© 2003 Prentice Hall, Inc. 2-1 Instructor presentation questions: [email protected] Chapter 2 Equal Opportunity and the Law

© 2003 Prentice Hall, Inc.2-1

Instructor presentation questions: [email protected]

Chapter 2

Equal Opportunity and the Law


Outline of Chapter 2

Equal Employment Opportunity 1963 to 1991 Title VII of the 1964 Civil Rights Act Executive Orders Equal Pay Act of 1963 Age Discrimination in Employment Act of 1967 Vocational Rehabilitation Act of 1973



Equal Employment Opportunity 1963 to 1991 Vietnam era Veterans’ Readjustment Assistance

Act 1974 Pregnancy Discrimination Act of 1978 Federal agency guidelines Sexual harassment Early court decisions regarding Equal Employment

Opportunity Equal Employment Opportunity 1989-1991: A

shifting Supreme Court



Equal Employment Opportunity 1991 to present The Civil Rights Act of 1991 The New Workplace: Enforcing the 1991 CRA

Abroad The Americans with Disabilities Act State and Local Equal Employment Opportunity

Laws



Defenses Against Discrimination Allegations Adverse Impact Bona Fide Occupational Qualification Business necessity Other considerations in discriminatory practices

defense



Some Discriminatory Employment Practices Discriminatory recruitment practices Discriminatory selection standards Sample discriminatory promotion, transfer and

layoff practices



The EEOC Enforcement Process Processing a charge Conciliation proceedings How to respond to employment discrimination

charges Mandatory arbitration of discrimination claims



Diversity Management and Affirmative Action Programs Managing Diversity Strategic HR: Longo Toyota Boosting Workforce Diversity Equal Employment Opportunity versus Affirmative

Action Affirmative Action: Two Basic Strategies HR.net: Recruiting minorities online


What You Should Be Able to Do

Avoid employment discrimination problems. 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.


What You Should Be Able to Do

Cite specific discriminatory personnel management practices in recruitment, selection, and promotion, transfer, layoffs, and benefits.

Explain and illustrate two defenses you can use in the event of discriminatory practice allegations.

Define and discuss diversity management.


First Equal Employment Action

Title VII of the 1964 Civil Rights Act Prevents discrimination Established the Equal

Employment Opportunity Commission (EEOC)

Covers all employers with 15 or more persons

Includes private and public schools, state, local and federal governments


Other Early Employment Actions

Executive Orders Equal Pay Act of 1963 Age Discrimination in Employment Act

of 1967 Vocational Rehabilitation Act of 1973


Other Early Employment Actions

Vietnam Era Veterans’ Readjustment Assistance Act of 1974

Pregnancy Discrimination Act of 1978

Federal Agency Guidelines


Federal Employment Actions 1963-1991

1963 Executive Order 11246

1963 Equal Pay Act

1967 Age Discrimination Act

1964 Civil Rights Act

1969 Executive Order 11375

1973 Vocational Rehabilitation Act

1974 Vietnam Era Veterans’ Readjustment Act

1978 Pregnancy Discrimination Act

1989-1991 Supreme Court Rulings

1980 EEOC guidelines


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.

Definition

Definition


Sexual Harassment

Employers have a duty to keep workplace free of sexual harassment and intimidation

Sexual harassment can be shown in three ways

Quid Pro Quo Hostile environment

created by supervisors Hostile environment

created by co-workers or non-employees


What’s an Employer to Do?

Two questions are asked by the courts when determining liability:

1. Did the company know or should it have known that harassment was present?

2. Did the company take any action to stop the harassment?


Steps Employers Can Take

Treat complaints seriously

Condemn behavior Inform employees Develop complaint

procedure Establish a response

system

Increase supervisors awareness

Discipline Keep records Conduct exit interviews Publish policy Encourage upward

communication


Sample Sexual Harassment Policy


What’s an Employee to Do?

File verbal complaint File a written report Turn to local EEOC

office to file a complaint Consult legal counsel


Sexual Violence

Federal Violence Against Women Act of 1994 Avenue to seek relief for violent sexual

harassment.


Landmark Court Rulings

Griggs v. Duke Power Company Discrimination by the

employer need not be overt. Employment practice must be

job related Placed the burden of proof on

the employer


Albemarle Paper Companyv. Moody

Validity of job tests must be documented

Performance standards must be unambiguous.


Equal Employment Opportunity 1989 - 1991

Wards Cove Packing Company v. Atonio Business necessity

Justification for an otherwise discriminatory employment practice, provided there is an overriding legitimate business purpose.


Civil Rights Act of 1991passed in response to several court cases which had limited protection under EEO law Burden of proof Money damages Mixed motives Proof of discrimination Global reach

Equal Employment Opportunity 1991 - Present


Americans With Disabilities Act (ADA)

A physical or mental impairment that substantially limits a major life activity Includes physiological conditions,

cosmetic disfigurement and loss of any body systems

Does not count alternate lifestyle, gambling, pyromania, or illegal drug use


ADA

Qualified individuals: Protected from discrimination if reasonable accommodation

allows performance of essential job functions Reasonable accommodation:

redesigning a job modifying schedules modifying equipment

Mental impairments: Any mental or psychological disorder

Americans with Disabilities website



Can an employer: Deny a disabled person a job? Be mandated to lower its existing

uniform job standards? Ask about disabilities prior to

hiring? Have different medical exams for

current employees versus disabled employees?


ADA in Practice

Employers should ask: Does the employee have a disability that limits a major life

activity? Is a disabled employee qualified for a job? Can the employee perform the essential functions of a job?

Can any reasonable accommodation be provided without

creating undue hardship on the employer? Is the disability permanent ?


State and Local EEO Laws

Local laws usually extend or expand federal laws

Most states require EEO laws of businesses with fewer than 15 people

Some afford age discrimination laws to young people

EEOC often starts process by deferring to state Human Resources Commissions


Summary of Important EEO Actions

Title VII of 1964 Civil rights act Bars discrimination due to race, color, religion, sex, or national origin

Executive orders End discrimination on federal contracts. Establish office of federal compliance

Federal agency guidelines Create policy on discrimination based on sex, national origin and religion

Case Griggs v. Duke Job requirements based on job success

Action What it does



Case Albemarle v. Moody Burden of proof shifts to employer when showing qualification is valid

Equal Pay Act of 1963 Equal pay for men and women doing same work

Age Discrimination in Employment of 1967

Protects a person 40 or over from age discrimination

State and local laws Cover small employers

Action What it does



Action What it does

Vocational Rehabilitation Act of 1973

Require affirmative action to employ and promote qualified handicapped persons

Pregnancy Discrimination Act of 1978

Prohibits discrimination againstpregnant women

Vietnam Era Veterans Readjustment Assistance Act of 1974

Require affirmative action in employment for veterans



Action What it does

Case Ward Cove v. Atonio Harder to prove unlawful discrimination against an employer

Case Price Waterhouse v. Hopkins

Unlawful actions not always discriminatory if lawful action results in same decision

Americans with Disabilities Act of 1990

Employers need to make reasonable accommodations for disabled individuals

Civil Rights Act of 1991 Reverses earlier cases and puts burden of proof on employer


Defenses Against Discrimination Allegations

Disparate treatment A protected group was intentionally treated

differently Disparate impact

Employer engages in a practice that has a greater adverse impact on members of a protected group regardless of intent

Law differentiates disparate treatment and disparate impact


How to Show Adverse Impact

Population comparisons McDonnell-Douglas test

Adverse impact plays a central role Disparate rejection rates Restricted policy



Two main defenses BFOQ - Bona fide occupational

qualification Business necessity


Other Considerations

Good intentions Collective bargaining

agreements Different responses


Discriminatory Employment Practices

Recruitment practices Word of mouth Misleading information Help wanted gender ads


Discriminatory Employment Practices

Selection standardsEducational requirementsTests which disproportionately screen minoritiesPreference to relativesPhysical characteristics requirementsArrest recordsCertain personal informationDischarge due to garnishment


Discriminatory Promotion, Transfer, and Layoff Practices

Employers can require conservative style dress codes…

As well as a specific hair style or appearance


EEOC Enforcement Process

• Charge filed within 2 years of incident• In writing, under oath• EEOC serves notice and investigates

Dismiss case & issue right to sue

Attempt conciliation


77%

8%9%

1%

5%

Title VII

ADA

ADEA

EPA

Concurrent

EEOC Case Types FY 2000


Questions to Ask When an Employer Receives a Complaint

1. To what protected group does the worker belong? Protected by more than one statute?

2. Would the action complained of have been taken if the worker were not a member of a protected group? Is the action having an adverse impact on other members of a protected group?

3. Is the employee’s charge of discrimination subject to attack because it was not filed on time, according to the applicable law?

4. In the case of a sexual harassment claim, are there offensive posters or calendars on display?


Questions to Ask When an Employer Receives a Complaint

5. Do the employee’s personnel records demonstrate discriminatory treatment in the form of unjustified warnings and reprimands?

6. In reviewing the nature of the action complained of, can it be characterized as disparate impact or disparate treatment? Can it be characterized as an individual complaint or a class action?

7. What are the company’s probable defenses and rebuttal?

8. Who are the decision makers involved, and what would they be effective witnesses?

9. What are the prospects for a settlement of the case that would be satisfactory to all involved?


How a Company Responds to an EEOC Charge

Remember the EEOC are not judges Provide a detailed statement describing the firm’s

defense in its most persuasive light Supply only information raised by the charge itself Gather as much information

about the claim as possible

so you understand what

its all about


How an EEOC Investigation Proceeds

EEOC fact finding conference Determination and attempted conciliation Voluntary mediation

10% of the time this is the EEOC recommendation

Mandatory mediation Litigation


Mandatory Arbitration of Discrimination Claims

Review all employment discrimination suits filed against them

Consider inserting a mandatory arbitration clause

Institute steps to protect against arbitrator bias


Diversity Worksrace

gender

culture

national origin

age

handicap

racegender

handicap

culture

national origin

age


Voluntary Diversity Organizational Steps

Provide strong leadership Asses the situation Provide diversity training and education Change culture and management

systems Evaluate the managing diversity

program


Why Workplace Diversity Is Strategic

Better business decisions Handling challenges Company growth Globalization


How to Encourage Diversity

Written philosophy Evaluate Recruit Interact with representative

minority groups and networks

Voluntary affirmative action


Two Useful Strategies in Affirmative Action Design

Good faith effort Quota strategy

As vice president of global workforce diversity for IBM Corp, Ted Childs is responsible for the company’s workforce diversity programs and policies.


Useful Strategies in Affirmative Action

Ads to reach

minority

workers

Day careservice withflexible workhours

Minoritytraining to

better compete

Diversity candidate resource website


Things to Remember As We Move Into Chapter 3

Title VII of 1964 CRA bars discrimination based on race, color, religion, sex or national origin

EEOC empowered to conciliate discrimination complaints

CRA of 1991 places burden of proof on employers, allows monetary damages

ADA extends protection to the disabled Workplace diversity works

Documents

© 2003 Prentice Hall, Inc. 2-1 Instructor presentation questions: [email protected] Chapter 2 Equal Opportunity and the Law