Week 3: Equal Employment Laws and HRM

1. Week 3: Equal Employment Laws and HRM Agenda for Today • Understand the legal context of employment decisions • Understand major equal employment laws and concepts: • Civil Rights Act of 1964, 1991 • Laws on Sex/Gender Discrimination • Age Discrimination in Employment Act (ADEA) • Other types of discrimination

2. DISCRIMINATION AND EEO • What does Discrimination mean? It is illegal when: • Different standards used to judge different individuals • Same standard used but it is not related to individuals’ jobs. • Basic goal of EEO regulation is to protect people from unfair or inappropriate discrimination in the workplace. Disparate (Adverse) Impact (Unintentional) Disparate Treatment (Intentional) Forms of Illegal Discrimination Pattern or Practice Retaliation

3. LEGAL REGULATION AND PRACTICE OF HRM Protection from Discrimination • Performance Appraisal • Subsequent Job Placements • Training and Development Oppor. • Career and Promotion Oppor. • Compensation Current Employees Prospective Employees • Protection from Discrimination • Job Selection • Initial Job Placement • Initial Compensation

4. Race Color National Origin Sex/Gender Religion Marital status (some states) Disability Age Pregnancy Military experience (Vietnam-era veterans) Sexual Orientation (in 11 states; select cities, and counties; not at federal level) PROTECTED CLASSES IN THE WORFORCE BOTTOMLINE: NO EMPLOYMENT DECISION SHOULD BE BASED ON ANY OF THE ABOVE CHARACTERISITCS

5. The Civil Rights Act of 1964: Keystone of Anti-Discrimination Employment Legislation • Title VII; Section 703:“It is unlawful for an employer to discriminate against an individual with respect to his compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex, or nationalorigin; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual employment opportunities or otherwise adversely affect his status as an employee because of such individual’s race, color, religion, sex, or national origin.”

6. Coverage of 1964 Civil Rights Act(Amended 1972) • It Covers: • Private employers with 15 or more employees • Federal, state, and local government • Employment agencies • Unions and apprenticeship committees • Applies to all decisions relating to employees’ job classification: • Selection • Promotion • Transfers • Training

7. 1964 Civil Rights (contd.) • Exemptions • Membership in private clubs • Religious organizations can make employment decisions based on religion • Places of reservation connected with Native-American Reservations • Created the EEOC – Equal Employment Opportunity Commission.

8. Executive Orders • Executive Order 11246: • Prohibits discrimination on the basis of race, color, sex, religion, national origin • Requires affirmative action with regard to these factors • Covers federal contractors and subcontractors with contracts in excess of $10,000; employers with 50 or more employees and contracts in excess of $50,000. • Executive Order 11375: • Prohibits sex-based discrimination • Covers govt. contractors and subcontractors • Executive Order 11478: • Requires federal govt. to base all of its own employment policies on merit and fitness

9. Concepts Resulting in EqualEmployment Opportunity Business Necessity and Job Relatedness No Disparate Treatment Equal Employment Opportunity No Disparate Impact Bona Fide Occupational Qualification Burden of Proof Non-Retaliatory Treatment

10. Bona Fide Occupational Qualification (BFOQ) • Religion is BFOQ for certain purposes • EEOC Guidelines: Sex can be a BFOQ when: • Authenticity or genuineness (actor/actress) is required • Protection of personal privacy of customers or coworkers (massage therapist) • Exclusion based on sex permissible if all or substantially all members of sex lack ability to perform some aspect of job that is essential to the business. • Significant Supreme Court Cases: • Diaz vs. Pan American (1971) sex is not a BFOQ for flight attendants; opened jobs up for men. • Dothard vs. Rawlinson (1977) sex is BFOQ; excluded female guards from all male maximum security prisons • UAW vs. Johnson Controls (1991) sex is not BFOQ; no support for fetal protection policy

11. Business Necessity, BFOQ and Job Relatedness • Business Necessity: Practice that is necessary for safe and efficient operation of the organization. • Comes into play when an employer has a job criterion that is neutral but excludes members of one sex at a higher rate than members of the opposite sex. • Focus is on validity of stated job qualifications and their relationship to the work performed • When a BFOQ is established, an employer can refuse to consider all persons of the protected group. • When Business Necessity is established, an employer can exclude all persons who do not meet specifications regardless of whether the specifications have an adverse impact on protected group.

12. Disparate Treatment • Deals with Direct Form of Discrimination; individuals treated differently because of their membership in a protected class; employment decisions based on race, color, sex etc.(McDonnell Douglas v. Green, 1973) • Courts look for discriminatory motive; investigate employee’s actions and qualifications • Employee has to prove that: (prima facie case) • he/she is a member of a protected class • he/she applied for a job for which he/she was qualified • he/she was rejected, despite being qualified • after rejection, employer continued to seek other applicants with similar qualifications • Employer can justify actions by: • Absence of discriminatory intent • Showing selection based on BFOQ

13. Griggs v. Duke Power (1971) • Both Blacks and Whites applying for janitorial positions were required to: • Have a high school degree • Pass a standardized general intelligence test (Wonderlic) • Requirements had adverse impact on blacks. • Employer unable to show job-relatedness of tests or of high-school degree to effective job performance • Court ruled for plaintiff: • Established disparate (adverse) impact definition of discrimination, i.e., UNINTENTIONAL discrimination • Absence of discriminatory intentions does not absolve employer • Tests should be used to measure the person for the job • Even professionally developed, widely used tests must be validated.

14. Disparate (Adverse) Impact • When the same policy or procedure applied to all individuals has an adverse impact on one or more protected groups • Addresses business practices rather than individual actions • Courts look at impact of actions, not motives: employer discrimination need not be overt or intentional to be present • Adverse Impact shown when minority selection rate is less than 4/5ths (80% ) of majority rate (4/5ths rule). Example: • Employer has 200 applicants for 100 positions • 100 White applicants – hired 80 (80% hiring rate for majority) • 100 Black applicants – hired 20 (20% hiring rate for minority) • Black hiring rate is 25% of the white rate; 25% < 80% (4/5ths) • Need to hire 64 Blacks (80% of 80 or 4/5th of majority rate)

15. Adverse Impact (contd.) If Adverse Impact exists: • Employer must show that policies or practices with adverse impact are related to effective job performance or are a business necessity(e.g., lifting requirements for firefighters related to effective job performance) • Burden of proof is on employer • Requires validation of selection device • BFOQ must be present • Seniority System Exception: • Promotion based on seniority = last hired/first fired. • Policy has adverse impact but is exempted under Teamsters v. U.S. (1977) Supreme Court decision.

16. Connecticut v. Teal (1982) Bottom Line Defense • Blacks &Whites promoted upon passing a written exam • Passing rate for blacks 68% of passing rate for whites • Overall 22.9% black, 13.5% white candidates promoted • Bottom line defense: When overall selectionprocess does not have an adverse impact, govt. will usually not examine individual components of that process for adverse impact or evidence of validity BUT • Supreme Court: Nondiscriminatory bottom line results of selection process do not prevent employees from establishing prima facie case of discrimination. Hence, employer’s process of arriving at the bottom line figures is subject to scrutiny for disparate impact.

17. Civil Rights Act of 1991 • Overturned/Redefined 6 Supreme Court Decisions: • Restored “business necessity” and burden of proof to employers. • Ruled that Civil Rights Act of 1866 applied to both hiring and discharge cases. • Affirmative Action Decrees cannot be challenged: • Martin v. Wilks (1989) permitted white firefighters to challenge consent decree years after approved by lower court. • Seniority system that intentionally discriminates can be challenged (within 180 days) • Prohibits “meeting quotas”; allows “giving preference” • Prohibits race norming of test scores.

18. Civil Rights Act of 1991 (contd.) • Extends coverage to: • U.S. citizens employed by American companies abroad • Employees of the Senate, presidential appointments, and previously excluded state government employees. • Provides for jury trials and allows for compensatory and punitive damages in cases of intentional discrimination. Cap: • $50,000 for small organizations (14-100 employees) • $100,000 for medium organizations (101-200 employees) • $200,000 (201-500 employees) • $300,000 (over 500 employees) • Established guidelines for “mixed-motives” cases • Price Waterhouse v. Hopkins (1989)

19. Price Waterhouse v. Hopkins (1989) • Ann Hopkins rejected for partnership: • 662 partners in firm – 7 were women • Of 88 up for partnership, Ann Hopkins was the only woman • Hopkins characterized as overly aggressive and abrasive; employer claimed that it legitimately emphasized interpersonal skills in partnership decisions • Partners described Hopkins as “macho;” recommended that she “take a course in charm school” and “walk, talk, and dress more femininely, wear make-up and have her hair styled and wear jewelry.”

20. Price Waterhouse v. Hopkins (1989) contd. • Court found “mixed motives” in case: interpersonal skills legitimate business factor, but gender stereotyping entered into decision. • Court ruled that employer can avoid liability for mixed motive case if they could demonstrate that the same action would have been reached without discriminatory motive* (i.e., Aggressive man would not have been promoted either.) • *1991 Civil Rights Act redefined this case. Stipulates that any intentional discrimination is unlawful, even if the same action would have resulted without discriminatory motive. If gender stereotyping leads to discrimination, then it is illegitimate.

21. Age Discrimination in Employment Act (ADEA) 1967; 1978; 1986 • Illegal to discriminate against individuals over 40 • Applies to all companies with 20+ employees • Cannot force individuals to retire and replace with younger workers or comparably aged workers • Effectively banished any mandatory retirement age • Exceptions: • Age as BFOQ or related to effective job performance (pilots and copilots face mandatory retirement at age 60) • Employee is top executive or policy maker (permits mandatory retirement at age 65 for high level executives whose pensions exceed $44,000 a year) • Not illegal to discipline or discharge an employee within protected age group for ‘good cause’ - unsatisfactory job performance.

22. Laws on Sex/Gender Discrimination:Equal Pay Act of 1963 • Forbids wage discrimination on the basis of sex • Requires organizations of all sizes (over 2 employees) to pay men and women substantially the same wages for equal work. • Jobs do not have to be identical, only substantially equal • Equal work defined by four factors: • Skill • Effort • Responsibility • Working conditions

23. Equal Pay Act of 1963 (contd.) • Permissible to pay men and women different wages based on: • Seniority • Merit • Quality of work • Quantity of work • Factors other than sex (such as night shifts paying more than day shifts, different geographical regions) • Act has wider application than any other law because it applies to all organizations

24. Pregnancy Discrimination Act (1978) • Illegal to discriminate because of pregnancy, childbirth, or related conditions • Pregnancy viewed as “sex-plus discrimination” covered under 1964 Civil Rights Act. • Employers must treat pregnancy as long term disability with respect to medical insurance and leaves • Employers must provide medical benefits to husbands of female employees if they provide benefits to wives of male employees • EEOC: Denial of health insurance coverage for prescription contraceptives under employer-provided health plans violation of PDA. • Employers must allow women to return to work after childbirth on the same basis as for other disabilities.

25. What Is Sexual Harassment? • EEOC: “Harassment on the basis of sex is a violation of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when there exists: • Quid Pro Quo • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, • Submission to or rejection of such conduct by an individual used as the basis for employment decisions affecting such individual, • Hostile Work Environment • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment…”

26. Sexual Harassment May Occur Between: • Supervisor and Subordinate • Coworkers • Employers and Customers/vendors • People of the Same or Opposite Sex

27. Sexual Harassment May Include: • Leering or ogling • Sexist remarks or off-color jokes • Verbal abuse • Pictures and photographs • Sexually suggestive uniforms • Patting, pinching, brushing against body • Pressure for dates • Demands for sexual favors in return for hiring, promotion, or tenure • Preference for acquiescing employees • Physical assault/rape

28. Unwelcome Behavior May Be • Invited and Reciprocal • (not harassment) • Uninvited But Welcome • (light gray) • Offensive But Tolerated • (actionable: Meritor case) • Flatly Rejected • (actionable)

29. Significant Court Cases and Their Implications • Meritor Savings Bank v. Vinson (1986):Supreme Court’s first sexual harassment decision that determined employer liability. • Employer guilty if knew or should have known about sexual harassment • Hostile environment that interferes with employment is enough – monetary loss not necessary • Harassment must be sufficiently severe or pervasive to alter condition of employment • Harassment is based on whether sexual activity was “welcomed” – not whether employee voluntarily engages in activity • Employee’s sexually provocative activity (speech, dress, manner) can be used as evidence that advances were welcome. • Set the standard for determining what is considered “hostile work environment

30. Hostile Environment • Harassment Unwelcome by harassee • Harassment based on gender • Sufficiently Severe or Pervasive ( not “one-shot) • Interferes with individual’s work performance • Harassment affects a term, condition, or privilege of employment • “Reasonable Woman/Victim Standard” replaced “Reasonable Person” standard in judging severity of harassing activity. • Reasonable Woman Standard should be used when: “conduct that men consider not objectionable may offend women.” (Ellison v. Brady, 1991)

31. Significant Supreme Court Cases (contd.) • Harris v. Forklift Systems Inc. (1993): Individual alleging hostile work environment harassment need not show that defendant’s conduct caused psychological injury —“So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it to be also psychologically injurious.” • Burlington Industries v. Ellerth (1998): Sexual harassment can take place even when there is no tangible job detriment such as salary reduction, a less desirable job assignment or a denial of promotion. • Oncale v. Sundowner Offshore Services (1998): Same-sex sexual harassment is covered under Title VII—“What matters is the conduct at issue, not the sex of the people and not the presence or absence of sexual desire, whether heterosexual or homosexual.”

32. Employer Liability and Defense • EEOC states: “The employer has an affirmative duty to maintain a workplace free from sexual harassment and intimidation.” • 1990 EEOC Guidelines: “An employer is liable when it knew, or upon reasonably diligent inquiry, should have known of the harassment.” • Defense: • Employer must have exercised reasonable care to prevent and correct sexual harassment in a timely manner • Plaintiff failed to use the internal procedures for reporting sexual harassment.