The Legal Environment: Equal Employment Opportunity

1. The Legal Environment: Equal Employment Opportunity Principles of Human Resource Management 16 e Bohlander | Snell

2. Chapter ObjectivesAfter studying this chapter, you should be able to LEARNING OUTCOME 1 Explain the reasons behind passage of equal employment opportunity (EEO) legislation. Prepare an outline describing the major EEO laws and the employment practices they prohibit. Describe what a bona fide occupational qualification is. Understand why sexual harassment, immigration reform, and other practices such as discrimination based on a person’s weight, appearance, and sexual orientation have become equal employment opportunity issues. Explain how the Uniform Guidelines on Employee Selection Procedures were developed and how firms use them to ensure they are abiding by the law. Understand the concepts of adverse impact and disparate treatment. Understand EEOC record-keeping and posting requirements. Describe how discrimination charges are processed by the EEOC. Explain what affirmative action is and how companies today are seeing the value of voluntarily having diverse workforces. LEARNING OUTCOME 2 LEARNING OUTCOME 3 LEARNING OUTCOME 4 LEARNING OUTCOME 5 LEARNING OUTCOME 6 LEARNING OUTCOME 7 LEARNING OUTCOME 8

3. 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) • Unemployment Relief Act (1933) • Executive Order 8802 (1941)

4. Government Regulation of Equal Employment Opportunity

5. 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.

6. Government Regulation of Equal Employment Opportunity • Protected Classes • Individuals of a minority race, women, older people, and those with disabilities who are covered by federal laws on equal employment opportunity • More specifically the classes include race, color, religion, national origin, sex, age, and those with physical or mental disabilities.

7. Major Federal Laws

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

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.

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.

11. Religious Preference (cont.) • Managers or supervisors may have to accommodate an employee’s religion in the specific areas of • holidays and observances (scheduling), • personal appearance (wearing beards, veils, or turbans), and • religious conduct on the job (missionary work among other employees).

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.

13. Americans with Disabilities Act of 1990 • The act requires employers to make a reasonable accommodation for disabled people • Reasonable accommodation is an attempt by employers to adjust, without undue hardship, the working conditions or schedules of employees with disabilities or religious preferences

14. Americans with Disabilities Act of 1990 (cont.) • 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)

15. Americans with Disabilities Act of 1990 (cont.)

16. Other Federal Laws and Executive Orders

17. Don’t Ask, Don’t Tell Repeal Act of 2010 • In 2010, the Don’t Ask, Don’t Tell Repeal Act was enacted to end the ban on gay or bisexual persons openly serving in the U.S. military • The ban was established as a compromise between the Clinton Administration and Congress in the mid-1990s to prevent members of the military from being dishonorably discharged for being gay, so long as they did not openly reveal their sexual orientation.

18. Fair Employment Practice Laws • Fair Employment Practices (FEPs) • State and local laws governing equal employment opportunity that are often more comprehensive than federal laws. • Although Title VII of the Civil Rights Act exempts employers with fewer than fifteen employees, many states extend antidiscrimination laws to smaller employers with one or more workers.

19. 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.

20. 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.

21. Sexual Harassment (cont.) • 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.

22. 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. • Most companies in the Fortune 500 now offer health benefits to same-sex couples

23. Immigration Reform and Control Act (1986) • The U.S. Department of Justice, lists five actions that employers must take to comply with the law: • Having employees fill out their part of Form I-9. • Checking documents establishing an employee’s identity and eligibility to work. • Complete the employer’s section of Form I-9. • Retain Form I-9 for at least three years. • Present Form I-9 for inspection to an Immigration and Naturalization Service officer or to a Department of Labor officer upon request.

24. Emerging Employment Discrimination Issues • Weight Discrimination • Attractiveness and Discrimination • Caregivers and Discrimination

25. Uniform Guidelines on Employee Selection Procedures • Uniform Guidelines on Employee Selection Procedures • Is a procedural document published in the Federal Register to assist employers in complying with federal regulations against discriminatory actions. • Applies to employee selection procedures in the areas of hiring, retention, promotion, transfer, demotion, dismissal, and referral.

26. Uniform Guidelines on Employee Selection Procedures (Cont.) • 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).

27. Validity • The requirement that, when using a test or other selection instrument to choose individuals for employment, employers must be able to prove that the selection instrument bears a direct relationship to job success. • Proof of validity is established through validation studies that show the job relatedness or lack thereof for the selection instrument under study.

28. 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 non-protected class. • Possibly the unintentional result of an innocent act, yet the outcome is still discriminatory.

29. Determining Discrimination • Adverse Rejection Rate, or Four-Fifths Rule • Rule of thumb followed by the EEOC in determining adverse impact for use in enforcement proceedings. • According to the Uniform Guidelines, a selection program has an adverse impact when the selection rate for any racial, ethnic, or sex class is less than four-fifths (or 80 percent) of the rate of the class with the highest selection rate. • The four-fifths rule is not a legal definition of discrimination, rather it is used to monitor severe discrimination practices.

30. Determining Discrimination • Restricted Policy (Disparate Treatment) • An employer’s intentional unequal treatment or evaluation by different standards of protected-class members. • A situation in which protected class members receive unequal treatment or are evaluated by different standards • Workforce utilization analysis • A process of classifying protected-class members by number and by the type of job they hold within the organization

31. Enforcing Equal Employment Opportunity Legislation • 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.

33. Figure 3.5 (Cont.)

35. Retaliation • Managers and supervisors must not retaliate against individuals who invoke their legal rights to file charges or to support other employees during EEOC proceedings • Title VII of the Civil Rights Act states that an employer may not discriminate against any of his employees because the employee has opposed any unlawful employment practice, or because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceedings, or hearing under this Act.

36. Preventing Discrimination Charges • The foundation to preventing any form of discrimination is having a comprehensive EEO policy • Employers that do not have an EEO policy are legally vulnerable • 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

37. Affirmative Action and Diversity Management • 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

38. Affirmative Action and Diversity Management

39. 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.

40. Beyond Affirmative Action: Leveraging Diversity

41. Key Terms adverse impact affirmative action bona fide occupational qualification (BFOQ) business necessity charge form disabled individual disparate treatment EEO-1 report equal employment opportunity fair employment practices(FEPs) four-fifths rule protected classes reasonable accommodation reverse discrimination sexual harassment Uniform Guidelines on Employee Selection Procedures workforce utilization analysis

42. Chapter 3 - Learning Outcomes