EQUAL EMPLOYMENT

OPPORTUNITY,
AFFIRMATIVE ACTION, AND
WORKPLACE DIVERSITY

Adapted from Pearson Education, Inc. Copyright © 2019

Projected Future Diverse Workforce
The U.S. workforce is more diverse
 More people from different ethnicities

 More older people

 More women

 More people with disabilities

 Diversity
Any perceived difference among people:
age, race, religion, functional specialty,
profession, sexual orientation, geographic
origin, lifestyle, tenure with the
organization or position, and any other
perceived difference
 Diversity Management
It is ensuring that factors are in place to
provide for and encourage the continued
development of a diverse workforce by
melding the actual and perceived
differences among workers to achieve
maximum productivity
 Managing Diverse Workforce:
Various Components
 Single Parents &  Persons with
Working Mothers Disabilities
 Women in  Immigrants
Business  Young Persons
 Dual Career with limited
Families Education/Skills
 Ethnicity and race  Baby Boomers,
 Older Workers Gen X, Gen Y,
and Gen Z
 Laws Affecting Equal
Employment Opportunity
 Equal Pay Act of 1963
 Prohibits an employer from paying an employee of
one gender less money than an employee of
opposite gender, if both employees do work that is
substantially the same

 Jobs are considered substantially the same when

they require equal skill, effort, and responsibility and
they are performed under similar working conditions

 Coverage
• All employers with 1 or more employees, including the
federal government
 Equal Pay Act of 1963,
Amended in 1972 (Cont.)
 Four exceptions that permit unequal
pay for equal work include:
• Seniority system
• Merit system
• System that measures earnings by quantity
or quality of production
• Any factor other than sex

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Lilly Ledbetter Fair Pay Act of
2009
 Each paycheck that unfairly pays a worker less
than it should is a discriminatory act

 The act gives the worker a fresh 180-day period

during which time discrimination charges must
be filed

 Recognition of an unfair paycheck at any time

starts the period

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 Title VII of Civil Rights Act of 1964
-- Amended 1972
 Greatest impact on HR management

 Illegal for an employer to discriminate in hiring,

firing, promoting, compensating on the basis of
race, color, sex, religion, or national origin

 Created the Equal Employment Opportunity

Commission (EEOC)

 Coverage
 All public or private employers of 15 or more persons
 All private and public educational institutions, the federal
government, and state and local governments
 All public and private employment agencies
 All labor unions with 15 or more members
Title VII of Civil Rights Act of 1964,
Amended in 1972
 Three notable exceptions to Title
VII discrimination:
• Bona fide occupational
qualifications (BFOQ)
• Bona fide seniority sytem
• Professionally developed ability
tests as long as there was no
intention to engage in illegal
discrimination
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Age Discrimination in Employment Act
of 1967--amended in 1978, 1986, 1990

 Illegal to discriminate against anyone

40 years or older

 Questions asked about age or date of

birth may be ill-advised
 Age Can Be Bona Fide
Occupational Qualification
 Federal Aviation Administration can force
commercial pilots to retire at age 65
 Greyhound did not violate ADEA when it
refused to hire persons 35 years or older
as intercity bus drivers
 Likelihood of risk or harm to passengers
was involved with both cases

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 Rehabilitation Act of 1973
 Prohibits discrimination against disabled workers
who are employed by certain government
contractors and subcontractors

 Protected under this Act are conditions such as

cancer, cardiovascular disorders, and emotional
disorders

 Coverage
• Government contractors and subcontractors and
organizations that receive federal grants in excess of
$2,500
Pregnancy Discrimination Act of 1978
 Prohibits discrimination in employment
based on pregnancy, childbirth, or
related medical condition

 Cannot refuse to hire a woman because

she is pregnant

 Must treat pregnancy the same as any

other temporary disability

 Prohibits questions about family plans,

birth control techniques, etc.

 Health insurance plans cannot exclude

pregnancy regardless of marital status
 Immigration Reform and Control
Act (IRCA) of 1986
 Established criminal and civil sanctions
against employers who knowingly hire
unauthorized aliens

 Illegal for certain employers to fire or refuse

to hire based on national origin or
citizenship

 Illegal to target certain origins for

employment verification
 Immigration Reform and Control
Act (IRCA) of 1986 (Cont.)
 Denied illegal aliens federally funded
welfare benefits

 Legitimized some aliens through an

amnesty program

 Candidates for employment are not

required to be U. S. citizens but they must
prove they are eligible to work in the
United States (Form I-9)
 Americans with Disabilities Act of
1990 (ADA)
 Prohibits discrimination against qualified individuals with
disabilities

 A person who has, or is regarded as having, a physical or

mental impairment that substantially limits one or more
major life activities, and has a record of such an impairment

 Qualified individuals
• Under ADA, those who can carry out the essential
functions of the job

 Reasonable accommodation
• If the individual can’t perform the job as currently
structured, the employer must make a “reasonable
accommodation” unless doing so would present an
“undue hardship”
 Americans with Disabilities Act:
Amendments Act of 2008
 Expanded the definition of “disability”
 More applicants and employees eligible for
reasonable accommodations
 Broadened ADA's definition of disability by
expanding term “major life activities”

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 Civil Rights Act of 1991
 Provided guidelines for the concepts
of disparate treatment and adverse
impact

 Included the Glass Ceiling Act

 Established a Glass Ceiling

Commission
 Civil Rights Act of 1991
 Provided appropriate remedies for intentional discrimination and
unlawful harassment

 Codified “business necessity” and “job-relatedness”

 Confirmed authority and guidelines for finding disparate impact under

Title VII
State and Local Laws
 State and local laws affect
EEO

 When EEOC regulations

conflict with state or local
civil rights regulations the
legislation more favorable
to women and minorities
applies
Albermarle Paper Company v
Moody
Reaffirmed the idea
that any test used in
the selection process,
or in promotion
decisions, must be
validated if it has an
adverse impact on
women and minorities
Phillips v Martin Marietta
Corporation
 Company discriminated against a
woman because she had young
children

 Major implication – Firms cannot

impose standards for
employment only on women

 Neither application forms nor

interviews should contain
questions for women that do not
also apply to men
 Phillips v Martin Marietta
Corporation (Cont.)
Examples of questions that should not be
asked are:
 Do you wish to be addressed as Ms., Miss,
or Mrs.?
 Are you married?
 Do you have children?
 Do you plan on having any more children?
 Where does your spouse work?
Responsibility for Ensuring EEO
 Equal Employment Opportunity
Commission (EEOC)
 Office of Federal Contract
Compliance Programs (OFCCP)
 Employers

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 Equal Employment Opportunity
Commission (EEOC)
 Title VII of the Civil Rights Act of
1964, as amended, created the EEOC
that is charged with administering the
act

 Filing a discrimination charge initiates

EEOC action
Equal Employment Opportunity
Commission (Cont.)
 Some factors that determine
whether EEOC will pursue
litigation are:

1) number of people affected

by alleged practice
2) amount of money involved
in the charge
3) other charges against the
employer
4) type of charge
Uniform Guidelines on Employee
Selection Procedures
Principles designed to assist employers,
labor organizations, employment agencies,
and licensing and certification boards in
complying with federal prohibitions against
employment practices that discriminate on
the basis of race, color, religion, gender,
and national origin
 Types of Employment
Discrimination
 Disparate treatment, often thought
of as intentional discrimination
 Adverse or disparate impact, often
thought of as unintentional
discrimination

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 Disparate Treatment
 It means that an employer treats some people
less favorably than others because of race,
religion, sex, national origin, or age

 Common forms of disparate treatment include

selection rules with racial, sexual, or other
premise, prejudicial action, unequal treatment on
individual basis, and different hiring standards
for different groups
 Adverse Impact
 Occurs if women and minorities are not hired
at the rate of at least 80% of the best-
achieving group

 When a company uses an employment

practice that unintentionally discriminates
against members of a protected class

 Employer must show there is a valid, job-

related reason for using the selection criteria
 Adverse Impact Example
 During 2017, 400 people were hired for a
particular job. Of the total, 300 were white
and 100 were black. There were 1,500
qualified applicants for these jobs, of whom
1,000 were white and 500 were black.
Using the adverse impact formula, you
have:
 100/500 0.2
________ = _____ = 66.67%
 300/1,000 0.3
 Thus, adverse impact exists.
 Adverse Impact Example 2
 During 2017, assume that 300 blacks and 300
whites were hired. But there were 1,500 qualified
black applicants and 1,000 qualified white
applicants. Using the adverse impact formula, you
have:

300/1,500 0.2
 _________ = ____ = 66.67%
300/1,000 0.3

 Thus, adverse impact exists.

 Acceptable Defenses in Adverse
Impact Cases
 Provide evidence that the practice is
job related

• Demonstrate the practice is a business

necessity

• Show that the decision is result of bona

fide occupational qualification
 Bona Fide Occupational Qualification
(BFOQ)
 Bona fide occupational qualification (BFOQ)
• Requirement that an employee be of a certain
religion, sex, or national origin where that is
reasonably necessary to the organization’s normal
operation. Specified by the 1964 Civil Rights Act.
 Age
 Religion
 Gender
 National Origin

 Business necessity
• A defense created by the courts that requires
employers show that there is an overriding
business purpose for a discriminatory practice
 Additional Guidelines

 Sexual Harassment
 Discrimination Because of National
Origin
 Discrimination Because of Religion
 Guidelines on Caregiver (Family
Responsibility) Discrimination
 EEOC Definition of Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, and
verbal or physical conduct of a sexual nature that occur under
any of the following situations:
1. When submission to such conduct is made either
explicitly or implicitly a term or condition of an
individual’s employment (quid pro quo)

2. When submission to or rejection of such conduct by an

individual is used as the basis for employment decisions
affecting such individual

3. When such conduct has the purpose or effect of

unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or
offensive working environment
 Sexual Harassment
 Employers are liable for the acts of their supervisors,
regardless of whether the employer is aware of the
sexual harassment act
 Employer is responsible for acts of co-workers if
employer knew, or should have known, about the
acts
 Employers may be liable for acts committed by
nonemployees in the workplace if the employer knew
or should have known, of the conduct and failed to
take appropriate action
 Employer may not be liable if it takes immediate and
appropriate action
Guidelines on Discrimination
Because of Religion

Employers have an
obligation to
accommodate religious
practices unless they
can demonstrate a
resulting hardship
 Methods for Accommodating
Religious Practices
 Voluntary substitutes
 Flexible scheduling
 Lateral transfers
 Change of job assignments
 Uniform Guidelines on Discrimination
Because of National Origin

Discrimination on basis of national

origin is denial of equal employment
opportunity due to:
• Individual’s ancestors or place of
birth
• Individual’s physical, cultural, or
linguistic characteristics

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 English-Only Rule
 Courts generally ruled in employer’s
favor if rule would:
• Promote safety and product quality
• Stop harassment
 Must be justified by a compelling
business necessity

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 Executive Order

A directive issued by the President,

having the force and effect of a
law enacted by Congress
 Executive Order 11246
 Establishes the policy of the U.S.
government as providing equal
opportunity in federal employment
for all qualified people

 Prohibits discrimination in
employment because of race, creed,
color, or national origin
 Affirmative Action
 Requires covered employers to take positive steps to
ensure employment of applicants and treatment of
employees during employment without regard to race,
creed, color, or national origin

 Require employers’ efforts to bring under-represented

groups into the workplace

 Apply specifically to federal contractors and

subcontractors

 State in job advertisements that company is an EEO/AA

employer
 Affirmative Action Programs
An approach developed by organizations
with government contracts to demonstrate
that workers are employed in proportion to
their representation in a firm's relevant
labor market
 Underutilization
 Having fewer minorities or women in
a particular job group than would
reasonably be expected by their
availability

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 Underutilization Example
 If utilization analysis shows the
availability of blacks for a certain job
group is 30%, the organization
should have at least 30% black
employment in that group. If actual
employment is less than 30%,
underutilization exists, and the firm
should set a goal of 30% black
employment for that job group
 Equal Employment Opportunity Versus
Affirmative Action
 Equal employment opportunity
• Aims to ensure that anyone, regardless of race, color,
disability, sex, religion, national origin, or age, has an
equal chance for a job based on his or her
qualifications

 Affirmative action
• Requires the employer to make an extra effort to hire
and promote those in a protected group that results
in measurable, yearly improvements in hiring,
training, and promotion of minorities and females in
all parts of the organization