Understanding Equal Opportunity and the Legal Environment

1. Understanding Equal Opportunity and the Legal Environment • Equal Pay Act (1963) • Prohibits pay discrimination based on gender • Men and women must receive equal pay for “equal work” • Allows pay differences based on • Seniority • Merit • Productivity • Any factor other than gender • Civil Rights Act of 1964, Title VII • Prohibits discrimination based on race, color, gender, religion, national origin • Ers w/ 15+ Ees • “Protected class” vs. “Prohibited Basis” • Reverse discrimination

2. Understanding Equal Opportunity and the Legal Environment • Age Discrimination Act (1967) • Prohibits age discrimination, 40+ • Pregnancy Discrimination Act (1978) • Complaints filed w/ EEOC up 39% from FY 92 to FY 2003 • In 2000, average American woman had first child at ~25 years of age, cf. 21.4 in 1970 • More pregnant women staying in workforce rather than going on early leave • Stereotypes about pregnant women persist (overly emotional, often irrational, physically limited, less committed to jobs) • Source: USA Today, 2/16/05 • What’s the most ethical course of action when you’re pregnant, but not visibly so, and looking for a job? • Applicant not legally required to disclose pregnancy, but best to share facts as soon as sure of them and make case for ability to manage pregnancy and maternity leave • Source: Wall Street Journal, 10/14/04

3. Understanding Equal Opportunity and the Legal Environment • Americans with Disabilities Act (1990) • Prohibits discrimination based on disability (provided Ee can perform “essential functions”) • Requires Er offer “reasonable accommodation”

4. ADA in Practice • Prohibits Ers from asking questions concerning • Medical history • Prior workers’ comp or health insurance claims • Work absences due to illness • Past treatment of alcoholism • Mental illness • Requires Ers to make “reasonable accommodation” by • Acquiring or modifying work equipment • Providing qualified readers or interpreters • Adjusting work schedules • Making existing facilities accessible • Defines a disabled person as one who • Has a physical or mental impairment that limits one or more “life activities” • Has a record of such an impairment • Is regarded as having such an impairment

5. “Young Workers With Dyslexia, ADD Find Office Less Accommodating Than School” • More young adults entering workplace w/ known learning disabilities and history of receiving accommodation • But few Ers have adapted training or job expectations for workers w/ learning disabilities • Rude awakening for many – discrimination claims involving learning disabilities increased 74% from ‘93 to ‘03 • ADA entitles some workers w/ disabilities to accommodations such as quieter workplace, doesn’t require Ers to offer same broad services schools must provide learning-disabled students • Source: Wall Street Journal, 10/12/06

6. Understanding Equal Opportunity and the Legal Environment • Civil Rights Act of 1991 • Adds compensatory and punitive damages • Right to jury trial • Family and Medical Leave Act (1993) • Requires Ers to provide up to 12 weeks leave, unpaid, for family and medical conditions • Ers w/ 50+ Ees

7. Cases to Consider • Nebraska telephone company Ee took religious vow to wear a particular antiabortion button that graphically portrayed a fetus. Coworkers objected to point that work became disrupted and some threatened to walk off job. • What should mngt do?

8. Cases to Consider • Incident 1: The Obese Ee • Critical Thinking Questions • Is an obese employee protected by any EEO laws? • Do you think John’s work reassignment was job-related or discriminatory treatment? • Team Exercise • Should physical appearance matter in making employment decisions?

9. “N.J. casino to fire weightier waitstaff” • Borgata Hotel Casino & Spa (Atlantic City) adopted new policy in February 2005 – servers who gain more than 7 percent of their body weight will be placed on unpaid suspension and given 90 days to lose that weight • 160 ‘Borgata Babes’ and 50 other male and female bartenders • New hires and incumbents weighed to establish baseline (in uniform, wo/ shoes) • During suspensions, Co will pay to put Ee through weight-loss program and Ee will continue to have free access to casino’s spa • If weight is not lost, Ee will be terminated (unless Ee is pregnant or has medical condition contributing to weight) • Casino’s “edgy marketing themes and sexy accents have helped bowl over the competition” • “Our costumed beverage servers are a huge part of our marketing and our branding image” • ‘Babes’ wear low-cut designer bustiers • Female servers should have “natural hourglass figures” and male servers should have “V-shaped torsos, broad shoulders, and slim waists” • Source: USA Today, 2/17/05

10. Cases to Consider • Does Ee have right to display Confederate flag decal on toolbox at work? • Ee is member of sons of Confederate Veterans, descendent of member of Confederate army • Asserted that display is protected by First Amendment • Black co-worker complained, alleging violation of Co’s anti-harassment policy

11. Disparate Treatment Intentional Prima facie case involves showing plaintiff (1) was qualified, (2) was turned down, (3) job remained open Er’s defense is legitimate, nondiscriminatory reason for decision or BFOQ Remedy is compensatory and punitive damages Adverse Impact Statistical Prima facie case involves showing disparity in effects of facially neutral practice E.g., four-fifths rule Er’s defense is to show that practice is job-related Remedy is equitable relief (e.g., back pay) Comparison of Discrimination Theories

12. Example of Four-Fifths rule • Selection rate for men • 50 apply, 20 hired, rate = 40% • Selection rate for women • 36 apply, 9 hired, rate = 25% • Is there adverse impact? • Is .25 < (.40)*(.8)? • “Hiring by the numbers” • How many more women would Co need to hire to eliminate adverse impact?

13. Sexual Harassment Defined • Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when: • Quid pro quo • Unreasonably interferes with work performance or creates an intimidating, hostile, or offensive work environment

14. Sexual Harassment Defined • Elements of “hostile work environment” • Severe and pervasive • Reasonable person (woman?) test • To what extent do men and women differ in their perceptions? • Employee need not have suffered any detriment (e.g., termination) • Basis for imputing liability to employer • Conduct by supervisor • Co-worker • Client or customer

15. Sexual Harassment Defined • Employer’s defense (when no tangible employment action taken against employee) • employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and • “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise”

16. Elements Of An Effective Harassment Prevention Policy • Be in writing; • Define what constitutes harassment and declare that it will not be tolerated; • Establish a complaint procedure; • Involve training and education programs to sensitize supervisors and employees to harassment issues;

17. Elements Of An Effective Harassment Prevention Policy • Include a prompt and thorough investigation of every complaint; • Provide for prompt corrective action, including appropriate disciplinary action, if it is determined that unlawful harassment occurred.

18. Hostile Work Environment and the “Assumption of Risk” • You are a restaurant manager and patrons are making arguably offensive comments to female waitstaff. What do you do? • Does it matter whether it’s Hacienda or Hooters? • Hooters staff must sign Co SH policy, which includes acknowledgement that “female sexual appeal is an essential ingredient of the Hooters concept” • Also must sign Ee handbook containing waiver: • “Work environment is one in which joking and innuendo based on female sex appeal is commonplace….I do not find my job duties, uniform requirements, or work environment to be offensive.” • Uniform requirements include orange shorts, Hooters t-shirt, half-shirt, tank top, and “prom-like appearance” (hair, makeup, nails done neatly) • In Washington D.C. area, mngr filed SH case based in part on boss taking her to lunch at Hooters • Settled hiring discrimination lawsuit in 1997, after EEOC dropped action in 1996

19. Affirmative Action Plans • Objective distinguishable from equal employment opportunity – it is to take “affirmative action” to increase representation of historically underrepresented groups • Elements • Utilization analysis • Goals and timetables • “goal” vs. “quota” • Action steps • OFCCP

20. Legal Status of Affirmative Action • Voluntary AAPs should be ‘narrowly tailored’ to achieve ends – temporary measure that would cease when underrepresented group reaches parity w/ representation in labor market • Preferences re: terminations or layoffs inappropriate, as are barriers to selection/promotion of ‘overrepresented’ group • Preferential practices only appropriate where there is indication of past discrimination • Substantial, inexplicable disparity in number of female/minority ees in certain occupations relative to population statistics • Preferential practices only appropriate when job candidates judged to be ‘equally qualified’ • Care should be taken to avoid ‘reverse discrimination’ • Supreme Court decisions generally decided by narrow margin, changing Court membership may tip decisions in opposite direction

21. Affirmative Action Plans • Supreme Court’s decision in the two cases involving the University of Michigan • Many large Cos filed briefs supporting UM • Polls show Americans overwhelmingly opposed to preferences, but also overwhelmingly in favor of diversity • Court ruled undergraduate admission policy unconstitutional – granting points to minority applicants too close to quota • had also awarded points for athletic ability and “legacy” status, but not as many • Court ruled law school admission policy constitutional, in that it involved individual consideration rather than mechanistic formula • Racial diversity found to be a public interest • Only highly selective universities (~20%) really impacted • In 2001, 64% of whites, 55% of African-Americans, 52% of Latinos went to college • Some argue real problem is not access but low test scores, which impacts admission to highly selective universities absent affirmative action • Source: The Economist, 6/28/03

22. Current Issues • Same-sex harassment (e.g., “locker room” horseplay) • Actionable, but must show discrimination based on gender • Sexual orientation harassment not unlawful • “Equal opportunity harassment” not unlawful • But do men and women react similarly??? • Sexual Orientation Discrimination • Indiana Equality Coalition • 13 states (not including IN, IL, KY) prohibit discrimination on basis of sexual orientation • Wal-Mart has recently expanded antidiscrimination policies to include sexual orientation • Over 60% of Fortune 500 Cos have such policies, while about 40% provide “domestic partner” medical benefits • Timothy Plan, a religious-based investment group, indicated they wouldn’t sell their Wal-Mart stock but would object to certain diversity training programs like “taking every employee in an organization and indoctrinating them in the homosexual agenda” (NYT, 7/2/03)

23. Is Racial Discrimination Still an Issue? • Many white Americans think racial discrimination is no longer much of a problem – many blacks think otherwise • Recent Gallup poll asked: “Do you feel that racial minorities in this country have equal job opportunities as whites, or not?” • Whites: 55% yes, 43% no • Blacks: 17% yes, 81% no • Recent research study (Chicago and MIT economists): • Applicants named Greg Kelly or Emily Walsh were 50% more likely to get called for interviews than those named Jamal Jackson or Lakisha Washington • Putting white-sounding name on an application worth as much as an extra eight years of work experience • Resumes were tweaked to make them more appealing (added work experience, some military experience, fewer periods for which no job was listed, computer skills, etc.): • Those white Ees w/better resumes called back 30% more than other whites • Black Ees w/same resume tweaks only called back 9% more often

24. Is Racial Discrimination Still an Issue? • Recent research study (Northwestern U sociologist): • Two young HS grads w/similar job histories and demeanors apply in person for jobs as waiters, warehouse Ees, other low-skilled positions advertised in a Milwaukee newspaper. • One man is white, admits to having served 18 months in prison for cocaine possession with intent to sell • The other is black, w/no criminal record • White applicant called back 17% of time, black applicant 14% • Acknowledging prison record cut white man’s chances of getting called back by half, cut black man’s chances by two-thirds • Source: Wall Street Journal, 9/4/03

25. Fear of Bias Suits May Be Affecting Hiring Decisions • Perception that non-whites may make legal issue out of dismissal more often than whites • Many of ‘rational’ justifications for these decisions based on incorrect assumptions • Last year, 0.2% of working African-Americans filed complaints of racial discrimination w/EEOC (whereas 55% of African-Americans report knowing co-worker who was treated unfairly at work due to race in past year) • In press accounts of discrimination cases, plaintiffs won 85%; in all cases, plaintiffs won 31% • In press accounts, median jury award $1.1m; in all cases, $138k • HR consultants and lawyers overemphasize risk of lawsuits • However, fear of being target of discrimination complaint may be more socially acceptable reason for discrimination than acknowledging discomfort w/people who are different • Source: Wall Street Journal, 9/11/03

26. End-of-Chapter Discussion Questions • You own a small construction business. One of your workers is 55 years old and had heart bypass surgery about six months ago. He wants to come back to work, but you are concerned that he will not be able to handle the job’s physical tasks. What should you do? What are you prohibited from doing (if anything)? • Should Ers have a policy that prevents Ees from dating each other? Would such a policy be legal? Ethical?

27. Case 3.1 • Incident 1: Wearing a Head Scarf on a Temporary Assignment