ch2

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PowerPoint Presentation by Charlie CookPowerPoint Presentation by Charlie Cook

The University of West AlabamaThe University of West Alabama

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Human Resource Human Resource

ManagementManagementELEVENTH EDITIONELEVENTH EDITION

G A R Y D E S S L E RG A R Y D E S S L E R

© 2008 Prentice Hall, Inc. © 2008 Prentice Hall, Inc.

All rights reserved.All rights reserved.

Equal Opportunity and the LawEqual Opportunity and the Law

Chapter 2Chapter 2

Part 1 | IntroductionPart 1 | Introduction

© 2008 Prentice Hall, Inc. All rights reserved. 2–2

After studying this chapter, you should be able to:After studying this chapter, you should be able to:

1.1. Cite the main features of at least five employment Cite the main features of at least five employment

discrimination laws.discrimination laws.

2.2. Define Define adverse impactadverse impact and explain how it is proved and explain how it is proved

and what its significance is.and what its significance is.

3.3. Explain and illustrate two defenses you can use in the Explain and illustrate two defenses you can use in the

event of discriminatory practice allegations.event of discriminatory practice allegations.

4.4. Avoid employment discrimination problems.Avoid employment discrimination problems.

5.5. Cite specific discriminatory personnel management Cite specific discriminatory personnel management

practices in recruitment, selection, promotion, transfer, practices in recruitment, selection, promotion, transfer,

layoffs, and benefits.layoffs, and benefits.

6.6. Define and discuss Define and discuss diversity managementdiversity management..


Equal Employment Opportunity 1964Equal Employment Opportunity 1964––19911991

Title VII of the 1964

Civil Rights ActEEOC

Executive Orders11246, 11375

OFCCP

Equal Pay Act

of 1963

Age Discrimination

in Employment Act

of 1967

Vocational

Rehabilitation Act

of 1973

Pregnancy

Discrimination Act

of 1978

Federal Agency

Guidelines

Equal

Employment

Opportunity


Early Court Decisions Regarding Early Court Decisions Regarding

Equal Employment OpportunityEqual Employment Opportunity

1

Business necessity is a defense for adverse impact.

Employer’s intent is irrelevant.

Griggs v. Duke Power Company

Burden of proof is on the employer.

“Fair in form” practice must also be nondiscriminatory.

2

3

4

Test or practice must be related to job performance.5


Early Court Decisions Regarding Early Court Decisions Regarding

Equal Employment Opportunity (cont’d)Equal Employment Opportunity (cont’d)

•• Albemarle Paper Company v. MoodyAlbemarle Paper Company v. Moody

�� If a test is used to screen candidates, then the job’s If a test is used to screen candidates, then the job’s

specific duties and responsibilities must be analyzed specific duties and responsibilities must be analyzed

and documented.and documented.

�� The performance standards for the job should be The performance standards for the job should be

clear and unambiguous.clear and unambiguous.

�� Federal guidelines on validation are to be used for Federal guidelines on validation are to be used for

validating employment practices.validating employment practices.


Equal Employment Opportunity Equal Employment Opportunity

19901990––9191––presentpresent

Civil Rights Act

of 1991

Burden of ProofDisparate Impact

Mixed MotivesDesert Palace Inc.

v. Costa

Money DamagesCompensatory

Punitive

2


Equal Employment Opportunity Equal Employment Opportunity

19901990––9191––present (cont’d)present (cont’d)

AIDS

Qualified Individual

Reasonable Accommodation

Employer Defenses

Americans with

Disabilities Act

(ADA) of 1990


Employer Obligations Under ADAEmployer Obligations Under ADA

•• An employer must make a reasonable accommodation for An employer must make a reasonable accommodation for

a qualified disabled individual unless doing so would result a qualified disabled individual unless doing so would result

in undue hardship.in undue hardship.

•• Employers are not required to lower existing performance Employers are not required to lower existing performance

standards or stop using tests for a job.standards or stop using tests for a job.

•• Employers may ask preEmployers may ask pre--employment questions about essential employment questions about essential

job functions but can not make inquiries about disability.job functions but can not make inquiries about disability.

•• Medical exams (or testing) for current employees must be Medical exams (or testing) for current employees must be

jobjob--related.related.

•• Employers should review job application forms, interview Employers should review job application forms, interview

procedures, and job descriptions for illegal questions and procedures, and job descriptions for illegal questions and

statements.statements.

•• Employers should have upEmployers should have up--toto--date job descriptions that identify date job descriptions that identify

the current essential functions of the job.the current essential functions of the job.


Disabilities and ADADisabilities and ADA

•• Courts will tend to define “disabilities” quite narrowly.Courts will tend to define “disabilities” quite narrowly.

•• Employers are not required to tolerate misconduct Employers are not required to tolerate misconduct

or erratic performance, even if the behaviors can be or erratic performance, even if the behaviors can be

attributed to the disability.attributed to the disability.

•• Employers do not have to create a new job for the Employers do not have to create a new job for the

disabled worker nor reassign that person to a lightdisabled worker nor reassign that person to a light--duty duty

position for an indefinite period, unless such a position position for an indefinite period, unless such a position

exists.exists.

•• Employers should not treat employees as if they are Employers should not treat employees as if they are

disabled so that they will not be “regarded as” disabled disabled so that they will not be “regarded as” disabled

and protected under the ADA.and protected under the ADA.


State and Local Equal Employment State and Local Equal Employment

Opportunity LawsOpportunity Laws

•• State and Local LawsState and Local Laws

�� Cannot conflict with federal law but can extend Cannot conflict with federal law but can extend

coverage to additional protected groups.coverage to additional protected groups.

�� The EEOC can defer a discrimination charge to state The EEOC can defer a discrimination charge to state

and local agencies that have comparable jurisdiction.and local agencies that have comparable jurisdiction.


Title VII: Sexual HarassmentTitle VII: Sexual Harassment

•• Sexual HarassmentSexual Harassment

�� Harassment on the basis of sex that has the purpose Harassment on the basis of sex that has the purpose

or effect of substantially interfering with a person’s or effect of substantially interfering with a person’s

work performance or creating an intimidating, hostile, work performance or creating an intimidating, hostile,

or offensive work environment.or offensive work environment.

��Employers have an affirmative duty to maintain Employers have an affirmative duty to maintain

workplaces free of sexual harassment and workplaces free of sexual harassment and

intimidation.intimidation.

•• Federal Violence Against Women Act of 1994Federal Violence Against Women Act of 1994

�� A person who commits a violent crime motivated by A person who commits a violent crime motivated by

gender is liable to the party injured.gender is liable to the party injured.


Proving Sexual HarassmentProving Sexual Harassment

Proving Sexual

Harassment

Quid Pro Quo

Hostile Environment

Created by

Co-Workers or

Nonemployees

Hostile Environment

Created by

Supervisors

3


TABLE 2–2 Summary of Important Equal Employment Opportunity Actions

Title VII of 1964 Civil Rights Act, as amended

Executive orders

Federal agency guidelines

Supreme Court decisions:

Griggs v. Duke Power Co.,

Albemarle v. Moody

Equal Pay Act of 1963

Age Discrimination in Employment Act of 1967

State and local laws

Vocational Rehabilitation Act of 1973

Pregnancy Discrimination Act of 1978

Vietnam Era Veterans’ Readjustment Assistance Act of 1974

Ward Cove v. Atonio

Price Waterhouse v. Hopkins

Americans with Disabilities Act of 1990

Civil Rights Act of 1991

Note: The actual laws (and others) can be accessed at:

http://www.usa.gov/Topics/Reference_Shelf.shtml#Laws.


Sexual Harassment: Court DecisionsSexual Harassment: Court Decisions

Meritor Savings Bank, FSB v. Vinson

Burlington Industries v. Ellerth

Faragher v. City of Boca Raton

Sexual

Harassment


FIGURE 2–1 HR in Practice: What Employers Should Do to Minimize Liability in

Sexual Harassment Claims

1. Take all complaints about harassment seriously.

2. Have the victim inform the harasser directly that the conduct is unwelcome and must stop.

3. Conduct a thorough investigation of any complaint of harassment.

4. Issue a strong policy statement condemning harassing behaviors.

5. Inform all employees about the policy prohibiting sexual harassment and of their rights under

the policy.

6. Communicate to employees that sexual harassment will not be tolerated.

7. Establish a management response system that includes an immediate reaction and

investigation by senior management.

8. Provide training to supervisors and managers to increase their awareness of the issues.

9. Discipline managers and employees involved in sexual harassment.

10. Keep thorough records of complaints, investigations, and actions taken.

11. Conduct exit interviews that uncover any complaints.

12. Re-publish the sexual harassment policy periodically.

13. Encourage upward communication to discover evidence of sexual harassment

14. Do not retaliate against an individual for opposing employment practices that discriminate

based on sex or for filing a discrimination charge, testifying, or participating in an investigation,

proceeding, or litigation under Title VII.

Sources: www.eeoc.gov/types/sexual_harrasment.html, accessed May 6, 2007, and © 1991by CCH

Incorporated. All rights reserved. Reprinted with permission from Sexual Harassment Manual for

Managers and Supervisors, published in 1991, by CCH Incorporated, a WoltersKluwer Company.


FIGURE 2–2

California State

University,

Fresno: Complaint

Form for Filing a

Complaint of

Harassment or

Discrimination

Source: California State University, Fresno.


Adverse ImpactAdverse Impact

Disparate

Rejection

Rates

McDonnell-

Douglas Test

Restricted

Policy

Showing

Adverse Impact

Population

Comparisons


Showing Disparate TreatmentShowing Disparate Treatment

1

The employer continued seeking applications.

The person applied and was qualified for the job.

McDonnell-Douglas Test for Prima Facie Case

The person belongs to a protected class.

The person was rejected despite qualification.

2

3

4

4


Bona Fide Occupational QualificationBona Fide Occupational Qualification

Age

Religion

Gender

National Origin

Bona Fide

Occupational

Qualification (BFOQ)


Business NecessityBusiness Necessity

•• “Business Necessity”“Business Necessity”

�� A defense requiring employers to show that there A defense requiring employers to show that there

is an overriding business purpose (i.e., “irresistible is an overriding business purpose (i.e., “irresistible

demand”) for a discriminatory practice. demand”) for a discriminatory practice.

��Spurlock v. United AirlinesSpurlock v. United Airlines

•• ValidityValidity

�� The degree to which the test or other employment The degree to which the test or other employment

practice is related to or predicts performance on the practice is related to or predicts performance on the

job can serve as a business necessity defense.job can serve as a business necessity defense.


Other Considerations in Discriminatory Other Considerations in Discriminatory

Practice DefensesPractice Defenses

1.1. Good intentions are no excuse.Good intentions are no excuse.

2.2. Employers cannot hide behind collective Employers cannot hide behind collective

bargaining agreementsbargaining agreements——equal opportunity equal opportunity

laws override union contract agreements.laws override union contract agreements.

3.3. Firms should react by agreeing to eliminate an Firms should react by agreeing to eliminate an

illegal practice and (when required) by illegal practice and (when required) by

compensating the people discriminated compensating the people discriminated

against.against.


Discriminatory Employment PracticesDiscriminatory Employment Practices

Selection

Educational

Requirements

Tests

Preference to Relatives

Height, Weight, and

Physical Characteristics

Arrest Records

Application Forms

Discharge Due to

Garnishment

Recruitment

Word of Mouth

Misleading Information

Help Wanted Ads

Personal Appearance

Dress

Hair

Uniforms


The EEOC Enforcement ProcessThe EEOC Enforcement Process

1

2

3

4

5

6

7

EEOC Claim and Enforcement Process

Charge Acceptance

File Charge

Serve Notice

Investigation/Fact-Finding

Cause/No Cause

Conciliation

Notice to Sue


FIGURE 2–4

The EEOC Charge-

Filing Process

Note: Parties may settle at any time.

Source: Based on information at www.eeoc.gov.

Applicant or employee files charge

EEOC advises employer of charge

and if mediation is an option

Successful mediationUnsuccessful mediation

EEOC may ask employer to

submit statement of position

of employer’s side of story

EEOC may ask employer to

respond to request for information

(personnel files, etc.)

EEOC may ask employer to permit

onsite visit by EEOC and to provide

information for witness interview

EEOC completes investigationFinds no reasonable cause Finds reasonable cause

Issues charging party

Dismissal and

Notice of Rights

Charging party may file

lawsuit in Federal Court

within 90 days

Issues Letter of Determination

Offers parties conciliation

Conciliation fails Conciliation successful

EEOC may

litigate in Federal

Court within 180 days of charge

EEOC may decide not to litigate

Sends charging party notice of Right to Sue

Party may sue within 90 days

5


FIGURE 2–3 Questions to Ask When an Employer Receives Notice That

EEOC Has Filed a Bias Claim

1.1. Exactly what is the charge and is your company covered by the Exactly what is the charge and is your company covered by the

relevant statutes?relevant statutes?

2.2. What protected group does the employee belong to? Is the What protected group does the employee belong to? Is the

EEOC claiming disparate impact or disparate treatment?EEOC claiming disparate impact or disparate treatment?

3.3. Are there any obvious bases upon which you can challenge Are there any obvious bases upon which you can challenge

and/or rebut the claim?and/or rebut the claim?

4.4. If it is a sexual harassment claim, are there offensive comments, If it is a sexual harassment claim, are there offensive comments,

calendars, posters, screensavers, and so on, on display in the calendars, posters, screensavers, and so on, on display in the

company?company?

5.5. Who are the supervisors who actually took the allegedly Who are the supervisors who actually took the allegedly

discriminatory actions and how effective will they be as potential discriminatory actions and how effective will they be as potential

witnesses? witnesses?

Sources: Fair Employment Practices Summary of Latest Developments, January 7, 1983, p. 3, Bureau of National Affairs, Inc. (800-372-1033); Kenneth

Sovereign, Personnel Law (Upper Saddle River, NJ: Prentice Hall, 1999), pp. 36–37; “EEOC Investigations—What an Employer Should Know,” Equal

Employment Opportunity Commission (http://www.eoc.gov/employers/investigations.html), accessed May 6, 2007.


Mandatory ArbitrationMandatory Arbitration

•• Gilmer v. Interstate/Johnson Lane Corp.Gilmer v. Interstate/Johnson Lane Corp.

�� Employers can compel employees to agree Employers can compel employees to agree

to mandatory arbitration of employmentto mandatory arbitration of employment--related related

disputes.disputes.

•• RecommendationsRecommendations

�� Request party be compelled to arbitrate claim.Request party be compelled to arbitrate claim.

�� Insert arbitration clause in employment applications Insert arbitration clause in employment applications

and employee handbooks.and employee handbooks.

�� Protect arbitration process from appeal.Protect arbitration process from appeal.

•• Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)


Addressing EEOC ClaimsAddressing EEOC Claims

1

2

3

4

5

During the EEOC Investigation:

Meet with the Employee

Follow Three Principles

Limits of EEOC Authority

Submitting Documents

Position Statement


Addressing EEOC Claims (cont’d)Addressing EEOC Claims (cont’d)

1

2

3

4

During the Fact-

Finding Conference:

Employer’s Attorney

Official Records

Information

Witnesses

1

2

During EEOC Determination

and Attempted Conciliation:

Conciliate Prudently

Review Carefully


Diversity Management ProgramDiversity Management Program

1

2

3

4

5

Steps in a Diversity Management Program:

Assess the situation

Provide strong leadership

Provide diversity training and education

Change culture and management systems

Evaluate the diversity management program


Is the Diversity Initiative Effective?Is the Diversity Initiative Effective?

•• Are there women and minorities reporting directly to Are there women and minorities reporting directly to

senior managers?senior managers?

•• Do women and minorities have a fair share of job Do women and minorities have a fair share of job

assignments that are stepping stones to successful assignments that are stepping stones to successful

careers in the company?careers in the company?

•• Do women and minorities have equal access to Do women and minorities have equal access to

international assignments? international assignments?

•• Are female and minority candidates in the company’s Are female and minority candidates in the company’s

career development pipeline?career development pipeline?

•• Are turnover rates for female and minority managers Are turnover rates for female and minority managers

the same or lower than those for white male managers?the same or lower than those for white male managers?

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Designing an Affirmative Action ProgramDesigning an Affirmative Action Program

•• Good Faith Effort StrategyGood Faith Effort Strategy

�� Eliminating the present effects of past practices Eliminating the present effects of past practices

that excluded or underutilized protected groups.that excluded or underutilized protected groups.

�� Identification through numerical analysis.Identification through numerical analysis.

��Proactive elimination of employment barriers.Proactive elimination of employment barriers.

�� Increased minority or female applicant flow.Increased minority or female applicant flow.

•• Increasing Employee Support for Increasing Employee Support for

Affirmative ActionAffirmative Action

�� Transparent selection proceduresTransparent selection procedures

�� CommunicationCommunication

�� JustificationsJustifications


Steps in an Affirmative Action ProgramSteps in an Affirmative Action Program

1.1. Issues a written equal employment policy.Issues a written equal employment policy.

2.2. Appoints a top official to direct and implement the program.Appoints a top official to direct and implement the program.

3.3. Publicizes the equal employment policy and affirmative action Publicizes the equal employment policy and affirmative action

commitment.commitment.

4.4. Surveys minority and female employment to determine where Surveys minority and female employment to determine where

affirmative action programs are especially desirable.affirmative action programs are especially desirable.

5.5. Develops goals and timetables to improve utilization of minorities Develops goals and timetables to improve utilization of minorities

and females.and females.

6.6. Develops and implements specific programs to achieve these Develops and implements specific programs to achieve these

goals.goals.

7.7. Establishes an audit and reporting system to monitor and evaluate Establishes an audit and reporting system to monitor and evaluate

progress of the program.progress of the program.

8.8. Develops support for the affirmative action program, both inside Develops support for the affirmative action program, both inside

the company and in the community.the company and in the community.


Reverse DiscriminationReverse Discrimination

•• Reverse DiscriminationReverse Discrimination

�� Discrimination against nonDiscrimination against non--minority applicants and minority applicants and

employees by quotaemployees by quota--based systems.based systems.

��Bakke v. Regents of the University of CaliforniaBakke v. Regents of the University of California

��Wygant v. Jackson Board of EducationWygant v. Jackson Board of Education

��U.S. v. ParadiseU.S. v. Paradise

��Johnson v. Transportation Agency, Santa Clara Johnson v. Transportation Agency, Santa Clara

CountyCounty


K E Y T E R M SK E Y T E R M S

Title VII of the 1964 Civil Rights ActTitle VII of the 1964 Civil Rights Act

Equal Employment Opportunity Equal Employment Opportunity Commission (EEOC)Commission (EEOC)

affirmative actionaffirmative action

Office of Federal Contract Compliance Office of Federal Contract Compliance Programs (OFCCP)Programs (OFCCP)

Equal Pay Act of 1963Equal Pay Act of 1963

Age Discrimination in Employment ActAge Discrimination in Employment Act

of 1967 (ADEA)of 1967 (ADEA)

Vocational Rehabilitation Act of 1973Vocational Rehabilitation Act of 1973

Vietnam Era Veterans’ Readjustment Act Vietnam Era Veterans’ Readjustment Act of 1974of 1974

Pregnancy Discrimination Act (PDA)Pregnancy Discrimination Act (PDA)

uniform guidelinesuniform guidelines

sexual harassmentsexual harassment

Federal Violence Against Women Act Federal Violence Against Women Act

of 1994of 1994

protected classprotected class

Civil Rights Act of 1991 (CRA 1991)Civil Rights Act of 1991 (CRA 1991)

mixed motive casemixed motive case

Americans with Disabilities Act (ADA)Americans with Disabilities Act (ADA)

qualified individualsqualified individuals

adverse impactadverse impact

disparate rejection ratesdisparate rejection rates

restricted policyrestricted policy

bona fide occupational qualification (BFOQ)bona fide occupational qualification (BFOQ)

alternative dispute resolution or ADR alternative dispute resolution or ADR programprogram

good faith effort strategygood faith effort strategy

reverse discriminationreverse discrimination

ch2

Recruiting & HR

Transcript of ch2