Equal Opportunity and the Law

Chapter 2: BA 23
(Human Resource Management)
Learning Objectives:
At the end of the discussions students should be able to know the following:

• List the basic features of the Title VII of the 1964 Civil Rights Act
and other early equal employment laws.
• List the basic features of post – 1990 employment laws, and
explain with examples how to avoid accusations of sexual
harassment at work.
• Illustrate two defenses you can use in the event of discriminatory
practice allegations, and list specific discriminatory personnel
management practices in recruitment, selection, promotion,
transfer, layoffs, and benefits.
• List the steps in the EEOC enforcement process.
• Examples of attitudes that undermine diversity efforts, and
explain how you would create a diversity management program.
Title VII of the 1964 Civil Rights Act
The section of the act that says an employer cannot
discriminate on the basis of race, color, religion, sex, or
national origin with respect to employment.

Equal Employment Opportunity

Commission (EEOC)
The commission, created by Title VII, empowered to
investigate job discrimination complaints and sue on
behalf of complainants.
Executive Orders
• Affirmative Action – steps that are taken for the
purpose of eliminating the present effects of past
discrimination.
• Office of Federal Contract Compliance Program
(OFCCP) – this office is responsible for
implementing the executive orders and ensuring
compliance of federal contractors.

Equal Pay Act of 1963

• The act requiring equal pay for equal
work, regardless of sex.
Age Discrimination in Employment Act of 1967
(ADEA)
• The act prohibiting arbitrary age discrimination as specifically
protecting individuals over 40 years old.

Vocational Rehabilitation Act of 1973

• The act requiring certain federal contractors to take
affirmative action for disabled persons.
 Pregnancy Discrimination Act of 1978

• An amendment to Title VII of the Civil Rights Act that

prohibits sex discrimination based on “ pregnancy,
child birth, or related medical conditions.”

Federal Agency Guidelines

• Uniform Guidelines – guidelines issued by federal agencies
charge with ensuring compliance with equal employment
federal legislation explaining recommended employer
procedures in detail.
Early court decisions regarding equal employment opportunity

• Several court decisions between 1964 and 1991

helped clarify courts interpretations of equal
employment opportunity laws such as Title VII

Example: Griggs V. Duke Power Company

Protected Class – persons such as minorities and women

protected by equal opportunity laws, including Title VII
The Laws enacted from 1991 to the present

The Civil Rights Act of 1991

• the act requiring employers to make reasonable accommodations
for disabled employees, it prohibits discrimination against disabled
persons.

Burden of proof – what the plaintiff must show to establish possible illegal
discrimination, and what the employer must show to defend its action.
Money Damages – makes it easier to sue for money damages in such cases.
It provides that an employee who is claiming intentional discrimination can
ask for compensatory damages and punitive damages, if he or she can show
the employer engaged in discrimination with malice or reckless indifference
to the federally protected rights of an aggrieved individual.

Mixed-motive case – a discrimination allegation case in which the employer

argues that the employment action taken was motivated not by
discrimination, but by some nondiscriminatory reason such as ineffective
performance .
Americans with Disabilities Act
• The act requiring employers to make reasonable accommodations for
disabled employees this prohibits discrimination against disabled
persons.

Qualified Individuals – those who can carry out the essential functions of the
job .
Reasonable Accommodations – might include redesigning the job, modifying
work schedules or modifying or requiring equipment or other devices,
widening door openings or permitting telecommuting are examples.
Some important ADA guidelines for managers and employers
• Do not deny a job to a disabled individual if the person is
qualified and able to perform the essential job functions.
• Make a reasonable accommodations unless doing so would
result in undue hardship.
• Know what you can ask applicant. In general, you may not
make pre-employment inquiries about a person’s disability to
perform essential job functions.
• Itemized essential job functions on the job descriptions. In
virtually any ADA legal action, a central question will be, what
are the essential functions of the job?
• Do not allow misconduct or erratic performance (including
absences and tardiness), even if that behavior is linked to the
disability.

ADA Amendments Act of 2008 (ADAAA)

Uniformed Services Employment and Reemployment Rights
Act
• Employers are generally required, among other things, to
reinstate employees returning from military leave to positions
comparable to those they had before leaving.

Genetic Information Nondiscrimination Act of 2008 (GINA)

• Prohibits discrimination by health insurers and employers base

on people’s genetic information.
State and Local Equal Employment Opportunity Laws
• This law usually cover employers ( like those with less than 15
employees ) not covered by federal legislation.

Religious Discrimination
• Involves treating someone unfavorable because of his or her
religious beliefs
• The law protects not only people belong to traditional
organized religions, such as Buddhism, Christianity, Hinduism,
Islam and Judaism, but also others who have sincerely
religious ethical or moral beliefs.
Trends and Discrimination Law
• Some trends are expanding equal employment’s impact, while
others are forming new headwinds.

Sexual Harassment
• Harassment on the basis of sex that has the purpose or effect
of substantially interfering with a person’s work performance
or creating an intimidating, hostile, or offensive work
environment.

Federal Violence Against Women Act of 1994

• The act that provides that a person who commits a crime of
violence motivated by gender shall be liable to the party
injured.
Proving Sexual Harassment:
• Quid Pro Quo. The most direct is to prove that rejecting a
supervisor’s advances adversely affected what the EEOC calls a
“tangible employment action,” such as hiring, firing, promotion,
demotion, and/or work assignment.
• Hostile Environment created by Supervisors. The harassment need to
have tangible Consequences such as demotion.
• Hostile Environment Created by Coworkers or Nonemployees.
Coworkers or Nonemployees can trigger such suits.

What is Hostile Environment?

• Generally means the intimidation, insults, ridicule were sufficiently
severe to alter the employee’s working condition.
Supreme Court Decisions
• Burlington Industries v. Ellerth, Faragher v. City of Boca Raton

• These decisions suggest an employer can defend itself against

sexual harassment liability by showing two things:

• First, it must show “that the employer exercised reasonable care to

prevent and correct promptly any sexual harassing behavior.”
• Second, it must demonstrate that the plaintiff “unreasonably failed
to take advantage of any preventive or corrective opportunities
provided by the employer.
How to Address Sexual Harassment
• Take all complaints about harassment seriously.
• Issue a strong policy statement condemning such behavior.
• Take steps to prevent sexual harassment from occurring.
• Establish a management response system that includes an
immediate reactions and investigation.
• Train supervisors and managers to increase their awareness
of the issues, and discipline managers and employees
involved sexual harassment.
Why the Law isn’t enough?
• First, “women perceive a broader range of socio-sexual
behaviors (touching, for instance) as harassing.
• Second, victims are often fearful (for instance, of not getting
the job).
• Third, victims often won’t complain.
• Finally, neither harassment training nor the HR department
are always helpful.
What the Employee can do?
• Speak with the harasser and his or her boss, stating that the
unwanted overtures should cease.
• Inform your own supervisor.
• If the problem does not cease, file written reports regarding the
unwelcome conduct and unsuccessful efforts to get it to stop with
the harasser’s manager and/or the human resource director.
• If these do not suffice, the accuser may file a claim with the EEOC.
In serious case, the employee can also consult an attorney about
suing the harasser for assault and battery, intentional infliction of
emotional distress, injunctive relief, and to recover compensatory
and punitive damages.
Defenses Against Discrimination Allegations
• Discrimination Law distinguishes between disparate treatment and
disparate impact.

Disparate Treatment – it means intentional discrimination. It “

exists where an employer treats an individual differently
because that individual is a member of a particular race,
religion, gender, or ethnical group.”

Disparate Impact – means that “ an employer engages in an

employment practice or policy that has a greater adverse
impact (effect) on the members of a protected group under
Title VII than on the other employees, regardless of intent.”
The Central Role of Adverse Impact
• Showing that one of the employer’s employment practices or policies
has an adverse impact therefore place a central role in discriminatory
allegations under Title VII and CRA 1991, a person who believes that he
or she was a victim of unintentional discrimination because of an
employer’s practices need only, establish a prima facie case of
discrimination. This means showing, for instance that the employer’s
selection procedures ( like requiring a college degree for the job) did
have an adverse impact and the protected minority group.

Adverse Impact - The overall impact of employer practices that result

significantly higher percentages of members of minorities and other
protected groups being rejected for employment, placement, promotion.
Disparate Rejection Rates
• A method compares the rejection rates for a minority group and
other group (usually the remaining nonminority applicants).
• A test for adverse impact in which it can be demonstrated that there
is a discrepancy between rates of rejection of members of a
protected group and of others.

4/5ths Rule
• A federal agency rule that a minority selection rate less than 80%
(4/5ᵗʰˢ) of that for the group with the highest rate is evidence of
adverse impact.

The Standard Deviation Rule

 Disparate Rejection Rates
• A federal agency rule that a minority selection rate less than 80%
(4/5ᵗʰˢ) of that for the group with the highest rate is evidence of
adverse impact.

Population Comparisons

Mcdonnell Douglas Test

• There are then two basic defenses employers use to justify an
employment practice that has an adverse impact on members of
minority group: the bona fide occupational qualification (BFOQ)
defense and the business necessity defense.
Bona Fide Occupational Qualification (BFOQ)
• Requirement that an employee be a 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 as a BFOQ – the age discrimination in employment act (ADEA) permits
disparate treatment in those instances when age is a BFOQ.

Religion as a BFOQ – religion may be a BFOQ in religious organization or

societies that require employees to share their particular religion.

Gender as a BFOQ – the gender may be a BFOQ for a position like actor,
model and restroom attendant requiring physical characteristics possessed
by one sex.

National Origin as a BFOQ – a persons country of national origin may be a BFOQ.

 Business Necessity
• Is a defense created by the courts. It requires showing that there is
an overriding business purpose for the discriminatory practice and
that the practice is therefore acceptable.

What you can and cannot do

Some of the Potentially Discriminatory Practices to avoid
Recruitment
• Word of Mouth
• Misleading Information
• Help – Wanted Ads
Selection Standards

• Educational Requirements
• Tests
• Preference to Relatives
• Height, Height, and Physical
Characteristics
• Arrest Records Selection
• Applicant Forms
• Discharge Due to Garnishment Standards
• Sample Discriminatory Promotion,
Transfer, and Layoff Practices
• Personal appearance Regulation
and title VII
(Dress, Hair, Uniforms, Tattoos and
Body Piercings).
The EEOC Enforcement Process
• File Charge
• Charge Acceptance
• Serve Notice
• Investigation/Fact-Finding Conference
• Causel No Cause
• Conciliation
• Notice to Sue
File Charge – the process begin when someone files a claim with the EEOC. Either
the aggrieve person or a member of the EEOC who has reasonable cause to
belief that a violation occurred must file the claim in writing under oath.

Charge Acceptance – the EEOC’s common practice is to accept the charge

and orally refer it to the state or local agency on behalf of the charging party.

Serve Notice – after a charge is filed (or the state or local deferral period has
ended), the EEOC has 10 days to serve notice on the employer.
Investigation/Fact-Finding Conference – the EEOC then investigates the charge
to determine whether is reasonable cause to believe it is true; it has 120
days to decide.

Causel No Cause – if it finds no reasonable cause, the EEOC must dismiss the
charge and issue the charging party a Notice of Right to Sue.

Conciliation – if the EEOC does find cause, it has 30 days to work out a
conciliation agreement.

Notice to Sue – if this conciliation is not satisfactory, the EEOC may bring a
civil suit in a federal district court, or issue a Notice of Right to Sue to the
person who filed the charge.
 Applicant or Employee
files charge
EEOC advises
employer of charge,
and if mediation is
an option
The EEOC Charge-
Filing Process
Successful Unsuccessful
mediation mediation

EEOC may
EEOC may EEOC may
ask employer
ask employer ask employer
to permit on-
to submit to respond to
site visit by
statement of and request for and EEOC and to
position of information
provide
employer’s (personal
information for
state of story files, etc.)
witness interview
 EEOC completes investigation

Finds no
reasonable
Finds
reasonable
The EEOC
cause cause
Charge-Filing
Issues charging Issue Letter of
Process
party Dismissal Determination
and Notice of
Rights

Offers parties
Charging party Conciliation
may file lawsuit in
federal court
within 90 days
 Conciliation Conciliation
fails successful

EEOC may EEOC may

litigate in decide not to
federal court litigate
within 180 days
of charge

Sends charging

The EEOC party Notice of

Right to Sue

Charge-Filing
Process Party may sue
within 90 days
Voluntary Mediation
• The EEOC refers 10% of its charges to a voluntary mediation
mechanism, “an informal process in which neutral third party assists
the opposing parties to reach a voluntary, negotiated resolution of a
charge of discrimination.”

Mandatory Arbitration of Discrimination Claims

• Many employers, to avoid EEOC litigation, require applicants and
employees to agree to arbitrate such claims. The EEOC does not
favor mandatory arbitration.

Alternative Dispute Resolution or ADR Program

• Grievance procedure that provides for binding arbitration as the last
step.
Every manager should know in advance what the EEOC will looking for
and what to do:

During the EEOC Investigation:

• Conduct your own investigation to get the facts.
• Ensure that there is information in the EEOC’s file demonstrating lack of
merit of the charge.
• Limit the information supplied to only those issues raised in the charge itself.
• Get a much information as possible about the charging party’s claim.
• Meet with the employee who made the complaint to clarify all the relevant
issues.
• Remember that the EEOC can only ask (not compel) employers to submit
documents and ask for the testimony of witnesses under oath.
• Give the EEOC a position statement. It should contain words to the effect
that “the company has a policy against discrimination and would not
discriminate in the manner charged in the complaint.”
• Support the statement with documentation.
During the fact – Finding Conference:
• Because the only official record is the notes the EEOC investigators takes,
keep your own records.
• Bring an attorney.
• Make sure you are fully informed of charges and facts of the case.
• Before appearing witnesses (especially supervisors) need to be aware or the
legal significance of the facts they will present.

During the EEOC Determination and Attempted Conciliation:

• If there is a finding of cause, review it carefully, and point out inaccuracies in
writing to the EEOC.
• Use this letter to try again to convince the parties that the charge is without
merit.
• Conciliate prudently. If you have properly investigated the case, there may
be no real advantage in settling at this stage.
• Remember: Odds are that no suit will be filed by the EEOC.
Two Mistakes to Avoid:
• First, avoid management malpractice, which is aberrant managerial
conduct that “exceeds all bounds usually tolerated by society.”
• Second, do not retaliate. Retaliation occurs when employers treat
applicants, employees, former employees, or people closely
associated with them, less favorably because, for instance, they
threatened to file a discrimination charge.
Diversity Management
Diversity – the variety or multiplicity of demographic features that characterize a
company’s workforce, particularly in terms of race, sex, culture, national origin, handicap,
age, and religion.

Potential Threats to Diversity:

• Stereotyping
• Discrimination
• Tokenism
• Ethnocentrism
Stereotyping
• Ascribing specific behavioral traits to individuals based on their apparent
membership in a group.

Discrimination
• Taking specific actions toward or against a person based on the person’s group.
Tokenism

• When a company appoints a small group of women or minorities to high –

profile positions, rather than more aggressively seeking full representation
for that group.

Ethnocentrism

• The tendency to view members of other social groups less favorably than
members of one’s own group.
Managing Diversity
• Maximizing diversity’s potential benefits while minimizing its potential barriers.

Top – down Diversity Manage Programs:

• Aim is to make employees more sensitive to and better able to deal with cultural
differences. First, make sure diversity training is the solution, or if some other approach
is more advisable. Next, set measurable program goals, for instance, in terms of
quantifiable attitudes toward diversity.

Five steps are typical;

• Provide strong leadership
• Assess the situation
• Provide diversity training and education
• Change culture and management systems
• Evaluate the diversity management program
DIVERSITY THROUGH ENGAGEMENT
• Other wisely design their diversity efforts to elicit their employees’
engagement and active participation.

Implementing the Affirmative Action Program

Affirmative Action – means taking actions (in recruitment, hiring, promotions,
and compensation) to eliminate the current effects of past discrimination.
Good – Faith Effort Strategy
• An affirmative action strategy that emphasizes identifying and eliminating
the obstacles to hiring and promoting women and minorities, and increasing
the minority of female applicant flow.

EMPLOYEE RESISTANCE:
• Avoiding employee resistance to affirmative action program is important. Here,
studies suggest the current employees need to believe the program is fair.
Steps in an Affirmative Action Program
• Issue a written equal employment policy indicating that the firm is an equal
employment opportunity employer and the employer's commitment to
affirmative action.
• Demonstrate top-management support for the equal employment policy –
for instance, appoint a high-ranking EEO administrator.
• Publicize internally and externally the equal employment policy and
affirmative action commitment.
• Survey current minority and female employment by department and job
classification to determine where affirmative action programs are especially
desirable.
Steps in an Affirmative Action Program

5. Carefully analyze employer human resources practices to identify and

eliminate hidden barriers.
6. Review, develop, and implement specific HR programs to improve female
and minority utilization.
7. Use focused recruitment to find qualified applicants from the target group/s.
8. Establish an internal audit and reporting system to monitor and evaluate
progress.
9. Develop support for the affirmative action program, inside the company and
in the community.
Reverse Discrimination
• It means discriminating against
nonminority applicants and employees.
• Claim that due to affirmative action quota
systems, white males are discriminated
against.
Diversity management can blend a
diverse workforce into a close – knit
and productive community.
Thank you for listening!

Reporters : Jerusalem, Lanipa, and Dorigo