Equal Employment Opportunity and HRM

  PowerPoint Presentation by Charlie Cook

  After studying this chapter, you should be able to:

  1. Explain the reasons behind passage of EEO legislation.

  2. Prepare an outline describing the major laws

affecting equal employment opportunity. Describe

bona fide occupational qualification and religious preference as EEO issues.

  3. Discuss sexual harassment and immigration reform and control as EEO concerns.

  4. Explain the use of the Uniform Guidelines on Employee Selection Procedures.

After studying this chapter, you should be able to:

  5. Provide examples illustrating the concept of adverse impact and apply the four-fifths rule.

  6. Discuss significant court cases impacting equal employment opportunity.

  7. Illustrate the various enforcement procedures affecting equal employment opportunity.

  8. Describe affirmative action and the basic steps in developing an affirmative action program.

• Equal Employment Opportunity (EEO)
• The treatment of individuals in all aspects of

  employment —hiring, promotion, training, etc.—in a fair and nonbiased manner.

• Changing National Values
• Economic Disparity
• Early Legal Developments

  Regulatory Management Concerns Laws Agencies

• _{• Fairness issues • Passed by • Federal agencies Type name here • Planning • Rulings}

  Action Responses

• _{• Economic disparity • Interest group • Presidential • Changing material • Passed by state agendas executive orders values legislature congress • Independent • State agencies commissions • Formulating Type title here}
• Written _{• Complaint • Technical regulations investigations compliance policies appropriate HR strategies}
• _{• Political party • Loop-holes in current legislation mandates State Challenges to Laws Federal • Lawsuits}

  assistance

• _{• Briefing and training • Working with • Defending lawsuits employees and managers System Court System Decisions Court Opinions and for policy changes agencies lobbying} government _{and Human Resources Management, 2e. (Boston: PWS-Kent Publishing, 1990).} Source: Adapted from James Ledvinda And Vida Scarpello, Federal Regulation of Personnel _{Presentation Slide 2}

• –1

  _{Presentation Slide 2} Figure 2.1a –2a

  _{Presentation Slide 2} Figure 2.1b –2b

  _{Presentation Slide 2} Figure 2.1c –3

• All private employers in interstate commerce who employ

  fifteen or more employees for twenty or more weeks per year

• State and local governments
• Private and public employment agencies, including the U.S. Employment Service
• Joint labor-management committees that govern apprenticeship or training programs
• Labor unions having fifteen or more members or employees
• Public and private educational institutions
• Foreign subsidiaries of U.S. organizations employing U.S. citizens

  Regulations

• Bona Fide Occupational Qualification (BFOQ)
• Suitable defense against a discrimination charge only

  where age, religion, sex, or national origin is an actual qualification for performing the job.

• Business Necessity
• Work-related practice that is necessary to the safe and efficient operation of an organization.
• Excluding older workers from important work activities.

• Making negative changes in the performance evaluations of older employees.

• Denying older employees job-related education, career

  development, or promotional opportunities.
• Selecting younger job applicants over older, better- qualified candidates.

• Pressuring older employees into taking early retirement.

• Reducing the job duties and responsibilities of older employees.
• Terminating older employees through downsizing.
• The Americans With Disabilities Act defines a disability as:

• A physical or mental impairment that substantially limits one or more of the major life activities.
• A record of such impairment.
• Being regarded as having such an impairment.

• The ADA does not cover:
• Homosexuality or bisexuality

•  Gender-identity disorders not resulting from physical

  impairment or other sexual-behavior disorders

• Compulsive gambling, kleptomania, or pyromania
• Psychoactive substance-use disorders resulting from

  current illegal use of drugs

• Current illegal use of drugs
• Infectious or communicable diseases of public health

  significance (applied to food-handling jobs only and excluding AIDS)

• Install easy-to-reach switches.
• Provide flashing alarm lights.
• Provide sloping sidewalks and entrances.
• Remove turnstiles and revolving doors or provide alternative accessible paths.
• Install wheelchair ramps.
• Install holding bars in toilet areas.
• Reposition shelves for the easy reach of materials.
• Redesign toilet partitions to increase access space.
• Rearrange tables, chairs, vending machines, dispensers, and other furniture and fixtures.
• Add paper cup dispensers at water fountains.
• Widen doors and hallways.
• Replace high-pile, low-density carpeting.
• Add raised markings on control buttons.
• Reposition telephones, water fountains, and other needed equipment.
• Provide designated accessible parking spaces.
• Add raised toilet seats. _{Figure 2.2}
• Install hand controls or manipulation devices.

  Figure 2.3

• Fair Employment Practices (FEPs)
• State and local laws governing equal employment

  opportunity that are often more comprehensive than federal laws.

• Although Title VII of the Civil Rights Act exempts

  employers with fewer than fifteen employees, many states extend antidiscrimination laws to smaller employers with one or more workers.

• Sexual Harassment (under Title VII)
• Unwelcome advances, requests for sexual favors,

  and other verbal or physical conduct of a sexual nature in the working environment

• An employer is considered guilty of sexual

  harassment when:

 The employer knew or should have known about the

unlawful conduct and failed to remedy it or to take

corrective action.

  

The employer allows nonemployees (customers or

salespeople) to sexually harass employees.

  

Unwelcome advances, requests for sexual favors, and

other verbal or physical conduct of a sexual nature in the working environment.

  

Types of Sexual Harassment

Hostile Environment Quid Pro Quo

  Subjective Submission Rejection Uncomfortable _{Presentation Slide 2} Response

• –4
• Quid Pro Quo Harassment

  

Occurs when “submission to or rejection of sexual

• conduct is used as a basis for employment decisions.”

•  Involves a tangible or economic consequence, such

  as a demotion or loss of pay.
• Oncale v Sundowner Offshore Services (1998)

   Same-sex sexual harassment (male-to-male, female-to- female) is covered under Title VII.

• Hostile Environment
• purpose or effect of unreasonably interfering with job

  performance or creating an intimidating, hostile, or

  offensive working environment.
• Dirty jokes, vulgar slang, nude pictures, swearing,

  

Occurs when unwelcome sexual conduct “has the

  

and personal ridicule and insult constitute sexual

harassment when an employee finds them offensive.

• environment.

  Courts use a “reasonable person” test for hostile

• Employers must comply with the Act by:  Having employees fill out their part of Form I-9.

  

Checking documents establishing an employee’s

• identity and eligibility to work. Complete the employer’s section of Form I-9.
• Retain Form I-9 for at least three years.
• Present Form I-9 for inspection to an Immigration and

  Naturalization Service officer or to a Department of Labor officer upon request. Procedures

• Uniform Guidelines on Employee Selection Procedures
• Procedural document published in the Federal

  Register to assist employers in complying with federal regulations against discriminatory actions.

• Applies to employee selection procedures in the areas of hiring, retention, promotion, transfer, demotion, dismissal, and referral.

Procedures

• Uniform Guidelines on Employee Selection Procedures define discrimination as:
• The use of any selection procedure which has an

  

adverse impact on the hiring, promotion, or other

employment or membership opportunities of members of any race, sex, or ethnic group ( protected

class) will be considered to be discriminatory and

inconsistent with these guidelines, unless the

procedure has been validated in accordance with

these guidelines (or, certain other provisions are satisfied).

• The requirement that, when using a test or other selection instrument to choose individuals for employment, employers must be able to prove that the selection instrument bears a direct relationship to job success.
• Proof of validity is established through validation

  studies that show the job relatedness or lack thereof for the selection instrument under study.

• Adverse Impact
• The rejection of a significantly higher percentage of a

  protected class for employment, placement, or promotion when compared with the successful, nonprotected class.

•  Possibly the unintentional result of an innocent act,

  yet the outcome is still discriminatory.
• Disparate Treatment
• evaluation by different standards of protected-class members.

  An employer’s intentional unequal treatment or

• Adverse Rejection Rate, or Four-Fifths Rule

•  Rule of thumb followed by the EEOC in determining

  adverse impact for use in enforcement proceedings.

  

According to the Uniform Guidelines, a selection

program has an adverse impact when the selection rate for any racial, ethnic, or sex class is less than four-fifths (or 80 percent) of the rate of the class with the highest selection rate.

• The four-fifths rule is not a legal definition of

  

discrimination, rather it is used to monitor severe

discrimination practices.

• McDonnell Douglas Test to Establish a Prima

  Facie Case of Discrimination: 1. The person is a member of a protected class.

  

2. The person applied for a job for which he or she

was qualified.

  

3. The person was rejected,despite being qualified.

  4. After rejection,the employer continued to seek other applicants with similar qualifications.

• The burden now shifts to the employer to

  prove that the action taken against the individual was not discriminatory. The Four-fifths Rule _{Guidelines on Employee Selection Procedures, Federal Register 44, no. 43 (March 2, 1979): 11998.}

  Source: Adoption of Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform

  The Four-Fifths Rule A rule of thumb followed by the EEOC in determining adverse impact for use in enforcement proceedings.

  

Employees Blacks (6) Hispanics (3) Whites (12)

Number Given Raise

  2

  2

  9 Selection Ratio .33 .66 .75 Minority Selection Ratio/ .33/.75 = .44 .66/.75 = .88 Majority Selection Ratio Adverse Impact Yes No

  Presentation Slide 2 –5

• Workforce Utilization Analysis

•  The process of comparing the composition by race

  and sex for jobs within an organization against composition of the employer’s relevant labor market.

• The workforce is at parity when its composition matches the relevant labor market.
• If the workforce composition is below external figures,

  the affected protected classes are underutilized and the employer should take affirmative steps to correct the imbalance.

• Griggs v Duke Power Company (1971)
• The Supreme Court ruled that employer

  discrimination need not be overt or intentional to be present —employment practices having an adverse impact on protected classes can be illegal even when applied equally to all employees.

• Employers have the burden of proving that employment requirements are job-related or constitute a business necessity and are absolutely necessary for job success.
• Good intent, or absence of intent to discriminate, is not a sufficient defense of adverse impact.
• Albemarle Paper Company v Moody (1975)

• Supreme Court strengthened requirements on

  employers to demonstrate that tests used in hiring or promotion decisions are job-related and valid predictors of job success.

• Wards Cove Packing Co. v Atonio (1989)
• Supreme Court held that a statistical disparity among

  

protected members of a workforce does not show

proof of discrimination —the proper comparison is to qualified applicants in the employer’s relevant labor market.

Case Figures, Fiscal Years 1994 –2000

  Figure 2.4 ^{Source: Data compiled by the Office of Research, Information and} _{Planning from EEOC’s Charge Data System’s national database.}

  Figure 2.5

  HRM 6

  Organizational EEO Employee Reported to officer or discrimination manager or designated HR staff charge supervisor person Investigation Accused: No basis for _{Oral or written}

Decision on Charge

charge: charge _reprimand charge upheld _Suspension dismissed _{Discharge Restore all lost} Harmed Employee: Appeal to organizational _{employment conditions} EEO grievance committee _{Presentation Slide 2}

• –6

  1. Correct stereotyped thinking.

  2. Eliminate irrelevant job requirements.

  3. Open job and promotion opportunities to all protected classes.

  4. Promote on the basis of merit rather than seniority.

  5. Provide equal pay for equal work.

  6. Modify employee benefits to needs of women, minorities, and working families.

  7. Management training in EEO requirements. _{Presentation Slide 2}

• –7

of Employment Discrimination

  Figure 2.6

• Affirmative Action
• Policy that goes beyond equal employment

  opportunity by requiring organizations to comply with the law and correct past discriminatory practices by increasing the numbers of minorities and women in specific positions.

• Reverse Discrimination
• The act of giving preference to members of protected

  

classes to the extent that unprotected individuals

believe they are suffering discrimination.

• University of California Regents v Bakke (1978)

• The Supreme Court ruled that:

   Applicants must be evaluated on an individual basis.

   Race can be one factor used in the evaluation process as

long as other competitive factors are considered.

• The Court stated that affirmative action programs

  were not illegal (reverse discrimination) per se as long as rigid quota systems were not specified for different protected classes.

• United Steelworkers of America v Weber (1974)

• The Supreme Court held that voluntary affirmative

  action programs are permissible where they attempt to eliminate racial imbalances in “traditionally segregated job categories.”

• In Weber, the Court did not endorse all voluntary affirmative action programs.
• Challenges to Affirmative Action (AA):

   AA has not improved protected groups employment.

•  Individuals hired under AA feel prejudged as inferior

  performers, and are often viewed as “tokens.”

• AA programs have failed in assimilating protected classes into the workforce.

•  Preferences shown toward one protected class may

  create conflicts between other minority groups.

Action Program

  1. Issue a written equal employment opportunity policy and affirmative action commitment.

  2. Appoint a top official with responsibility and authority to direct and implement the program.

  3. Publicize the policy and affirmative action commitment.

  4. Survey present minority and female employment by department and job classification.

  5. Develop goals and timetables to improve utilization of

minorities and women in each area where underutilization

has been identified.

  6. Develop and implement specific programs to achieve goals.

  7. Establish an internal audit and reporting system to monitor and evaluate progress in each aspect of the program.

  8. Develop supportive in-house and community programs. _{HRM 7}

• Adarand Constructors v Peña (1995)

•  The Supreme Court ruled that federal programs that

  use race or ethnicity as a basis for decision making must be strictly scrutinized to ensure that they promote “compelling” governmental interests.

• Hopwood v State of Texas (1996)
• The Court ruled in a decision affecting admission

  standards at the University of Texas law school that diversity could not constitute a compelling state interest justifying racial preference in selection decisions.