EEO

1. EEO Lecture #4

2. Why Worry? • Motherhood Maternity. $375,000. Pregnancy (refused to hire pregnant applicants). • GLC Restaurants (McDonald’s franchise). $550,000. Sexual harassment (middle-aged male manager, teenaged female employees, as young as 14). • AT & T. $756,000. Two employees. Religion (Jehovah’s Witnesses). • Sheet Metal Workers’ International Association. $6.2 million. Race / national origin. • Walgreen’s. $24 million. Racial discrimination in management hiring. MGMT 412 | EEO

3. EEO Laws • Equal Pay Act (1963) • Civil Rights Act, Title VII (1964) • Age Discrimination in Employment Act (1967) • Executive Order 11246 (1964) • Rehabilitation Act (1973) [disabilities, applies to federal contractors, so enforced by OFCCP] • Vietnam Era Veterans Readjustment Act (1974) [applied to federal contractors, also enforced by OFCCP] • Pregnancy Discrimination Act (1978) • Americans with Disabilities Act (1990) • Civil Rights Act (1991) • Uniformed Services Employment and Reemployment Rights Act (1994) MGMT 412 | EEO

4. Executive Order 11246 • This order forbids employment discrimination by federal government contractors and subcontractors (doing at least $10,000 business in a year) • Requires that Compliance Reports be filed annually • Further, it calls for affirmative action plans by contractors • Who is a government contractor? • Well, they employ about 22% of the workforce • Any bank that is a depository for federal funds or that issues and cashes U.S. Savings Bonds is a federal contractor • Incidentally, EO 11246 is enforced by a Department of Labor agency, the Office of Federal Contract Compliance programs (OFCCP) MGMT 412 | EEO

5. Civil Rights Act (1991) • Clean-up law • Provisions: • Compensatory and punitive damages in cases of intentional discrimination • Legal fees • Jury trials • Mixed motive cases • The burden of proof in a disparate impact case has moved from the plaintiff (the person suing) to the defendant (the person being sued) • Race norming is forbidden • Finally, the Act extends U.S. EEO law to protects American citizens working in foreign countries for American companies MGMT 412 | EEO

6. Other Sources of EEO Guidance • Uniform Guidelines on Employee Selection Procedures (1978) • Outlines standards for validating selection procedures (any procedure is a “test”) • Defines adverse impact and adverse treatment • 4/5 rule • Mandates recordkeeping • Court cases (Federal courts) MGMT 412 | EEO

7. EEO Enforcement • Equal Employment Opportunity Commission (EEOC) • Federal Gov’t contractors: • Office of Federal Contract Compliance Programs (part of Department of Labor) • State & local gov’ts: • Employment Litigation Section, U.S. Department of Justice Source: Shuit (2003). MGMT 412 | EEO

8. MGMT 412 | EEO

9. What Do You Do? Also see Cascio, p. 92 • Individual files charge with EEOC, within 180 days of alleged discriminatory act • EEOC determines if there is “reasonable cause” • If not, individual is issued “right to sue” letter and can bring suit • If “reasonable cause” exists, EEOC will: • Attempt to settle • Mediation • File suit MGMT 412 | EEO

10. Court Cases (1) • Griggs vs. Duke Power (1971) • Lack of discriminatory intent was not a valid defense against a charge of discrimination. • Further, selection tests must be job related if adverse impact occurs, and the employer bears the burden of proof if 4/5 rule shows that adverse impact has occurred. • Phillips v. Martin Marietta Corp (1971) • Disparate treatment issues • Applications were not accepted from women with pre-school aged children; men under no such burden MGMT 412 | EEO

11. Court Cases (2) • U.S. vs. Georgia Power (1973) • This case addresses issues of validity; the validation strategy used must follow the Uniform Guidelines. • Further, the population used in the validation studies must be representative of applicant pool and must include protected classes. • McDonnell Douglas vs. Green (1973) • This case established the standards for disparate treatment. MGMT 412 | EEO

12. Court Cases (3) • Spurlock vs. United Airlines (1972) • In this case, a procedure was established for determining job-relatedness for selection procedures other than tests • Also, the economic and human risks of hiring unqualified applicants were determined to be a valid factor in determining how heavy a burden of proof an employer must bear. • Connecticut vs. Teal (1982). • All parts of a multi-step selection procedure must be valid. • Watson vs. Ft. Worth Bank and Trust (1988). • Since adverse impact can occur with an interview, the interview procedure also needs to be validated. MGMT 412 | EEO

13. Court Cases (4) • Auto Workers vs. Johnson Controls (1991) • Not selection procedures, but job assignment • Safety exception to BFOQ defense applies only when gender or pregnancy actually interferes with ability to perform job. • In addition, the company cannot make decisions about reproductive safety for the employee. • Price Waterhouse vs. Hopkins (1989) • Gender discrimination based on sexual stereotypes • “Take a course at charm school;” “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” MGMT 412 | EEO

14. Court Cases (5) • Wards Cove Packing vs. Atonio (1989) • In this case. a challenged employment practice needs to have a “legitimate business justification”, not be “essential” or “indispensable.” • Also, the plaintiff bears the burden of proof in disparate impact cases (though this was later overturned by the Civil Rights Act of 1991). • Harris vs. Forklift Systems, Inc., (1993) • Sexual harassment – the “reasonable woman” test • Ledbetter vs. Goodyear Tire & Rubber Co. (2007) • Plaintiff held to 180 day time limit on filing charges MGMT 412 | EEO

15. EEO Coverage: What’s Covered? • Recruitment, hiring and firing • Pay • Transfer and promotion • Use of company facilities • Training programs • Other terms and conditions of employment MGMT 412 | EEO

16. EEO Coverage: Who’s Covered? • Gender • Pregnancy treated as other medical conditions • Sexual harassment • Race or color • Religion • National origin • Age (> 40) • Disability • In Federal Government: marital status, parental status, political affiliation, sexual orientation • State laws may add additional factors MGMT 412 | EEO

17. The WalMart Suit • Filed in 2001 (Dukes vs. Wal-Mart Stores, Inc. ) • Based on gender and promotions to management • 2/3 of employees female; only 1/3 of managers • Only 14% of store managers are women • In 2004, certified as a class action (1.5 to 1.6 million potential plaintiffs) [as of December 2007, class action status reaffirmed] • Cost to WalMart??? • Recently….WalMart has started to release EEO-1 reports MGMT 412 | EEO

18. Remedies Under EEO • Back pay • Hiring • Promotion • Reinstatement • Reasonable accommodation • Changes in practices (consent decree) • Other actions that will make an individual "whole” * • Payment of: • Attorneys' fees • Expert witness fees • Court costs • Compensatory & punitive damages in the case of intentional discrimination (Civil Rights Act of 1991) * In the condition s/he would have been but for the discrimination MGMT 412 | EEO

19. Remember these… They’ll appear again... Equal Pay Act (1963) • Covers gender only • Requires equal pay for work requiring similar: • Effort • Skill • Responsibility • Working conditions • Exceptions for: • Merit • Seniority • Must raise lower-paid workers, notlower pay of higher paid workers MGMT 412 | EEO

20. Women’s Earnings as a Percentage of Men’s MGMT 412 | EEO

21. EEO Terminology • Protected class • Exceptions and BFOQ • Reliability and validity • Disparate treatment • Disparate impact Uniform Guidelines on Employee Selection Procedures (1978) MGMT 412 | EEO

22. EEO Exceptions • Seniority systems (as with the Equal Pay Act) • Legitimate pre-employment inquiries • Use of tests (see Griggs vs. Duke Power) • No preferential treatment required MGMT 412 | EEO

23. BFOQ • Bona fide occupational qualification • A legal basis for taking into account an otherwise impermissible factor (but not race) • Why? • Authenticity (actress, undercover police officer) • Personal service (nursing assistant, clothing fitter) • Religion (religious organizations) • Public safety • Why not? • Paternalism • Perceived customer preference • Stereotypes MGMT 412 | EEO

24. Reliability • Selection procedures need to be both reliable and valid • Called for under Uniform Guidelines, but a standard psychometric concept • Reliability • Does a procedure (test, interview) provide consistent results? MGMT 412 | EEO

25. Does the procedure measure what it is designed to measure? Called for under Uniform Guidelines, but, again, a standard psychometric concept Establishing validity Criterion Content Construct Validity MGMT 412 | EEO

26. Disparate Treatment (1) • Differential treatment of individuals in a protected class • Set forth by McDonnell Douglas vs. Green case • Can be direct or circumstantial evidence • For a circumstantial case, plaintiff must establish: • Claim asserted falls under Civil Rights Act of 1964, ADEA or ADA • Harm or disadvantage to plaintiff • Plaintiff qualified for job • Job actually exists or someone else received more favorable treatment MGMT 412 | EEO

27. Disparate Treatment (2) Harrah’s case • Examples • Asking only female applicants about child care arrangements • Requiring minority applicants to have a high school diploma, but not white applicants • To defend: • Show nondiscriminatory reason for the practice • Plaintiff can then rebut by presenting evidence that the nondiscriminatory reason is a pretext for a discriminatory reason MGMT 412 | EEO

28. How Disparate Impact Works • Procedure • Statistically determine (4/5 rule) if protected classes are impacted by a employment procedure • Assumption is that a prima facie case of discrimination exists; defendant then bears burden of proof • Defending against a disparate impact case • BFOQ • Establish validity of procedure • Business necessity or job-relatedness MGMT 412 | EEO

29. Disparate Impact - 4/5 Rule Yes No MGMT 412 | EEO

30. Americans With Disabilities Act • Disability • Essential function • Reasonable accommodation • Undue hardship • Prohibited inquiries • Pre-employment physicals only after a contingent offer of employment made • Medical records must be stored separately from other HR records MGMT 412 | EEO

31. What is a Disability? • A disability is an physical or mental impairment that substantially limits a major life activity • Normally, a temporary condition is not a disability • The individual may: • Have the disability • Have a record of having the disability • Be regarded as having the disability • However, many sexual disorders / deviancies are not included as disabilities • Current users of illegal drugs are not included (although recovered addicts are); drinkers are included, though. MGMT 412 | EEO

32. Essential Functions • Second, what is an “essential function”? Here, don’t forget your job descriptions. Basically, a function is essential if: • The position exists to perform the function • Only a limited number of other employees are available to perform the function • It is a highly specialized function, and the person is hired to perform it. • If the functions are essential, the applicant or employee must be able to perform them, with or without a reasonable accommodation. • Reasonable accommodations may be quite simple: • Making facilities usable • Restructuring job duties • Modifying work schedules • Providing materials in large type or Braille • Modifying selection procedures • Also, the cost of these modifications may be covered by community organization grants and the like. MGMT 412 | EEO

33. Undue Hardship • Undue hardship is determined on a case-by-case basis • What is an undue hardship for Joe’s Bait Shop may not be an undue hardship for Target • Think – size of organization, financial resources MGMT 412 | EEO

34. Questions? • It is prohibited to question an applicant about whether there are disabilities • You may ask if he or she can perform the essential job functions (even if the disability is obvious, but remember that most are not) • It is up to the applicant to disclose the disability and to ask for an accommodation. MGMT 412 | EEO

35. Other EEO Issues and Controversies • Gender • Sexual harassment • “Glass Ceiling” • Race • Affirmative action • Religion • The extent of accommodations MGMT 412 | EEO

36. Sexual Harassment • Sexual harassment defined • Employer’s responsibilities • Is it a “female thing” ??? • In 2007, 16% of charges filed with EEOC were filed by men MGMT 412 | EEO

37. What is Sexual Harassment? • Typically male female, but can be any combination • Quid pro quo • Sexual favors as a condition of employment • Hostile environment • Creating an intimidating, hostile or offensive work environment • Reasonable person vs. reasonable woman standard (Harris case) • Can also involve third parties: suppliers, vendors, customers, clients, independent contractors and the general public • Finally, third parties may also have standing; that is, other people may also have been discriminated against, either quid pro quo or hostile environment • Important: Harassment can also involve race, religion or disability status MGMT 412 | EEO

38. Hostile Environment • An intimidating, hostile or offensive work environment • Causes harm • Reduced work performance • Psychological harm • Forced resignation • Pervasive conduct (one or two incidents not sufficient) • What can it include • Offensive or demeaning language or references (“dumb-a** women” • Inappropriate behaviors • Pictures, graffiti, etc. MGMT 412 | EEO

39. Sexual Harassment: The Organization’s Policies • Company can be liable if no policy for handling harassment is in place and enforced • Have a policy, communicate it and train employees • What to include in a policy? • Define sexual harassment and make clear that it is not tolerated • Complaint procedure (including method for reporting harassment by direct supervisor) • Time frame for investigation • Penalties for violating policy • Confidentiality for complainant and alleged harasser • Protection against retaliation (inside or outside the workplace) MGMT 412 | EEO

40. “Glass Ceiling” • Belief that there is a barrier preventing women and minorities from rising beyond a certain level in organizations • Does it exist? • Women are generally under-represented at higher levels of the organization • Pervasive discrimination? • Time will take care of it? • Women make less investment in work? • Women gravitate towards staff vs. line positions • Undervaluing “emotional” work MGMT 412 | EEO

41. Affirmative Action and Diversity • Definitions • Affirmative action: catching up with past discrimination, making uses of goals and timetables for bringing protected classes into the workforce • Diversity management: taking advantage of the diverse workforce, without expecting those who are different to fit in or conform • Legal issues with affirmative action • Voluntary plans • OFCCP (Federal contractors,banks) • Consent decrees MGMT 412 | EEO

42. Religion and Work • Religion and hiring: religion can be a BFOQ [religious institutions] • “An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.” • However, “reasonable” is less than under ADA: “de minimis” cost or burden” MGMT 412 | EEO

43. In General….. • Illegal to: • Coerce religious participation or non-participation • Hire or fire based on religion (unless a BFOQ) • Have mandatory devotional services • Time off for religious observances is generally covered • You may require the employee to find someone to cover shift • Can require employees to use vacation time or other leave • Employers don’t have to accommodate long absences (for example, a several week pilgrimage) MGMT 412 | EEO

44. Religious Activities at Work… • Allowing employees to actively proselytize at work is a bad idea • Employee religious activities on their own time ok, if all religions have opportunities • Watch out for training programs that may violate employees’ beliefs: • So-called “New Age” training can be a problem • Some employees have problems with parts of diversity programs MGMT 412 | EEO

45. Harassment • Harassment based on religion (language, statements about others’ values) is treated as any other form of harassment MGMT 412 | EEO

46. Some Sticky Issues • Dress • Pants and head coverings • Safety issues • The Church of Body Modification • Conscience issues • Workplace Religious Freedom Act MGMT 412 | EEO