majority and 8 minority members are hired. Is the organization in compliance? Exhibit 3-4 provides the analysis. In this case, we find that the company is in compliance; that is, the adverse impact A consequence of an employment practice that results in a greater rejection rate for a minority group than for the majority group in the occupation. adverse (disparate) treatment An employment situation where protected group members receive treatment different from other employees in matters such as performance evaluations and promotions. 4/5ths rule A rough indicator of discrimination, this rule requires that the number of minority members a company hires must equal at least 80 percent of the majority members in the population hired. Exhibit 3-4 Applying the 4/5ths Rule Although all the numbers may look intimidating, the concept of the 4/5ths rule is pretty simple. If the percentage of minority employees hired is 80 percent or more of the number of nonminorities hired, the company is in compliance the rule. If the percentage is under 80 percent, it indicates the company may have discriminated against minority applicants, and further research is indicated. Majority Group (Maj) 5 40 Applicants Minority Group (Min) 5 15 Applicants Item Number Percent Item Number Percent %Min/%Maj Passed test 30 75% Passed test 11 73% 73%/75% 5 97% Passed interview 22 73% Passed interview 8 72% 72%/73% 5 98% Hired 22 100% Hired 8 100% 100%/100% 5 100% Analysis 22/40 5 55% Analysis 8/15 5 53% Ratio of minority/majority 53%/55% 5 96% In Compliance Not In Compliance Majority Group (Maj) 5 40 Applicants Minority Group (Min) 5 15 Applicants Item Number Percent Item Number Percent %Min/%Maj Passed test 30 75% Passed test 11 73% 73%/75% 5 97% Passed interview 22 86% Passed interview 4 36% 36%/86% 5 41% Hired 26 100% Hired 4 100% 100%/100% 5 100% Analysis 26/40 5 65% Analysis 4/15 5 26%

Ratio of minority/majority 26%/65% 5 40% Preventing Discrimination 71 ratio of minority to majority members is 80 percent or greater (the 4/5ths rule). Accordingly, even though fewer minority members were hired, no apparent discrimination has occurred. Exhibit 3-4 also shows the analysis of an organization not in compliance. Remember, whenever the 4/5ths rule is violated, it indicates only that discrimination may have occurred. Many factors can enter in the picture. Should the analysis show that the percentage is less than 80 percent, more elaborate statistical testing must confirm or deny adverse impact. For instance, if Company A finds a way to keep most minority group members from applying in the first place, it need hire only a few of them to meet its 4/5ths measure. Conversely, if Company B actively seeks numerous minority group applicants and hires more than Company A, it still may not meet the 4/5ths rule. Restricted Policy A restricted policy occurs whenever HRM activities exclude a class of individuals. For instance, assume a company is restructuring and laying off an excessive number of employees over age 40. Simultaneously, however, the company is recruiting for selected positions on college campuses only. Because of economic difficulties, this company wants to keep salaries low by hiring people just entering the workforce. Those over age 39 who were making higher salaries are not given the opportunity to even apply for these new jobs. These actions may indicate a restricted policy. That is, through its hiring practice (intentional or not), a class of individuals (in this case, those protected by age discrimination legislation) has been excluded from consideration. Geographical Comparisons A third means of supporting discriminatory claims is through the use of a geographic comparison. In this instance, the characteristics of the potential qualified pool of applicants in an organization’s hiring market are compared to the characteristics of its employees. If the organization has a proper mix of individuals at all levels in the organization that reflects its recruiting market, then the company is in compliance. Additionally, that compliance may assist in fostering diversity in the organization. The key factor here is the qualified pool according to varying geographic areas. McDonnell-Douglas Test Named for the McDonnell-Douglas Corp. v. Green 1973 Supreme Court case, 48 this test provides a guideline for the employee to establish a strong case of discrimination. Four components must exist: 49 1. The individual is a member of a protected group. 2. The individual applied for a job for which he or she was qualified. 3 . The individual was rejected. 4. The employer, after rejecting this applicant, continued to seek other applicants with similar qualifications. If these four conditions are met, the employee filing the complaint has established a prima facie (Latin for “at first sight”) case of discrimination. At this point, the burden of proof shifts to the employer to prove that there was a legitimate reason for rejecting the applicant that was not discriminatory. Affirmative Action Plans Affirmative Action programs are instituted by an organization to correct past injustices in an employment process. Executive Order 11246 was established with the premise that as a matter of public policy and decency, minorities should be hired to correct past prejudice that kept them out. It was understood that many discriminatory practices were so well established that “Legal and social coercion [were] necessary to bring about the change.” 50 Affirmative action means that an organization must take certain steps to show that it is not discriminating. For example, the organization must analyze the demographics of its current workforce. Similarly, the organization must analyze the composition of the community from which it recruits. If the workforce resembles the community for all job classifications, then the organization may be demonstrating that its affirmative action program is working. If, however, there are differences, affirmative action also implies that the organization will establish goals and timetables for correcting the imbalance and have specific plans for recruiting and retaining protected group members. If it does not, it can lose the right to contract with the government for goods and services.

McDonnell-Douglas Corp. v. Green Supreme Court case that led to a four-part test used to determine if discrimination has occurred. affirmative action A practice in organizations that goes beyond discontinuance of discriminatory practices to include actively seeking, hiring, and promoting minority group members and women. 72 Chapter 3 Equal Employment Opportunity Organizations that find an imbalance may actively search for qualified minorities by recruiting from places like predominantly African American or women’s colleges, but need not necessarily hire these individuals under this process. However, as a result of affirmative action programs, an organization should be able to show significant improvements in hiring and promoting women and minorities or justify why external factors prohibited them from achieving their affirmative action goals. Affirmative action programs have often been targets of criticism and lawsuits. Much of the criticism has focused on the realization that affirmative action bases employment decisions on group membership rather than individual performance. Giving certain groups of individuals (by race, sex, age) preference tugs at the heart of fair employment. As the argument goes, if it was wrong 50 years ago to give white males preference for employment, why is it right today to give other individuals preference simply because they possess certain traits? Responding to an EEO Charge If HRM practices have adversely impacted an employee group in an organization, the employer has a few remedies for dealing with valid allegations. First, the employer should discontinue the practice. Only after careful study should the practice, or a modified version, be reinstated. However, if enough evidence exists, an employer may choose to defend the disputed practice. Generally, three defenses can be used when confronted with an allegation of discrimination by adverse impact. These are job relatedness or business necessity, bona fide occupational qualifications, and seniority systems. Business Necessity An organization has the right to operate in a safe and efficient manner. This includes business practices necessary for the organization to survive. A major portion of business necessity involves job-relatedness factors, or having the right to expect employees to perform successfully. Employees are expected to possess the skills, knowledge, and abilities required to perform the essential elements of the job. Job-relatedness criteria are substantiated through the validation process. We’ll return to this topic in Chapter 7. Bona Fide Occupational Qualifications The second defense against discriminatory charges is a bona fide occupational qualification (BFOQ). Under Title VII, a BFOQ is permitted where such requirements are “reasonably necessary to meet the normal operation of that business or enterprise.” As originally worded, BFOQs could be used only to support sex discrimination. Today, BFOQ coverage is extended to other categories such as religion. BFOQs cannot, however, be used in cases of race or color. It is important to note that while BFOQs are “legal” exceptions to Title VII, they are narrowly defined. Simply using a BFOQ as the response to a charge of discrimination is not enough; it must be directly related to the job. Let’s look at some examples. bona fide occupational qualification (BFOQ) Job requirements that are “reasonably necessary to meet the normal operations of that business or enterprise.” An employer who has very few minority applicants may encounter discrimination claims even though he or she does not discriminate in the hiring process. It may be necessary to actively increase the number of qualified minorities who apply for

employment. There are several ways to do this: Ask employees who are in an underrepresented group to

help recruit. Participate in job fairs at colleges, universities, places of

worship, social clubs, and community-based organizations where minorities are in a majority or in attendance. Suggestions for Recruiting Minorities and Women TIPS FOR SUCCESS

Advertise in community bulletins for clubs, sororities, fraternities, and places of worship where minorities are in a majority.

Place job ads on television, radio, websites, and in newspapers and magazines that target a particular demographic. 51 Things to think about: Are there any organizations in your community that may need to make an effort to recruit underrepresented groups? What methods would be most effective? Selected Relevant Supreme Court Cases 73 Some employers tried to argue that a specific gender is a requirement to be a firefighter, police officer, or flight attendant for reasons such as physical strength or public perception. The courts, however, did not hold the same view. As a result, it is now common to see both sexes in nearly any career. Using gender as a job criterion is difficult to prove. However, under certain circumstances gender as a BFOQ has been supported. In some jobs like prison guards, washroom attendants, and health care, gender may be used as a determining factor to “protect the privacy interests of patients, clients, or customers.” 52 A religious BFOQ may have similar results. Religion may be used as a differentiating factor in ordaining a church minister, but a faculty member doesn’t have to be Catholic to teach at a Jesuit college. Under rare circumstances, an organization may refuse to hire individuals whose religious observances fall on days that the enterprise normally operates if the organization demonstrates that it cannot reasonably accommodate these religious observances. 53 It’s becoming harder to demonstrate an inability to make a reasonable accommodation, however. 54 For example, pizza delivery establishments cannot refuse to hire, or terminate, an employee who has facial hair—like that in the Hindu tradition. HRM managers must understand that some “traditional” policies may have to change to reflect religious diversity in the workforce. A policy that prohibits employees who have customer contact from having beards may be a violation of the Civil Rights Act. Accordingly, the company may have to change its policy to accommodate religious traditions. 55 In terms of national origin, BFOQs have become rare. In some situations, organizations have been able to prove that a foreign accent or the inability to communicate effectively “materially interferes with the individual ability to perform” the job. An example would be a cab driver whose thick accent makes it extremely difficult for passengers to communicate with him. In that rare case, nationality can be used as a BFOQ. 56 Our last area of BFOQ is age. With subsequent amendments to the Age Discrimination in Employment Act, age BFOQs are hard to support. As we mentioned in our discussion of age discrimination, age can sometimes be used as a determining factor when hiring new employees. However, aside from pilots and a select few key management executives in an organization, age as a BFOQ is limited. Seniority Systems Finally, the organization’s bona fide seniority system can serve as a defense against discrimination charges. So long as employment decisions such as layoffs stem from a well-established and consistently applied seniority system, decisions that may adversely affect protected group members may be permissible. However, an organization using seniority as a defense must be able to demonstrate the appropriateness of its system. Although means are available for organizations to defend themselves, the best approach revolves around job-relatedness. BFOQ and seniority defenses are often subject to great scrutiny and, at times, are limited in their use.

Selected Relevant Supreme Court Cases In addition to the laws affecting discriminatory practices, HRM professionals must be aware of Supreme Court decisions that affect the workplace. Many of these cases help further define HRM practices or indicate permissible activities. Although it is impossible to discuss every applicable Supreme Court case, we have chosen a few of the more critical ones to highlight what they have meant for the field. Cases Concerning Discrimination In the 1960s, Duke Power had a policy of requiring everyone to pass two different aptitude tests and have a high school diploma in order to work in any position other than a department called the Labor Department. The Labor Department was the lowest paying department at Duke Power and was almost exclusively staffed with African American employees. Willie Griggs filed a class action lawsuit on behalf of other African American employees, claiming that the requirement to pass the tests and have a high school seniority systems Decisions such as promotions, pay, and layoffs are made on the basis of an employee’s seniority or length of service. 74 Chapter 3 Equal Employment Opportunity diploma unfairly discriminated against African American employees who tended not to have the same education as other applicants. In the 1971 Griggs v. Duke Power Company decision, the U.S. Supreme Court adopted the interpretive guidelines set out under Title VII: Tests must fairly measure the knowledge and skills required in a job in order not to discriminate unfairly against minorities. This action single-handedly made invalid any employment test or diploma requirement that disqualified African Americans at a substantially higher rate than whites (even unintentionally) if this differentiation could not be proven to be job related. Such action was said to create an adverse (disparate) impact. 57 The Griggs decision had even wider implications. It called into question most intelligence and conceptual tests used in hiring without direct empirical evidence that the tests employed were valid. This crucial decision placed the burden of proof on the employer who must provide adequate support that any test used did not discriminate on the basis of non– job-related characteristics. For example, if an employer requires all applicants to take an IQ test, and test results factor in the hiring decision, the employer must prove that individuals with higher scores will outperform on the job those individuals with lower scores. Nothing in the Court’s decision, however, precludes the use of testing or measuring procedures. What it did was to place the burden of proof on management to demonstrate, if challenged, that the tests used provided a reasonable measure of job performance. Although companies began a process of validating these tests, requiring all job applicants to take them raised further questions. In 1975, the Supreme Court decision in the case of Albemarle Paper Company v. Moody clarified the methodological requirements for using and validating tests in selection. 58 In the case, four African American employees challenged their employer’s use of tests for selecting candidates from the unskilled labor pool for promotion into skilled jobs. The Court endorsed the EEOC guidelines by noting that Albemarle’s selection methodology was defective because:

The tests had not been used solely for jobs on which they had previously been validated.

The tests were not validated for upper-level jobs alone but were also used for

entry-level jobs. Subjective supervisory ratings were used for validating the tests, but the ratings

had not been done with care. The tests had been validated on a group of job-experienced white workers,

whereas the tests were given to young, inexperienced, and often nonwhite candidates. In addition to these two landmark cases, other Supreme Court rulings have affected HRM practices. We have identified some of the more important ones and their results in Exhibit 3-5. During the late 1980s, however, a significant change in the Supreme Court’s perception of EEO became apparent. One of the most notable cases during this period was Wards Cove Packing Company v. Atonio (1989). 59 Wards Cove operated two primary salmon canneries in Alaska. The issue in this case stemmed from different hiring practices for two types of jobs. Noncannery jobs viewed as unskilled positions were predominately filled by nonwhites (Filipinos and native Alaskans). On the other hand, cannery jobs, seen as skilled administrative/engineering positions, were held by a predominately white group. Based on the ruling handed down in Griggs v. Duke Power , an adverse (disparate) impact could be shown by the use of statistics (the 4/5ths rule). However, in the decision, the Court ruled that statistics alone could not support evidence of discrimination. Consequently, the burden of proof shifted from the employer to the individual employee. The Wards Cove decision had the effect of potentially undermining two decades of gains made in equal employment opportunities. This case could have struck a Griggs v. Duke Power Company Landmark Supreme Court decision stating that tests must fairly measure the knowledge or skills required for a job. Albemarle Paper Company v. Moody Supreme Court case that clarified the methodological requirements for using and validating tests in selection. Does this employee need a high school diploma to do his job? According to the Griggs v. Duke Power case, if the organization cannot show how having a high school diploma relates directly to successful performance on the job, then a high school diploma cannot be required. To do so could be discriminatory. ( Source: Kari Goodnough/Bloomberg News/Getty Images, Inc.) Selected Relevant Supreme Court Cases 75 Wards Cove Packing Company v. Atonio A notable Supreme Court case that had the effect of potentially undermining two decades of gains made in equal employment opportunities. significant blow to affirmative action. Despite that potential, businesses appeared unwilling to significantly deviate from the affirmative action plans developed over the years. Of course, it’s now a moot point, as the Civil Rights Bill of 1991 discussed earlier nullified many of these Supreme Court rulings. Cases Concerning Reverse Discrimination Affirmative action programs are necessary to ensure continued employment possibilities for minorities and women, and programs to foster the careers of these two groups have grown over the decades. But while this voluntary action may have been needed to correct past abuses, some white males have found that affirmative action plans work against

them, leading to charges of reverse discrimination. Let’s take a look at a sample of cases involving reverse discrimination. In 1978, the Supreme Court handed down its decision in the case of Bakke v. The Regents of the University of California at Davis Medical School . 60 Allen Bakke applied to the Davis Medical School for one of 100 first-year seats. At that time, U.C. Davis had a self-imposed quota system to promote its affirmative action plan: that is, of the 100 firstyear seats, 16 were set aside for minority applicants. Bakke’s charge stemmed from those 16 reserved seats. His credentials were not as good as those gaining access to the first 84 seats, but were better than those of minorities targeted for the reserved seats. The issue that finally reached the Supreme Court was: Could an institution impose its own quota to correct past imbalances between whites and minorities? The Supreme Court ruled that the school could not set aside those seats, for doing so resulted in “favoring one race over another.” Consequently, Bakke was permitted to enter Davis Medical School. The Supreme Court’s decision in the case of the United Steelworkers of America v. Weber (1979) appeared to have important implications for organizational training and development practices and for the larger issue of reverse discrimination. 61 In 1974, Kaiser Aluminum and the United Steelworkers Union set up a temporary training program for higher-paying skilled trade jobs, such as electrician and repairer, at a Kaiser plant in Louisiana. Brian Weber, a white employee at the plant who was not selected for the training program, sued on the grounds that he had been illegally discriminated against. reverse discrimination A claim made by white males that minority candidates are given preferential treatment in employment decisions. Exhibit 3-5 Summary of Selected Supreme Court Cases Affecting EEO These Supreme Court cases have helped clarify the intent of Equal Employment Laws. Case Ruling Griggs v. Duke Power (1971) Tests must fairly measure the knowledge or skills required for a job; also validity of tests. Albemarle Paper Clarified requirements for using and validating Company v. Moody (1975) tests in selection. Washington v. Davis (1976) Job-related tests are permissible for screening applicants. Connecticut v. Teal (1984) Requires all steps in a selection process to meet the 4/5ths rule. Firefighters Local Layoffs are permitted by seniority despite effects it 1784 v. Stotts (1984) may have on minority employees. Wyant v. Jackson Board Layoffs of white workers to establish racial or eth of Education (1986) balances are illegal; however, this case reaffirmed the use of affirmative action plans to correct racial imbalance. United States v. Paradise Quotas may be used to correct significant racial (1986) discrimination practices. Sheetmetal Workers Racial preference could be used in layoff decisions Local 24 v. EEOC (1987) only for those who had been subjected to previous race discrimination. Johnson v. Santa Clara Reaffirmed the use of preferential treatment based County Transportation on gender to overcome problems in existing Agency (1987) affirmative action plans. 76 Chapter 3 Equal Employment Opportunity He argued that African Americans with less seniority were selected over him to attend the training due solely to their race. The question facing the Court was whether it is fair to discriminate against whites to help African Americans who have been longtime victims of discrimination. The justices said that Kaiser could choose to give special job preferences to African Americans

without fear of being harassed by reverse discrimination suits brought by other employees. The ruling was an endorsement of voluntary affirmative action efforts—goals and timetables for bringing an organization’s minority and female workforce up to the percentages they represent in the available labor pool. Despite the press coverage that both cases received, many questions remained unanswered. Just how far was a company permitted to go regarding preferential treatment? In subsequent cases, more information became available. In 1984, the Supreme Court ruled in Firefighters Local 1784 v. Stotts 62 that when facing a layoff situation, affirmative action may not take precedence over a seniority system: that is, the last in (often minorities) may be the first to go. This decision was further reinforced in Wyant v. Jackson Board of Education (1986), 63 when the Supreme Court ruled that a collective bargaining agreement giving preferential treatment to preserve minority jobs in the event of a layoff was illegal. On the contrary, in Johnson v. Santa Clara County Transportation (1987) the Supreme Court did permit affirmative action goals to correct worker imbalances as long as the rights of nonminorities were protected. This ruling had an effect of potentially reducing reverse discrimination claims. A more recent case, Ricci v. DeStefano , involved a group of firefighters in New Haven, Connecticut who won a ruling from the U.S. Supreme Court in 2009 declaring that they were victims of reverse discrimination. In that case, a group of firefighters took an exam required for promotion and although care was taken to make sure the exam was fair and nondiscriminatory, no African American firefighters passed the exam. They threatened to sue the city, claiming disparate impact. In an effort to prevent a lawsuit, the city threw out the exam and didn’t certify any firefighters for promotion. The white firefighters and two Hispanic firefighters who passed the test filed a complaint that they suffered reverse discrimination due to their race. The Supreme Court ruled that the city had indeed violated Title VII and that throwing out the results of the exam was discriminatory. The implications of these cases may be somewhat confusing. The conclusion one needs to draw from these is that any HRM practice may be challenged by anyone. HRM must be able to defend its practices if necessary and explain the basis and the parameters on which the decisions were made. Failure to document or to base the decisions on business necessities may lead to serious challenges to the action taken.

Enforcing Equal Opportunity Employment Two U.S. government agencies are primarily responsible for enforcing equal employment opportunity laws. They are the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). The Role of the EEOC Any complaint filed against an employer regarding discrimination based on race, religion, color, sex, national origin, age, qualified disabilities, or wages due to gender falls under the jurisdiction of the EEOC. The EEOC is the enforcement arm for Title VII of the 1964 Civil Rights Act, the Equal Pay Act, the Age Discrimination in Employment Act, the Vocational Rehabilitation Act of 1973, the Americans with Disabilities Act, and the Civil Rights Act of 1991. The EEOC requires that charges typically be filed within 180 days of an alleged incident 64 and that these charges be written and sworn under oath. Once the charges have been filed, the EEOC may progress (if necessary) through a five-step process: 65 1. The EEOC will notify the organization of the charge within 10 days of its filing and then begin to investigate the charge to determine if the complaint is valid. The company may simply settle the case here, and the process stops. H t w c t c b

Failure to document decisions on business necessity may lead to serious challenges. Enforcing Equal Opportunity Employment 77 2. The EEOC will notify the organization in writing of its findings within 120 days. If the charge is unfounded, the EEOC’s process stops, the individual is notified of the outcome, and the EEOC informs the individual that he or she may still file charges against the company in civil court (called a right-to-sue notice). The individual has 90 days on receipt of the right-to-sue notice to file his or her suit. 3. If there is justification to the charge, the EEOC will attempt to correct the problem through informal meetings with the employer. Again, the company, recognizing that discrimination may have occurred, may settle the case at this point. 4. If the informal process is unsuccessful, the EEOC will begin a formal settlement meeting between the individual and the organization (called a mediation meeting). The emphasis here is to reach a voluntary agreement between the parties. 5. Should Step 3 fail, the EEOC may file charges in court. It’s important to note that while acting as the enforcement arm of Title VII, the EEOC has the power to investigate claims, but it has no power to force organizations to cooperate. The relief that the EEOC tries to achieve for an individual is regulated by Title VII. If the allegation is substantiated, the EEOC attempts to make the individual whole. That is, Remember your first job? The one where you received your first real pay that wasn’t from Mom and Dad? If you’re like most young workers, there’s a lot you probably didn’t know about the world of work at that point. Many young workers are shy about even asking how much they will make per hour and find out only when they receive that first check. became angry and the girl was fired again. The courts found that the franchise owner made it difficult for the girl to find a number to report the abuse and found in favor of the girl. 70

Three girls, including two 17-year-old high school students, employed at a Jiffy Lube franchise complained that supervisors and coworkers made lewd gestures and sexually explicit comments. The franchise was ordered to pay $300,000 to the three employees. 71

Two young men were told that Walmart had no positions available for them because they were deaf. Five years after complaining to the EEOC, the young men were each awarded $66,250 in back pay, positions at the store, seniority from the time they originally applied, and a sign language interpreter for orientation, training, and meetings. Walmart was also ordered to pay legal fees and make many modifications to their hiring and training processes to accommodate people with disabilities. 72 “Teens are particularly vulnerable because they are new to the workplace, they are impressionable, and are more likely than not to be at the bottom rung,” says Jocelyn Samuels, Vice President for education and employment with the National Women’s Law Center. “They feel less authorized to complain and they may not know that procedures are available to them.” 73 The EEOC has taken up the cause of young workers’ rights with a website called “Youth At Work” at http://youth.eeoc.gov. The site includes information on employee rights using real cases and interactive self-quizzes. Things to think about: How can organizations effectively protect young workers from exploitation from discrimination and sexual harassment? Can you suggest other groups that are likely targets of discrimination and

would benefit from increased communication from the EEOC? EEOC Reaches Out to Young Workers CONTEMPORARY CONNECTION Unfortunately youth and inexperience makes young workers easy targets for sexual harassment and employment discrimination. Consider these situations:

A 16-year-old girl working at a Burger King franchise tried to complain when her 35-year-old manager made suggestive comments, rubbed up against her, and tried to kiss her. The manager became mad when she complained, fired her, re-hired her and continued the harassment. When the girl couldn’t find a number to report the manager to the franchise owner, her mother went to the restaurant and discussed the situation with a shift supervisor. The manager (Source: Radius/SuperStock) 78 Chapter 3 Equal Employment Opportunity under the law, the EEOC attempts to obtain lost wages or back pay, job reinstatement, and other rightfully due employment factors ( for example, seniority or benefits). The individual may also recover attorney fees. However, if the discrimination was intentional, other damages may be awarded. Under no circumstances may the enterprise retaliate against an individual filing charges — whether or not the person remains employed by the organization. The EEOC monitors that no further adverse action against that individual occurs. The EEOC is staffed by five presidentially appointed commissioners and staff counsels. It is generally well known that the EEOC is quite understaffed in its attempt to handle more than 100,000 cases each year. 66 Consequently, the EEOC began prioritizing cases in the mid-1990s, attempting to spend more time on cases that initially appear to have merit. Furthermore, its enforcement plans are prioritized, with cases in which “alleged systematic discrimination has broad impact on an industry, profession, company, or geographic location” receiving the highest priority. 67 Under these new EEOC directions, it’s more important than ever for HRM to investigate the complaints internally, communicate openly with the EEOC regarding the priority level of the complaint, and evaluate selecting and testing methods to ensure validity. Office of Federal Contract Compliance Program (OFCCP) In support of Executive Order 11246, the OFCCP enforces the provisions of this order (as amended), as well as Section 503 of the Vocational Rehabilitation Act of 1973 and the Vietnam Veterans Readjustment Act of 1974. 68 Provisions of the OFCCP apply to any organizations including universities that have a federal contract or act as a subcontractor on a federal project. The OFCCP operates within the U.S. Department of Labor. Similar to the EEOC, the OFCCP investigates allegations of discriminatory practices and follows a similar process in determining and rectifying wrongful actions. One notable difference is that the OFCCP has the power to cancel an enterprise’s contract with the federal government if the organization fails to comply with EEO laws. 69

Current Issues in Employment Law As employment law evolves to respond to the dynamic environment of HRM, legal issues arise as employees seek to clarify and assert their rights. Let’s take a look at several current legal issues including sexual harassment, comparable worth, English only laws, sexual orientation discrimination, and current trends in state and local laws. Sexual Harassment Sexual harassment is a serious issue for both men and women in both public- and private- sector organizations. Nearly 12,000 complaints are filed with the EEOC each year; 16 percent of these are filed by males. 74 The good news is that the total number of complaints filed with the EEOC has dropped 20 percent in the last ten years. 75 Settlements in

some of these cases incurred substantial litigation costs to the companies involved. At Mitsubishi, for example, the company paid out more than $34 million to 300 women for the rampant sexual harassment to which they were exposed. 76 But it’s more than just jury awards. Sexual harassment results in millions lost in absenteeism, low productivity, recruiting problems, and turnover. 77 Sexual harassment can be regarded as any unwanted activity of a sexual nature that affects an individual’s employment. It can occur between members of the opposite or of the same sex, between organization employees or employees and nonemployees. Much of the problem associated with sexual harassment is determining what constitutes this illegal behavior. 78 In 1993, the EEOC cited three situations in which sexual harassment can occur. These are instances where verbal or physical conduct toward an individual 1. creates an intimidating, offensive, or hostile environment; 2. unreasonably interferes with an individual’s work; or 3. adversely affects an employee’s employment opportunities. sexual harassment Anything of a sexual nature that creates a condition of employment, an employment consequence, or a hostile or offensive environment. quid pro quo harassment Some type of sexual behavior is expected as a condition of employment. hostile environment harassment Offensive and unreasonable situations in the workplace that interfere with the ability to work. u r s e U fi n The EEOC prioritizes its cases to spend more time on those that have the greatest significance. Current Issues in Employment Law 79 Two types of sexual harassment have been established. The first, quid pro quo harassment, is when some type of sexual behavior is expected as a condition of employment. The second, hostile environment harassment, is when a working environment is offensive and unreasonably interferes with an employee’s ability to work. Just what constitutes such an environment? The Supreme Court recognized in Meritor Savings Bank v. Vinson that Title VII of the Civil Rights Act could be used for hostile environment claims. 79 This case stemmed from a situation in which Ms. Vinson initially refused the sexual advances of her boss. However, out of fear of reprisal, she ultimately conceded. According to court records, it did not stop there. Vinson’s boss continued to hassle Vinson, subjecting her to severe hostility, which affected her job. 80 In addition to supporting hostile environment claims,

the Meritor case along with Faragher v. City of Boca Raton also identified employer liability: That is, in sexual harassment cases, an organization can be held liable for sexual harassment actions by its managers, employees, and even customers! 81 Although the Meritor case has implications for organizations, how do organizational members determine if something is offensive? For instance, does sexually explicit language in the office create a hostile environment? How about off-color jokes? Pictures of undressed women? It depends on the people in the organization and the environment in which they work. The point here is that we all must be attuned to what makes fellow employees uncomfortable—and if we don’t know, we should ask. Smart employers are in tune with the culture and sensitivities of all employees. DuPont’s corporate culture and diversity programs, for example, are designed to eliminate sexual harassment through awareness and respect for all individuals. 82 This means understanding one another and, most important, respecting others’ rights. Similar programs exist at many companies including Quicken Loans, Verizon Wireless, and Walgreens. If sexual harassment carries potential costs to the organization, what can a company do to protect itself (see Learning an HRM Skill, p. 88)? 83 The courts want to know two things: did the organization know about, or should it have known about the alleged behavior; and what did management do to stop it? 84 The judgments and awards against organizations today indicate an even greater need for management to educate all employees on sexual harassment matters and have mechanisms available to monitor employees. Victims no longer have to prove that their psychological well-being is seriously affected. The Supreme Court ruled in 1993 in the case of Harris v. Forklift Systems, Inc., that victims need not suffer substantial mental distress to merit a jury award. In June 1998, the Supreme Court ruled that sexual harassment may have occurred even if the employee had not experienced any “negative” job repercussions. In this case, Kimberly Ellerth, a marketing assistant at Burlington Industries, filed harassment charges against her boss because he “touched her, suggested she wear shorter skirts, and told her during a business trip that he could make her job ‘very hard or very easy.’” When Ellerth refused, the harasser never “punished” her. In fact, Kimberly even received a promotion during the time the harassment was ongoing. The Supreme Court’s decision in this case indicates that “harassment is defined by the ugly behavior of the manager, not by what happened to the worker subsequently.” 85 Remember that the rights of the alleged harasser must be considered too. This means that no action should be taken against someone until a thorough investigation has been conducted. The results of the investigation should be reviewed by an independent and objective individual before any action against the alleged harasser is taken. Even then, the harasser should have an opportunity to respond to the allegation If a sexual harassment claim goes to trial, courts want to know two things: did the organization know about, or should it have known about the alleged behavior; and what did management do to stop it? Is what you see in the picture sexual harassment? Perhaps. If the employee believes her supervisor’s action interferes with her work and she has asked for the offensive behavior to stop and it hasn’t, then she may be experiencing sexual harassment. Actions like this may be part of the reason why more than 20 percent of all working women have reported instances of sexual harassment at work. ( Source: Noel Hendrickson/

Masterfile) 80 Chapter 3 Equal Employment Opportunity and participate in a disciplinary hearing if desired. Additionally, an avenue for appeal should also exist for the alleged harasser, heard by someone in a higher level of management who is not associated with the case. Comparable Worth and Equal Pay Issues Previously, we discussed the pay gap between men and women. Women are gaining equality slowly, but still earn approximately 80 percent of men’s salaries. Comparable worth addresses the issues of pay discrepancies of jobs and careers traditionally held by women as compared to those traditionally held by men. For instance, a nurse may be judged to have a comparable job to that of a police officer. Both must be trained, both are licensed to practice, both work under stressful conditions, and both must exhibit high levels of effort. But they are not typically paid the same; male-dominated jobs have traditionally been more highly paid than female-oriented jobs. Under comparable worth, estimates of the importance of each job are used in determining and equating pay structures. The 1963 Equal Pay Act requires that workers doing essentially the same work must initially be paid the same wage. Later wage differences comparable worth Equal pay for jobs similar in skills, re sponsibility, working conditions, and effort. Sexually explicit language, joking, suggestive remarks, inappropriate touch, sharing a questionable e-mail or photo. Some employees would find some or all behaviors on that list offensive. The fact that some people are offended by some, or all of the above, can place those actions squarely under the heading of “sexual harassment.” Although offering or demanding sexual favors in return for rewards in the workplace clearly qualifies as sexual harassment or sex discrimination, a harder-to-recognize kind of harassment is defined by the EEOC. Such conduct “has the purpose or effect of unreasonably interfering with another employee’s job performance or creating an intimidating, hostile, or offensive work environment.” Title VII of the 1964 Civil Rights Act prohibits sexual harassment. Any behavior that may be perceived as harassment is prohibited. Suppose someone is told that keeping his or her job, or receiving a raise or plum assignment, depends on submitting to sexual advances or granting sexual favors; that’s sexual harassment, pure and simple. If it happens to you, report it immediately—to the ethics hotline, to your supervisor, or to another supervisor. The reverse situation—offering sexual favors for a job, an assignment, or a raise—can also be sexual harassment. When an employee gains job advantages in exchange for sex, it’s considered discrimination against other employees, and that’s illegal conduct as well. Everyone loses. A hostile work environment is one where sexual conduct between coworkers is offensive to either one of them or to an observer, and that may include the actions on our list above. Sexual harassment can have negative effects on employees and on the company, and can lead to reduced productivity. An employee trapped in work areas where sexual harassment is tolerated is, most likely, under stress and may become less productive. Customers may gain an unfavorable impression of the company if they think that harassment is being tolerated. Supervisors or coworkers must report any sexual harassment they observe, resulting in an investigation and discipline of those involved. Knowing what is and what is not acceptable

and being sensitive to others’ feelings is extremely important. But what if you believe you are being harassed? A word to the offender might be enough. That person may be unaware of your sensitivity to the behavior. If that doesn’t work, report the behavior to your supervisor or another manager, to labor or employee relations, or to the president of the company if you have to. Education and training play an important role in cultivating an environment free of harassment. 86 Many company managers have received training in identifying and eliminating sexual harassment problems. Additional training in larger organizations is usually offered by human resources. Some people may fear that their complaints will be ignored or that reporting an incident will blemish their work record. Neither is the case. Companies must take all complaints of sexual harassment seriously and investigate each thoroughly and discreetly. 87 Both sides need to be considered, and disciplinary action should be taken against proven violators, as well as those who make false accusations. Ethical questions: What are your own limits concerning questionable language, jokes, or forwarding e-mails? Do you have the same standards in the workplace? What are your views of those whose standards are either more or less tolerant of questionable language or jokes? How might these differences in perspective cause problems? How Bad Does It Have to Be? ETHICAL ISSUES IN HRM Current Issues in Employment Law 81 may exist due to performance, seniority, or merit systems. The act, however, is not directly applicable to comparable worth. Comparable worth proponents want to take the Equal Pay Act one step further. Under such an arrangement, factors present in each job ( for example, skills, responsibilities, working conditions, effort) are evaluated. A pay structure is based solely on the presence of such factors on the job. The result is that dissimilar jobs equivalent in terms of skills, knowledge, and abilities are paid similarly. The point of the comparable worth issue revolves around the economic worth of jobs to employers. If jobs are similar, even though they involve different occupations, why shouldn’t they be paid the same? The concern here is one of pay disparities: women still earn less than men. While the disparity is lessening, the fact remains that despite significant progress in affirmative action for women, many may have reached a plateau in their organization. That is, laws may prohibit organizations from keeping qualified women out of high-paying positions, but a “glass ceiling” appears to be holding them down. This is at the very heart of the largest class action lawsuit ever allowed by federal courts. Dukes v. Walmart represented more than two million women who have worked at any of the employer’s 4,000 stores in the U.S. since 1998. This case alleged that Walmart discouraged the promotion of women into managerial positions. It also claimed that women have been paid less than men across all job categories. The lawsuit sought changes in Walmart’s procedures of promoting and paying women, plus more than $1 billion in back pay and damages. 88 In 2011, the U.S. Supreme Court sided with Walmart, explaining that because the company was very large and gave wide discretion for decisions to the individual managers, the plaintiffs could not prove that a common pattern of discrimination was sanctioned by top management. Many of the women who were part of the class action lawsuit have vowed to pursue their cases against Walmart individually, but the Supreme Court decision made their quest more expensive and time consuming. 89 The glass ceiling is an analogy explaining why women and minorities aren’t more

widely represented at the top of today’s organizations. The expression depicts an image of a woman, minority, or other protected group, who can see the next step on the climb up the corporate ladder, but is unable reach it because there is a glass ceiling in the way. According to the Glass Ceiling Commission, it indicates “institutional and psychological practices, and the limited advancement and mobility of men and women of diverse racial and ethnic backgrounds.” 90 It appears that despite significant gains by minorities and women in entry to organizations, women hold less than 15 percent of senior management positions in the United States. 91 Women in other parts of the world fare a little better. The percentage of women in senior managerial positions worldwide was approximately 20 percent in 2010, virtually unchanged from five years ago. Women in Thailand lead the world, holding 45 percent of senior management jobs, followed by 36 percent in Russia, Hong Kong, and the Philippines. The toughest country for women to gain a top management position? Japan, where only 10 percent of top management positions are held by women. 92 To begin to correct this invisible barrier, the OFCCP is expanding its audit compliance reviews. In these reviews, the auditors look to see if government contractors do indeed have training and development programs operating to provide career growth to the affected groups. Should these be lacking, the OFCCP may take legal action to ensure compliance. For example, an audit of the Coca-Cola Company revealed several violations. Consequently, Coca-Cola, while admitting no wrongdoing, made several internal changes to improve the career opportunities of both women and minorities. 93 Beyond those organizations covered under the OFCCP, several are implementing policies and changing the organization’s culture to enhance opportunities for women and minorities. Dukes v. Walmart Stores Lawsuit brought on behalf of 1.6 million women who have worked at Walmart since 1998 claiming discrimination in pay and promotions. glass ceiling The invisible barrier that blocks females and minorities from ascending into upper levels of an organization. Exhibit 3-6 Equal Pay Issues Women are gaining equality slowly, but still earn approximately 80 percent of men’s salaries. ( Source: © Ted Goff ) 82 Chapter 3 Equal Employment Opportunity

Sexual Orientation Protection against discrimination because of an employee’s sexual orientation or gender identity is not provided by federal law, but 21 states and the District of Columbia have laws prohibiting discrimination based on sexual orientation Federal employees are protected from sexual orientation discrimination by Executive Order 13087. A number of other states provide limited protection, and many cities and municipalities provide protection as well. In addition to the protection provided by state, city, and municipal governments for lesbian, gay, bisexual, and transgendered (LGBT) employees, corporate

America is increasingly implementing policies that prohibit discrimination based on sexual orientation. A 2010 survey found, 69 percent of Fortune 100 companies and 41 percent of Fortune 500 companies had policies prohibiting discrimination based on gender identity. Insurance company Aetna added gender reassignment surgery as a benefit to employees and offered it to companies that contract with Aetna for insurance services. 94 Although sexual orientation is not protected by federal law, claims for nontraditional workplace harassment, including same sex harassment, are on the increase. This may be the result of claims filed by employees who are victims of harassment because they do not fit traditional gender stereotypes for behavior or dress, and file claims based on gender discrimination. 95 A related issue that may arise involves conflicts between sexual orientation discrimination and accommodation of religious beliefs of employees who do not approve of the lifestyle of another employee. Employees may cite religious beliefs as a refusal to work with LGBT employees or clients, or to participate in diversity training. Refusal to work with another employee because of sexual orientation may qualify as an undue hardship, especially if sexual orientation is protected by law in that state. 96 English Only Laws and Policies Can an organization require its employees to speak only English on the job? The answer is a definite “maybe.” Title VII protects employees from national origin discrimination, so employers must allow employees to converse in their native languages. On the other hand, employers may have the need to have a common language spoken at the work site during business hours. 97 Employers must be able to communicate effectively with all employees, especially when safety or productive efficiency matters are at stake. 98 This, they claim, is a business necessity. Consequently, if it is a valid job requirement, the practice could be permitted. An employer’s desire to have one language may stem from the fact that some workers may use bilingual capabilities to harass and insult other workers in a language they cannot understand. With today’s ever-increasing concern with protecting employees, especially women, from hostile environments, English-only rules serve as one means of reasonable care. A counterpoint to this English-only rule firmly rests with the workforce diversity issue. Workers in today’s organizations come from all nationalities and speak different languages. More than 30 million workers in the United States speak a language other than English. What about these individuals’ desire to speak their language, communicate effectively with their peers, and maintain their cultural heritage? To them, English-only rules are discriminatory in terms of national origin in that they create an adverse impact for non–English-speaking individuals. 99 Appearance and Weight Discrimination The statistics on pay differences leave little doubt that employers discriminate against people who are heavier than average. Heavy workers are paid an average of $1.25 an hour less than their average-size counterparts. Women who are slightly heavier than HRM in a Global Environment 83 average-weight women earn 6% percent less, and very heavy women make 24 percent less. 101 One study found that obese workers are perceived as less intelligent, so their ideas may not carry the same influence as average size workers, affecting hiring, pay, and promotion decisions. Discrimination based on weight and appearance isn’t likely to end soon. Federal equal employment laws don’t protect weight or appearance, and Michigan is the only state that has a law protecting workers from weight related discrimination. As mentioned in our discussion of adverse impact, weight and height requirements must be related to job performance, and employers may be concerned that excess weight may limit an applicant’s ability to do the job. 102 Workers with other appearance issues such as piercings and tattoos are having a little better luck, but very little. Piercings and tattoos are only protected if they worn for

religious reasons, therefore protected by Title VII. 103

HRM in a Global Environment Does HRM face the same laws globally? In other words, are the laws presented above the same throughout the world? Absolutely not. Unfortunately, there are not enough pages in this text to adequately cover the laws affecting HRM in any given country. What we can do, however, is to highlight some of the differences and suggest that you need to know the laws and regulations that apply in your locale. To illustrate how laws and regulations shape HRM practices, we can highlight some primary legislation that influences HRM practices in China, Canada, India, Australia, and Germany. Central Station Casino in Colorado instituted an “English-Only” policy for their housekeeping department after a non-Spanishspeaking employee thought that other employees were talking about her in Spanish. The policy was defended as necessary for safety reasons. To enforce the policy, managers and non-Hispanic employees would shout “English, English!” at Hispanic employees when they encountered them in the halls of the hotel. Because of the embarrassment and distress this caused, the Hispanic employees filed a complaint with the Equal Employment Opportunity Commission. 100 The EEOC settled the Central Station Casino complaint with a settlement of $1.5 million awarded to the Hispanic employees. Central Station Casino was directed to inform all employees that there was no English-only policy and provide training to ensure that discrimination does not occur. Ethical questions: Should employers be permitted to require that only English be spoken in the workplace? Would it make a difference if it were a family-owned Chinese restaurant? What if it is necessary for successful performance or to prevent a safety or health hazard? Should the Supreme Court view this as a discriminatory practice, or render a decision that would create a single, nationwide standard on English-only? What do you think about this issue? English-Only Rules ETHICAL ISSUES IN HRM ( Source: T. Ozonas/Masterfile) 84 Chapter 3 Equal Employment Opportunity

China Equal Employment Laws in China resemble those in the U.S. in the 1950s. Applicants are commonly asked questions about age, height, weight, and parents’ employment. In some cases, applicants are even asked their blood type, based on theories that it indicates personal characteristics, similar to the way people believe astrological signs indicate personality. The China Employment Promotion Law allowing workers to file discrimination lawsuits against employers was passed in 2008, but progress has been slow. 104 Although China’s first law against sexual harassment of women in the workplace was passed in 2007, at least 20 percent of women workers in China say that they have been victims of sexual harassment. Less than half of