Implementing Equal Employment Opportunity

2. ImplementingEqualEmploymentOpportunity Chapter 3

3. Chapter Overview • EEOC Compliance • Affirmative Action Plans • Bona Fide Occupational Qualification (BFOQ) • Business Necessity • Sexual Harassment • Comparable Worth and Equal Pay Issues • Other Areas of Employment Discrimination • Summary of Learning Objectives 3-3

4. EEOC Compliance – Legal Powers • All organizations with 20 or more employees must keep records that the EEOC or OFCCP can request • Section 713 of Title VII, Age Discrimination in Employment Act (ADEA), Equal Pay Act, Americans with Disabilities Act (ADA) of 1990, and Civil Rights Act of 1991 authorize EEOC to develop and publish procedural regulations regarding enforcement of these acts • EEOC has issued substantive regulations (guidelines) interpreting Title VII, ADEA, Equal Pay Act, ADA, and Civil Rights Act of 1991 • Has enforcement authority to initiate litigation and to intervene in private litigation 3-4

5. EEOC Posting Requirements • Title VII requires employers, employment agencies, and labor organizations covered by act to post EEOC-prepared notices summarizing requirements of Title VII, the ADEA, Equal Pay Act, ADA, and Civil Rights Act of 1991 • Willful failure to display it is punishable by a fine of not more than $100 for each offense • Organizations subject to notice requirements by Executive Order 11246 and Title VII can display a poster meeting requirements of both EEOC and OFCCP 3-5

6. EEOC Poster 3-6

7. EEOC – Records and Reports • Employer Information Report (EEO–1) – Employers with 100 or more employees are required to file with EEOC; requires a breakdown of employer’s workforce in specified job categories by race, sex, and national origin • Other, similar types of forms are required of unions, political jurisdictions, educational institutions, school districts, and joint labor–management committees that control apprenticeship programs • Title VII requires covered organizations to make and keep certain records that may be used to determine whether unlawful employment practices have been or are being committed • EEOC allows organizations to use a separate form, often called an applicant diversity chart, for collecting certain data 3-7

8. Standard Form 100 3-8

9. Standard Form 100 (Concluded) 3-9

10. Applicant Diversity Chart 3-10

11. EEOC – Compliance Process • An individual may file a discrimination charge at any EEOC office or with any representative of EEOC • If charging party and respondent are in different geographic areas, the office where charging party resides forwards the charge to the office where respondent is located • Class action charges or charges requiring extensive investigations are processed in EEOC’s Office of Systemic Programs • To determine whether discrimination against groups protected by the law has occurred, EEOC uses employment parity and occupational parity 3-11

12. EEOC – Compliance Process • Employment parity • Situation in which proportion of minorities and women employed by an organization equals proportion in organization’s relevant labor market • Occupational parity • Situation in which proportion of minorities and women employed in various occupations within an organization is equal to their proportion in organization’s relevant labor market • Systemic discrimination • Large differences in either occupational or employment parity • Relevant labor market • Refers to geographical area in which a company recruits its employees • Companies can have different relevant labor markets for different occupations 3-12

13. EEOC – Compliance Process • Underutilization • Practice of having fewer minorities or females in a particular job category than would reasonably be expected when compared to their presence in relevant labor market • Concentration • Practice of having more minorities or women in a job category than would reasonably be expected when compared to their presence in relevant labor market • Right-to-sue letter • Statutory notice by EEOC to charging party if EEOC does not decide to file a lawsuit on behalf of charging party 3-13

14. Steps in Processing a Discrimination Charge 3-14

15. Affirmative Action Plans • Written document outlining specific goals and timetables for remedying past discriminatory actions • All federal contractors and subcontractors with contracts over $50,000 and 50 or more employees required to develop and implement written affirmative action plans, monitored by OFCCP • All U.S. government agencies to prepare affirmative action plans • While Title VII and the EEOC do not require any specific type of written affirmative action plan, court rulings have often required affirmative action when discrimination is found • A number of basic steps are involved in the development of an effective affirmative action plan 3-15

16. Affirmative Action Plans • Effective Affirmative Action Plans – EOCC Guidelines • The CEO of organization should issue a written statement describing their personal commitment to plan, legal obligations, and importance of equal employment opportunity as an organizational goal • A top official of organization should be given authority and responsibility for directing and implementing program. All managers and supervisors within organization should clearly understand their own responsibilities for carrying out equal employment opportunity • Organization’s policy and commitment to that policy should be publicized both internally and externally • Present employment should be surveyed to identify areas of concentration and underutilization and determine extent of underutilization 3-16

17. Affirmative Action Plans • Goals and timetables for achieving goals should be developed to improve utilization of minorities and females in each area where underutilization has been identified • Entire employment system should be reviewed to identify and eliminate barriers to equal employment. Areas for review include recruitment, selection, promotion systems, training programs, wage and salary structure, benefits and conditions of employment, layoffs, discharges, disciplinary actions, and union contract provisions affecting these areas • An internal audit and reporting system should be established to monitor and evaluate progress in all aspects of program • Company and community programs supportive of equal opportunity should be developed. Programs might include training supervisors in their legal responsibilities and organization’s commitment to equal employment, and job and career counseling programs 3-17

18. Bona Fide Occupational Qualification (BFOQ) • Permits employer to use religion, age, sex or national origin as a factor in its employment practices when reasonably necessary to normal operation of that particular business • Most employers most frequently raise the BFOQ exception because of sex • Situations in which employers raise the BFOQ exception normally fall within three general categories • Ability to perform (e.g., physical ability to perform jobs that involve strenuous manual labor) • Same-sex BFOQ that relates to accommodating personal privacy of clients and customers • Customer preference BFOQ where the customer states a desire to be served only by a person of a given sex 3-18

19. Bona Fide Occupational Qualification (BFOQ) • Courts have very narrowly interpreted the sex discrimination defenses based on BFOQ exception • Courts have generally rejected BFOQ defense in the area of ability to perform a job, and have usually held that each individual job applicant should be permitted an opportunity to demonstrate ability to perform • Courts have also generally rejected customer preference as a BFOQ defense • Age may be used as a BFOQ in certain limited situations 3-19

20. Business Necessity • Condition that comes into play when an employer has a job criterion that is neutral but excludes members of one sex at a higher rate than members of the opposite sex. The focus in business necessity is on the validity of stated job qualifications and their relationship to work performed • When BFOQ is established, an employer can refuse to consider all persons of protected group • When business necessity is established, an employer can exclude all persons who do not meet specifications regardless of whether specifications have an adverse impact on a protected group 3-20

21. Sexual Harassment • Unwelcome sexual conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment • Nature of sexual harassment sometimes makes it difficult to prove • Such conduct normally occurs secretly and outside employer’s wishes and can grow out of or be alleged to grow out of consensual relationships, making investigation of complaints difficult • When deciding to impose liability on an employer for a supervisor’s sexual harassment, courts have considered an employer’s failure to investigate complaints of sexual harassment as significant 3-21

22. Sexual Harassment • In Bundy v. Jackson, the District of Columbia Circuit Court established allocation of burden of proof in a sexual harassment case • Employee must establish a prima facie case by proving he or she was • Subjected to sexual harassment • Denied a benefit for which he or she was eligible and of which he or she had a reasonable expectation • Burden then shifts to employer to prove, by clear and convincing evidence, that its decision was based on legitimate, nondiscriminatory grounds • If employer succeeds in meeting that stringent burden, the employee may then attempt to prove that the employer’s stated reasons are pretextual 3-22

23. Sexual Harassment • Developing policies prohibiting sexual harassment and promptly investigating and responding to complaints of sexual harassment are essential to its prohibition • At the least, an organization’s policy on sexual harassment should • Define and prohibit sexual harassment • Encourage any employee who believes that he or she has been a victim of sexual harassment to come forward to express those complaints to management • It is important to note that acts of sexual harassment can be committed not only by men against women, but also by men against men, by women against women, and by women against men 3-23

24. EEOC’s Sex DiscriminationGuidelines 3-24

25. Comparable Worth and Equal Pay Issues • Comparable worth theory – The idea that every job has a worth to the employer and society that can be measured and assigned a value • Each job should be compensated on basis of its value and paid the same as other jobs with the same value • Under this theory, • Market factors such as availability of qualified workers and wage rates paid by other employers would be disregarded • Entire classes of jobs are traditionally undervalued and underpaid because they are held by women and that this inequality amounts to sex discrimination in violation of Title VII of the Civil Rights Act 3-25

26. Comparable Worth and Equal Pay Issues • Proponents of this theory argue that the Equal Pay Act offers little protection to female workers because it applies only to those job classifications in which men and women are employed • The most serious form of wage discrimination occurs when women arrive at the workplace with education, training, and ability equivalent to that of men and are assigned lower-paying jobs that are held primarily by women • EEOC stated that unequal pay for work of a similar value wasn’t by itself proof of discrimination • Cases that EEOC handled • County of Washington v. Gunther • AFSCME v. State of Washington 3-26

27. Comparable Worth and Equal Pay Issues • Organizations can take these preventive steps to guard against pay inequities • Employers should attempt to avoid overconcentrations of men or women (or members of various minority groups) in particular jobs • Employers should evaluate whether there is any direct evidence of bias in setting wage rates, such as discriminatory statements or admission. If so and in the event of overconcentrations of females in particular jobs, employer should formulate a new compensation plan to correct disparity in future. The outline of any plan will depend on each employer’s particular situation 3-27

28. Comparable Worth and Equal Pay Issues • Employers should resist, as far as possible, the temptation to deviate from an internal job evaluation survey or a market survey because of difficulties encountered in hiring or retaining employees at rates established by such surveys • Employers who utilize a certain type of job evaluation system companywide and then deviate from it run a risk. Job evaluation is a procedure used to determine the relative worth of different jobs • If an employer uses a job evaluation system or systems, it should constantly monitor the system to determine the average wages being paid to men and women for comparable jobs. Any disparities should be examined to see if they are defensible. If not, corrections should be made 3-28

29. Other Areas of Employment Discrimination – Religion • Title VII, as originally enacted, prohibited discrimination based on religion but did not define the term • Most frequent accommodation issues under Title VII’s religious discrimination provisions arise from conflict between religious practices and work schedules • The EEOC’s Guidelines on Religious Discrimination proposes • Arranging for voluntary substitutes with similar qualifications; promoting an atmosphere where such swaps are regarded favorably; and providing a central file, bulletin board, or other means of facilitating matching of voluntary substitutes • Flexible scheduling of arrival and departure times; floating or optional holidays; flexible work breaks; and a plan for using lunch time and other time to make up hours lost due to the observation of religious practices • Lateral transfers or changes in job assignments 3-29

30. Other Areas of Employment Discrimination – Religion • TWA v. Hardison – The Supreme Court upheld the discharge on the grounds that • Employer had made reasonable efforts to accommodate religious needs of employee • Employer was not required to violate seniority provisions of contract • Alternative plans of allowing employee to work a four-day workweek would have constituted an undue hardship for employer • Undue hardship – Defined as more than a de minimus cost • Employer can prove it has reasonably accommodated a religious preference if it can show that the employee’s request would result in more than a small (i.e., de minimus) cost to employer 3-30

31. Other Areas of Employment Discrimination • Native Americans • Native Americans are protected by Title VII; Section 703(i) of Title VII benefits Native Americans by exempting them from coverage by the act, in that preferential treatment can be given to Native Americans in certain employment • HIV-Positive Status (Bragdon v. Abbott) • Individuals diagnosed as HIV-positive, even if they haven’t developed symptoms, are considered to be disabled and entitled to protection of Americans with Disabilities Act (ADA) • Sexual Orientation • Title VII does not prohibit employment discrimination against effeminate males, homosexuals, or masculine acting females • Adverse action against individuals who undergo or announce an intention to undergo sex-change surgery does not violate Title VII • People who fall in those groups are protected only when a local or state statute is enacted to protect them 3-31

32. Summary of Learning Objectives • Explain the role of the Employer Information Report, EEO–1 • Define employment parity, occupational parity, systemic discrimination, underutilization, and concentration • Describe an affirmative action plan • Define bona fide occupational qualification (BFOQ) • Explain what business necessity means • Define sexual harassment • Describe the comparable worth theory 3-32