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human_resourse_management_chapter_3.pdf
Robert L. Mathis I John H. Jackson I Sean R. Valentine
Book reference
Mathis, R. L., Jackson, J. H., & Valentine, S. R. (2014). Human resource management (14th
ed.). Stamford, CT: Cengage Learning.
70
Equal Employment Opportunity
Learning Objectives
After you have read this chapter, you should be able to:
1 Identify the major government agencies that enforce employment discrimination laws.
2 Outline key provisions in the Civil Rights Acts of 1964 and 1991 and compare the two theories of unlawfu l employment discrimination.
3 Show how women are affected by pay, job assignments, and career issues.
4 Distinguish between the two types of sexual harassment and explain how employers can prevent its occurrence.
5 List key elements of disability discrimination laws.
6 Discuss the legal protections to prevent bias and discrimination based on age, religion, national origin, and other factors.
.HEADLINE
Discrimination at Wai-Mart
W ai-Mart continues to struggle against claims of discrimination from its female workforce. More than 1.5 million women joined to fight the retail
giant in a class action lawsuit. They claimed that
they were repeatedly passed over for pro-
motions and pay increases in favor of male
candidates. Using statistical evidence and
anecdotal claims about the corporate culture,
they argued that Wai-Mart has a pattern of
discriminating against women in employment
decisions.
This was one of the largest cases of discrimination brought against a U.S.
employer, which may have been the reason for the extensive media coverage.
The U.S. Supreme Court justices ruled that the class, with over 1 million work-
ers, was simply too large because the plaintiffs could not show that each woman was discriminated against in the same way. The Court reasoned that
there was a lack of commonality in this case and that any ruling they might
make in favor of the plaintiffs, the women, would not universally solve the
problem. Wai-Mart grants broad discretion to its local supervisors regarding
decisions on promotions and raises. Since that is their policy it would be diffi-
cult to prove that there was systematic discrimination across the entire
organization.
The women involved in the lawsuit, however, are not giving up. They are
dividing themselves into smaller groups and filing suits in state courts in
California, Texas, and other regions. Their hope is that they can show a pattern
of sex discrimination within a smal ler region . Faced with the potential for so
many future lawsuits, will Wai -Mart revise this local discretion policy in the
futu re? 1
71
72 SECTION 1
government agencies that enforce employment discrimination laws.
Protected characteristic An attribute about an individual that is pro- tected under EEO laws and regulations.
Equal employment opportunity Emp loyment that is not affected by illegal dis- crimination.
Status blind A concept that empha- sizes that differences among people should be ignored and everyone should be treated equa lly.
The Environment of Human Resource Management
Basing employment decisions on factors other than worker qualifications is gener- ally illegal in the United States. The costs of litigation, penalties, and harm to the company's reputation can be substantial when violations occur. With the enactment of the Civil Rights Act of 1964 (Title VII), workers in the United States were pro- vided a more level playing field in terms of employment opportunities. Since then, a number of additional laws and Executive Orders have been implemented to pro- hibit illegal discrimination in the workplace. While the Civil Rights Act stands as the foundation of equal employment laws, it is by no means the only regulation affecting the employer-employee relationship.
Employers have paid (and continue to pay) large amounts for violating EEO laws. This chapter provides an introduction to nondiscrimination requirements and explains how to successfully manage workforce diversity. To provide context, Appendix C lists the major laws governing workplace nondiscrimination.
3-1 • NATURE OF EQUAL EMPLOYMENT OPPORTUNITY
Civil rights activists in the United States used nonviolent means to protest unequal treatment during the turbulent 1950s, which led to the passage of important non- discrimination laws and guaranteed an equal opportunity for employment to all. 2
Equal employment opportunity (EEO) means that employment decisions must be made on the basis of job requirements and worker qualifications. Unlawful dis- crimination occurs when those decisions are made on the basis of protected characteristics such as the race, age, sex, disability, or religion of the worker. Under federal, state, and local laws employers are prohibited from considering the following factors in making hiring and other employment decisions:
• Age • Color • Disability • Genetic information • Marital status (some states) • Military status or experience • National origin • Pregnancy • Race • Religion • Sexual orientation (some states and cities)
These categories are considered protected characteristics under EEO laws and regulations. All workers are provided equal protection; the laws do not favor some groups over others. For example, both men and women can file charges on the basis of alleged sex discrimination.
Equal employment opportunity is a broad-reaching concept that essentially requires employers to make status-blind employment decisions. Status blind decisions are made without regard to applicants' personal characteristics (i.e., age, sex, race, and so on). Most employers are required to comply with equal employment opportu- nity laws. Affirmative action means that an employer takes proactive measures to increase the number of women and minorities in the workforce. The objective of affirmative action plans is to compensate for past patterns of discrimination. Federal contractors are required to implement and maintain affirmative action plans. 3
CHAPTER 3 Equal Employm e nt Opportunity 73
::Jisparate treatment :::CCu rs when members of = gro up are treated dif- ::·ently from others.
3-1 a Sources of Regulation and Enforcement The employment relationship is governed by a wide variety of regulations. All three branches of government have played a role in shaping these laws. Federal statutes enacted by Congress form the backbone of the regulatory environment. State and city governments also enact laws governing activity within their domains . The courts interpret these laws and rule on cases. Case law helps employers to under- stand how laws are applied and what they must do to comply. Executive Orders are issued by the president of the United States to help government departments and agencies manage their operations.
Government agencies responsible for enforcing laws issue guidelines and rules to provide details on how the law will be implemented. Employers then use these guidelines to meet their obligations in complying with the laws.
The two main enforcement bodies for EEO are the Equal Employment Oppor- tunity Commission (EEOC) and the U.S. Department of Labor (DOL) (in particu- lar, the Office of Federal Contract Compliance Programs [OFCCP]). The EEOC enforces employment laws for employers in both private and public workplaces. The DOL has broad enforcement power and oversees compliance with many employment-related laws. The OFCCP enforces employment requirements set out by Executive Orders for federal contractors and subcontractors. Many states have enforcement agencies to insure compliance with state employment laws . Compli- ance can become complex for companies that operate in multiple states.
Multinational companies face a confusing array of nondiscrimination laws in different countries. Many nations in Europe, for example, have laws similar to those in the United States regarding employment discrimination, whereas nations in Asia and other developing economies are less restrictive about workplace practices. 4 Organization leaders determine the best approach to manage their inter- national operations electing to either use the highest standards in all nations or comply with each nation's specific regulations.
Discrimination remains a concern as the U.S. workforce becomes more diverse. Charges filed with the EEOC continue to rise, as shown in Figure 3-1.5 Over the past 15 years, the total number of charges has increased nearly 24%. While race and sex have historically represented the highest percentages of complaints, in recent years, charges of retaliation have become the most common. Historically, the EEOC has found "no reasonable cause" in about two thirds of those claims. The remaining one third are settled, withdrawn, or pursued by the EEOC. The EEOC has also been held accountable for filing lawsuits against employers without properly investigating charges and has been forced to reimburse the employers' legal costs. 6
3-2 • THEORIES OF UNLAWFUL DISCRIMINATION
There are two types of unlawful employment discrimination: disparate treatment and disparate impact. 7 The first type, disparate treatment, occurs when either differ- ent standards are used to judge individuals or the same standard is used but it is not related to the individuals' jobs. Disparate treatment occurs when individuals with a particular characteristic are treated differently from others. This type of discrimina- tion is typically overt and intentional and often follows a pattern or practice. For example, if female applicants are asked interview questions regarding child-care plans while male applicants are not, then disparate treatment may be occurring.
74 SECTION 1
Disparate impact Occurs when members of a protected category are substantially underrepre- sented as a resu It of employment decisions that work to their disadvantage.
The Environment of Human Resource Management
FIGURE 3 - 1 Charges Filed with EEOC: 1997, 2011
. " Cla·i~s Fil~/1 ~97 , ~ :-N~~be~: perj~Ot?ge -" . ~ : <·+..:.ti;:. ;;~ . ~~ :- .t,:.,
Race 29,199 35,395
36% 35% I'
Sex 24,728 28,534 I'
31 % 29% li
National Origin 6,712 11,833 It·
8% 12% I, Religion 1,709 4,151 [':
2% 4% ~' r·
Color 762 2,832 1% 3% II
Retaliation 18,198 37,334 I
23 % 37% li' Ft
Ag e 15,785 23,465 ~ · 20% 24%
Disability 18,108 25,742 1:
22% 26% ~~
Equal Pay Act 1,134 919 [.'i 1% 0.9%
Genetic Information Not in force 245 ~ - Nondiscrimination 0.2% Act
Total 80,680 99,947 f; '
.::_ ···~· - _ ... , . - - .. ~ .··~~~~ ~~"'-:
N ote: Total exceed 100% becau se of mul tipl e c harges fil ed by an indi v idual claim ant.
Source : U .S. Equal Employment Opportunity Commi ssion, http://www. eeoc.gov/eeoc/stati stic s/enforce ment!charges.cfm.
The Ricci v . DeStefano (2009) case of white firefighters in New Haven, CT, being denied promotion opportunities because of their race demonstrates disparate treatment. A promotion examination administered to eligible firefighter s resulted in lower pass rates for black candidates. Fearing a backlash from the black candidates, the city elected to promote no one at all. White firefighters then successfully argued that the decision was based on their race, which was unlawful discrimination. 8
The second type of illegal discrimination, disparate impact, occurs when an employment practice that does not appear to be discriminatory has a disproportion- ally adverse impact on individuals with a particular characteristic. This type of dis- crimination is often unintentional because identical criteria are used but the results differ for certain groups. For ex ample, using a test fo r firefighters that requires can- didates to carry a 100-pound sack down a ladder is likely to result in more women
CHAPTER 3 Equal Employment Opportunity 75
Business necessity ' practice necessary for :;afe and efficient orga- 1izational operations.
being eliminated from selection. The same test is used for all candidates with markedly different results on the basis of sex that in this case is job related.
In a landmark case on disparate impact, Griggs v. Duke Power (1971), 9 the U.S. Supreme Court ruled that lack of intent is not sufficient for an employer to prove that a practice is lawful. The Court also stated that the employer has the bur- den to show that a selection practice is directly job related as a business necessity. In the firefighter test where women failed at a higher rate, the test is a true reflec- tion of a job-related duty: carrying a person out of a burning building. Therefore, the test would be lawful even though women would not pass at the same rate as men. A thorough job analysis and a search for alternate selection practices are important steps when disparate impact occurs. The employer must demonstrate that there is no reasonable, nondiscriminatory method available to use. Appendix D explains how disparate impact is defined under the federal government's Uniform Guidelines on Employee Selection Procedures.
Unlawful discrimination can occur in all employment-related decisions, from external hiring to internal promotions, selection for training opportunities, and layoffs and terminations. Job analysis, recordkeeping, and reviewing the results of all employ- ment decisions are important steps to prevent lawsuits on the basis of disparate treat- ment and disparate impact. Companies can also provide training to managers to increase awareness of discrimination and help to prevent unlawful decisions. 10
3-2a Equal Employment Opportunity Concepts Court decisions and administrative rulings have helped to define several basic EEO concepts. The four key concepts discussed next (see Figure 3-2) help to clarify key EEO ideas that lead to fair treatment and nondiscriminatory employment decisions.
Business Necessity and job Relatedness A business necessity is a practice necessary for safe and efficient organizational operations, such as restricting employees from wearing garments that might get caught in machinery although the attire may be required by an employee's religion. Business necessity has been the subject of numer- ous court cases. Educational requirements are often decided on the basis of business necessity. However, an employer that requires a minimum level of education, such as
F I G U R E 3 - 2 EEO Concepts
Business Necessity job Relatedness
Bona Fide Occupational Qualification (BFOQ)
Burden of Proof
Nonretaliatory Practices
76 SECTION 1
Bona fide occupational qualification (BFOQ) Characteristic providing a legitimate reason why an employer can exclude persons on otherwise illegal bases of consid- eration.
Burden of proof What individuals who file suit against employ- ers must prove to estab- li sh that illegal discrimination has occurred.
Retaliation Punitive actions taken by employers against indi- vidua ls who exe rcise their legal rights
The Environment of Human Resource Management
a high school diploma, must be able to defend the requirement as essential to the per- formance of the job (job related), which may be difficult. For instance, equating a high school diploma with the possession of math or reading abilities is considered questionable.
Employers are expected to use job-related employment practices. The use of criminal background checks and credit reports in the selection process has come under fire because it often results in disparate impact on minority applicants. The EEOC issued guidelines regarding such use of criminal history. Essentially, the EEOC reiterated that the nature of the job sought by the applicant is a major deter- mining factor in whether or not a criminal conviction is job related. Employers seek to find a balance between their obligations to provide a safe working environment and to ensure equal employment opportunity. PepsiCo, Inc. was forced to rescind its rigid policy on criminal background checks because it screened out individuals who were convicted of minor offenses that were irrelevant to the warehouse jobs for which they had appliedY
During the last economic recession the credit standing of many individuals was negatively impacted because of job loss. They were further harmed when employers used credit history during the hiring process and denied them employment. A num- ber of states then enacted laws to prevent the use of negative credit reports in hiring decisions unless the job requires handling money or involves spending authority. There is currently no federal law regarding this issue, but the EEOC has spoken out against the practice and the U.S. Congress has considered enacting legislation. The crucial outcome is that hiring criteria must be specifically job related and a
f b . . 12
matter o usmess necesstty.
Bona Fide Occupational Qualification Employers may discriminate on the basis of sex, religion, or national origin if the characteristic can be justified as a bona fide occupational qualification reasonably necessary to the normal operation of the par- ticular business or enterprise. Thus, a bona fide occupational qualification (BFOQ) provides a legitimate reason why an employer can exclude persons on otherwise illegal bases of consideration. The application of a BFOQ is very narrowly deter- mined and an employer seeking to justify hiring on this basis is advised to obtain prior authorization from the EEOC.
What constitutes a BFOQ has been subject to different interpretations in vari- ous courts. Legal uses of BFOQs have been found for hiring women as Playboy bunnies but not for hiring only female prison guards in a women's prison. 13
Burden of Proof When a legal issue regarding unlawful discrimination is raised, the burden of proof must be satisfied to file suit against an employer and establish that unlawful discrimination has occurred. The plaintiff charging discrimination must establish a prima facie case of discrimination through either factual or statistical evi- dence. The prima facie case means that sufficient evidence is provided to the court to support the case and allow the plaintiff to continue with the claim. The burden then shifts to the employer who must provide a legitimate, nondiscriminatory reason for the decision. The plaintiff then must show either that the employer's reason was a pretext for discrimination or that there is an alternative selection technique that would not result in discrimination. The plaintiff maintains the final burden of prov- ing that an employment decision was the result of unlawful discrimination. 14
Nonretaliatory Practices Employers are prohibited from retaliating against indivi- duals who file discrimination charges. Retaliation occurs when employers take
CH A PTER 3 Equal Employment Opportunity 77
punitive actions against individuals who exercise their legal rights. For example, a former police officer filed an EEOC charge alleging sex discrimination when she was transferred to a less prestigious job. She later learned that she was receiving less overtime work than her peers and used the department's copier to copy her coworkers' payroll stubs to substantiate her claim. The city's attorney threatened to criminally prosecute her for making the copies on the department's equipment but offered to drop the charges if she withdrew her EEOC complaint. The plaintiff was awarded over $4 00 ,000 in damages and costs. 15 Retaliation claims now con- stitute the highest percentage of charges filed with the EEOC because they can be added to all antidiscrimination charges and a wide range of workplace deci- sions might be interpreted as retaliatory. An important aspect of retaliation charges is that the charging party may lose the case on the basis of discrimination but still win if the employer took punitive action against him or her, as in the case cited above.
To prevent charges of retaliation, the following actions are recommended for employers: 16
• Create and disseminate an antiretaliation policy. • Train supervisors on what retaliation is and what is not appropriate. • Review all performance evaluation and discipline records to ensure consistency
and accuracy .
.. PERSPECTIVE Retaliation Claimant Prevails The EEOC won a judgment against Cognis Corpo-
ration for taking retaliatory action against Steven
Whitlow, a former employee. Cognis implemen-
ted a procedure requiring employees to sign a
" last-chance" agreement in which each employee
forfe ited the right to ever file discrimination
charges for any alleged violations by the company
in exc hange for continued employment. In other
words, the employee's job depended upon giving
up the right to sue the company for any acts of
discrimination in the past or the future.
Steven Whitlow had worked at the company
fo r 19 years and he refused to sign this agree-
ment. Cognis, in turn, fired him in retaliation for
not signing the agreement. The court ruled in
favor of the EEOC and Mr. Whitlow stating that
the company acted unl awfully when it violated
this fundamental right of employees in the United
States. Employees are permitted to file charges or
lawsuits when they believe an employer discrim-
inated against them. Employers cannot interfere
or take action against an employee (or applicant)
for exercising that right. Mr. Whitlow will be
compensated for his loss, although the amount
is unknown at this time. Here are some tips to
avoid this type of incident in the future:
• Consult with the company's legal department before creating any type of binding agreements.
• Make sure that HR staff understand how to approach employees about different types of documents and how those documents should be presented.
• Consult with the company's legal department before approaching any employee who refused to sign the document to understand what options the company has going forward.
Following these tips may help prevent similar
lawsuits . 17
78 S ECTION 1
compare the two theories of unlawful employment discrimination.
The Environment of Human Resource Management
• Conduct a thorough internal investigation of any claims and document the results. • Take appropriate action when any retaliation occurs.
The HR Perspective: Retaliation Claimant Prevails provides more information about retaliation claims and how to prevent them. Organizations that use a proac- tive approach may reduce the number of lawsuits and possible fines.
3-3 • BROAD-BASED DISCRIMINATION LAWS
Comprehensive equal employment laws provide broad-based protection for applicants and employees. The following sections explain these major laws and compliance requirements.
3-3a Civil Rights Act of 1964, Title VII Although the very first civil rights act was passed in 1866, it was not until passage of the Civil Rights Act of 1964 that the keystone of antidiscrimination employment legislation was put into place. Title VII, the employment section of the Civil Rights Act of 1964, details the legal protections provided to applicants and employees and defines prohibited employment practices. Title VII is the foundation on which all other workplace nondiscrimination legislation rests.
Title VII of the Civil Rights Act states that it is illegal for an employer to:
• fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin, or
• limit, segregate, or classify his employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's race, color, religion, sex, or national origin.
Title VII Coverage Title VII, as amended by the Equal Employment Opportunity Act of 1972, covers most employers in the United States. Any organization meeting one of the following criteria must comply with rules and regulations that specific government agencies have established to administer the act:
• All private employers of 15 or more employees • All educational institutions, public and private • State and local governments • Public and private employment agencies • Labor unions with 15 or more members • Joint labor/management committees for apprenticeships and training
Title VII has been the basis for several extensions of EEO law. For example, in 1980, the EEOC interpreted the law to include sexual harassment. Further, a number of concepts identified in Title VII are the foundation for court decisions, regulations, and other laws discussed elsewhere in this chapter.
3-3b Civil Rights Act of 1991 In response to several Supreme Court decisions during the 1980s, Congress amended the Civil Rights Act of 1964 to strengthen legal protection for employees, provide for jury trials, and allow for damages payable to successful plaintiffs in
CHAPTER 3 Equal Employment Opportunity 79
.\ffirmative action =·oactive employment :·actices to make up for - storical discrimination ::~ain st women and - ·norities.
~ffi rmative action rogram (AAP)
- document reporting on --e co mposition of an ::: pl ayer's workforce, --:::qu ired for federal --ntractors.
employment discrimination cases. 18 A key provision of the 1991 act relates to how U.S. EEO laws are applied globally.
The Civil Rights Act of 1991 requires that employers show that an employment practice is job related for the position and consistent with business necessity. The Act clarifies that plaintiffs bringing discrimination charges must identify the partic- ular employer practice being challenged and must show only that protected status played some role in their treatment. For employers this means that an individual's race, color, religion, sex, or national origin must play no role in their employment practices. The Act allows people who have been targets of intentional discrimina- tion based on sex, religion, or disability to receive both compensatory and punitive damages. The penalties are scaled by the size of employer, as shown in Figure 3-3.
While civil rights laws provide protection to employees and applicants on a variety of issues, not all individual differences are covered. The HR Ethics: Should Political Views Be Protected features a story of how political affiliation is not a protected characteristic.
3-3c Executive Orders 11246, 11375, and 11478 Several important executive orders have been issued by the U.S. President that affect the employment practices of federal contractors and subcontractors. The OFCCP in the U.S. Department of Labor is responsible for overseeing federal contractor opera- tions and insuring that unlawful discrimination does not occur. Executive Orders 11246, 11375, and 11478 require federal contractors to take affirmative action to compensate for historical discrimination against women, minorities, and handicapped individuals. The concept of affirmative action is not without controversy and some states have passed laws banning the use of such programs.
Supporters offer many reasons why affirmative action is important, while opponents argue firmly against it. Individuals can consider both sides in the debate and compare them with their personal views of affirmative action. The authors of this text believe that whether one supports or opposes affirmative action, it is important to understand why its supporters believe that it is needed and why its opponents believe it should be discontinued.
3-3d Managing Affirmative Action Requirements Federal contractors are required to develop and maintain a written affirmative action program (AAP) that outlines proactive steps the organization will take to attract and hire members of underrepresented groups. This data-driven program includes analy-
F I G U R E 3 - 3 Penalties under Civil Rights Act of 1991 by Employer Size ········ ·······································································
$300,000 $300,000
$250,000 $ ;;;
$200,000 c "' c. E :I
$150,000
E ";( $100,000 ..s ~
$50,000
$0 15-100 101-200 201-500 501+
Number of Employees
Source: U .S. Equa l Empl oyment Opportunity Commi ss ion Enforcem ent Guidance, http ://www.eeoc.gov/policy/docs/ damages.html.
80 SECTION 1 The Environment of Human Resource Management
. ETHICS Should Political Views Be Protected? Many characteristics about individuals cannot be
used in employment matters. Under Title VII of the
Civil Rights Act of 1964, employers can not consider
the race, color, sex, national origin, or religion of an
appl icant or employee when making hiring and
other emp loyment decision. Age and disability dis-
crimination laws also restrict employe rs from con-
sidering aspects about people that have little or
nothing to do with job performance. However, an
individual's political beliefs are not protected under
the law. In other words, an emp loyer might use that
information to make an employment decision. But,
just because it is not ill ega l, doesn't make it ethical.
Teresa Wagner, a graduate of the University
of Iowa' s law school , claims that she has been
denied empl oyment because of her co nservative
political beliefs. Ms. Wagner previously taught
writing at another law school and was working
part-time as a teacher at the University of Iowa.
She is opposed to abortion and gay rights and
worked passionately to support her views. She
was not hired for a job teaching writing at the
university and claims that 46 of the 50 faculty
members in the decision process held liberal
political views. She believes that she was passed
over because of her political beliefs. The univer-
sity states that she performed poorly in an
emp loyment interview, which led to turning her
down for the job. The job was given to an indi-
vidual that had no previous teaching experience .
Th e case is the first of its kind because Ms.
Wagner is arguing that the university' s decision
was a violation of her First Amendment rights.
The case highlights an ethical dilemma in human
resource management. Decisions made by organi-
zations may be lega l, but may sti ll violate basic
hum an rights. The court will decide if the University
of Iowa illega ll y discriminated against Ms. Wagner.
When man agers and companies make emp loy-
ment decisions, they are adv ised to review not
only the literal interpretation of laws, but also the
moral and eth ical code of the organization. 19
sis of the composition of company's current workforce with a comparison to the availability of workers in the labor market. The overall objective of the AAP is to have the company's workforce demographics reflect as closely as possible the demo- graphics in the labor market from which workers are recruited. The contents of an AAP and the policies flowing from it must be available for review by managers and supervisors within the organization. The AAP is reviewed by the OFCCP and subject to periodic audits to ensure compliance. In addition to an extensive workforce analy- sis, the AAP includes goals, timetables, and good faith efforts to reduce and prevent employment discrimination against historically disadvantaged groups. Organizations implement outreach programs, targeted recruiting, and training programs to recruit and advance women and minorities. Affirmative action plans vary in length; some are long and require ex tensive staff time to prepare.
3-3e Managing Racial and Ethnic Discrimination Issues The original purpose of the Civil Rights Act of 1964 was to address race discrimi- nation in the United States. This concern continues to be important today and employers must be aware of potential HR issues that are based on race, national origin, and citizenship to take appropriate actions.
CHAPTER 3 Equal Employment Opportunity 81
assignments, and career issues.
Charges of racial discrimination continue to make up one-third of all complaints filed with the EEOC. Employment discrimination can occur in numerous ways, from refusal to hire someone because of their race/ethnicity to the questions asked in a selec- tion interview. All employment inquiries and decisions should be based on job related factors and not personal characteristics. See Appendix E for examples of legal and illegal preemployment inquiries. The EEOC found that a trucking delivery company failed to hire qualified black applicants for dockworker positions because of factors unrelated to job performance. The company paid $120,000 to settle the lawsuit.20
Sometimes racial discrimination is very subtle. For example, some firms have tapped professional and social networking sites to fill open positions. However, net- working sites exclude many people, resulting in disparate impact. Further, the use of employee referral programs can lead to a more homogenous workforce as employees are more likely to refer people of the same demographic background as themselves . One solution is to use anonymous application procedures in which names and other identifying characteristics of applicants are deleted from candidate documents. Deci- sion makers in the hiring process are presented only with credentials and job-relevant information. This procedure, while controversial, may level the playing field and reduce the possibility of bias in selection. 21 Under federal law, discriminating against people because of skin color is just as illegal as discriminating because of race. For example, one might be guilty of color discrimination but not racial discrimination if one hired light-skinned African Americans over dark-skinned people.
Racial/Ethnic Harassment Racial/ethnic harassment is such a concern that the EEOC has issued guidelines on it. It is recommended that employers adopt policies against harassment of any type, including ethnic jokes, vulgar epithets, racial slurs, and physical actions. The consequences of not enforcing these policies are seen in a case involving a major transportation company that subjected African American employees to a racially hostile working environment and discriminatory employ- ment conditions. The company was fined $11 million in penalties.
Contrast that case with another that shows the advantage of taking quick reme- dial action. A black employee filed a lawsuit against a security firm because his supervisor made racially offensive comments. After the company investigated, the white supervisor was disciplined for inappropriate jokes and comments and the complainant was transferred to a different supervisor. The company further conducted in-house diversity training. The court dismissed the lawsuit because the company had taken measures to remedy the harassment. Therefore, prompt investi- gation and remedial action can protect employers from liability. 22
3-4 • SEX/GENDER DISCRIMINATION LAWS AND REGULATIONS
The inclusion of sex as a basis for protected status in Title VII of the 1964 Civil Rights Act has led to additional areas of legal protection and a number of laws and regulations now address discrimination based on sex or gender.
3-4a Pregnancy Discrimination The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII to require that employers treat maternity leave the same as other personal or medical leaves .
82 SECTI O N 1 The Environment of Human Resource Management
Closely related to the PDA is the Family and Medical Leave Act (FMLA) of 1993, which requires that qualified individuals be given up to 12 weeks of unpaid family leave and also requires that those taking family leave be allowed to return to jobs (see Chapter 13 for details). The FMLA applies to both men and women. Provisions of the Affordable Care Act (2010) allow for break time and a private place for nursing mothers to express breast milk for one year after the birth of a child. 23
Women across the globe have experienced discrimination because of pregnancy despite legal protections for childbirth and child rearing. For example, Italian women experience the lowest employment rate in the European Union and Italy ranks below Ghana and Bangladesh in terms of gender equality. Some Italian work- ers have reported being fired after giving birth. 24
Discrimination may occur because of employer perceptions of the pregnancy affecting the employee's job performance and attendance, or from questions related to pregnancy or childcare plans asked during an employment interview. A Milwaukee medical-staffing company was fined for firing a woman who had just given birth because the owner made offensive comments about her pregnancy and fired her when she took maternity leave. Discrimination can occur if a pregnant applicant is not hired or is transferred or terminated. Courts have generally ruled that the PDA requires employers to treat pregnant employees the same as nonpregnant employees with similar abilities or inabilities. Employers have a right to maintain performance standards and expectations of pregnant employees but should be cautious to use the same standards for nonpregnant employees and employees with other medical con- ditions. In McFee v. Nursing Care Management of America (2010), terminating a pregnant employee for excessive absenteeism was deemed lawful because the PDA does not require preferential treatment in such cases, only similar treatment to employees with nonpregnancy-related disabilities. 25 A careful review of FMLA policy decisions is important to prevent discrimination claims under the PDA for attendance issues.
Fears about higher health insurance costs and possible birth defects caused by damage sustained during pregnancy lead some employers to reassign women from hazardous jobs to lower-paying, less hazardous jobs. Such reproductive and fetal protection policies have been ruled unlawful. 26
3-4b Equal Pay and Pay Equity The Equal Pay Act of 1963 requires employers to pay similar wage rates for similar work without regard to gender. A common core of tasks must be similar, but tasks performed only intermittently or infrequently do not make jobs different enough to justify significantly different wages. Differences in pay between men and women in the same jobs are permitted because of:
1. Differences in seniority 2. Differences in performance 3. Differences in quality and/or quantity of production 4. Factors other than sex, such as skill, effort, and working conditions
In response to a procedural issue in pursuit of a fair pay claim, Congress enacted the Lilly Ledbetter Fair Pay Act in 2009, which eliminates the statute of limitations for employees who file pay discrimination claims under the Equal Pay Act. Each paycheck is essentially considered a new act of discrimination. Lawmakers recognized that because pay information is often secret it might take months or even
CHAPTER 3 Equal Employment Opportunity 83
Pay equity The idea that pay for jobs requiring compar- abl e levels of knowl- edge, skill. and ability sh ould be simi lar, even if actua l duties differ sig- nificantly.
years for an employee to discover the inequity. The successful plaintiff can recover up to two years of back pay.
Pay equity is the idea that pay for jobs requiring comparable levels of knowl- edge, skill, and ability should be similar, even if actual duties differ significantly. This theory has also been called comparable worth in earlier cases. Some state laws mandate pay equity for public-sector employees. However, U.S. federal courts generally have ruled that the existence of pay differences between the different jobs held by women and men is not sufficient to prove that illegal discrimination has occurred.
A major reason for the development of the pay equity idea is the continuing gap between the earnings of women and men. Figure 3-4 shows that across all ue:mognphic groups women consistently earn less than men ahnougn the aitterence is shrinking. In 1980, women on average earned 60% of what men earned. By 2010, their earnings had risen to 80% of the average man. Several reasons have been given for this gender pay gap such as the fact that women take more time off during their childbearing years which makes it difficult to remain even with their male counterparts. Persistent, widespread stereotypes, such as the notion that men are more productive than women, may unconsciously influence behavior and man- ager decisions leading to lower merit increases for women.27
FIGURE 3 - 4 Women's Earnings as Percentage of Men's . .................. .. ... ... . ........................ .. ........ .............................................................. .
100
90
80
c ~ 70
&:
60
so
Women's Earnings as a Percent of Men's, Median Usual Weekly Earnings of Full-Time Wage and Salary Workers, in Current Dollars, by Race and Ethnicity, 1980-2010 Annual Averages
1980 1990 2000 2010 Year
- Total - Wh ite - Black or African American
- Hispanic or Latino ethn icity • Asia n
So urce : U.S. Department of La bor, Bureau of Labor Statistics, 2010, www.bls .gov.
84 SECTION 1
Glass ceiling Discrim inatory practices that have prevented women and minorities from advancing to executive-level jobs.
The Environment of Human Resource Management
Employers can take steps to reduce pay inequities.
• Include all benefits and other items that are part of pay to calculate total com- pensation for the most accurate overall picture.
• Make sure people know how the pay practices work. • Base pay on the value of jobs and performance. • Benchmark against local and national markets so that pay structures are
competitive. • Conduct frequent audits to ensure there are no gender-based inequities and that
pay is fair internally.
3-4c Managing Sex/Gender Issues The influx of women into the workforce has had major social, economic, and orga- nizational consequences. The percentage of women in the total U.S. civilian work- force has increased dramatically since 1950, to almost 50% today. During the last economic downturn unemployed workers were more likely to be male because the industries hit hardest in the recession tended to employ more men; construction and manufacturing. Women, on the other hand, are primarily employed in management and professional occupations and less likely to be employed in operations, transpor- tation, or construction occupations? 8
The growth in the number of women in the workforce has led to more sex/ gender issues related to jobs and careers. Since women bear children and traditionally have a primary role in raising children, issues of work-life balance can emerge. Respect for employees' lives outside of the workplace can pay off in terms of attracting and retaining high quality talent. Organizations can offer a range of options to help employees achieve satisfaction in both their work and personal lives. Glassdoor.com reports in its second annual list of the Top 25 Companies for Work- Life Balance that organizations on the list have many of the following features:
• Support from senior leadership • Flexible hours • Telecommuting options • Compressed work weeks • Family friendly work environments • Generous paid time off • On-site cafeteria • On-site fitness center
Employees at different career stages and with different household structures may seek different elements to help balance work and family obligations. For exam- ple, single employees value flexible work arrangements but not a work- family cul- ture, while parents value the work- family culture and supervisors' social support. Organizations considering implementing work- family balance programs have a wide range of choices and benefit most from customizing to their specific culture rather than adopting a one-size-fits-all approach? 9
Glass Ceiling For years, women's groups have alleged that women in workplaces encounter a glass ceiling, which refers to discriminatory practices that have pre- vented women and other minority status employees from advancing to executive- level jobs. Despite the fact that organizations with greater gender diversity enjoy better financial performance than those with less diversity, women still hold a
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CHAPTER 3 Equal Employment Opportunity 85
small percentage of top leadership jobs in corporations. Only 41 of the Fortune 1000 companies are led by a female CEO. In organizations where diversity is seen as strategically important, a higher percentage of C-level executives are women. There are some differences around the world regarding the importance of diversity. In Asia and developing markets, gender diversity is more important than in Latin America, Europe, and North America. 3 0
A related problem is that women have tended to advance to senior management in a limited number of support or staff areas, such as HR and corporate communica- tions . Because executive jobs in these "supporting" areas tend to pay less than jobs in sales, marketing, operations, or finance, the overall impact is to reduce women's career progression and income . Limits that keep women from progressing only in certain fields have been referred to as "glass walls" or "glass elevators." These limita- tions are seen as being tied to organizational, cultural, and leadership issues. 31
Breaking the Glass A number of employers have recognized that breaking the glass, whether ceilings, walls, or elevators, is good business for both women and racial minorities. Some of the most common means used to "break the glass" are as follows:
• Establish formal mentoring programs for women and members of raciaVethnic minorities.
• Provide opportunities for career rotation into operations, marketing, and sales for individuals who have shown talent in accounting, HR, and other areas.
• Increase the memberships of top management and boards of directors to include women and individuals of color.
• Establish clear goals for retention and progression of women and minorities and hold managers accountable for achieving these goals.
• Allow for alternative work arrangements for employees, particularly those balancing work/family responsibilities.
3-4d Sexual Orientation Demographers estimate that about 3% to 5% of Americans identify themselves as being lesbian, gay, bisexual, or transgender (LGBT). That translates to approxi- mately 9 million Americans with alternate sexual orientation. The U.S. Census reports that 650,000 couples reported living with same-sex partners, with 130,000 reporting being married. While there is no federal law prohibiting discrim- ination on the basis of sexual orientation, 18 states have passed laws to protect applicants and employees from such discrimination. 32 Employers are increasingly offering same-sex employee benefits and accommodating varying lifestyles for their employees; some high-profile CEOs have spoken out in support of rights for LGBT employees. 33
An issue that some employers have had to address is that of individuals who have had or are undergoing gender transition surgery and therapy. Federal court cases and the EEOC have ruled that sex discrimination under Title VII applies to a person's gender at birth. Thus, it does not apply to the new gender of those who have had sex transformation operations. However, managers and employees are becoming more tolerant of such situations and there is a growing respect for indivi- duals undergoing these procedures. Other issues that arise from sexual orientation or sex-change in workplaces include the reactions of coworkers and managers and
86 SECTION 1
Nepotism Practice of allowing relatives to work for the same emp loyer.
harassment and explain how employers can prevent its occurrence.
Sexual harassment Actions that are sexual ly directed, are unwanted, and subject the worker to adverse emp loyment conditions or create a hosti le work envi ron- ment.
The Environment of Human Resource Management
ensuring that such individuals are evaluated fairly and not discriminated against in work assignments, raises, training, or promotions. 34
3-4e Nepotism Many employers have policies that restrict or prohibit nepotism, the practice of allowing relatives to work for the same employer. Other firms require only that relatives not work directly for or with each other or not be placed in positions where collusion or conflict could occur. The policies most frequently cover spouses, siblings, parents, sons, and daughters. Generally, employer antinepotism policies have been upheld by courts, in spite of the concern that these policies tend to dis- criminate against women more than men (because women tend to be denied employment or leave employers more often as a result of marriage) .35
3-4f Consensual Relationships and Romance at Work When work-based friendships lead to romance and off-the-job sexual relationships, managers and employers face a dilemma: Should they "monitor" these relationships to protect the firm from potential legal complaints, thereby "meddling" in employ- ees' private, off-the-job lives? Or do they simply ignore these relationships and the potential problems they present? These concerns are significant given that the employer's response to workplace romance influences employees' and applicants ' perceptions of fairness and the degree to which the organization is viewed as a good place to work. 36
Most executives and HR professionals agree that workplace romances are risky because they have great potential for causing conflict. Dealing with this as a strate- gic issue means that leaders consider both the costs and the benefits in addition to the legal factors. Adopting practices such as a written policy, ethics code, and per- formance management system along with training HR leaders can lead to a more balanced approach when dealing with workplace romances. 37
3-5 • SEXUAL HARASSMENT
Nearly 25% of women report having been harassed at work during their careers. This widespread problem is a form of sex discrimination under Title VII. The Equal Employment Opportunity Commission has issued guidelines designed to cur- tail sexual harassment. Sexual harassment is unwelcome verbal, visual, or physical conduct of a sexual nature that is severe and affects working conditions or creates a hostile work environment. Sexual harassment can occur between a boss and a subordinate, among coworkers, and when nonemployees have business contacts with employees.
Most of the sexual harassment charges filed involve harassment of women by men. However, over 10% of claims were filed by men claiming they were sexually harassed. Interestingly, women almost universally report that they were harassed by a male, while males report an equal percentage of male and female harassers. Most claims of harassment go unreported as victims are reluctant to speak out for fear of retribution. Supervisors are the most frequent harassers, but coworkers and even subordinates have also been involved in these incidents. 38
CHAP TE R 3 Equal Employment Opportunity 87
Quid pro quo ::exual harassment in •lhich employment out- :om es are linked to the ndividual granting sex- _al favo rs.
Hostile environment Sexua l harassment in
hi ch an individual's ark performance or
JSychological well-being unreasonably affected
: intimidating or offen- :· e working conditions.
3-Sa Types of Sexual Harassment Two basic types of sexual harassment have been defined by EEOC regulations and a number of court cases. Figure 3-5 shows the two types and how they differ. They are defined as follows:
1. Quid pro quo is harassment in which employment outcomes are linked to granting sexual favors.
2. Hostile environment harassment exists when an individual' s work performance or psychological well-being is unreasonably affected by intimidating or offensive working conditions.
In quid pro quo harassment, an employee may be promised a promotion, a spe- cial raise, or a desirable work assignment, but only if the employee grants some sex- ual favors to the supervisor. Since supervisors are agents of the company, the company always bears liability for quid pro quo harassment.
The second type, hostile environment harassment, may include actions such as commenting on appearance or attire, telling jokes that are suggestive or sexual in nature, allowing revealing photos and posters to be displayed, or making continual requests to get together after work. These actions can lead to the creation of a hos- tile work environment. If the employer has taken appropriate steps to prevent sex- ual harassment, it may be possible to offer an affirmative defense and prevail in a lawsuit.
As mobile phone use and Internet technology have spread, the number of elec- tronic sexual harassment cases has increased. 39 Sexual harassment increasingly occurs via e-mail, social networking sites, and Internet access systems. Cyber sexual harass- ment may occur when an employee forwards an e-mail joke with sexual content or accesses pornographic websites at work and then shares the content with other employees. Cyber stalking, in which a person continually e-mails an employee request- ing dates and sending personal messages, is growing as instant messaging expands. Many employers have policies addressing the inappropriate use of e-mail, company computer systems, and electronic technology usage. Many employers have equipped their computer systems with scanners that screen for inappropriate words and images . Offending employees receive warnings and/or disciplinary actions associated with
F I G U R E 3 - 5 Sexual Harassment Types
Quid pro quo HarassmenL ·
• Perpetrated by emp loyee's superior
• Employment decis ions h inge on whether an emp loyee provides sex ua l favors
• Company is liab le
• Perpetrated by emp loyee's super ior, coworkers, and/or third pa rt ies
• Pervas ive, unwanted sexual comments, pictures, jokes, and/or other derogatory eve nts create a dysfu nct iona l wo rkp lace
• Compa ny may be liab le if it cannot offe r an affi rmat ive defe nse
88 SECTION 1 The Environment of Human Resource Management
"flagged" items. If an employee uses the company's equipment or computer network, the employer might be liable if the situation is not properly addressed.
3-5b Preventing Sexual Harassment A proactive prevention approach is the most effective way to reduce sexual harass- ment in the workplace. If the workplace culture fosters harassment, and if policies and practices do not inhibit harassment, an employer is wise to reevaluate and solve the problem before lawsuits follow.
Companies may avoid liability if they take reasonable care to prohibit sexual harassment, the so-called affirmative defense. Important elements of the affirmative defense include the following:
• Establish a sexual harassment policy. • Communicate the policy regularly. • Train employees and managers on avoiding sexual harassment. • Investigate and take action when complaints are voiced.
Effective training to prevent sexual harassment ideally includes instruction for employees and supervisors on what constitutes sexual harassment and how to han- dle an incident. Role plays can be especially effective during the training particularly when accompanied by timely feedback and opportunities for practice. Evaluating the effectiveness of the training is important to insure that the training is transferred back to the workplace. Training HR staff in proper investigation techniques is also advised to insure that a prompt, impartial review of all complaints occurs.40
3-5c International Context of Harassment Fundamental differences regarding power between men and women and a cultural support of sexual harassment lead to very different sexual harassment situations from country to country. According to research, Canada, Denmark, Germany, the Netherlands, Sweden, and the United States are likely to have relatively less sexual harassment than countries like East Africa, Hong Kong, Indonesia, Malaysia, Mexico, and Turkey. 41
3-6 • DISABILITY DISCRIMINATION
Several federal laws have been enacted to advance the employment of disabled indi- viduals and to reduce discrimination based on disability. These laws and regulations affect employment matters as well as public accessibility for individuals with dis- abilities. Despite these attempts to open the workplace to disabled individuals, unemployment among the disabled population has consistently exceeded the overall unemployment rate particularly during economic downturns. 42
3-6a Rehabilitation Act The earliest law regarding disabled individuals was passed in 1973 and applied only to federal contractors. The Rehabilitation Act defined many of the terms and con- cepts incorporated into subsequent laws and provided for equal employment oppor- tunity for disabled workers and applicants. The Act went further and required that
CHAPTER 3 Equal Employment Opportunity 89
Disabled person Someone who has a ph ysical or mental impairment that sub- stantially limits life activities, who has a record of such an ·mpairment or who is regarded as having such an impairment
federal contractors take affirmative action to employ disabled workers. A section of the contractor's AAP is devoted to steps taken to promote the employment of dis- abled persons. 43
3-6b Americans with Disabilities Act Two decades after passage of the first law prohibiting discrimination against dis- abled individuals, the Americans with Disabilities Act was enacted in 1990. This Act applies to private employers, employment agencies, and labor unions with 15 or more employees and is enforced by the EEOC. State government employees are not covered by the Americans with Disabilities Act (ADA), which means that they cannot sue in federal courts for relief and damages. However, they may still bring suits under state laws in state courts. Many of the concepts and definitions included in the ADA were based on the Rehabilitation Act.
3-6c ADA Amendments Act In 2009, Congress passed amendments to the ADA, which overruled several key cases and regulations and reflected the original intent of the ADA. The effect was to significantly broaden the definition of disabled individuals to include anyone with a physical or mental impairment that substantially limits one or more major life activities without regard for the ameliorative effects of mitigating measures such as medication, prosthetics, hearing aids, and so on. This establishes a very low threshold for establishing whether an individual is "disabled."
Who Is Disabled? A three-pronged test is used to determine whether or not an indi- vidual meets the definition as "disabled." A person must meet one of the following three conditions as stated in the ADA and modified by the Americans with Disabil- ities Act Amendments Act (ADAAA). A disabled person is someone who
1. has a physical or mental impairment that substantially limits that person in some major life activities;
2. who has a record of such an impairment; or 3. who is regarded as having such an impairment.
A person is considered disabled even if any corrective measures are used to reduce the impact of the disability, such as a wheelchair or medication. The only exception is ordinary eyeglasses or contact lenses. Major life activities include not just visible activities like seeing, breathing, and walking but internal bodily func- tions such as neurological, immune, endocrine, and normal cell growth. The defini- tion of disabled no longer rests on the individual's inability to do something, but on his or her medical condition, whether or not it limits functioning . This expanded definition of disabled now encompasses a much larger percentage of workers, meaning that employers are likely to encounter situations that require action.
The EEOC's final regulations state that some impairments such as autism, blindness, bipolar disorder, cancer, diabetes, HIV infection, major depressive disor- der, and so on will be covered disabilities in "virtually all cases." The ADA does not protect current users of illegal drugs and substances, but it does protect those who are recovering addicts.44
Mental Disabilities A growing area of concern to employers under the ADA (as amended) is individuals with mental disabilities. A mental disability is defined by
90 SECTION 1
Essential job functions Fundamental job duties.
Reasonable accommodation A modification to a job or work environment that gives a qualified indivi- dual an equal employ- ment opportunity to perform.
The Environment of Human Resource Management
the EEOC as "any mental or psychological disorder, such as an intellectual disabil- ity, organic brain syndrome, emotional or mental illness, and specific learning disabilities." Employers may find accommodating for mental disabilities is more dif- ficult and that maintaining effective performance standards is a challenge. Mental disabilities may manifest in more unpredictable ways and medications taken to alle- viate these conditions can have negative side effects.45 It is advisable to rely on sound medical information and avoid stereotypes regarding individuals with mental impairment or disabilities.
More ADA complaints are being filed by individuals who have or claim to have mental disabilities. Two of the top seven disabilities most frequently cited in EEOC claims for disability discrimination are mental disabilities: depression, and anxiety disorder. The cases that have been filed have ranged from individuals with a medi- cal history of paranoid schizophrenia or clinical depression to individuals who claim that job stress has affected their marriage or sex life. Regardless of the type of employees' claims, it is important to treat mental disabilities in the same way as physical disabilities. Obtain medical verification of worker limitations and engage in an interactive process to establish a reasonable accommodation.
Employees Who Develop Disabilities For many employers, the impact of the ADA has been the greatest when handling employees who develop disabilities, not when dealing with applicants who already have disabilities. As the workforce ages, it is likely that more employees will develop disabilities. For instance, a warehouse stock worker who suffers a serious leg injury in a motorcycle accident away from work may request reasonable accommodation.
Employers should be prepared to respond to accommodation requests from employees whose contribution to the organization has been satisfactory before they became disabled and who now require accommodations to continue working. Handled inappropriately, these individuals are likely to file either ADA complaints with the EEOC or private lawsuits.
Employees sometimes can be shifted to other jobs where their disabilities do not affect them as much. For instance, the warehouse firm might transfer the injured stock worker to a purchasing inventory job inside so that climbing and lifting are unnecessary. But the problem for employers is what to do with the next worker who develops problems if an alternative job within the organization is not avail- able. Even if the accommodations are just for one employee, the reactions of cow- orkers must be considered.
3-6d ADA and Job Requirements Discrimination is prohibited against individuals with disabilities who can perform the essential job functions-the fundamental job duties-of the employment posi- tions that those individuals hold or desire. These functions do not include marginal functions of the position. For example, an essential function for the job of cosmetol- ogist is to cut and style hair. A marginal function of that job would be answering the telephone to schedule client appointments. The EEOC provides guidelines to help employers determine which job functions are essential. Figure 3-6 lists the criteria recommended by the EEOC.
For a qualified person with a disability, an employer must make a reasonable accommodation , which is a modification to a job or work environment that gives that individual an equal employment opportunity to perform. EEOC guidelines encourage employers and individuals to work together to determine what the
CHA PTER 3 Equal Employment Opportunity 91
~ due hardship = ;nifi ca nt difficulty or = :ense imposed on an = oloyer in making an = :ommodation for indi- :~al s with disabilities.
FIGURE 3- 6 Determining if a Job Function Is Essential ............... ............ ·············· ................................................................... ·························· ···
A job Function May Be Considered Essential for Any of Several Reasons, Including but Not limited to the Following:
1. The fun ct ion may be essential because the reason the position exists is to perform that function .
2. The function may be essential because there is a limited number of employees available who can perform the job function.
3. The function may be highly specialized so that the job incumbent is hired for that expertise or ability to perform the particular function.
Evidence of whether a Particular Function Is Essential Includes, but Is Not limited to the Following:
1. The employers JUdgment as to wh1ch functions are essent1al.
2. Written job descriptions prepared before advertising or interviewing applicants for the job.
3. The amount of time spent on the job performing the function.
4. The consequences of not requiring the incumbent to perform the function.
5. The terms of a collective bargaining agreement.
6. The work ex perience of past incumbents in the job.
7. The current work experience of incumbents in similar jobs.
Source : Adapted from Part 1630 Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act.
appropriate reasonable accommodations are, rather than employers alone mak- ing those judgments. Under the ADAAA, the focus has shifted from determining whether or not an individual is disabled to an emphasis on finding ways to accommodate that individual in the workplace. The process of determining a rea- sonable accommodation is expected to be interactive, with the disabled individ- ual as an active participant in the process. Many options may be considered but in the end the employer has the authority to select the accommodation to be implemented.
Reasonable accommodation is limited to actions that do not place an undue hardship on an employer. An undue hardship is a significant difficulty or expense imposed on an employer in making an accommodation for individuals with disabil- ities. The ADA offers only general guidelines in determining when an accommoda- tion becomes unreasonable and will place undue hardship on an employer. The determination of undue hardship is made on a case-by-case basis. Undue hardship might stem from financial requirements to scheduling options or facilities modifica- tions . What might be reasonable for a large multinational company might be an undue hardship for a smaller firm with fewer resources.
The key to making reasonable accommodations is identifying the essential job functions and then determining which accommodations are reasonable so that the
92 SECTION 1 The Environment of Human Resource Management
FIGURE 3 - 7 Common Means of Reasonable Accommodation
Modified Work Schedules
Special Equipment
job Restructuring
job Reassignment
Employer-Provided Assistance
Additional Training Time
Source: Adapted from job Accommodation Network (http://askj an.org/index.html ).
individual can perform the core job duties. Common means of reasonable accommo- dation are shown in Figure 3-7. Architectural barriers should not prohibit disabled individuals' access to work areas or restrooms. Appropriate work tasks must be assigned or modified to allow the individual to perform them effectively. This may mean modifying jobs or work area layouts or providing assistive devices or special equipment. Work hours and break schedules may be adjusted. Fortunately for employers most accommodations needed are relatively inexpensive. Free assistance is readily available from the Job Accommodation Network's online resource center.46
Since most organizations are covered, employers under the ADA will likely have a plan in place before an accommodation is requested, which can save time and simplify the process. 4 7
The following steps can facilitate this process:
• Define essential functions in advance. • Handle all requests for accommodation properly. • Work with the HR staff to explore various options for accommodation. • Interact with the employee with good faith and documentation. • Know and follow the reasonable accommodation rules.
Companies are more likely to attract and retain employees with disabilities if they take steps to insure a supportive corporate culture with managers and supervisors who are trained to deal with the special needs of this population. Appropriate screening techniques along with a genuine accommodation process and respectful coworkers can create a workplace where all employees are able to perform at their best, including those with disabilities .4 8
CHAPTER 3 Equal Employment Opportunity 93
ETHICS
ADA Restrictions and Medical Information The ADA includes restrictions on obtaining and retaining medically related information on applicants and employees. Restrictions include prohibiting employers from rejecting individuals because of a disability and from asking job applicants any question about current or past medi- cal history until a conditional job offer is made. Also, the ADA prohibits the use of pre-employment medical exams, except for drug tests, until a job has been condi- tionally offered. An additional requirement of the ADA is that all medical informa- tion be maintained in files separated from the general personnel files. Medical files must be stored in a secure location and only individuals with a "need-to-know" should be granted access to these files.
3-6e Claims of Discrimination During the decade prior to the enactment of the ADAA, approximately 16,000 dis- ability discrimination claims were filed with the EEOC each year. In 2010 and 2011, that number skyrocketed to over 25,000 claims per year representing a 17% increase in the historical average. Experts attribute this increase to the changes made in the definition of "disabled" under the ADAA. Prior to the ADAA, employ- ers won 90% of the challenges regarding whether or not an individual was quali- fied as "disabled." Now that argument is essentially moot and companies no longer aggressively work to disqualify the person from that status.
Claims of discrimination are more common at the lower levels of organizations. However, the CEO of a home furnishings retailer filed charges of disability discrim- ination claiming that the board of directors perceived her to be disabled based upon a recent diagnosis of breast cancer and terminated her employment. This case shows that being regarded as disabled qualifies an individual for protection under the law whether or not the person shows any outward impairment or requests an accommodation. This is an example of the second prong of the definition of "dis- abled individual" and sends a note of caution that treating someone as if they are disabled does in fact grant them coverage under the law. In fact, "regarded as" claims represent the highest percentage of claims filed in ADA charges. 49 Figure 3-8 shows the most frequent disabilities identified in ADA charges.
3-6f Genetic Bias Regulations Related to medical disabilities is the emerging area of workplace genetic bias. As medical research has revealed the human genome, medical tests have been devel- oped that can identify an individual's genetic markers for various diseases. Whether these tests should be used and how they are used can raise ethical issues.
Employers that use genetic screening tests do so for two primary reasons. Some use genetic testing to make workers aware of genetic problems that may exist so that medical treatments can begin . Others use genetic testing to terminate employ- ees who may make extensive use of health insurance benefits and thus raise the ben- efits costs and utilization rates of the employer. A major railroad company, Burlington Northern Santa Fe, had to publicly apologize to employees for secretly testing to determine if they were genetically predisposed to carpal tunnel syndrome.
Genetic Information Nondiscrimination Act Congress passed the Genetic Informa- tion Nondiscrimination Act (GINA) in 2009 to limit the use of genetic information by health insurance plans and to prohibit employment discrimination on the basis
94 SECTION 1
~ Discuss the legal protections to prevent bias and discrimination based on age, religion , national origin , and other factors.
The Environment of Human Resource Management
F I G U R E 3 - 8 Most Frequent ADA Charges Filed in 2011
Regarded as disabled
Im pa irm ents of the back
Orthoped ic impairment
Dep ression
Record of disability
Anxiety disorder
Diab etes
........... . ............... .
0% 2% 4% 6% 8%
11.7%
10% 12% 14%
Source: Based on data from U.S. Equal Employment Opportunity Commission, 2011; http://www.eeoc. gov/eeodstati stics/ enforcement!ada-receipts.cfm.
of this information. Employers are prohibited from collecting genetic information or making employment decisions on the basis of genetic information. "Genetic infor- mation" includes information about genetic tests of the employee or family members and family medical history. GINA allows exceptions for employees who wish to voluntarily participate in a wellness program and when employers need medical cer- tification to determine eligibility for FMLA. Coordinating compliance policies for GINA, ADA, HIPAA, and leave policies can reduce confusion and liability. 50
3-7 • AGE DISCRIMINATION LAWS
The populations of most developed countries- including Australia, Japan, most European countries, and the United States-are aging. 51 On one hand, these changes mean that as older workers with a lifetime of experiences and skills retire, companies face significant challenges in replacing them with workers with the capabilities and work ethic that characterize the many mature workers in the United States. On the other hand, many older people will remain in the workforce beyond traditional retire- ment age because of longer life spans, improvements in health, and financial shortfalls in their savings portfolios, leading to a greater possibility of bias and discrimination. 52
Many countries have enacted laws prohibiting age discrimination. For example, age discrimination regulations within the European Union member nations, Great Britain, Australia, India, Argentina, Canada, and Chile are just a sample of countries that focus on preventing age discrimination in recruitment, promotion, training, and retirement-related actions.53 In the United States, employment discrimination against individuals age 40 and older is prohibited by the Age Discrimination in Employment Act.
- - -----
CHAP TE R 3 Equal Employment Opportunity 95
3-7a Age Discrimination in Employment Act The Age Discrimination in Employment Act (ADEA) of 1967, amended in 1978 and 1986, prohibits discrimination in terms, conditions, or privileges of employ- ment against all individuals of age 40 or older working for employers having 20 or more workers . However, state employees may not sue state government employ- ers in federal courts because the ADEA is a federal law. Age discrimination charges consistently represent 20% to 25% of all discrimination charges filed with the EEOC. During the last economic downturn employers, fearing lawsuits by older workers, chose instead to lay off younger workers despite their lower salaries. 54
As with most equal employment issues, a better understanding of what constitu- tes age discrimination continues to be defined by the courts and the EEOC. Following the Supreme Court decision in Meacham v. Knolls Atomic Power Laboratory (2008), the EEOC issued its final rule on disparate impact in age discrimination cases . If an employer asserts that disparate impact is because of "reasonable factors other than age" (RFOA) then the employer must show that its employment practice was reason- ably designed to further a legitimate business purpose. Job performance, skills, or employee versatility are examples of reasonable factors other than age in employment decisions. The employer bears the ultimate burden of proof to show that age was not a factor in its actions.55
3-7b Older Workers Benefit Protection Act This law is an amendment to the ADEA and protects employees when they sign liabil- ity waivers for age discrimination in exchange for severance packages during reduc- tions in force. Workers over the age of 40 are entitled to receive complete accurate information on the available benefits, a list of all workers impacted in the reduction, and several weeks to decide whether or not to accept severance benefits in exchange for a waiver to sue the employer. 5 6 This Act ensures that older workers are not com- pelled or pressured into waiving their rights under the ADEA. Procedures for laying off older workers require legal oversight and a strict protocol to ensure compliance.
3-7 c Managing Age Discrimination One issue that has led to age discrimination charges is labeling older workers as "over- qualified" for jobs or promotions. In a number of cases, courts have ruled that the term overqualified may have been used as a code word for workers being too old, thus causing them not to be considered for employment. Also, selection and promotion practices must be "age neutral." Older workers face substantial barriers to entry in a number of occupa- tions, especially those requiring significant amounts of training or where new technology has been recently developed. In some cases involving older employees, age-related comments such as "Let's hire a recent college graduate" or "We need younger blood" in conversations were used as evidence of age discrimination.
Stereotypes about older workers are often negative. Many people mistakenly believe that older workers are less productive, resistant to change, more costly to employ and pay, and less trainable. These stereotypes are particularly prevalent in some industries: finance, insurance, retail, and information technology. They persist and often lead to lower ratings in interviews and performance appraisals for older workers. 57
To counter significant staffing difficulties, some employers recruit older people to return to the workforce through the use of part-time and other attractive scheduling options. During the past decade, the number of older workers holding part-time jobs
96 SECTION 1
Phased retirement Approach in which employees gradually reduce their workloads and pay leve l.
The Environment of Human Resource Management
has increased. It is likely that the number of older workers interested in working part- time will continue to grow.
A strategy used by employers to retain the talents of older workers for a period of time is phased retirement, whereby employees gradually reduce their workloads and pay levels. This option is growing in use as a way to allow older workers with significant knowledge and experience to have more personal flexibility, while the organizations retain them for their valuable capabilities. Some firms also rehire their retirees as part-time workers, independent contractors, or consultants. These strate- gies are intended to help the company retain its institutional knowledge and history.
3-8 • RELIGION AND SPIRITUALITY IN THE WORKPLACE
Title VII of the Civil Rights Act prohibits discrimination on the basis of religion. The increasing religious diversity in the workforce has put greater emphasis on religious considerations in workplaces. Faith-based schools and institutions can use religion as a BFOQ for employment practices on a limited scale. Also, employers must make reasonable accommodation efforts regarding an employee's religious beliefs unless they create an undue hardship for the employer.
Religious diversity in the United States is also reflected in the workplace. Figure 3-9 shows the percentage of U.S. adults that practice particular faiths. The wide range of beliefs and practices may evolve as immigrant populations bring with them not only cultural but also religious diversity to the nation and workplaces.
Religious discrimination can take many forms, from hostile remarks to refusal to hire individuals from different faiths. Problems can also arise because of conflicts
FIG U R E 3- 9 Religious Traditions in the United States ··········· .............................. .
60
I 51% 50
:l 40 :i "0 < c <IS
-~ 30 QJ
E I I 24% < .....
0
?f- 20 -l I I 18.5%
10
2% 2% 0.5% 0 ~ Jill"""""""' ~
Protestant Catholic Mormon jewish Buddhist Mus lim Hindu Unaffil iated
Religious Affiliation
Source: Adapted from Pew Forum on Reli gion and Public Life (http ://rel igions.pewfo rum. org/pdf/report-religiou s- landscape-study-key-findings.pdf).
CHAPTER 3
lslamaphobia -latred or fear of
uslim s.
Equal Employment Opportunity 97
between employer policies and employee religious practices such as dress and appear- ance. Some religions have standards about appropriate attire for women or shaving or hair length for men. Generally, employers are encouraged to make exceptions to dress code policies unless public image is so critical that it represents a business necessity. Deferring to customer preferences in making these determinations is risky and may lead to charges of unlawful discrimination. Employers are on firmer ground when worker safety is involved and the employer refuses to modify its dress or appearance policies. For example, a Muslim woman whose religious practice required her to wear a head scarf was not successful in her charge of religious discrimination for being denied employment in a factory with large machines and fast-moving parts. The hazards of the job posed a safety threat and the employer's position was upheld. 58
Islamaphobia, hatred or fear of Muslims, can impact the work environment and employment experience of both Muslim and non-Muslim employees. There are over 1 million Muslims in the U.S. workforce, many well-educated and financially well- off. Texas Instruments took the lead soon after the September 11, 2001 terror attacks to insure that its Muslim employees were not being subjected to harassment or abuse at work. The company established a Muslim affinity group to provide employees with a forum to offer perspectives on business issues. This type of respect and concern breaks down mistrust and allows all employees to honor their religious beliefs in the workplace. 5 9
3-8a Managing Religious Diversity The EEOC recommends that employers consider the following reasonable accom- modations for employees' religious beliefs and practices:
• Scheduling changes, voluntary substitutes, and shift swaps • Changing an employee's job tasks or providing a lateral transfer • Making an exception to dress and grooming rules • Accommodations relating to payment of union dues or agency fees • Accommodating prayer, proselytizing, and other forms of religious expression
Another issue concerns religious expression. In the last several years, employees in several cases have sued employers for prohibiting them from expressing their reli- gious beliefs at work. In other cases, employers have had to take action because of the complaints by workers that employees were aggressively "pushing" their religious views at work, thus creating a " hostile environment." Executives and owners of some firms have strong religious beliefs that are carried over into their companies. Some display religious symbols, sponsor study/prayer sessions, and support other religious efforts. But such actions can lead to those with different beliefs feeling discriminated against, thus creating a "hostile environment." Other areas that may need to be con- sidered when dealing with religion at work are food, on-site faith-based groups, office decorations, and religious practices at work. 60
3-9 • MANAGING OTHER DISCRIMINATION ISSUES
A number of other factors, such as national origin/immigration, language, military status, and appearance and weight, might lead to unlawful discrimination.
In addition to the Title VII protections, a number of federal laws have been enacted to address these forms of discrimination. Many of these laws were passed
98 SECTION 1 The Environme nt of Human Resource Management
in response to improper decisions by companies that resulted in unfair treatment of applicants or employees.
3-9a Immigration Reform and Control Acts The United States is home to 40 million foreign-born residents, primarily from Latin America and Asia. This number includes people living in the United States both legally and illegally. Modern-day immigrants are blending in as rapidly as those from previous generations. 6 1 The influx of immigrants has led to extensive political, social, and employment-related debates. The Immigration Reform and Control Act (IRCA), enacted in 1986, requires employers to verify the employment status of all employees, while not discriminating because of national origin or eth- nic background. Employers may not knowingly hire unauthorized aliens for employment in the United States.
Regardless of company size, every employer must comply with the provisions of the Act. High-profile Immigration and Customs Enforcement (ICE) raids on employers since January 2009 have led to audits of 7,500 employers and imposition of $100 million in penalties. 62 Employers ignore these obligations at their own peril. Within the first three days of employment, each employee must complete an Employment Eligibility Verification (commonly called an I-9) form and provide documents proving that they are legally authorized to work in the United States. Figure 3-10 lists the documents accepted in this process. The employer is required to inspect the documents and maintain records for all new hires. 63
The E-verify federal database instantly verifies the employment eligibility of employees. Federal contractors are required to use the system as are employers in a number of states where it has been mandated. Other employers may use the sys- tem to check and verify employees' legal status. 64
Visa Requirements Various revisions to the IRCA changed some of the restrictions on the entry of immigrants to work in U.S. organizations, particularly organizations with high-technology and other "scarce skill" areas. More immigrants with specific skills have been allowed legal entry, and categories for entry visas were revised .
F I G U R E 3 - 1 0 Primary Documents to Certify 1-9 Compliance
( l]p.\ ·:- . "\
• U.S. passport
• Certificate of U.S. citizenship
• Certificate of naturalization
• Unexpired foreign passport
• Permanent residence card
• 10 card issued by federal, state, or local government
• Schoo l 10 card with photograph
• Voter's registration card
• U.S. military card or draft record
• Cert ifi cation of birth ab road
• Origin al or ce rti f ied copy of birth certificate
• Native American tribal document
• U.S. cit izen 10 card
C HAPTER 3 Equal Employment Opportunity 99
Among the most common visas encountered by employers are the B1 for business visitors, H-1B for professional or specialized workers, and L-1 for intracompany transfers .
To discourage hiring immigrants rather than U.S. workers, an employer must file documents with the Labor Department and pay prevailing U.S. wages to the visa holders. Despite these regulations, a number of unions and other entities view such programs as ways to circumvent the limits on hiring foreign workers.
3-9b Language Issues As the diversity of the workforce increases, more employees have language skills in addition to English. Interestingly, some employers have attempted to restrict the use of foreign languages at work, while other employers have recognized that bilingual employees have valuable skills.
Some employers have policies requiring that employees speak only English at work. These employers contend that the policies are necessary for valid business pur- poses. The EEOC has issued guidelines clearly stating that employers may require workers to speak only English at certain times or in certain situations, but the business necessity of the requirements must be justified. Teaching, customer service, and tele- marketing are examples of positions that may require English skills and voice clarity.
Some employers have found it beneficial to have bilingual employees so that foreign-language customers can contact someone who speaks their language. Bilin- gual employees are especially needed among police officers, airline flight personnel, hospital interpreters, international sales representatives, and travel guides.
3-9c Military Status Protections The employment rights of military veterans and reservists have been addressed in several laws. The two most important laws are the Vietnam Era Veterans Readjust- ment Assistance Act of 1974 and the Uniformed Services Employment and Reem- ployment Rights Act (USERRA) of 1994. Under the latter, employees are required to notify their employers of military service obligations. Employers must give
F I G U R E 3 - 1 1 Uniformed Services Employment and Reemployment Rights Act (USERRA} Provisions
Common Issues • Leaves of absence
• Return to employment rights • Prompt reemployment on return
• Protection &om discharge/retaliation • Health insurance continuation
• Continued seniority rights
100 SECTION 1 The Environment of Human Resource Management
employees serving in the military leaves of absence protections under USERRA, as Figure 3-11 highlights.
With the use of reserves and National Guard troops abroad, the provisions of USERRA have had more impact on employers. This Act does not require employers to pay employees while they are on military leave, but many firms vol- untarily provide additional compensation to bridge the gap between military pay and regular pay. Uniformed military personnel are provided up to five years of active duty service leave during which the employer must hold their job. Requirements regarding benefits, disabilities, and reemployment are covered in the Act as well.
3-9d Appearance and Weight Discrimination Several EEOC cases have been filed concerning the physical appearance of employ- ees. Court decisions consistently have allowed employers to set dress codes and appearance standards as long as they are applied uniformly. For example, establish- ing a dress code for women but not for men has been ruled discriminatory. Also, employers should be cautious when enforcing dress standards for female employees whose religions prescribe appropriate and inappropriate dress and appearance stan- dards. Some individuals have brought cases of employment discrimination based on height or weight. The crucial factor that employers must consider is that any weight or height requirements must be related to the job, such as when excess weight would hamper an individual's job performance. 65
Complying with this complex array of regulations requires diligence and careful record keeping. Appendix F provides details on the EEO enforcement process, information about records retention, and the investigation process.
3-10 • DIVERSITY TRAINING
Traditional diversity training has a number of different goals. One prevalent goal is to minimize discrimination and harassment lawsuits. Other goals focus on improv- ing acceptance and understanding of people with different backgrounds, experi- ences, capabilities, and lifestyles. Employees are encouraged to recognize, evaluate, and appreciate differences.
3-1 Oa Components of Traditional Diversity Training There are often three components to diversity training programs. Legal awareness is the first and most common component. Here, the training focuses on the legal implications of discrimination. This limited approach to diversity training focuses only on these legal "do's and don'ts ."
Through cultural awareness training, organizations hope to build greater understanding of the differences among people. Cultural awareness training helps all participants to see and accept the differences in people with widely varying cul- tural backgrounds.
The third component of diversity training-sensitivity training- is more diffi- cult. The aim here is to "sensitize" people to the differences among them and how
~HAPTER 3 Equal Employment Opportunity 101
UMMARY
their words and behaviors are seen by others. Some diversity training includes exer- cises containing examples of harassment and other behaviors.
3-1 Ob Mixed Results for Diversity Training The results of diversity training are viewed as mixed by both organizations and par- ticipants. Studies on the effectiveness of diversity training raise some concern that the programs may be interesting or entertaining, but may not produce longer-term changes in people's attitudes and behaviors toward others with characteristics dif- ferent from their own. 66
Some argue that traditional diversity training more often than not has failed because it has not reduced discrimination and harassment complaints. Rather than reducing conflict, in a number of situations diversity training has increased hostility and conflict. In some firms, it has produced divisive effects, and has not changed behaviors so that employees can work well together in a diverse workplace.
Negative consequences of diversity training may manifest themselves broadly in a backlash against all diversity efforts. Women and members of racial minorities sometimes see diversity programs as inadequate and nothing but "lip service." Thus, it appears that by establishing diversity programs employers raise expecta- tions but may fail to meet those expectations. On the other side, a number of indi- viduals who are in the majority (primarily white males) interpret the emphasis on diversity as assigning them blame for societal problems. Diversity programs can be perceived as benefiting only women and racial minorities and taking away opportu- nities for men and nonminorities. This resentment and hostility is usually directed at affirmative action programs that employers have instituted. 67
3-1 Oc Improving Diversity Training Efforts Focusing on behavior seems to hold the most promise for making diversity training more effective. For instance, dealing with cultural diversity as part of training efforts for sales representatives and managers has produced positive results. Teach- ing appropriate behaviors and skills in relationships with others is more likely to produce satisfactory results than focusing just on attitudes and beliefs among diverse employees. 68
Trainers emphasize that the key to avoiding backlash in diversity efforts is to stress that people can believe whatever they wish, but at work their values are less important than their behaviors. Dealing with diversity is not about what people can and cannot say; it is about being res pectful to others.
• Equal employment is an attempt to level the field of opportunity for all people at work.
disability, national origin, race, religion, and other protected characteristics.
• Laws have been enacted to prohibit making employment decisions based on age, color,
• T he Equal Employment Opportunity Commis- sion and Office of Federal Contract Compliance
102 SECTION 1 The Environment of Human Resource Management
Programs are the primary enforcement agencies in employment discrimination laws.
• Disparate treatment occurs when individuals are treated differently on the basis of a protected characteristic.
• Disparate impact occurs when employment decisions work to the disadvantage of individuals on the basis of a protected characteristic.
• Employers may be able to defend their manage- ment practices using business necessity, job relatedness, and bona fide occupational qualifi- cations (BFOQ).
• Title VII of the 1964 Civil Rights Act was the first significant equal employment law. The Civil Rights Act of 1991 altered and expanded the 1964 provisions.
• Retaliation claims now rank as the most com- mon reason individuals file EEO claims.
• Executive Orders issued by the President govern the relationship between federal contractors and the U.S. government.
• Affirmative action has been intensely litigated, and the debate continues today.
• Several laws on sex/gender discrimination have addressed issues regarding pregnancy dis- crimination, unequal pay for similar jobs, and sexual harassment.
• As more women have entered the workforce, sex/gender issues in equal employment have included both discrimination through pay inequity and discrimination in jobs and careers.
• The courts have defined two types of sexual harassment- quid pro quo and hostile environment.
• It is vital that employers train all employees on what constitutes sexual harassment, promptly investigate complaints, and take action when sexual harassment is found to have occurred.
• The Americans with Disabilities Act (ADA) requires that most employers identify the essential functions of jobs and make reasonable accommodations for individuals with disabilities unless doing so would result in undue hardship.
• Employment discrimination against persons older than age 40 is illegal according to the Age Discrimination in Employment Act (ADEA).
• Employers are required to make reasonable accommodations for employees with religious beliefs and practices.
• The Immigration Reform and Control Acts (IRCA) regulate the employment of workers from other countries who work in the United States.
• A number of other concerns have been addressed by laws, including discrimination based on religion, military status, and other factors.
• Diversity training has had limited success, pos- sibly because it too often has focused on beliefs rather than behaviors.
,. ~· ~ :_.. ~A· -;; - ~,. ) - ' ~:1 -~i~ -~·,:$J,;~}ft~ · -. ·~~~ ~"f
CRITICAL THINKING CHALLENGES 1. Discuss some of the protected characteristics
covered by Equal Employment Opportunity and why they are important in today's employment setting.
2. You recently learned that two of your key female employees will be taking maternity leave around the same time. What procedures or rules do you need to be aware of based on the Pregnancy Discrimination Act (PDA)?
3. Give an example of sexual harassment you may have witnessed or heard about. How do you think the situation should have been handled if you were the HR manager?
4 . Use the U.S . Department of Labor website (www.usdol.gov) to further research a topic discussed in this chapter. Be sure to understand what the particular law (Act) is protecting and what the rules are that companies need to follow to comply with this Act.
C HAPTER 3 Equal Employment Opportunity 103
HR EXPERIENTIAL PROBLEM SOLVING Because of a large number of recently retired employ- ees you have been hiring more employees in recent _:ears. The average age of the workforce at your com- pany has changed drastically. The typical age of your employees used to be around 40; however, after many recent additions, it is now 34. The president of the company is worried that the company culture no longer matches up with the needs and values of a :·ounger workforce. As the HR manager you have :Udividually met with every new employee for orien- ::ation over recent years, so you feel you have a good
idea as to what your workforce is looking for. You have been asked by the company president to suggest a few options to help increase morale and entice employees to stay with the company.
1. List some ideas to help meet the needs and wants of a younger workforce.
2 . Going forward, what type of program would you include as part of new employee orientation to help further "sell" the company to your new employees?
CASE
Worker Exploitation at Foxconn/Hon Hai Foxconn/Hon Hai Precision Ind. Co. Ltd. is a key China-based supplier to several U.S. high-tech .::o mpanies like Apple, Dell, and HP. Manufac- :ur ers have a vested interest in the quality of pro- ducts from their suppliers and their labor pra ctices. Low-cost labor and a nearly endless sup- ply of employees lead many U.S . companies to deal with suppliers in China. As more U.S. cor- - orations strive for social responsibility, it was {)nly a matter of time before production overseas -aw the ripple effect of those decisions. Labor laws ;n China provide limited protection for workers and therefore the U.S. companies faced an ethical dilemma . Should they monitor labor practices at Foxconn/Hon Hai to ensure that workers were ;:reated respectfully, or should they accept that if Foxconn followed Chinese labor laws it was not :heir concern?
Hon Hai, the world 's largest electronics con- ;:ract manufacturer, employs over 800,000 work- ::-rs, who produce parts for iPads, iPhones, and
rher devices. Workers are housed in a campus i th dormitories, a hospital, a bookstore, swim-
:ning pools, free bus transportation, and other ser- -ices. Many of the workers migrated from farm
communities to the industrial hubs where Hon Hai's operations are located. Their jobs at Hon Hai ' s factories are often the first assembly-line jobs they have ever held and they are frequently living far from home and fami ly.
Working conditions at Hon Hai's factories com- plied with Chinese labor laws but frequently led to what is considered in the U.S. as worker abuse. Work- ers routinely worked in excess of 40 hours, with most workers averaging 120 hours of overtime per month. That calculates to an average workweek of 70 hours. Many machines were not properly equipped with safety devices leading to injuries. Underage workers were employed. At least 10 employees at the company committed suicide in 2010, which brought labor con- ditions under great public scrutiny. The company's response was to install safety nets around the dormi- tories to prevent additional casualties. The uproar from customers and the independent worker- advocacy agency, the Fair Labor Association, led to serious review of working conditions.
Apple had previously questioned labor condi- tions at Hon Hai. The company sent a team to investigate reports of excessive overtime and other "sweatshop" conditions . After the rash of suicides
104 SECTION 1 The Environment of Human Resource Management
'Apple sent a team of executives to China to inspect the factories and meet with Foxconn's CEO. Apple continues to monitor conditions at the supplier that were so bad that the U.S. company could no longer ignore the abhorrent labor practices .
Because of the sheer size of Hon Hai and its importance in the supply chain to electronics man- ufacturers, discontinuing the relationship would be a very difficult and costly alternative for Apple and others. Hon Hai has implemented a number of improvements for workers that should satisfy its customers and keep its employees safe and healthy. Employees at Hon Hai's factories will now work fewer hours and receive higher pay. For example, there is now a maximum 40- hour work week for each employee, with the option of working up to a maximum of 36 hours of overtime each week. The probation period for entry-level workers was cut in half from six months to three months. The company instituted an Employee Assistance Plan to assist employees with mental health concerns.
Labor laws around the world reflect the priori- ties of each nation's government and this can lead to great differences between countries. When a U.S. -based company does business with suppliers in other nations, one factor to consider is how
workers are treated and what is required by law to insure humane working conditions. 69
QUESTIONS
1. What obligation does a company like Apple or HP have to insure that suppliers follow the local labor laws? What should Apple do if it discovers that the supplier is not in compliance with those laws?
2. How should a multinational company like Apple reconcile the differences in labor laws around the world? For example, workers in the United States are provided substantial protection from discrimination and unfair treatment. This is not the case in all nations. If a company like Apple is doing business with suppliers around the world, what standard should be used to evaluate labor practices?
3. As someone who might purchase devices made by Apple, Dell, or HP, how does this treatment of workers at a supplier influence your opinion of Apple and other U.S . companies that deal with such suppliers? Does Apple bear any responsibility for these labor problems because of its quest for ever lower costs?
, . ~ · ~ d · _ . ...... ) .. J.-J· ."J1i1L ;·~;t~;-;::J;~;-:.., - ' .-:, _ : ~,F
SUPPLEMENTAL CASES Keep on Trucking
This case illustrates the problems that can be asso- ciated with the use of employment tests that have not been validated. (For the case, go to http:// www.cengage.com/management/mathis. )
Mitsubishi Believes in EEO-Now
This case shows the problems Mitsubishi had with sexual harassment in the United States. (For
the case, go to http://www.cengage.com/management/ mathis. )
Rei igious Accommodation?
This case shows how companies must deal with employees from many cultures and religions. (For the case, go to http://www.cengage.com/management/ mathis .)
CHAPTER 3 Equal Employment Opportunity
NOTES 1. Adapted from "Wal-Mart vs. a M il-
lion Angry Women," Bloomberg Businessweek, November 22- November 28, 2010, 39-40; Rita Pyrillis, " Wal-Mart Ruling Convo- lutes Class-Action Landscape " Workforce Management, July 2012, 10; "Wal-Mart Women Still Seek J ustice in Sex Discrimination Case," Huffington Post, August 16, 2012.
1. "Civil Rights Movement," August 2012, http://www.history.com/ topics/civil-rights-movement.
3. " Office of Federal Contract Com- pliance Programs: Facts on Execu- tive Order 11246-Affirmative Action," January 2002, http: //www. dol.gov/ofccp/regs/compliance/aa. htm.
4. "Global Employment Law: NLRB Ruling Complicates Employers' Internal Investigations, " August 2012, http://www.globalemploy- mentlaw.com/articles.
5 . Kevin McGowan, "Retaliation Charges Were Most Common in Record-Breaking FY 2011, BNA Bulletin to Management," January 31, 2012, http://www.bna.com/retal- iation-charges-common.
6. Tom Starner, "Bias Claims on the Rise," Human Resource Executive, January/February, 2011, 145; Andrew Mcilvaine, " It's Pay-Up Time for the EEOC." Human Resource Executive, October 16, 2011, 10.
- Willis Hagen, " Dissection and Anal- ysis of the Recent Cases on Employ- ment Discrimination under Title II of the Civil Rights Act of 1964, " Emp loyee Responsibilities and Rights journal, 2011, 171-186; Anne Lindberg, "D isparate Impact or Disparate Treatment: Either Way Leads to Court," Trend Watcher, July 10, 2009, 1-5.
~ Kerri Stone, "Ricci Glitch: The Unexpected Appearance of Trans- fe rred Intent in Title VII," Loyola Law Review, 2010, 752; Ricci v. DeStefano, No. 08-328(E. D.Conn., April 22, 2009 ).
9. Griggs v. Duke Power Co., 401 U.S. 424, (1971); Mary Birk, "RIFS: Use Statistical Analysis to Avoid Dispa- rate Impact Based on Age," L egal Report Society for Human Resources Management, April 2008, 5-8.
10. Jathan Janove, "A Story is Worth a Thousand Lectures. " HR Magazine, July 2009, 66-6 8; Roger Achille, " Thorough, Well-Documented Investigation Defeats Discrimination Claim,"HR Magazine, March 2012, 93.
11. David Shadovitz, " Questioning Crimin al Backgrounds," Human Resource Executive, October 2, 2011, 10; Leslie Silverman, "What HR Professionals Need to Know About the EEOC's New Guidance on Criminal Background Checks," www.shrm.org, 2012; Allen Smith, "Pepsi Settles Dispute Over Criminal Checks for $3 Million, " HR Maga- zine, March 2012, 14.
12. Sara Murray, "Credit Checks on Job Seekers By Employers Attract Scrutiny,"The Wall Street Jou rnal, October 21, 2010; SHRM White Paper, " Hiring: Background Checks: Can We Run Credit Reports and Use Them as Part of our Employee Selection Process?", April 28, 2012.
13. Breiner v. Nevada D ept. of Correc- tions, No. 09-15568 (E.D. Nev., July 8, 2010).
14. Dunlap v. Tennessee Valley Author- ity, No. 07-5381 (E. D. Tenn. March 28 , 2008); Rowe v. Cleveland Pneu- matic Co., 690 F.2d 88 (1982).
15. Amanda Bolliger, "Award of $417,955 Upheld in Retaliation Case," HR Magazine, May 2012,65.
16. Jamie Prenkert, " Handle with Care: Avoiding and Managing Retaliation Claims," Business Horizons, Ma y 2012 , 1; Lisa Cooney, " Understa nd- ing and Preventing Workplace Retaliation," Massachusetts Law Review, Volume 88, 2003.
17. Based on EEOC v. Cognis Corp. , No. 10-CV-2182 C.D. III (2012); http:// www1.eeoc.gov//eeoc/newsroornl release/5-29-12.cfm
105
18. "U.S. Equal Employment Opportu- nity Commission: Title I - Federal Civil Rights Remedies, Damages in Cases of International Discrimina- tion, " 2012, http://www.eeoc.gov/ laws/statutes/era -19 91 .cfm.
19. Adapted from Ryan]. Foley, "Teresa Wagner Lawsuit Claims University of Iowa Passed Her Up For Jobs Because of Political Views," H uff Post College, October 12, 2012.
20. "U.S. Equal Employment Opportu- nity Commission: EEOC Race Dis- crimination Case Against YRC/ Yellow Transportation Ends with $11 Million Decree," June 29, 2012, http://www.eeoc.gov/eeoc/newsroom/ release/6-29-12a .cfm; "U.S. Equal Employment Opportunity Commission: Caldwell Freight Lines to Pay $120,000 to Settle EEOC Race Discrimination Lawsuit," August 3, 2012, http://www.eeoc.gov/eeoc/ newsroornlrelease/8 -3-12.cfm.
21. O laf Aslund & Oskar Nordstrom Skans, " Do Anonymous Job Appli- cation Procedures Level the Playing Field?", Industrial and Labor Rela- tions Review, Volume 65, 2012, 82-107.
22. James Hall, Mark Kobata, & Marty Denis, "Legal Briefings: Employer's Prompt Response to Racial Epithets," Workforce Management, January 2010, 8.
23. "U.S. Department of Labor, WHD: Break Time for Nursing Mothers, " 2010, http://www. dol.gov/whd/ nursingmothers.
24. "Italian Women Hoping for Work- place Changes, Protection vs. Discri- mination, " Business World, August 13,2012.
25. Mary-Kathryn Zachary, "Pregnancy Discrimination-Avoiding and Defending Lawsuits," Supervision, August 2010, 23-26; Kjersten Whittington, "Mothers of Invention: Gender, Motherhood, and New Dimensions of Productivity in the Science Profession," Work and Occupations, August, 2011, 417-456; " Milwaukee Company
106 SECTION 1 The Environment of Human Reso urce Management
Pays for Firing New Mother," Asso- 30. "Catalys t: Women CEOs of th e For- Romance Policies and Procedures on ciated Press, March 3, 2012; McFee tune 1000," July 2012, http://www. Job Pursuit Intentions," Journal of v. Nursing Care Management of cata lyst.org/pub l ica tion/2 71/women- Managerial Psychology, 2012, Vol- America, No. 2009-0 756 (E.D . Ohio, ceos-of-the-fortune-1000 ; "Moving ume 27, 237-263. June 22, 2010). Women to the Top : McKinsey 37. Charles Pierce & Herman Aquinis,
26. UAW v. Johnson Controls, Inc., 499 Global Survey Results," McKinsey "Moving Beyond a Legal-Centric US 187 (199 1); Mark Valarie, "The Quarterly, October 2010. Approach to Managing Workplace Flip Side of Fetal Protection Policies: 31. S. Pichler, P. Simpson, and L. Str oh, Romances: Organizationally Sensible Compensating Children Injured "The Glass Ceiling in Human Recommendations for HR Leaders," Through Parental Expos ure to Resources: Exploring the Link Hu man Resource Management, May Reproductive Hazards in th e Work- Between Women's Representation in 2009, 447-464; "The Office place," Golden Gate University Law Management and the Practices of Romance," Bloomberg Business- Review, Volume 22, 1992, http:// Strategic HRM and Employee week, September 20-26, 2010, digitalcommons.law.ggu.edu/ Involvement," Human Resource 74- 75. ggulrev/vol22/iss3/4. Management, Fall 2008, 463-479; 38 . Scott Clement, "Quarter of Women
27. C. J. Weinberger & P.]. Kuhn, David Johnston & Wang-Sheng Lee, Report Being Harassed in Work- "Chang ing Levels or Changing "Climbing the Jo b Ladder: New place," The D enver Post, November Slopes? The Narrowing of th e Gen- Evidence of Gender Inequity," 17, 2011, 8A; "Sexual H arass ment der Earnings Gap 1959- Industrial R elations: Journal of Statistics in the Workplace," 2012, 1999," Industrial and Labor Rela- Economy and Society, Vo lume 51, http://www.sexualharassmentlaw- tions Review, Volume 63, 2010 , 129-151; P.A. Murray & ]. Syed, firms.corn/Sexual-Harassment-statis- 38 4-40 6; A. Manning & F. Saidi, "Gendered Observations and tics.cfm. "Und erstandin g the Gender Pay Experiences in Exec utive Women's 39. Yvette Lee, "Electronic Harass- Gap : What's Competition Got to do W ork ," Human Resource Manage- men t, Recr uiters' Sources, Globa l With It?", Industrial and Labor ment Journal, 2010, Volume 20, Benefits", HR Magazine, Septem- Relations Review, 2010 , Volume 63, 277-293; C. ]. Wein berger, " In ber 2010, 24; Robyn Berkley & 681 - 698; Stephen Benard, "Wh y Search of the Glass Ceiling: Gender David Kaplan, "Assessing Liab ility His Merit Ra ise is Bigger Than and Earnings Growth Among U.S. for Sexual Harassment: Reactions Hers," Harvard Business Review, College Gradua tes in the 1990s," of Potential Juro rs to Email April2012. Industrial and Labor Relations Versus Face-to-Face Incidents,"
28. "U.S. Department of Labor: Women Review, 2011, Volume 64, 949- 98 0. Employee Responsibilities and in the Labor Force in 2010," 2011, 32. "Researcher Estimates 9 Mi llion Rights Journal, 2009, Volume 21, http://www.dol.gov/wb/factsheets/ America ns are Gay or Bisexual," The 195- 2 11. Qf-laborforce-lO.htm. Denver Post, April 7, 2011, 7 A; 40. "Model Discrimina tion and H arass-
29. Jacquelyn Smith, "The Top 25 Hope Yen, "Census: 131,729 Gay ment Policy," Ceridian Abstracts, Companies for Work-Life Balance," Couples Report That They're Mar- www .hrcompliance.ceridian.com, Forbes, August 10, 2012; Colette ried," Casper Star- Tribune, Septem- 1-3; Elissa Perry, Carol Kulik, & Darcy, Alma McCarthy, Jimmy Hill, ber 28, 2011, All. Marina Field, "Sexual Harass ment & Geraldine Grady, "Work-Life 33 . "ACLU: Summary of States Which Training: Recommendations to Balance: One Size Fits All? An Prohibit Discrimination Based on Address Gaps Between the Practi- Exploratory Ana lys is of the Differ- Sexual Orientation," June 17, 2005, tioner and Research Literatures," entia! Effects of Career Stage," http ://aclu.procon.org/view.back Human Resource Management, Sep- European Management Journal, ground-resource. php?resou rceiD= tember/Octo ber 2009, Volume 48, Apr il 2012, 111- 120; Jing Wang & 1457; Joe Harris, "In the Pink: 817- 837; Christina Stoneb urner, Ani! Verma, "Explaining Organiza - Corporate Cultures are Reinventing "Want an Easy and Cost-Effective tiona! Responsiveness to Work-Life Themselves to Accommodate LGBT Defense to Employment Discrimina- Balance Issues: The Role of Business Rights," Florida Agenda, June 21, tion Claims: Provide Harassment Strategy and High-Performance 20 12. Training for Your Emplo yees," Work Systems," Human Resource 34. Diane Cadrain, "Accommodating Employee Benefit News, N ovem ber Management, May/June, 20 12, Sex Transformations," HR Maga- 22, 2011. 407-432; Lieke ten Brummelhuis & zine, October 2009, 59-61. 41. Harsh Luther and Uipan Luther, "A Tanja van der Lippe, "Effective 35. L. Grensing-Pop hal, "All in the Theoretical Framework Explaining Work-Life Balance Support for Var- Family," HR Magazine, September Cross-Cultural Sexua l Harassment: ious Household Structu res," Human 20 07, 66-70. Integrating H ofsteds and Schwartz," Resource Management, March/April 36. Charles Pierce, Katherine Karl, & Journal of Labor Research, Winter 201 0, 173-193. Er ic Brey, "Role of Workplace 2007, 169-18 8.
CHAPTER 3 Equal Employment Opportunity
- 2. H. Stephen Kaye, "The Impact of the 2007- 09 Recession on Workers with Disabilities," Monthly Labor Review, October 2010, 19- 34.
- 3. "Fact Sheet: Your Rights Under Sec- tion 504 of the Rehabilitation Act," Department of Health and Human Services, June 2006.
-+4 . Marlene Prost, "Final ADA Regula- tions Spell Out Disabilities, " Human Resource Executive Online, April 8, 2011; James Hall, Mark Kobata, & Marty Denis, "Legal Briefings: H ir- ing Ban After Failed Drug Test and the ADA," Workforce Management, May 2011, 10; James Hall, Mark Kobata, & Marry Denis, "Legal Briefings: EEOC Issues Final Regulations for ADA Amendments Act, " Workforce Managem ent, June 2011, 12.
- 5. "ADA Regulations: What is a Mental Impairment?", January 5, 2012, http://hr.blr.com/HR-news/ Discrimination!Disa bilities-AD N znt1 -ADA-Regulations-What-is-a- Mental-Impairment.
.;.6. Job Accommodation Network, http ://askjan.org.
7. Matthew Brodsky, "Disability Flexi- bility", Human Resource Executive Online, September 2, 2011; Jonathan Segal, "ADA Game Changer", HR Magazine, June 2010, 121-126. Katie Kuehner-Hebert, "Linking ADA Compliance to Corporate Cul- ture," Human Resource Executive, October 16, 2011, 12; Victoria Zellers, " Make a Resolution: ADA Training," HR Magazine, January 2009, 81- 83.
- 9. Jared Shelly, "Discrimination Del- uge," Human Resource Executive Online, April 1, 2011; Jared Shelly, "Disability Discrimination Rises", Human Resource Executive Online, February 24, 2011; Joann Lublin & Saabira Chaudhur, "Ex-CEO Says Cancer Led to Her Ouster", The Wall Street journal, August 4/5, 2012.
-o. Allen Smith, "Coordinate GINA Compliance with Leave, ADA, and HIPAA Policies", www.shrm.org/ legalissues, June 30, 2008; Susan Hauser, "Sincerely Yours, GINA,"
Workforce Management, July 2011, 16-22.
51. "World Popul ation Ageing: 1950- 2050," Department of Economic and Social Affairs-Population Division, 2002, http://www.un .org/esa/ population/publications/ worldageing19502050.
52. MitraToossi, " Labor Force Projec- tions to 2018: Older Workers Stay- ing More Active, " Monthly Labor Review, November 2009, 30- 51; Peter Cappelli & Bill Novelli, "Managing the Older Worker: How to Prepare for the New Organiza- tional Order, " Boston, MA: Harvard Business Press, 2010, 8-208.
53. Joanna Lahey, "International Com- parison of Age Discrimination Laws," Research on Aging, No vem- ber, 2010, Volume 32(6), 679- 69 7; "Age Discrimination Internation- ally," 2012, http://www.agedi scrimination.info/international! Pages/international.aspx.
54. Dana Mattioli, "With Jobs Scarce, Age Becomes an Issue, " The Wall Street journal, May 19, 2009, D4 .
55. James Hall, Mark Kobata, & Marry Denis, "Legal Briefings: EEOC Clarifies ADEA Obligations," Workforce Management, April 2010, 8; Allen Smith, "Final Rule Issued on Disparate Impact Under ADEA," HR Magazine, May 2012, 14.
56. Richard Posthuma & Michael Cam- pion, "Age Stereotypes in the Work- place: Common Stereotypes, Moderators, and Future Research Directions? ," journal of Manage- ment, February 2009, 158-188.
57. "U.S. EEOC: Understanding Waivers of Discrimination Claims in Employee Severance Agreements," April 2010, http://www.eeoc.gov/ policy/docs/qanda_severance- agreements.html.
58. EEOC v. Kelly Services Inc., No. 08 - 3880 (2010).
59. Robert Grossman, "Muslim Employees: Valuable but Vu lnera- ble," HR Maga zine, March 2011, 22-27; Stan Malos, "Post-9/11 Backlash in the Workplace: Employer Liability for Discrimina -
107
tion Against Arab- and Muslim- Americans Based on Religion or National Origin," Employee Responsibilities and Rights journal, Volume 22, 297-310.
60 . Robert Grossman, "Religion at Work," HR Magazine, December 2008, 27-33.
61. Miriam Jordan, "Immigrants are Still Fitting in," The Wall Street journal, November 14, 2011, AS.
62 . Miriam Jordan, "Fresh Raids Target Illegal Hiring," The Wall Street journal, May 3, 2012, A2; Miriam Jordan, "Chipotle Faces Inquiry on Hiring," The Wall Street journal, May 23, 2012, B3.
63. Aliah Wright, "HR Must Be Dili- gent When It Comes to Verifying Employees," www.shrm.org, March 29, 2010; Hector Chichoni, "I-9 Compliance Crackdowns," HR Magazine, February 2011, 63-68.
64. "U.S. Citizenship and Immigration Services," 2012, http ://www.uscis. gov/portal!site/uscis; D. Savino, "Immigration Policies and Regula- tions Continue to Create Uncertainty for Both Employers and Employees," Employment Relations Today, Fall 2009, 57-68.
65. R. M. Puhl, T. Andreyeva & K. D. Brownell, "Perceptions of Weight Discrimination: Prevalence and Comparison to Race and Gender Discrimination in America," Inter- national Journal of Obesity, June 2008 , 992-1000; Mark Roehling, Richard Posthuma, and James Dule- bohn, "Obesity Related 'Perceived Disability' Claims," Employee Rela- tions Law Journal, Spring 2007, 30- 51.
66. Katerina Bezrukova, Karen Jehn, & Chester Spell, "Reviewing Diversity Training: Where We Have Been and Where We Should Go," Academy of Management Learning & Education, June 2012, 207-227; Rohini Anand and Mary-Francis Winters, "A Ret- rospective of Corporate Diversity Training from 1964 to the Present," Academy of Management Learning and Education, September 2008, 356-373.
108 SECTION 1 The Environment of Human Resource Management
67. Lisa M. Amoroso, Denise L. Loyd, & Jenny M. Hoobler, " The Diversity Education Dilemma: Exposing Status Hierarchies Without Reinforcing Them," Journal of Management Education, December, 2010, 795- 822.
68. Adapted from Elizabeth Levy Paluck & Donald P. Green, " Prejudice
Reduction: What Works? A Review and Assessment of Research and Practice," Annual Review of Psy- chology, January, 2009, 339- 367.
69. Based on Jason Dean, "Suicides Spark Inquiries," Wa ll Street Journal, May 27, 2010; Malcolm Moore, " Inside Foxconn's Suicide Factory," Telegraph UK, May 27,
2010; Nicholas Kolakowski, "Apple Report Details Response to Foxconn Suicides," eWeek.com, February 15, 2011; Dominic Rushe, "Apple Manufacturer Foxconn Improves on Chinese Workers' Hours and Safety," Guardian.com , August 21, 2012 .
