Historical Perspective of EEO Legislation

1. © 2010 South-Western, a part of Cengage LearningAll rights reserved.

2. Historical Perspective of EEO Legislation • Equal Employment Opportunity (EEO) • The treatment of individuals in all aspects of employment—hiring, promotion, training, etc.—in a fair and nonbiased manner. • Changing National Values • Economic Disparity • Early Legal Developments • Civil Rights Act (1866) • Civil Rights Act (1964) © 2010 South-Western, a part of Cengage Learning. All rights reserved.

3. The Legal Environment Concerns Laws Agencies Regulatory Action ManagementResponses • Rulings • Written regulations • Complaint investigations • Technical assistance • Lawsuits • Fairness issues • Economic disparity • Changing material values • Interest group agendas • Political party mandates • Loop-holes in current legislation • Passed by congress • Passed by state legislature • Presidential executive orders • Planning compliance strategies • Formulating appropriate HR policies • Briefing and training employees and managers • Defending lawsuits • Working with government agencies lobbying for policy changes • Federal agencies • State agencies • Independent commissions Type name here Type title here Challenges to Laws State Court System Federal Court System Opinions and Decisions © 2010 South-Western, a part of Cengage Learning. All rights reserved.

4. Government Regulation of EEO • Protected Classes • Individuals of a minority race, women, older people, and those with disabilities who are covered by federal laws on equal employment opportunity © 2010 South-Western, a part of Cengage Learning. All rights reserved.

5. Major Laws Affecting Equal Employment Opportunity (cont’d) FIGURE3.1 © 2010 South-Western, a part of Cengage Learning. All rights reserved.

6. Major Laws Affecting Equal Employment Opportunity (cont’d) FIGURE3.1 © 2010 South-Western, a part of Cengage Learning. All rights reserved.

7. Section 703(a) of Title VII of the Civil Rights Act • It shall be unlawful employment practice for an employer: To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.... © 2010 South-Western, a part of Cengage Learning. All rights reserved.

8. Jurisdiction of the Civil Rights Act of 1964 • All private employers in interstate commerce who employ fifteen or more employees for twenty or more weeks per year • State and local governments • Private and public employment agencies, including the U.S. Employment Service • Joint labor-management committees that govern apprenticeship or training programs • Labor unions having fifteen or more members or employees • Public and private educational institutions • Foreign subsidiaries of U.S. organizations employing U.S. citizens © 2010 South-Western, a part of Cengage Learning. All rights reserved.

9. Exemptions From Antidiscrimination Regulations • Bona Fide Occupational Qualification (BFOQ) • Suitable defense against a discrimination charge only where age, religion, sex, or national origin is an actual qualification for performing the job. • Business Necessity • Work-related practice that is necessary to the safe and efficient operation of an organization. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

10. Religious Preference • Title VII of the Civil Rights Act • Prohibits discrimination based on religion in employment decisions, though it permits employer exemptions. • Defines religion to “include all aspects of religious observance and practice, as well as belief.” • Does not require employers to grant complete religious freedom in employment situations. • Requires that employers make a reasonable accommodation (at minimum cost) without incurring undue hardship in the conduct of the business. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

11. Age Discrimination Actions • Excluding older workers from important work activities. • Making negative changes in the performance evaluations of older employees. • Denying older employees job-related education, career development, or promotional opportunities. • Selecting younger job applicants over older, better-qualified candidates. • Pressuring older employees into taking early retirement. • Reducing the job duties and responsibilities of older employees. • Terminating older employees through downsizing. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

12. What Is a “Disability”? • The Americans With Disabilities Act (ADA) defines a disability as: • A physical or mental impairment that substantially limits one or more of the major life activities. • A record of such impairment. • Being regarded as having such an impairment. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

13. What Is a “Disability”? (cont’d) • The ADA does not cover: • Homosexuality or bisexuality • Gender-identity disorders not resulting from physical impairment or other sexual-behavior disorders • Compulsive gambling, kleptomania, or pyromania • Psychoactive substance-use disorders resulting from current illegal use of drugs • Current illegal use of drugs • Infectious or communicable diseases of public health significance (applied to food-handling jobs only and excluding AIDS) © 2010 South-Western, a part of Cengage Learning. All rights reserved.

14. ADA Suggestions for an Accessible Workplace FIGURE3.2 • Install easy-to-reach switches. • Provide sloping sidewalks and entrances. • Install wheelchair ramps. • Reposition shelves for the easy reach of materials. • Rearrange tables, chairs, vending machines, dispensers, and other furniture and fixtures. • Widen doors and hallways. • Add raised markings on control buttons. • Provide designated accessible parking spaces. • Install hand controls or manipulation devices. • Provide flashing alarm lights. • Remove turnstiles and revolving doors or provide alternative accessible paths. • Install holding bars in toilet areas. • Redesign toilet partitions to increase access space. • Add paper cup dispensers at water fountains. • Replace high-pile, low-density carpeting. • Reposition telephones, water fountains, and other needed equipment. • Add raised toilet seats. • Provide a full-length bathroom mirror. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

15. Sexual Harassment • Sexual Harassment (under Title VII) • Unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the working environment • An employer is considered guilty of sexual harassment when: • The employer knew or should have known about the unlawful conduct and failed to remedy it or to take corrective action. • The employer allows nonemployees (customers or salespeople) to sexually harass employees. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

16. Hostile Environment Quid Pro Quo Submission Rejection Uncomfortable Subjective Response Types of Sexual Harassment © 2010 South-Western, a part of Cengage Learning. All rights reserved.

17. Sexual Harassment • Quid Pro Quo Harassment • Occurs when “submission to or rejection of sexual conduct is used as a basis for employment decisions.” • Involves a tangible or economic consequence, such as a demotion or loss of pay. • Oncale v Sundowner Offshore Services (1998) • Same-sex sexual harassment (male-to-male, female-to-female) is covered under Title VII. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

18. Sexual Harassment (cont’d) • Hostile Environment • Occurs when unwelcome sexual conduct “has the purpose or effect of unreasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment.” • Dirty jokes, vulgar slang, nude pictures, swearing, and personal ridicule and insult constitute sexual harassment when an employee finds them offensive. • Courts use a “reasonable person” test for hostile environment. • Complete the exercise on page 118. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

19. Sexual Orientation • Title VII of the Civil Rights Act of 1964 lists “sex” (gender) as a protected class. • Sexual orientation is not a valid defense against discrimination—gender applies to one’s sex at the time of birth and not to one’s sexual orientation. • No federal law bars discrimination based on sexual orientation, or transgender and transsexual individuals. • Companies—in support of their diversity initiatives—are fostering “gay-friendly” work places. • Of the nation’s top 500 companies, 70 percent now offer health benefits to same-sex couples. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

20. Uniform Guidelines on Employee Selection Procedures • Uniform Guidelines on Employee Selection Procedures define discrimination as: • The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines (or, certain other provisions are satisfied). © 2010 South-Western, a part of Cengage Learning. All rights reserved.

21. Forms of Discrimination • Adverse Impact • The rejection of a significantly higher percentage of a protected class for employment, placement, or promotion when compared with a nonprotected class. • Possibly the unintentional result of an innocent act, yet the outcome is still discriminatory. • Restricted Policy (Disparate Treatment) • An employer’s intentional unequal treatment or evaluation by different standards of protected-class members. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

22. Griggs v Duke Power Company (1971) • The Supreme Court ruled: • Employer discrimination need not be overt or intentional to be present—employment practices having an adverse impact on protected classes are illegal even when applied equally to all employees. • Employers have the burden of proving that employment requirements are job-related or constitute a business necessity absolutely necessary for job success. • Good intent, or absence of intent to discriminate, is not a sufficient defense of adverse impact. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

23. Determining Discrimination • McDonnell Douglas Test • To establish a prima facie case of discrimination: • The person must be a member of a protected class. • The person must have applied for a job for which he or she was qualified. • The person must have been rejected, despite being qualified. • After rejection, the employer continued to seek other applicants with similar qualifications. • The burden of proof now shifts to the employer to prove that the action taken against the individual was not discriminatory. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

24. The Equal Employment OpportunityCommission (EEOC) • Composition of EEOC • Five members and a general counsel appointed by the president and confirmed by the Senate • Members serve staggered five-year terms • No more than three commission members from the same political party. • General counsel serves a four-year term. • Purpose of EEOC • Formulating EEO policy and approving all litigation involved in maintaining equal employment opportunity. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

25. 5 EEOC Poster © 2010 South-Western, a part of Cengage Learning. All rights reserved.

26. Filing a Charge of Employment Discrimination FIGURE3.5 © 2010 South-Western, a part of Cengage Learning. All rights reserved.

27. How to Achieve Fairness in EEO • Correct stereotyped thinking. • Eliminate irrelevant job requirements. • Open job and promotion opportunities to all protected classes. • Promote on the basis of merit rather than seniority. • Provide equal pay for equal work. • Modify employee benefits to needs of women, minorities, and working families. • Management training in EEO requirements. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

28. 6 EEOC Guidelines on Retaliation An employer may not fire, demote, harass, or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else’s exercise of rights granted by the ADA. There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms are described below. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

29. 6 EEOC Guidelines on Retaliation (cont’d) • Adverse Action • An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: • employment actions such as termination, refusal to hire, and denial of promotion, • other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance. • Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history. • Covered Individuals • Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who engaged in such protected activity also are covered individuals. © 2010 South-Western, a part of Cengage Learning. All rights reserved.

30. Preventing Discrimination Charges • A comprehensive EEO training program for managers and supervisors will include: • The prohibitions covered in the various EEO statutes • Guidance on how to respond to complaints of discrimination • Procedures for investigating complaints • Suggestions for remedying inappropriate behavior © 2010 South-Western, a part of Cengage Learning. All rights reserved.

31. Diversity Management: Affirmative Action Issues • Affirmative Action • Policy that goes beyond equal employment opportunity by requiring organizations to comply with the law and correct past discriminatory practices by increasing the numbers of minorities and women in specific positions • Reverse Discrimination • The act of giving preference to members of protected classes to the extent that unprotected individuals believe they are suffering discrimination © 2010 South-Western, a part of Cengage Learning. All rights reserved.

32. Managing Diversity: Affirmative Action • Challenges to Affirmative Action (AA): • AA has not improved protected groups employment. • Individuals hired under AA feel prejudged as inferior performers, and are often viewed as “tokens.” • AA programs have failed in assimilating protected classes into the workforce. • Preferences shown toward one protected class may create conflicts between other minority groups. © 2010 South-Western, a part of Cengage Learning. All rights reserved.