Memo of no more than 1,050 words

1. How are employment practices affected by the civil rights laws and Supreme Court interpretations of those laws?

2. What should be the components of an effective policy to prevent sexual harassment?

3. What obligations does the Family and Medical Leave Act impose on employers? What rights does it grant to employees?

4. When a company is in the process of downsizing, what strategies can it use to avoid complaints of age discrimination?

5. What should senior management do to ensure that job applicants or employees with disabilities receive “reasonable accommodation”?

Source: Adapted from Bland, T. S. (2000). Sealed without a kiss. HRMagazine, 45 (10), 85-92.

You flip through your mail at the office and run across an envelope with the dreaded return address of the federal Equal Employment Opportunity Commission (EEOC). As you slowly tear open the envelope, perspiration beads on your forehead. When you remove the contents you learn that it is exactly what you feared: a charge of discrimination. What should you do now?

The Charge

EEOC proceedings usually begin with a written charge of discrimination that employers receive in the mail. After you, as the employer, receive the charge, immediately assess its merits. To look for any procedural defects, ask the following four questions:

1. Was the charge filed within the time allowed? If your state has a fair employment agency, charges must be filed within 300 days of the last date on which the alleged discrimination occurred. If your state does not have a fair employment agency, charges must be filed within 180 days.

2. Does the charge name the proper employer (the company for which the charging party either worked or applied to work) as the respondent? If not, the charge may have been sent to the wrong company by accident. Also, if the employee making the charge is a temp, the charge might incorrectly name your company rather than the agency for which the temporary employee works.

3. Is your company subject to federal antidiscrimination statutes? The EEOC enforces four federal laws: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA). Only companies with 15 of more employee are subject to Title VII and the ADA. Only companies with 20 or more employees are subject to the ADEA. However, the EPA applies to virtually every private-sector employer and most public-sector employers.

After checking for procedural errors, investigate the factual allegations of the charge. Start by reviewing company records—such as the employment file of the person who filed the charge. If a job applicant filed the charge, review that person's application, résumé, the job advertisements, and any other relevant documents. Employment documents most often relevant to EEOC charges include records of production, discipline, attendance, and performance evaluations.

Next, review any company policies or guidelines relevant to the EEOC charge to ensure that the company followed them. Failure to do so, in the eyes of the EEOC, may be evidence that the company acted discriminatorily.

Finally, interview any persons who might have first-hand knowledge of the charge. Make it clear that you are merely engaging in a fact-finding investigation and that there will be no retaliation against those interviewed for providing unfavorable information about the company.

Preparing a Response

Once you have all of the facts relevant to the charge, you are ready to prepare a response. In most cases, you make one of three possible responses:

1. Agree to mediate the charge, if invited to do so by the EEOC.

2. Make a settlement offer to the charging party through the EEOC without participating in the formal mediation process.

3. Prepare a “position statement,” which sets forth the company's version of events, and file it with the EEOC.

Unless you choose one of the first two alternatives, the EEOC will require you to submit a written position statement explaining why your organization took the alleged adverse action against the person bringing the charge.

Your goal in preparing the position statement is to convince the EEOC that no discrimination occurred and that there is no cause to conduct an “onsite” investigation at the company's premises. Such a statement generally includes the following sections:

· A brief description of the company's business.

· A description of the position the charging party held with the company. If the charging party was an applicant, describe the position for which the individual applied.

· A description of any rules, policies, or procedures you believe are applicable to the charge. For example, if the charge involves sexual harassment, briefly describe your organization's antiharassment policy and attach a copy of it to the position statement.

· Next describe in chronological order the events that led to any adverse action taken against the charging party. Make it clear that the adverse action was based on legitimate, nondiscriminatory reasons. One way to do this is to show that the company took similar actions with comparable employees who are not members of a protected class.

As emphasized in a recent Supreme Court case, Reeves v. Sanderson Plumbing (197 F.3d 688), companies should always tell employees and the EEOC the truthful reason for any adverse action taken. Under the Reeves ruling, employers that fail to provide honest reasons for the adverse actions they take against employees will have a very difficult time getting their cases dismissed without a jury trial. In the conclusion to this case at the end of the chapter, we will learn what happens after the company files its position statement with the EEOC.

1. What factors might a company consider in deciding whether to accept mediation or to make a settlement offer to the charging party?

2. Why might the company try to avoid an “onsite” investigation?

3. Why might the company try to avoid a jury trial?

As a society, we espouse equality of opportunity, rather than equality of outcomes. That is, the broad goal is to provide for all Americans, regardless of race, age, gender, religion, national origin, or disability, an equal opportunity to compete for jobs for which they are qualified. The objective, therefore, is EEO (equal employment opportunity), not EE (equal employment, or equal numbers of employees from various subgroups).1 For Americans with disabilities, the nation's goals are to ensure equality of opportunity, full participation, independent living, and economic self-sufficiency.

The U.S. population, as well as its workforce, is a diverse lot. Even among native-born English speakers, at least 22 different dialects of English are spoken in the United States! Whenever the members of such heterogeneous groups must work together, the possibility of unfair discrimination exists. Civil rights laws have been passed at the federal and state levels to provide remedies for job applicants or employees who feel they have been victims of unfair discrimination. From a managerial perspective, it is important to understand the rights as well as the obligations of employers, job candidates, and employees. Indeed, understanding these laws and their management implications is critical for all managers, not just for HR professionals. As we will see, ignorance in this area can turn out to be very expensive. Let's begin by considering the meaning of EEO and the forms of unfair discrimination.

Civil rights laws, judicial interpretations of the laws, and the many sets of guidelines issued by state and federal regulatory agencies have outlawed discrimination based on race, religion, national origin, age, sex, and physical disability. In short, they have attempted to frame national policy on equal employment opportunity (EEO). Although no law has ever attempted to define precisely the term discrimination, in the employment context it can be viewed broadly as the giving of an unfair advantage (or disadvantage) to the members of a particular group in comparison with the members of other groups.2 The disadvantage usually results in a denial or restriction of employment opportunities or in an inequality in the terms or benefits of employment.

1. Evaluation of candidates for jobs in terms of characteristics that really do make a difference between success and failure (e.g., in selection, promotion, performance appraisal, or layoff).

2. Fair and equal treatment of employees on the job (e.g., equal pay for equal work, equal benefits, freedom from sexual harassment).

Despite federal and state laws on these issues, they represent the basis of an enormous volume of court cases, indicating that stereotypes and prejudices do not die quickly or easily. Discrimination is a subtle and complex phenomenon that may assume two broad forms:

1. Unequal (disparate) treatment is based on an intention to discriminate, including the intention to retaliate against a person who opposes discrimination, has brought charges, or has participated in an investigation or a hearing. There are three major subtheories of discrimination within the disparate treatment theory:

1. Cases that rely on direct evidence of the intention to discriminate. Such cases are proved with direct evidence of other pure bias based on an open expression of hatred, disrespect, or inequality, knowingly directed against members of a particular group; or blanket exclusionary policies, such as deliberate exclusion of an individual whose disability (an inability to walk) has nothing to do with the requirements of the job she is applying for (financial analyst).

2. Cases that are proved through circumstantial evidence of the intention to discriminate (see McDonnell Douglas v. Green test, p. xx), including those that rely on statistical evidence as a method of circumstantially proving the intention to discriminate systematically against classes of individuals.

3. Mixed-motive cases (a hybrid theory) that often rely on both direct evidence of the intention to discriminate on some impermissible basis (e.g., gender, race, disability) and proof that the employer's stated legitimate basis for its employment decision is actually just a pretext for illegal discrimination.

2. Adverse impact (unintentional) discrimination occurs when identical standards or procedures are applied to everyone, despite the fact that they lead to a substantial difference in employment outcomes (e.g., selection, promotion, layoffs) for the members of a particular group, and they are unrelated to success on a job. For example, use of a minimum height requirement of 5 feet 8 inches for police cadets would have an adverse impact on Asians, Hispanics, and women. The policy is neutral on its face but has an adverse impact. To use it, an employer would need to show that the height requirement is necessary to perform the job.

These two forms of illegal discrimination are illustrated graphically in Figure 3-1.

(Source: W. F. Cascio. (2000). Costing human resources: The financial impact of behavior in organizations [4th ed.], South-Western College Publishing, Cincinnati, OH, p. 63. Used with permission.)

1. Laws of broad scope that prohibit unfair discrimination.

2. Laws of limited application, for example, those that require nondiscrimination as a condition for receiving federal funds (contracts, grants, revenue-sharing entitlements).

The particular laws that we shall discuss within each category are the following:

The Thirteenth Amendment prohibits slavery and involuntary servitude. Any form of discrimination may be considered an incident of slavery or involuntary servitude and thus be liable to legal action under this amendment.3 The Fourteenth Amendment guarantees equal protection of the law for all citizens. Both the Thirteenth and Fourteenth Amendments granted to Congress the constitutional power to enact legislation to enforce their provisions. It is from this source of constitutional power that all subsequent civil rights legislation originates.

These laws were enacted on the basis of the provisions of the Thirteenth and Fourteenth Amendments. The Civil Rights Act of 1866 grants all citizens the right to make and enforce contracts for employment, and the Civil Rights Act of 1871 grants all citizens the right to sue in federal court if they feel they have been deprived of any rights or privileges guaranteed by the Constitution and other laws.

Until recently, both of these civil rights acts were viewed narrowly as tools for solving Reconstruction-era racial problems. This is no longer so. In Johnson v. Railway Express Agency Inc., the Supreme Court held that while the Civil Rights Act of 1866 on its face relates primarily to racial discrimination in the making and enforcement of contracts, it also provides a federal remedy against racial discrimination in private employment.4 It is a powerful remedy. The Civil Rights Act of 1991 amended the Civil Rights Act of 1866 so that workers are protected from intentional discrimination in all aspects of employment, not just hiring and promotion. Thus, racial harassment is covered by this civil rights law. The Civil Rights Act of 1866 allows for jury trials and for compensatory and punitive damages

Punitive damages are awarded in civil cases to punish or deter a defendant's conduct and are separate from compensatory damages, which are intended to reimburse a plaintiff for injuries or harm.

for victims of intentional racial and ethnic discrimination, and it covers both large and small employers, even those with fewer than 15 employees.

This act was passed as an amendment to an earlier compensation-related law, the Fair Labor Standards Act of 1938. For those employees covered by the Fair Labor Standards Act, the Equal Pay Act requires that men and women working for the same establishment be paid the same rate of pay for work that is substantially equal in skill, effort, responsibility, and working conditions. Pay differentials are legal and appropriate if they are based on seniority, merit, systems that measure the quality or quantity of work, or any factor other than sex (e.g., shift differentials, completion of a job-related training program). Moreover, in correcting any inequity under the Equal Pay Act, employers must raise the rate of lower-paid employees, not lower the rate of higher-paid employees.6

Thousands of equal-pay suits have been filed (predominantly by women) since the law was passed. The EEOC receives about 1,200 equal-pay complaints per year.7 For individual companies the price can be quite high. For example, in 1999 Texaco agreed to pay a record $3.1 million to female employees who consistently had been paid less than their male counterparts. That amount included $2.2 million in back pay and interest and $900,000 in salary increases.8

The Civil Rights Act of 1964 is divided into several sections, or titles, each dealing with a particular facet of discrimination (e.g., voting rights, public accommodations, public education). Title VII is most relevant to the employment context because it prohibits discrimination on the basis of race, color, religion, sex, or national origin in all aspects of employment (including apprenticeship programs). Title VII is the most important federal EEO law because it contains the broadest coverage, prohibitions, and remedies. Through it, the Equal Employment Opportunity Commission (EEOC) was created to ensure that employers, employment agencies, and labor organizations comply with Title VII.

Some may ask why we need such a law. As an expression of social policy, the law was passed to guarantee that people would be considered for jobs not on the basis of the color of their skin, their religion, their gender, or their national origin, but rather on the basis of the abilities and talents that are necessary to perform a job.

Finally, back-pay awards in Title VII cases are limited to two years prior to the filing of a charge. For example, if a woman filed a Title VII claim in 1998, and the matter continued through investigation, conciliation, trial, and appeal until 2003, she might be entitled to as much as seven years' back pay, from 1996 (two years prior to the filing of the charge) until the matter was resolved in her favor. The two-year statute of limitations begins with the filing of a charge of discrimination.

Elected officials and their appointees are excluded from Title VII coverage, but they are still subject to the Fourteenth Amendment, to the Civil Rights Acts of 1866 and 1871, and to the Civil Rights Act of 1991. The following are also specifically exempted from Title VII coverage:

1. Bona fide occupational qualifications (BFOQs). Discrimination is permissible when a prohibited factor (e.g., gender) is a bona fide occupational qualification for employment, that is, when it is considered “reasonably necessary to the operation of that particular business or enterprise.” The burden of proof rests with the employer to demonstrate this. (According to one HR director, the only legitimate BFOQs that she could think of are sperm donor and wet nurse!) Both the EEOC and the courts interpret BFOQs quite narrowly.10 Preferences of the employer, coworkers, or clients are irrelevant and do not constitute BFOQs. Moreover, BFOQ is not a viable defense to a Title VII race claim.

2. Seniority systems. Although there are a number of legal questions associated with their use, Title VII explicitly permits bona fide seniority, merit, or incentive systems “provided that such differences are not the result of an intention to discriminate.”

3. Preemployment inquiries. Inquiries regarding such matters as race, sex, or ethnic group are permissible as long as they can be shown to be job related. Even if not job related, some inquiries (e.g., regarding race or sex) are necessary to meet the reporting requirements of federal regulatory agencies. Applicants provide this information on a voluntary basis.

4. Testing. An employer may give or act upon any professionally developed ability test. If the results demonstrate adverse impact against a protected group, then the test itself must be shown to be job related (i.e., valid) for the position in question.

5. Preferential treatment. The Supreme Court has ruled that Title VII does not require the granting of preferential treatment to individuals or groups because of their race, sex, religion, or national origin on account of existing imbalances:

The burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race…. Title VII forbids him from having as a goal a work force selected by any proscribed discriminatory practice, but it does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees.11

6. National security. Discrimination is permitted under Title VII when it is deemed necessary to protect the national security (e.g., against members of groups whose avowed aim is to overthrow the U.S. government).

If someone decides to bring suit under Title VII, the first step is to establish a prima facie case of discrimination (i.e., a body of facts presumed to be true until proved otherwise). However, the nature of prima facie evidence differs depending on the type of case brought before the court. If an individual alleges that a particular employment practice had an adverse impact on all members of a class that he or she represents, prima facie evidence is presented when adverse impact is shown to exist. Usually this is demonstrated by showing that the selection rate for the group in question is less than 80 percent of the rate of the dominant group (e.g., white males) and that the difference is statistically significant. If the individual alleges that he or she was treated differently from others in the context of some employment practice (i.e., unequal treatment discrimination), a prima facie case is usually presented either through direct evidence of the intention to discriminate or by circumstantial evidence. The legal standard for circumstantial evidence is a four-part test first specified in the McDonnell Douglas v. Green case,12 wherein a plaintiff must be able to demonstrate that

1. She or he has asserted a basis protected by Title VII, the Age Discrimination in Employment Act, or the Americans with Disabilities Act.

2. She or he was somehow harmed or disadvantaged (e.g., by not receiving a job offer or a promotion).

4. Either a similarly situated individual (or a group other than that of the plaintiff) was treated more favorably than the plaintiff, or the matter complained of involved an actual (rather than a nonexistent) employment opportunity.

Once the court accepts prima facie evidence, the burden of producing evidence shifts back and forth from plaintiff (the complaining party) to defendant (the employer). First, the employer is given the opportunity to articulate a legitimate, nondiscriminatory reason for the practice in question. Following that, in an unequal treatment case, the burden then shifts back to the plaintiff to show that the employer's reason is a pretext for illegal discrimination. In an adverse impact case, the plaintiff's burden is to show that a less discriminatory alternative practice exists and that the employer failed to use it. A similar process is followed in age discrimination cases.

This act overturned six Supreme Court decisions issued in 1989. Following are some key provisions that are likely to have the greatest impact in the context of employment.

A major effect of this act is to expand the remedies in discrimination cases. Individuals who feel they are the victims of intentional discrimination based on race, gender (including sexual harassment), religion, or disability can ask for compensatory damages for pain and suffering, as well as for punitive damages, and they may demand a jury trial. In the past, only plaintiffs in age discrimination cases had the right to demand a jury.

Compensatory and punitive damages are available only from nonpublic employers (public employers are still subject to compensatory damages up to $300,000) and not for adverse impact (unintentional discrimination) cases. Moreover, they may not be awarded in an Americans with Disabilities Act (ADA) case when an employer has engaged in good-faith efforts to provide a reasonable accommodation. Thus, the 1991 Civil Rights Act provides the sanctions for violations of the ADA. The total amount of damages that can be awarded depends on the size of the employer's workforce:

The act clarifies each party's obligation in such cases. As we noted earlier, when an adverse impact charge is made, the plaintiff must identify a specific employment practice as the cause of discrimination. If the plaintiff is successful in demonstrating adverse impact, the burden of producing evidence shifts to the employer, who must prove that the challenged practice is “job-related for the position in question and consistent with business necessity.”

Protection from discrimination in employment, under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act, is extended to U.S. citizens employed in a foreign facility owned or controlled by a U.S. company. However, the employer does not have to comply with U.S. discrimination law if to do so would violate the law of the foreign country. To be covered under this provision, the U.S. citizen must be employed overseas by a firm controlled by an American employer.15

As we noted earlier, the act amended the Civil Rights Act of 1866 so that workers are protected from intentional discrimination in all aspects of employment, not just hiring and promotion.

Once a court order or consent decree is entered to resolve a lawsuit, nonparties to the original suit cannot challenge such enforcement actions.

In a mixed-motive case, an employment decision was based on a combination of job-related factors as well as unlawful factors, such as race, gender, religion, or disability. Under the Civil Rights Act of 1991, an employer is guilty of discrimination if it can be shown that a prohibited consideration was a motivating factor in a decision, even though other factors, which are lawful, also were used. However, if the employer can show that the same decision would have been reached even without the unlawful considerations, the court may not assess damages or require hiring, reinstatement, or promotion.

The act provides that a seniority system that intentionally discriminates against the members of a protected group can be challenged (within 180 days) at any of three points: (1) when the system is adopted, (2) when an individual becomes subject to the system, or (3) when a person is injured by the system.

The act extends protection from discrimination on the basis of race, color, religion, gender, national origin, age, and disability to employees of the U.S. Senate, political appointees of the president, and staff members employed by elected officials at the state level. Employees of the U.S. House of Representatives are covered by a House resolution adopted in 1988.

As amended in 1986, this act prohibits discrimination in pay, benefits, or continued employment for employees age 40 and over, unless an employer can demonstrate that age is a BFOQ for the job in question. Like Title VII, this law is administered by the EEOC. A key objective of the law is to prevent financially troubled companies from singling out older employees when there are cutbacks. In fact the Supreme Court has ruled that an employee over 40 is not required to show that a person under 40 replaced him or her in order to bring a claim of age discrimination.16 However, according to the EEOC, when there are cutbacks, older workers can waive their rights to sue under this law (e.g., in return for sweetened benefits for early retirement). Under the Older Workers Benefit Protection Act (OWBPA), an individual employee who does not have a pending claim has 21 days to consider such a waiver (45 days if terminated during a group reduction in force or if leaving voluntarily through a group incentive program), and 7 days after signing to revoke it.17 Even after signing a waiver, an employee can still sue for age discrimination if the employer did not comply with OWBPA requirements for obtaining a knowing and voluntary release.18

Increasingly, older workers are being asked to sign such waivers in exchange for enhanced retirement benefits.19 For example, at AT&T Communications Inc., employees who signed waivers received severance pay equal to 5 percent of current pay times the number of years of service. For those without waivers, the company offered a multiplier of 3 percent.

This law applies to every employer in the United States, even to those with only one employee. It also applies to every employee—whether full time, part time, temporary, or seasonal—and it makes the enforcement of national immigration policy the job of every employer. While its provisions are complex, the basic features of the law fall into four broad categories:20

2. Employers must verify the identity and work authorization of every new employee. Employers may not require any particular form of documentation but must examine documents provided by job applicants (e.g., U.S. passports for U.S. citizens; “green cards” for resident aliens) showing identity and work authorization. Both employer and employee then sign a form (I-9), attesting under penalty of perjury that the employee is lawfully eligible to work in the United States. Each year the Immigration and Naturalization Service audits more than 60,000 I-9 forms.21

3. Employers with 4 to 14 employees may not discriminate on the basis of citizenship or national origin. Those with 15 or more employees are already prohibited from national origin discrimination by Title VII. However, this prohibition is tempered by an exception that allows employers to select an applicant who is a U.S. citizen over an alien when the two applicants are equally qualified.

4. Certain illegal aliens have “amnesty” rights. Those who can prove that they resided in the United States continuously from January 1982 to November 6, 1986 (the date of the law's enactment), are eligible for temporary, and ultimately permanent, resident status.

Penalties for noncompliance are severe. For example, for failure to comply with the verification rules, fines range from $100 to $1000 for each employee whose identity and work authorization have not been verified. The act also provides for criminal sanctions for employers who engage in a pattern or practice of violations, and a 1996 executive order prohibits companies that knowingly hire illegal aliens from receiving federal contracts.22

Passed to protect the estimated 54 million Americans with disabilities,23 this law applies to all employers with 15 or more employees. People with disabilities are protected from discrimination in employment, transportation, and public accommodation. Title I of the ADA, the employment section, protects approximately 86 percent of the American workforce.24

As a general rule, the ADA prohibits an employer from discriminating against a “qualified individual with a disability.” A qualified individual is one who is able to perform the essential (i.e., primary) functions of a job with or without accommodation. Disability is a physical or mental impairment that substantially limits one or more major life activities, such as walking, talking, seeing, hearing, or learning. People are protected if they currently have an impairment, have a record of such impairment, or if the employer thinks they have an impairment (e.g., a person with diabetes under control).25 Rehabilitated drug and alcohol abusers are protected, but current drug abusers may be fired. The alcoholic, in contrast, is covered and must be reasonably accommodated by being given a firm choice to rehabilitate himself or herself or face career-threatening consequences.26 The law also protects people who have tested positive for the AIDS virus.27

1. Any factory, office, retail store, bank, hotel, or other building open to the public will have to be made accessible to those with physical disabilities (e.g., by installing ramps, elevators, telephones with amplifiers). “Expensive” will be no excuse, unless such modifications will lead an employer to suffer an “undue hardship.”

2. Employers must make “reasonable accommodations” for job applicants or employees with disabilities (e.g., by restructuring job and training programs, modifying work schedules, or purchasing new equipment that is “user friendly” to sight-or hearing-impaired people).32Qualified job applicants (i.e., individuals with disabilities who can perform the essential functions of a job with or without reasonable accommodation) must be considered for employment. Practices such as the following may facilitate the process:33

· Expressions of commitment by top management to accommodate workers with disabilities.

· Assignment of a specialist within the “EEO/Affirmative Action” section to focus on “equal access” for people with disabilities.

· Centralizing recruiting, intake, and monitoring of hiring decisions.

· Identifying jobs or task assignments where a specific disability is not a bar to employment.

· Developing an orientation process for workers with disabilities, supervisors, and coworkers.

· Publicizing successful accommodation experiences within the organization and among outside organizations.

· Providing in-service training to all employees and managers about the firm's “equal access” policy, and about how to distinguish “essential” from “marginal” job functions.

· Outreach recruitment to organizations that can refer job applicants with disabilities.

· Reevaluating accommodations on a regular basis.

3. Preemployment physicals will now be permissible only if all employees are subject to them, and they cannot be given until after a conditional offer of employment is made. That is, the employment offer is made conditional upon passing of the physical examination. Further, employers are not permitted to ask about past workers' compensation claims or disabilities in general. However, after describing essential job functions, an employer can ask whether the applicant can perform the job in question.34

4. Medical information on employees must be kept separate from other personal or work-related information about them.

5. Drug-testing rules remain intact. An employer can still prohibit the use of alcohol and illegal drugs at the workplace and continue to give alcohol and drug tests.

The Equal Employment Opportunity Commission (EEOC), the Department of Justice, and the Department of Transportation all have a hand in enforcing the ADA.35 In cases of intentional discrimination, the Supreme Court has ruled that individuals with disabilities may be awarded both compensatory and punitive damages up to $300,000 (depending on the size of the employer's workforce) if it can be shown that an employer engaged in discriminatory practices “with malice or with reckless indifference.”36

The FMLA covers all private-sector employers with 50 or more employees, including part timers, who work 1,250 hours over a 12-month period (an average of 25 hours per week). The law gives workers up to 12 weeks' unpaid leave each year for birth, adoption, or foster care of a child within a year of the child's arrival; care for a spouse, parent, or child with a serious health condition; or the employee's own serious health condition if it prevents him or her from working. The employer is responsible for designating an absence or leave as FMLA leave, on the basis of information provided by the employee.37 Employers can require workers to provide medical certification of such serious illnesses and can require a second medical opinion. Employers also can exempt from the FMLA key salaried employees who are among their highest-paid 10 percent. For leave takers, however, employers must maintain health insurance benefits and give the workers their previous jobs (or comparable positions) when their leaves are over.38 Enforcement provisions of the FMLA are administered by the U.S. Department of Labor.39 The overall impact of this law was softened considerably by the exemption of some of its fiercest opponents—companies with fewer than 50 employees, or 95 percent of all businesses.40

In its first 10 years of existence, the law has generally worked well, although legislation has been introduced to expand its scope and to allow compensatory time off instead of overtime pay for hours over 40 in a week. Many employers already offer more than the law requires. Fully 63 percent in one survey said they provide more flexibility for employees, and 57 percent said they offer job-protected leave for absences that are not covered under the law. Examples are paid leave, leave for parent-teacher conferences, and leave for employees with fewer than 12 months' service.41

This completes the discussion of “absolute prohibitions” against discrimination. The following sections discuss nondiscrimination as a basis for eligibility for federal funds.

In 1965, President Johnson issued Executive Order 11246, prohibiting discrimination on the basis of race, color, religion, or national origin as a condition of employment by federal agencies, contractors, and subcontractors with contracts of $10,000 or more. Those covered are required to establish and maintain a program of equal employment opportunity in every facility of 50 or more people. Such programs include employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, pay rates, and selection for training.

In 1967, Executive Order 11375 prohibited discrimination in employment based on sex. Executive Order 11478, issued by President Nixon in 1969, went even further, for it prohibited discrimination in employment based on all the previous factors, plus political affiliation, marital status, or physical disability.

Executive Order 11246 provides considerable enforcement power, administered by the Department of Labor through its Office of Federal Contract Compliance Programs (OFCCP). Upon a finding by the OFCCP of noncompliance with the order, the Department of Justice may be advised to institute criminal proceedings, and the secretary of labor may cancel or suspend current contracts as well as the right to bid on future contracts. Needless to say, noncompliance can be very expensive.

This act requires federal contractors (those receiving more than $2,500 in federal contracts annually) and subcontractors to actively recruit qualified people with disabilities and to use their talents to the fullest extent possible. The legal requirements are similar to those of the Americans with Disabilities Act.

The purpose of this act is to eliminate systemic discrimination, that is, any business practice that results in the denial of equal employment opportunity.42 Hence, the act emphasizes “screening in” applicants, not screening them out. It is enforced by the OFCCP.

Federal contractors and subcontractors are required under this act to take affirmative action to ensure equal employment opportunity for Vietnam-era veterans (August 5, 1964, to May 7, 1975). The OFCCP enforces it.

To be protected, the employee must provide advance notice. Employers need not always rehire a returning service member (e.g., if the employee received a dishonorable discharge or if changed circumstances at the workplace make reemployment impossible or unreasonable), but the burden of proof will almost always be on the employer. The Veterans Employment and Training Service of the U.S. Department of Labor administers this law.44

The Equal Employment Opportunity Commission is an independent regulatory agency whose five commissioners (one of whom is chairperson) are appointed by the president and confirmed by the Senate for terms of five years. No more than three of the commissioners may be from the same political party. Like the OFCCP, the EEOC sets policy and in individual cases determines whether there is “reasonable cause” to believe that unlawful discrimination has occurred. If the EEOC finds reasonable cause, it can sue either on its own behalf or on behalf of a claimant. As far as the employer is concerned, the simplest and least costly procedure is to establish a system to resolve complaints internally. However, if this system fails or if the employer does not make available an avenue for such complaints, an aggrieved individual (or group) can file a formal complaint with the EEOC. The process is shown graphically in Figure 3-3.

Once it receives a complaint of discrimination, the EEOC follows a three-step process: investigation, conciliation, and litigation.45 As Figure 3-3 indicates, complaints must be filed within 180 days of an alleged violation (300 days if the same basis of discrimination is prohibited by either state or local laws). If that requirement is satisfied, the EEOC immediately refers the complaint to a state agency charged with enforcement of fair employment laws (if one exists) for resolution within 60 days. If the complaint cannot be resolved within that time, the state agency can file suit in a state district court and appeal any decision to a state appellate court, the state supreme court, or the U.S. Supreme Court. As an alternative to filing suit, the state agency may re-defer to the EEOC. Again, the EEOC seeks voluntary reconciliation, where the EEOC may serve as mediator. If mediation fails, the EEOC may refer the case to the Justice Department (if the defendant is a public employer) or file suit in federal district court (if the defendant is a private employer). In 2003, for example, the EEOC filed 393 lawsuits against private employers, and recovered $149 million in monetary benefits for aggrieved individuals.46

(Source: Georgetown University Law Library.)

Contract compliance means that, in addition to quality, timeliness, and other requirements of federal contract work, contractors and subcontractors must meet EEO and affirmative action requirements. As we have seen, these requirements cover all aspects of employment.

Companies are willing to go to considerable lengths to avoid the loss of government contracts. More than 200,000 companies, employing 26 million workers and providing the government with more than $100 billion in construction, supplies, equipment, and services, are subject to contract compliance enforcement by the OFCCP.50 Contractors and subcontractors with more than $50,000 in government business and with 50 or more employees must prepare and implement written affirmative action plans.

In jobs where women and minorities are underrepresented in the workforce relative to their availability in the labor force, employers must establish goals and timetables for hiring and promotion. Theoretically, goals and timetables are distinguishable from rigid quotas in that they are flexible objectives that can be met in a realistic amount of time (Figure 3-5). Goals and timetables are not required under the Rehabilitation Act and Vietnam veterans law.

When a compliance review by the OFCCP does indicate problems that cannot be resolved easily, it tries to reach a conciliation agreement with the employer. Such an agreement might include back pay, seniority credit, special recruitment efforts, promotion, or other forms of relief for the victims of unlawful discrimination.

In three different cases, the Supreme Court found that Congress specifically endorsed the concept of non-victim-specific racial hiring goals to achieve compliance.52 Further, the Court noted the benefits of flexible affirmative action rather than rigid application of a color-blind policy that would deprive employers of flexibility in administering human resources. We will have more to say about this in a following section.

Although Congress enacts laws, the courts interpret the laws and determine how they will be enforced. Such interpretations define what is called case law, which serves as a precedent to guide future legal decisions. And, of course, precedents are regularly subject to reinterpretation.

In the area of employment, a considerable body of case law has accumulated since 1964. Figure 3-6 illustrates areas in which case law is developed most extensively. Lawsuits affecting virtually every aspect of employment have been filed, and in the following sections we will consider some of the most significant decisions to date.

Many employers are in similar positions. That is, they have not been proven guilty of past discrimination, but they have a significant underrepresentation of women or other protected groups in various job categories. This decision clearly put pressure on employers to institute voluntary affirmative action programs, but at the same time it also provided some welcome guidance on what they were permitted to do.

The Equal Employment Opportunity Commission's interpretive guidelines for the Pregnancy Discrimination Act of 1978, revised in 2002, state

A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy, childbirth, or related medical conditions is in prima facie violation of Title VII.54

Each year, the EEOC receives about 4,600 complaints related to pregnancy (about 6 percent of the complaints the commission receives). In 2003, however, 2,629 of them (54.2 percent) were found to have no reasonable cause, but among those that did, the commission recovered $12.4 million in monetary benefits for the complaining parties, excluding benefits recovered through litigation.55

Under the law, an employer is never required to give pregnant employees special treatment. If an organization provides no disability benefits or sick leave to other employees, it is not required to provide them for pregnant employees.56 While the actual length of maternity leave is now an issue to be determined by the woman's and/or the company's physician, a Supreme Court decision in California Federal Savings & Loan Association v. Guerra upheld a California law that provides for up to four months of unpaid leave for pregnancy disability.57

Economic pressures on employers may make legal action unnecessary in the future. Evidence now indicates that many employers are doing their best to accommodate pregnant women through flexible work scheduling and generous maternity leave policies.58 Given the number of women of childbearing age in the workforce and the fact that 85 percent of all women have children,59 combined with the tight labor markets that employers face, there really is no other choice.

One large survey of company practices found that new mothers typically spend one to three months at home following childbirth, that job guarantees for returning mothers were provided by 35 percent of the companies, and that employers of 501 to 1,000 employees are most likely to provide full pay.60

Another way sex discrimination may be perpetuated is by barring women from competing for jobs that pose occupational health hazards to their reproductive systems. In a landmark 1991 decision (UAW v. Johnson Controls Inc.) the Supreme Court ruled on this issue. It held that such “fetal protection” policies, which had been used by more than a dozen major companies, including General Motors, DuPont, Monsanto, Olin, Firestone, and B. F. Goodrich, are a form of illegal sex discrimination that is prohibited by Title VII. At issue was the policy of Johnson Controls Inc., a car battery manufacturer, that excluded women of childbearing age from jobs involving exposure to lead.61 The company argued that its policy was based on the BFOQ exception to Title VII, because it was essential to a safe workplace.

The Supreme Court disagreed, ruling that the BFOQ exception is a narrow one, limited to policies that are directly related to a worker's ability to do the job. “Women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job…. Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents,” said the Court.62

What are businesses to do? Clearly, they will have to provide more complete information to inform and warn female (and male) workers about fetal health risks on the job. They may also urge women to consult their physicians before starting such assignments. However, the Supreme Court noted that it would be difficult to sue a company for negligence after it abandoned its fetal protection policy if (1) the employer fully informs women of the risk and (2) it has not acted negligently.63 Mere exclusion of workers, both unions and managers agree, does not address chemicals remaining in the workplace to which other workers may be exposed. Nor are women more sensitive to reproductive hazards than men. Changing the workplace, rather than the workforce, is a more enlightened policy.

This is not really about sex. It's about power—more to the point, the abuse of power.64 In the vast majority of cases on this issue, females rather than males have suffered from sexual abuse at work. Such abuse may constitute illegal sex discrimination, a form of unequal treatment on the job. How prevalent is it? More than 13,500 complaints were filed with the EEOC in 2003,65 90 percent of Fortune 500 companies have dealt with sexual harassment complaints, and more than a third have been sued at least once. The cost? An average of $200,000 is spent on each complaint that is investigated in-house and found to be valid. In fact, one consulting firm estimates that the problem costs the average large corporation $6.7 million a year.66 It is perilous self-deception for a manager to believe that sexual harassment does not exist in his or her own organization.

ETHICAL DILEMMA Secret Taping of Supervisors: It May Be Legal, But Is It Ethical?

Employees who think a supervisor is out to get them have something new up their sleeves: hidden tape recorders. Secret tapings are on the rise, often by employees trying to protect their jobs, and aided by the availability of cheap, miniature recorders. Such taping, often done to support legal claims, outrages and exasperates employers. Defenders counter that secret recording sometimes is the only way to bring out the truth.

Federal law allows secret taping, as long as one of the people being recorded knows about it. At least a dozen states, including New York, have similar state laws. However, in about 14 other states, including California, the law requires that everyone being taped must know that he or she is being recorded.

Most companies confronted with a tape quickly settle out of court. In one case, for example, a pregnant saleswoman's coworkers told her outright that they would force her off the job by making life hard on her at work. The workers were afraid the pregnancy would stop the woman from racking up sales, and they all would lose a bonus as a result. Once the woman sued for pregnancy discrimination, the coworkers lied about threatening her. They said, “We were all happy for her—we gave her a big hug when we found out she was pregnant.” But the woman produced a secret tape she had made of the threats and won a $180,000 settlement.

What is a business to do? Issue a policy against covert recording. That way, employees who tape can be fired for breaking company rules. In states where secret taping is illegal, companies can turn the tables on employees by using the recordings against them. Employment lawyers also advise companies to hire experts to make sure the tapes are authentic and have not been edited. How about coworkers and managers? The cheapest and best protection of all is to avoid saying things you would be embarrassed to go into on a witness stand … or to see on the evening news.68

Actually, the “no frills” definition can be put into one word: “unwelcome.” According to the courts, for behavior to be treated as sexual harassment, the offender has to know that the behavior is unwelcome. If a person wants to file a grievance, therefore, it is important to be able to prove either that he or she told the perpetrator to back off or that the action was so offensive the harasser should have known it was unwelcome.

While many behaviors can constitute sexual harassment, there are two main types:

1. Quid pro quo (you give me this; I'll give you that).

2. Hostile work environment (an intimidating, hostile, or offensive atmosphere).

The U.S. Supreme Court has gone even further. In two key rulings in 1998, Burlington Industries Inc. v. Ellerth71 and Faragher v. City of Boca Raton,72 the Court held that employers always are potentially liable for a supervisor's sexual misconduct toward an employee, even if they knew nothing about that supervisor's conduct. However, in some cases an employer can defend itself by showing that it took reasonable steps to prevent harassment on the job.

Hostile environment harassment was defined by the Supreme Court in the case of Meritor Savings Bank v. Vinson.73 Vinson's boss had abused her verbally as well as sexually. However, because Vinson was making good career progress, the district court ruled that the relationship was a voluntary one having nothing to do with her continued employment or advancement. The Supreme Court disagreed, ruling that whether the relationship was “voluntary” is irrelevant. The key question was whether the sexual advances from the supervisor were “unwelcome.” If so, and if they are “sufficiently severe or pervasive to be abusive,”74 then they are illegal.

This case was groundbreaking because it expanded the definition of harassment to include verbal or physical conduct that creates an intimidating, hostile, or offensive work environment or interferes with an employee's job performance. Employers may also be liable for the harassing actions of nonemployees, such as customers, if they fail to take reasonable steps to stop the harassing behavior.75 As we noted earlier, the Civil Rights Act of 1991 permits victims of sexual harassment—who previously could be awarded only missed wages—to collect a wide range of punitive damages and attorney's fees from employers who mishandle a complaint.

In a 2004 case, Pennsylvania State Police v. Suders,76 the Supreme Court emphasized that an employer has no defense when a supervisor harasses an employee and an adverse employment action results. In hostile environment cases, however, the employer may avoid liability if it can prove that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the plaintiff failed to use any preventive or corrective methods provided by the employer. The key is to establish and follow a thorough antiharassment program in the workplace.77

What can an employer do to escape, or to at least limit, its liability for the sexually harassing acts of its managers or workers? An effective policy should include the following features:78

· A workable definition of sexual harassment that is publicized via staff meetings, bulletin boards, handbooks, and in new-employee orientation programs. It should also include concrete examples of inappropriate behaviors (e.g., derogatory comments, demeaning jokes, visual messages, nicknames that refer to a person's membership in any protected group).

· Create an effective complaint procedure that includes multiple ways to file complaints (supervisor, high-level manager, senior manager, HR representative, or hotline), because the more choices employees have, the less reasonable will be their failure to complain. Every employee must sign a written acknowledgement of receipt of the policy.

· A clear statement of sanctions for violators and protection for those who make charges.

· Prompt, confidential investigation of every claim of harassment, no matter how trivial.

· Preservation of all investigative information, with records of all such complaints kept in a central location.

· Regular training of all managers and supervisors, including top managers, to model appropriate behavior and to recognize and respond to complaints. Give them written materials that outline their responsibilities and obligations when a complaint is made. Each person needs to sign a written acknowledgement of his or her participation in the training.

· Follow-up to determine if harassment has stopped.79

The Equal Employment Opportunity Commission's guidelines on age discrimination emphasize that in order to defend an adverse employment action against employees age 40 and over, an employer must be able to demonstrate a “business necessity” for doing so. That is, it must be able to show that age is a factor directly related to the safe, efficient operation of a business. To establish a prima facie case of age discrimination with respect to termination, for example, an individual must show that80

1. She or he is within the protected age group (40 years of age and over).

2. She or he is doing satisfactory work.

3. She or he was discharged despite satisfactory work performance.

4. The position was filled by a person younger than the person replaced.

For example, an employee named Schwager had worked for Sun Oil Ltd. for 18 years, and his retirement benefits were to be vested (i.e., not contingent on future service) at 20 years. When the company reorganized and had to reduce the size of its workforce, the average age of those retained was 35 years, while the average age of those terminated was 45.7 years. The company was able to demonstrate, however, that economic considerations prompted the reorganization and that factors other than age were considered in Schwager's termination. The local manager had to let one person go, and he chose Schwager because he ranked lowest in overall job performance among salespeople in his district and did not measure up to their standards. Job performance, not age, was the reason for Schwager's termination. Employers can still fire unproductive workers, but the key is to base employment decisions on ability, not on age.81

LEGALITIES: “ENGLISH-ONLY” RULES—NATIONAL ORIGIN DISCRIMINATION?

Rules that require employees to speak only English in the workplace have come under fire in recent years. Employees who speak a language other than English claim that such rules are not related to the ability to do a job and have a harsh impact on them because of their national origin. The EEOC and many courts agree that blanket English-only rules that lack business justification amount to unlawful national origin discrimination.83

Employers should be careful when instituting such a rule. While it is not necessarily illegal to make fluency in English a job requirement, or to discipline an employee for violating an English-only rule, employers must be able to show there is a legitimate business need for it. For example, it's a safety issue when medical workers or firefighters do not understand or cannot make themselves understood.84 Avoid requiring the use of English at all times and in all areas of the workplace. Inform employees in advance of the circumstances where speaking only in English is required and of the consequences of violating the rule. (Conversely, many employers would be delighted to have a worker who can speak the language of a non-English-speaking customer.) Otherwise, the employer may be subject to discrimination complaints on the basis of national origin.85

Employers sometimes hesitate to hire an individual who has a great deal of experience for a job that requires few qualifications and may be only an entry-level job. They assume that an overqualified individual will be bored in such a job or is using the job only to get a foot in the door so he or she can apply for another job at a later time. Beware of violating the Age Discrimination in Employment Act! An appeals court has ruled that rejection of an older worker because he or she is overqualified may be a pretext to mask the real reason for rejection—the employee's age. In the words of the court: “How can a person overqualified by experience and training be turned down for a position given to a younger person deemed better qualified?”86

“Seniority” is a term that connotes length of employment. A seniority system is a scheme that, alone or in tandem with “nonseniority” criteria, allots to employees ever-improving employment rights and benefits as their relative lengths of pertinent employment increase.87

The U.S. Supreme Court has been quite clear in its rulings on this issue in two landmark decisions: Firefighters Local Union No. 1784 v. Stotts89 (decided under Title VII) and Wygant v. Jackson Board of Education90 (decided under the equal protection clause of the Fourteenth Amendment). The Court ruled that an employer may not protect the jobs of recently hired African-American employees at the expense of whites who have more seniority.91

Voluntary modifications of seniority policies for affirmative action purposes remain proper, but where a collective bargaining agreement exists, the consent of the union is required. Moreover, in the unionized setting, courts have made it clear that the union must be a party to any decree that modifies a bona fide seniority system.92

Title VII clearly sanctions the use of “professionally developed” ability tests. Nevertheless, it took several landmark Supreme Court cases to clarify the proper role and use of tests. The first was Griggs v. Duke Power Co., the most significant EEO case ever, which was decided in favor of Griggs.93 Duke Power was prohibited from requiring a high school education or the passing of an intelligence test as a condition of employment or job transfer because it could not show that either standard was significantly related to job performance:

What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance…. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.94

The ruling also included four other general principles:

1. The law prohibits not only open and deliberate discrimination but also practices that are fair in form but discriminatory in operation. That is, Title VII prohibits practices having an adverse impact on protected groups, unless they are job related. This is a landmark pronouncement because it officially established adverse impact as a category of illegal discrimination.

For example, suppose an organization wants to use prior arrests as a basis for selection. In theory, arrests are a “neutral” practice because all persons are equally subject to arrest if they violate the law. However, if arrests cannot be shown to be job related, and, in addition, if a significantly higher proportion of African Americans than whites is arrested, the use of arrests as a basis for selection is discriminatory in operation.

3. It is not necessary for the plaintiff to prove that the discrimination was intentional; intent is irrelevant. If the standards result in discrimination, they are unlawful.

4. Job-related tests and other employment selection procedures are legal and useful.

The confidentiality of individual test scores has also been addressed both by the profession95 and by the courts. Thus, the Supreme Court affirmed the right of the Detroit Edison Company to refuse to hand over to a labor union copies of aptitude tests taken by job applicants and to refuse to disclose individual test scores without the written consent of employees.96

As is well known, interviews are commonly used as bases for employment decisions to hire or to promote certain candidates in preference to others. Must such “subjective” assessment procedures satisfy the same standards of job relatedness as more “objective” procedures, such as written tests? If they produce an adverse impact against a protected group, the answer is yes, according to the Supreme Court in Watson v. Fort Worth Bank & Trust.97

As in its Griggs ruling, the Court held that it is not necessary for the plaintiff to prove that the discrimination was intentional. If the interview ratings result in adverse impact, they are presumed to be unlawful, unless the employer can show some relationship between the content of the ratings and the requirements of a given job. This need not involve a formal validation study, although the Court agreed unanimously that it is possible to conduct such studies when subjective assessment devices are used.98 The lesson for employers? Be sure that there is a legitimate, job-related reason for every question raised in an employment or promotional interview. Limit questioning to “need to know,” rather than “nice to know,” information, and monitor interview outcomes for adverse impact. Validate this selection method. It is unwise to wait until the selection system is challenged.

Frequently, job qualification requirements involve personal background information. If the requirements have the effect of denying or restricting equal employment opportunity, they may violate Title VII. For example, in the Griggs v. Duke Power Co. case, a purportedly neutral practice (the high school education requirement that excluded a higher proportion of African Americans than whites from employment) was ruled unlawful because it had not been shown to be related to job performance. Other allegedly neutral practices that have been struck down by the courts on the basis of nonjob relevance include

· Recruitment practices based on present employee referrals, where the work-force is nearly all white to begin with.99

· Height and weight requirements.100

· Conviction records, unless the conviction is directly related to the work to be performed (e.g., a person convicted of embezzlement applying for a job as a bank teller).103

Despite such decisions, personal history items are not unlawfully discriminatory per se, but to use them you must show that they are relevant to the job in question. Just as with employment interviews, collect this information on a “need to know,” not on a “nice to know,” basis.

In an ideal world, selection and promotion decisions would be color blind. Thus, social policy as embodied in Title VII emphasizes that so-called reverse discrimination (discrimination against whites and in favor of members of protected groups) is just as unacceptable as is discrimination by whites against members of protected groups.104 Indeed, this riddle has perplexed courts and the public since the dawn of affirmative action 40 years ago: How do you make things fair for oppressed groups while continuing to treat people as equal individuals?105 Court cases, together with the Civil Rights Act of 1991, have clarified a number of issues in this area:

These people are protesting the passage of an anti-affirmative action law.

2. The plans need not be directed solely to identified victims of discrimination but may include general, classwide relief.

3. While the courts will almost never approve a plan that would result in white people losing their jobs through layoffs, they may sanction plans that impose limited burdens on whites in hiring and promotions (i.e., plans that postpone hiring and promotion).

What about numerically based preferential programs? The U.S. Supreme Court issued two landmark rulings in 2003 that clarified this issue. Both cases represented challenges to admissions policies at the University of Michigan, one involving undergraduate admissions (Gratz v. Bollinger) and one involving law-school admissions (Grutter v. Bollinger).106 The undergraduate admissions policy was struck down because it was too mechanistic. It awarded 20 points (of the 150 needed for admission; eight points more than is earned for a perfect SAT score) to any member of an officially recognized minority group. Such a disguised quota system denied other applicants the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution, and thus it was ruled illegal.

However, the Court also was mindful of arguments from leading businesses, educational institutions, and former military officials that a culturally diverse, well-educated workforce is vital to the competitiveness of the U.S. economy and that an integrated officer corps produced by diverse military academies and ROTC programs is vital to national security. The Court upheld the law school's approach to enrolling a “critical mass” of African Americans, Latinos, and Native Americans, under which the school considers each applicant individually and sets no explicit quota. To be consistent with the constitutional guarantee of equal treatment for all under the law, race-conscious admissions must be limited in time. Thus, the Court noted, “We expect that 25 years from now the use of racial preferences will no longer be necessary.”

The Court emphasized that diversity is a “compelling state interest” but that universities may not use quotas for members of racial or ethnic groups or put them on separate admissions tracks. The law school's admissions policy satisfied these principles by ensuring that applicants are evaluated individually. Under that approach, the Court noted, a nonminority student with a particularly interesting contribution to make to the law school's academic climate may sometimes be preferred over a minority student with better grades and test scores.

The net effect of the two rulings is to permit public and private universities to continue to use race as a “plus factor” in evaluating potential students—provided they take sufficient care to evaluate individually each applicant's ability to contribute to a diverse student body.107 The Court made clear that its rationale for considering race was not to compensate for past discrimination, but to obtain educational benefits from a diverse student body. A year after the ruling, applications from African-American applicants dropped sharply, as schools struggled to battle the perception that affirmative action had been killed.108 Corporate hiring policies also will have to reflect the Court's double message: Diversity efforts are acceptable, but quotas aren't.109

There are both direct and indirect costs associated with unlawful discrimination. For example, sexual harassment can create high levels of stress and anxiety for both the victim and the perpetrator. These psychological reactions can lead to outcomes that increase labor costs for employers. Job performance may suffer, and absenteeism, sick leave, and turnover may increase. Both internal discrimination against present employees and external discrimination against job applicants can lead to costly lawsuits. Litigation is a time-consuming, expensive exercise that no organization wants.110 Yet organizations have been hit with lawsuits affecting virtually every aspect of the employment relationship, and many well-publicized awards to victims have reached millions of dollars.

Let's not view the legal and social aspects of the HR management process exclusively in negative terms. Most of the present civil rights laws and regulations were enacted as a result of gross violations of individual rights. In most instances, the flip side of unlawful discrimination is good HR practice. For example, it is good practice to use properly developed and validated employment selection procedures and performance appraisal systems. It is good HR practice to treat people as individuals and not to rely on stereotyped group membership characteristics (e.g., stereotypes about women, ethnic groups, older workers, workers with disabilities). Finally, it just makes good sense to pay people equally, regardless of gender, if they are equally qualified and are doing the same work. These kinds of HR practices can enhance productivity, provide a richer quality of work life, and contribute directly to the overall profitability of any enterprise.

Human Resource Management in Action: Conclusion

Generally the EEOC may choose any of the following courses of action:

· Make a determination without requesting additional information from the company.

· Request additional documentation or other written information from the company.

· Hold a fact-finding conference, usually during an investigation on the company's premises.

Of course if the EEOC request is burdensome, or if it involves trade secrets that you believe are irrelevant to the charge, you can try to convince the EEOC investigator to narrow the scope of the request. Occasionally, despite your best efforts, the EEOC may decide that it is necessary to perform an onsite investigation. If this happens, keep several things in mind:

1. Negotiate a mutually agreeable date and time for the inspection. The EEOC is a government agency. It does not have an unfettered right to enter your property and can do so only with your permission or with a warrant. Use this fact as leverage to negotiate a favorable time for the investigation.

2. Ask the investigator to describe the goals of the investigation, who is to be interviewed, and the job or work areas he or she wishes to observe. Then limit the scope of the investigation to what the investigator has indicated.

3. Before the onsite investigation begins, look over the list of employees the EEOC wishes to contact. If there is anyone on the list that you have not interviewed, do so now. Emphasize that you are not trying to influence their testimony, that they should tell the truth, and that there will be no retaliation for anything they tell to the EEOC.

4. Designate a company representative who will attend all EEOC interviews of managerial employees. Note, however, that the company representative does not have the right to attend interviews between the EEOC and nonmanagerial employees.

If the charging party does not interrupt the investigation process by asking the EEOC to issue a right-to-sue notice that allows the charging party to file suit in court, then the EEOC will continue until it reaches a decision on the charge. If the decision is in favor of the employer, the agency will issue a “no cause” finding, and the matter stops at the EEOC. However, the charging party retains the right to file a discrimination claim in court within 90 days.

If the decision is in favor of the employee, the agency will issue a “cause” finding, and the EEOC will invite the company to engage in a conciliation process. Essentially the EEOC will try to help the parties reach a mutually agreeable settlement. If both parties agree to all terms, the matter is settled, and no lawsuit may be filed except to enforce the settlement agreement, if necessary.

If the conciliation fails, the EEOC will issue the charging party a right-tosue notice that permits the individual to file a suit in court, or the EEOC itself will file suit against the employer.

· Thirteenth and Fourteenth Amendments to the U.S. Constitution.

· Civil Rights Acts of 1866 and 1871.

· Equal Pay Act of 1963.

· Title VII of the Civil Rights Act of 1964.

· Age Discrimination in Employment Act of 1967 (as amended in 1986).

· Immigration Reform and Control Act of 1986.

· Americans with Disabilities Act of 1990.

· Civil Rights Act of 1991.

· Family and Medical Leave Act of 1993.

· Executive Orders 11246, 11375, and 11478.

· Rehabilitation Act of 1973.

· The Vietnam Era Veterans Readjustment Act of 1974.

· Uniformed Services Employment and Reemployment Rights Act of 1994.

The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) are the two major federal regulatory agencies charged with enforcing these nondiscrimination laws. The EEOC is responsible both for private and public nonfederal employers, unions, and employment agencies. The OFCCP is responsible for ensuring compliance from government contractors and subcontractors.

IMPLICATIONS FOR MANAGEMENT PRACTICE

A manager can easily feel swamped by the maze of laws, court rulings, and regulatory agency pronouncements that organizations must navigate through. While it is true that in the foreseeable future there will continue to be legal pressure to avoid unlawful discrimination, as we saw in Chapter 1, there will be great economic pressure to find and retain top talent. Workforce diversity is a competitive necessity, and employers know it. Progressive managers recognize that now is the time to begin developing the kinds of corporate policies and interpersonal skills that will enable them to operate effectively in multi-cultural work environments.

A considerable body of case law has developed, affecting almost all aspects of the employment relationship. We discussed case law in the following areas:

· Sex discrimination, sexual harassment, reproductive hazards, and pregnancy.

· Age discrimination.

· National origin discrimination.

· Testing and interviewing.

· Personal history (specifically, preemployment inquiries).

· Preferential selection.

The bottom line in all these cases is that, as managers, we need to be very clear about job requirements and performance standards, we need to treat people as individuals, and we must evaluate each individual fairly relative to job requirements and performance standards.

· equal employment opportunity

· discrimination

· unequal treatment

· direct evidence

· circumstantial evidence

· mixed-motive cases

· adverse impact discrimination

· affirmative action

· bona fide occupational qualifications

· race-norming

· essential functions

· disability

· qualified job applicant

· systemic discrimination

· contract compliance

· case law

· sexual harassment

· quid pro quo harassment

· hostile environment harassment

· seniority system

· reverse discrimination

Erin Dempsey was working late trying to finish the analysis of the ticket report for her boss, Ron Hanson. The deadline was tomorrow, and she still had several hours of work to do before the analysis would be finished. Erin did not particularly enjoy working late, but she knew Ron would be expecting the report first thing in the morning. She had been working very hard recently, hoping that she would earn a promotion to senior travel agent at the large urban travel agency where she was employed. Getting the ticket report done on time would be absolutely essential for any promotion opportunities.

“I'm working very hard on the ticket report tonight Matt, and I really could use a bit of privacy.” Erin had sensed before that Matt was a pest, and she hoped that by being rather direct with him he would leave her alone.

“A cute chick like you shouldn't waste a perfectly good Wednesday evening working late.”

“Please, Matt, I've got work to do.” “Oh come on, Erin. I've noticed the way you act when you walk by my office or when we pass in the halls. It's clear that you're dying to go out with me. Some things a guy can just sense. This is your big chance. I'll tell you what. Let's go to dinner at that new intimate French restaurant up on the hill. Afterwards we can stop by my place for some music, a fire in the fireplace, and a nightcap. I make a great Black Russian. What do you say?”

Erin was furious. “I say you're an egotistical, self-centered, obnoxious, dirty old man. If you don't get out of here right now, I'm going to call Ron Hanson at home and tell him that you're keeping me from finishing the ticket report.”

“Oh my, you're even sexier when you're angry. I like that in a woman.”

Erin could see that she was getting nowhere fast with this approach, so she decided to leave the room in hopes that Matt would get the hint and go home. As she stormed through the door, Matt mockingly held the door ajar, said “After you, sweet thing,” and then patted Erin on the backside as she passed. Erin stopped in her tracks, turned to Matt, and said, “If you ever do that again, I'll …” She was so mad that she couldn't think of an appropriate threat. So instead she just stormed off down the hall and left the building.

The next morning, Erin was waiting in the office of Daryl Kolendich, the owner of the travel agency, when he arrived at work. Erin knew that Ron Hanson would probably be angry that she had gone over his head to the agency owner, but she was so furious with Matt Owens that she wanted immediate action. She described the incident to Daryl and demanded that some sort of disciplinary action be taken with Matt.

“Now calm down, Erin. Let's think through this problem a bit first. Isn't it possible that you can handle this sort of problem yourself? Is it possible that you may in fact have been encouraging Matt to act this way? Look, I understand that you're upset. I would be too, if I were in your shoes. But look at it this way. We've been hiring male travel agents for only the last few years now. Prior to that time there were only female agents, so problems like these never arose. Matt is from an older generation than yours. It takes time for men like him to get used to working on an equal basis with women. Can't you just try to make sure over the next few weeks that you give him no encouragement at all? If you do, I'm sure this problem will take care of itself.”

Erin was not at all convinced. “But I did make it very clear I was not interested in him. It seemed to make him even more persistent. You're the owner and the boss here, and I'll do what you ask, but it seems to me that it's your responsibility to make sure this kind of sexual harassment doesn't take place in this agency.”

“Erin, has your supervisor Ron Hanson ever suggested that your job opportunities here would be improved if you went out with him? Have I ever in any way intimated that a date with me could lead to a promotion for you?”

Erin was silent. It was true that none of the management staff at the agency had been guilty of sexual harassment. In fact, both Ron and Daryl had been highly supportive of her work ever since she arrived. Her annual pay raises had been higher than those of most other coworkers, both male and female.

Daryl broke the silence. “I guess my point is that we don't have a sexual harassment situation here. Please try what I've suggested and let me know in a couple of weeks if you feel it hasn't worked.”

Questions

2. If you were Erin Dempsey, what would you do?

3. What is an organization's responsibility with respect to sexual harassment among coworkers or supervisor-subordinate pairs? Do you think that Daryl Kolendich responded appropriately to the problem?

4. Outline a brief personnel policy that an organization could adopt to protect itself from sexual harassment lawsuits.