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After studying this chapter, you should be able to:Cite the main features of at least five employment discrimination laws.Define adverse impact and explain how it is proved and what its significance is.Explain and illustrate two defenses you can use in the event of discriminatory practice allegations.Avoid employment discrimination problems.Cite specific discriminatory personnel management practices in recruitment, selection, promotion, transfer, layoffs, and benefits.Define and discuss diversity management.
Equal Employment Opportunity 19641991
Early Court Decisions Regarding Equal Employment OpportunityBusiness necessity is a defense for adverse impact.Employers intent is irrelevant.Griggs v. Duke Power CompanyBurden of proof is on the employer.Fair in form practice must also be nondiscriminatory.Test or practice must be related to job performance.
Early Court Decisions Regarding Equal Employment Opportunity (contd)Albemarle Paper Company v. MoodyIf a test is used to screen candidates, then the jobs specific duties and responsibilities must be analyzed and documented.The performance standards for the job should be clear and unambiguous.Federal guidelines on validation are to be used for validating employment practices.
Equal Employment Opportunity 199091present
Equal Employment Opportunity 199091present (contd)
Employer Obligations Under ADAAn employer must make a reasonable accommodation for a qualified disabled individual unless doing so would result in undue hardship.Employers are not required to lower existing performance standards or stop using tests for a job.Employers may ask pre-employment questions about essential job functions but can not make inquiries about disability.Medical exams (or testing) for current employees must be job-related.Employers should review job application forms, interview procedures, and job descriptions for illegal questions and statements.Employers should have up-to-date job descriptions that identify the current essential functions of the job.
Disabilities and ADACourts will tend to define disabilities quite narrowly.Employers are not required to tolerate misconduct or erratic performance, even if the behaviors can be attributed to the disability.Employers do not have to create a new job for the disabled worker nor reassign that person to a light-duty position for an indefinite period, unless such a position exists.Employers should not treat employees as if they are disabled so that they will not be regarded as disabled and protected under the ADA.
State and Local Equal Employment Opportunity LawsState and Local LawsCannot conflict with federal law but can extend coverage to additional protected groups.The EEOC can defer a discrimination charge to state and local agencies that have comparable jurisdiction.
Title VII: Sexual HarassmentSexual HarassmentHarassment on the basis of sex that has the purpose or effect of substantially interfering with a persons work performance or creating an intimidating, hostile, or offensive work environment.Employers have an affirmative duty to maintain workplaces free of sexual harassment and intimidation.Federal Violence Against Women Act of 1994A person who commits a violent crime motivated by gender is liable to the party injured.
Proving Sexual Harassment
TABLE 22Summary of Important Equal Employment Opportunity ActionsTitle VII of 1964 Civil Rights Act, as amendedExecutive ordersFederal agency guidelinesSupreme Court decisions:Griggs v. Duke Power Co.,Albemarle v. MoodyEqual Pay Act of 1963Age Discrimination in Employment Act of 1967State and local lawsVocational Rehabilitation Act of 1973Pregnancy Discrimination Act of 1978Vietnam Era Veterans Readjustment Assistance Act of 1974Ward Cove v. AtonioPrice Waterhouse v. HopkinsAmericans with Disabilities Act of 1990Civil Rights Act of 1991Note: The actual laws (and others) can be accessed at: http://www.usa.gov/Topics/Reference_Shelf.shtml#Laws.
Sexual Harassment: Court Decisions
FIGURE 21HR in Practice: What Employers Should Do to Minimize Liability in Sexual Harassment Claims
Take all complaints about harassment seriously.Have the victim inform the harasser directly that the conduct is unwelcome and must stop.Conduct a thorough investigation of any complaint of harassment.Issue a strong policy statement condemning harassing behaviors.Inform all employees about the policy prohibiting sexual harassment and of their rights under the policy.Communicate to employees that sexual harassment will not be tolerated.Establish a management response system that includes an immediate reaction and investigation by senior management.Provide training to supervisors and managers to increase their awareness of the issues.Discipline managers and employees involved in sexual harassment.Keep thorough records of complaints, investigations, and actions taken.Conduct exit interviews that uncover any complaints.Re-publish the sexual harassment policy periodically.Encourage upward communication to discover evidence of sexual harassmentDo not retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in an investigation, proceeding, or litigation under Title VII.Sources: www.eeoc.gov/types/sexual_harrasment.html, accessed May 6, 2007, and 1991by CCH Incorporated. All rights reserved. Reprinted with permission from Sexual Harassment Manual for Managers and Supervisors, published in 1991, by CCH Incorporated, a WoltersKluwer Company.
FIGURE 22California State University,Fresno: Complaint Form for Filing a Complaint of Harassment or DiscriminationSource: California State University, Fresno.
Showing Disparate TreatmentThe employer continued seeking applications.The person applied and was qualified for the job.McDonnell-Douglas Test for Prima Facie CaseThe person belongs to a protected class.The person was rejected despite qualification.
Bona Fide Occupational Qualification
Business NecessityBusiness NecessityA defense requiring employers to show that there is an overriding business purpose (i.e., irresistible demand) for a discriminatory practice. Spurlock v. United AirlinesValidityThe degree to which the test or other employment practice is related to or predicts performance on the job can serve as a business necessity defense.
Other Considerations in Discriminatory Practice DefensesGood intentions are no excuse.Employers cannot hide behind collective bargaining agreementsequal opportunity laws override union contract agreements.Firms should react by agreeing to eliminate an illegal practice and (when required) by compensating the people discriminated against.
Discriminatory Employment PracticesSelectionEducational RequirementsTestsPreference to RelativesHeight, Weight, and Physical CharacteristicsArrest RecordsApplication FormsDischarge Due to GarnishmentRecruitmentWord of MouthMisleading InformationHelp Wanted AdsPersonal AppearanceDressHairUniforms
The EEOC Enforcement ProcessEEOC Claim and Enforcement ProcessCharge AcceptanceFile ChargeServe NoticeInvestigation/Fact-FindingCause/No CauseConciliationNotice to Sue
FIGURE 24The EEOC Charge-Filing ProcessNote: Parties may settle at any time.Source: Based on information at www.eeoc.gov.
FIGURE 23Questions to Ask When an Employer Receives Notice That EEOC Has Filed a Bias ClaimExactly what is the charge and is your company covered by the relevant statutes?What protected group does the employee belong to? Is the EEOC claiming disparate impact or disparate treatment?Are there any obvious bases upon which you can challenge and/or rebut the claim?If it is a sexual harassment claim, are there offensive comments, calendars, posters, screensavers, and so on, on display in the company?Who are the supervisors who actually took the allegedly discriminatory actions and how effective will they be as potential witnesses? Sources: Fair Employment Practices Summary of Latest Developments, January 7, 1983, p. 3, Bureau of National Affairs, Inc. (800-372-1033); Kenneth Sovereign, Personnel Law (Upper Saddle River, NJ: Prentice Hall, 1999), pp. 3637; EEOC InvestigationsWhat an Employer Should Know, Equal Employment Opportunity Commission (http://www.eoc.gov/employers/investigations.html), accessed May 6, 2007.
Mandatory ArbitrationGilmer v. Interstate/Johnson Lane Corp.Employers can compel employees to agree to mandatory arbitration of employment-related disputes.RecommendationsRequest party be compelled to arbitrate claim.Insert arbitration clause in employment applications and employee handbooks.Protect arbitration process from appeal.Alternative Dispute Resolution (ADR)
Addressing EEOC ClaimsDuring the EEOC Investigation:Meet with the EmployeeFollow Three PrinciplesLimits of EEOC AuthoritySubmitting DocumentsPosition Statement
Addressing EEOC Claims (contd)During the Fact-Finding Conference:Employers AttorneyOfficial RecordsInformationWitnessesDuring EEOC Determination and Attempted Conciliation:Conciliate PrudentlyReview Carefully
Diversity Management ProgramSteps in a Diversity Management Program:Assess the situationProvide strong leadershipProvide diversity training and educationChange culture and management systemsEvaluate the diversity management program
Is the Diversity Initiative Effective?Are there women and minorities reporting directly to senior managers?Do women and minorities have a fair share of job assignments that are stepping stones to successful careers i