Fair Employment Law & Affirmative Action

1. Session #3: FAIR EMPLOYMENT LAW AND AFFIRMATIVE ACTIONObjectives and Agenda • Class members will gain an understanding of : • The major pieces of legislation affecting workplace groups. • Legal and illegal employment actions. • The goals of affirmative action. • The strengths and weaknesses of affirmative action. • Affirmative Action Debate! • True Colors Video (if time)

2. EEO: Players Supreme Court Congress EEOC

3. EEOC (Equal Employment Opportunity Commission) • Independent agency established by 1964 Civil Rights Act. • Investigates discrimination complaints. • May act as employees attorney and sue organizations. • Interprets court cases and legislation; publishes guidelines for employers and courts.

4. Race/Ethnicity Color National Origin Sex Religion (1964/1991 Civil Rights Act) Disability (1990 ADA) Age (1967 ADEA) Pregnancy (1978 Pregnancy Discrimination Act) Veteran’s Status Sexual Orientation(in 13 states, DC; select cities & counties) Protected Classes

5. Equal Pay Act of 1963 • Forbids wage discrimination on the basis of sex. • Requires organizations of all sizes (over 2) to pay men and women substantially the same wages for equal work. • Jobs do not have to be identical, only substantially equal (Schultz vs. Wheaton Glass, 1970) • Equal work defined by 4 factors: • skill • effort • responsibility • working conditions

6. Equal Pay Act • Permissible to pay men and women different wages based on: • seniority • merit • quality of work • quantity of work • Act has wider application than any other law because it applies to all organizations.

7. The Civil Rights Act of 1964 • Title VII; Section 703:“It is unlawful for an employer to discriminate against an 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 to limit, segregate, or classify his employees in any way which 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.”

8. Coverage of 1964 Civil Rights Act (Amended 1972) • Covers: • Private employers with 15 or more employees. • Federal, state and local government. • Employment agencies. • Unions and apprenticeship committees. • Applies to all decisions relating to employees’ job classification: • selection/hiring • promotion • transfers • training (cont’d)

9. 1964 Civil Rights Act (cont’d) • Exemptions: • Membership in private clubs. • Religious organizations can make employment decisions based on religion. • Places of reservation connected with Indian Reservations. • Created EEOC (Equal Employment Opportunity Commission) • Time limitations: 6 months to file charges.

10. Disparate Treatment • Direct form of discrimination; employment decisions based on race, color, gender etc. • Courts look for discriminatory motive; investigate the employee’s actions and qualifications. • Employer can justify actions by: • absence of discriminatory intent or • showing selection based on BFOQ(Bona Fide Occupational Qualification)

11. BFOQ • Religion is BFOQ for certain positions. • EEOC Guidelines: Sex can be a BFOQ: • Authenticity or genuineness (actor/actress) • Protection of personal privacy of customers or co-workers (massage therapist) • Exclusion based on sex permissible if all or substantially all members of sex lack ability to perform some aspect of job that is essential to the business. • Supreme Court Cases: • Diaz v. Pan American (1971) sex is not a BFOQ for flight attendants: opened job up for men. • Dathard v. Rawlison (1977) sex is BFOQ; excluded female guards from all-male maximum security prison. • UAW vs. Johnson Controls (1991) sex is not BFOQ; no support for fetal protection policy.

12. Disparate/Adverse Impact • Unnecessary policy or procedure that has adverse impact on protected group. • Addresses business practices rather than individual actions. • Courts look at impact of actions, not motives. • Adverse impact shown when minority selection rate is less than 4/5ths or 80% of majority rate (EEOC 4/5ths rule). • Employer has 200 applicants for 100 positions • 100 white applicants- hired 80 (80% hire rate for majority) • 100 black applicants - hired 20 (need to hire 64 blacks; 80% of 80%) Cont’d

13. If adverse impact: • Employer must show that policies or practices with adverse impact are related to effective job performance or are business necessity(lifting requirements for firefighters related to effective performance) • Seniority System Exception: Promotion based on seniority =last hired/first fired. • Policy has adverse impact but is exempted under Teamsters v. U.S. (1977) Supreme Court decision.

14. Age Discrimination in Employment Act (ADEA) 1967; 1978; 1986 • Illegal to discriminate against individuals over 40 • Applies to companies with 20+ employees • Cannot force individuals to retire & replace with younger workers or comparably aged workers. • Exceptions: • Age as BFOQ or related to effective job performance. • Employee is a top executive or policy maker.

15. Pregnancy Discrimination Act (1978) • Illegal to discriminate because of pregnancy, childbirth or related conditions. • Pregnancy viewed as “sex-plus discrimination”; covered under 1964 Civil Rights Act. • Employers must treat pregnancy as long-term disability with respect to medical insurance and leaves.

16. Family and Medical Leave Act (FMLA) 1993 • Covers organizations with 50 or more employees. • Eligibility: • Male and female employees. • Employed 12 months and 1,250 hrs. in the previous year. • Employees may take a total of 12 weeks leave during any 12 month period for: • Birth, adoption, or foster-care placement of child. • Caring for spouse, child or parent with serious health condition • Serious health condition of employee. • Employees on leave must be able to return to same job or job with equivalent status and pay. • Health benefits must continue during leave. • Employees may substitute accrued paid (vacations/sick days) for unpaid leave.

17. Americans With Disabilities Act (ADA) 1990 • 51.6 million disabled in U.S. (using ADA definition) • 26 million severely disabled; 2/3 of all are unemployed. • Covers all employers with 15+ employees and government employees. • Title 1 of ADA prohibits discrimination against disabled individuals who can perform essential job functions. • “Disabled” defined as meeting one or more criteria: • physical or mental impairments that substantially limits one or more major life activities, • has a record of such an impairment; or • is regarded by others as possessing such an impairment.

18. ADA: Examples of Disabilities • physical impairment. • mental illness. • life-threatening diseases (cancer, HIV, AIDS). • individuals with major muscular limitations or breathing difficulties. • impairments relating to thinking, concentrating or interacting with others (learning disabilities). • rehabilitated alcoholics and drug users. • Excluded: normal deviation in height/weight, sexual behavior disorders, compulsive gamblers, pregnancy, current drug and alcohol users.

19. ADA: Essential Job Functions, Reasonable Accommodations and Undue Hardships • Cannot discriminate against individuals able to perform essential job functions: • Job exists primarily for that specific function, or • limited number of personnel able to perform that function, or • ability to perform function is primary hiring/retention criterion for job. • Employer required to make a reasonable accommodation to permit disabled to perform job unless it would impose an undue hardship. • Examples of accommodation: access to facilities, flexible work schedules, readers, unpaid leave to receive treatment, restructure job. • Undue hardship: cost of accommodation relative to financial resources, employer size, effect on other employees & business operation. • Exemption: Individuals who pose a direct threat to the health or safety of themselves or others at work. • Affirmative action programs required for federal contractors and subcontractors with contracts of $2,500+.

20. Executive Order 11246 (1965) • Organizations with government contracts over $50,000 and 50 or more employees must establish AA plans. • Requires organizations to: • agree not to discriminate • take specific actions to improve opportunities for women and minorities (affirmative action programs). • Established OFCCP: Office of Federal Contract Compliance - administers affirmative action programs.

21. Affirmative Action Programs • Purpose is to compensate for past discrimination. • Features of AA programs: • Increase pool of minority applicants. • Recruitment and training. • Make organization more attractive to minorities. • Placement in upwardly mobile positions. • Remove obstacles to advancement. • Attitudinal change. • Goals and timetables for achieving above goals.. • Affirmative action does not automatically mean quotas (except in cases of consent decrees).

22. Example AA: Faculty Applicants

23. Supreme Court’s Ground Rules for Affirmative Action Plans(Marlow & Rowland, 1989) • Affirmative Action Programs should: • Avoid rigid quotas, • Be carefully tailored to remedy past and precise discrimination, • Be temporary in duration, and • Should not unnecessarily restrict the rights of majority employees.

24. True Colors Video: Discussion Questions • Were the two men in the video treated differently? What were the differences? • When the differential treatment was pointed out to the people in the interaction (car salesperson/landlord), why do you think that they denied that they treated the two men differently (despite the video!)? • How might this differential treatment affect the feelings and subsequent behaviors of the White man in the video? • How might it affect the African-American man? • Have you witnessed differential treatment similar to this? What did you do? What did you wish you could do? • Could this happen in Milwaukee? Have you witnessed similar situations in Milwaukee? At UWM ?