Employment Discrimination and Staffing

1. Employment Discrimination and Staffing Juan I. Sanchez, Ph.D.

2. Testing your applied knowledge: EEO Scenario: Sarah’s Surprise is a retail chain specializing in women’s lingerie. Sarah’s Surprise employs mostly female sale associates, but there are also some male employees in most stores. However, male employees are assigned to the back of the store, and are normally charged with stocking merchandise. Because sales associates work on commission, a male employee is complaining that his income can never match the one of his female coworkers, because he is not allowed to work on the sales floor. He is threatening to suit the store on the grounds of sex discrimination.Which of the following courses of action would you recommend to this company? a. Open up 1/3rd of the sales positions to male candidates. b. Open up the sales positions to male candidates, but make sure there are enough female employees to help customers. c. Raise the base pay of stocking clerks. d. Argue that the sales position is a BFOQ that calls for female employees. I want to make some money too!

3. Testing your applied knowledge: EEO I want to make some money too! The following answers are correct: a. Open up 1/3rd of the sales positions to male candidates. b. Open up the sales positions to male candidates, but make sure there are enough female employees to help customers. c. Raise the base pay of stocking clerks. d. Argue that the sales position is a BFOQ that calls for female employees. Explanation. The company should be able to make a business case that, when it gets to women lingerie, having sufficient female salespeople helps, because many customers feel more comfortable buying women lingerie from other women. However, it’d be unreasonable to close the doors to all males, because customer preferences are not enough of a reason to declare a rigid BFOQ. Reserving 1/3rd of the positions for males would imply making gender a job requirement. Raising the base pay of stocking clerks ignores job worth and it may have a negative impact on pay structures.

4. Theories Used in Title VII Cases • Disparate or differential treatment—plaintiffs must show that an employer treats one or more members of a protected group differently • burden on the plaintiff to prove that the employer intended to discriminate because of race, sex, color, religion, or national origin

5. Theories Used in Title VII Cases • Disparate or adverse impact—plaintiffs must show that an employer’s practices had a disparate impact on members of the protected group by showing that the employment procedures (e.g., tests, interviews, credentials) had a disproportionately negative effect on members of a protected group • burden begins with the plaintiff showing evidence of adverse or disparate impact (the 80% or 4/5ths rule). • burden shifts to the employer to produce evidence of “business necessity” and job relatedness” for the employment practice • burden shifts back to the plaintiff who must show that an alternative procedure is available that is equal to or better than the employer’s practice and has less adverse impact

6. Burden of Proof in Title VII Cases Differential treatment Adverse impact plaintiff defendant Business necessity Burden of proof

7. Testing your applied knowledge: EEO Scenario: A cable TV company is downsizing its operations nation-wide. The company is concerned that the downsizing effort may be challenged in court on the grounds that it is discriminatory. Which one(s) of the following courses of action would you recommend to this cable company? a. Make sure to terminate about the same number of individuals from each gender and ethnic group. b. Before you terminate anyone, offer separation packages to those who wish to resign voluntarily. c. Terminate approximately similar proportions of individuals across race and gender groups. Go? Stay?

8. Testing your applied knowledge: EEO Stay? Go? The following answers are correct: a. Make sure to terminate about the same number of individuals from each gender and ethnic group. b. Before you terminate anyone, offer separation packages to those who wish to resign voluntarily. c. Terminate approximately similar proportions of individuals across race and gender groups. Explanation: The 80% or 4/5ths rule deals with ratios or proportions of employees, not with absolute numbers, which may be misleading due to differences in the number of individuals that exist in the various populations (e.g., minorities outnumber non-minorities in some areas). Offering separation packages eases the transition for those who lose their job, and it reduces the likelihood that disgruntled ex-employees may sue the company, but the best employees may leave –and the worst may stay!

9. Affirmative Action • Affirmative action—the extent to which employers make an effort through their personnel practices to attract, retain, and upgrade members of the protected classes of the 1964 Civil Rights Act or persons with disabilities • examples of affirmative action strategies: • actively recruiting underrepresented groups in a firm • changing management and employee attitudes about various protected groups • eliminating irrelevant employment practices that bar protected groups from employment • granting preferential treatment to protected groups

10. Affirmative Action/Diversity Programs • Criteria for voluntary affirmative action plans must: • be designed to eradicate old patterns of discrimination • not impose an “absolute bar” to white advancement • be temporary • not “trammel the interests of white employees” • be designed to eliminate a “manifest racial imbalance” • show preference only from a pool of equally qualified candidates • Involuntary affirmative action plans may legally show preferential treatment when the program: • is necessary to remedy “pervasive and egregious discrimination” • is used as a flexible benchmark for court monitoring, rather than as quota • is temporary • does not “unnecessarily trammel the interest of white employees”

11. Testing your applied knowledge: Affirmative Action Scenario: Occaluchee County wants to have an internal promotion in the road maintenance area. The AA plan includes increasing female representation in management by 20% in the next five years. The internal job announcement requires 5 years of road maintenance experience, plus a college degree (preferred). There are three candidates. Jane Road has 7 years of experience and a college degree. Joe Bitterways has a college degree and 11 years of experience. Jim Deadend has 20 years of experience, but no degree. In the panel interview, Joe Bitterways received a rating of 5 (5 = highly qualified), Jane Road received a 4, and Jim Deadend also a 4. Which decision(s) would you recommend to the county? a. hire Mr. Bitterways, who is the highest scoring candidate. b. hire Ms. Road. c. have Mr. Bitterways and Ms. Road go through a 2nd interview. d. offer the job to Mr. Bitterways and, if he doesn’t take it, offer it to Mr. Deadend (being male is a BFOQ in road maintenance). Jim Deadend? Jane Road? Joe Bitterways?

12. Testing your applied knowledge: Affirmative Action Jane Road? Joe Bitterways? Jim Deadend? The correct answer is: a. hire Mr. Bitterways, who is the highest scoring candidate. b. hire Ms. Road. c. have Mr. Bitterways and Ms. Road go through a 2nd interview. d. offer the job to Mr. Bitterways and, if he doesn’t take it, offer it to Mr. Deadend (being male is a BFOQ in road maintenance). Explanation: The differences in years of experience and interview ratings do not make these applicants significantly different from each other. The AA goal should allow the company to give preferential treatment to the female, especially if females were not represented among the interview panelists!

13. What the Future Holds • Trends in EEO • increase in affirmative action litigation and legislation • more state constitutional amendments or legislation • increasing number of class-action lawsuits likely • increase in number of ADEA cases due to an aging workforce and the increasing proportion of workers who are over 39 • increase in number of companies seeking employment practices liability insurance

14. Testing your applied knowledge: Employment Discrimination? Position Average earnings Women Men %Women %Men Store manager $89,300 $105,700 14% 86% Co-manager $56,300 $59,500     22.8% 77.2% Asst. manager $37,300 $39,800 35.7% 64.3% Mgt. trainee $22,400 $23,200 41.3% 58.7%Cashier $13,800 $14,500     92.5% 7.5% Consider the following salary figures for a retail chain. Based on these data, is this employer managing the risk of a discrimination lawsuit adequately? a. Yes, the data show no adverse impact by gender. b. No, the data show adverse impact by gender. c. Can’t tell based on just these data

15. Testing your applied knowledge: Employment Discrimination? Position Average earnings Women Men %Women %Men Store manager $89,300 $105,700 14% 86% Co-manager $56,300 $59,500     22.8% 77.2% Asst. manager $37,300 $39,800 35.7% 64.3% Mgt. trainee $22,400 $23,200 41.3% 58.7%Cashier $13,800 $14,500     92.5% 7.5% a. Yes, the data show no adverse impact by gender. b. No, the data show adverse impact by gender. c. Can’t tell based on just these data Explanation: Without data on the number of applicants, it’s difficult to make a judgment. However, these data violate the 4/5ths or 80% rule, and therefore they may suffice to shift the burden of proof to the employer.