Equal Employment Opportunity

Equal Employment Opportunity

Historical Perspective of EEO Legislation • 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 • Civil Rights Act (1866) • Executive Order 8802 • Civil Rights Act (1964)

The Legal Environment Concerns Laws Agencies Regulatory Action Management Responses • Rulings • Written regulations • Complaint investigations • Technical assistance • Lawsuits • Fairness issues • Economic disparity • Changing material values • Interest group agendas • Political party mandates • Loop-holes in current legislation • Passed by congress • Passed by state legislature • Presidential executive orders • Planning compliance strategies • Formulating appropriate HR policies • Briefing and training employees and managers • Defending lawsuits • Working with government agencies lobbying for policy changes • Federal agencies • State agencies • Independent commissions Type name here Type title here Challenges to Laws State Court System Federal Court System Opinions and Decisions Source: Adapted from James Ledvinda And Vida Scarpello, Federal Regulation of Personnel and Human Resources Management, 2e. (Boston: PWS-Kent Publishing, 1990).

Government Regulation of EEO • Protected Classes • Individuals of a minority race, women, older people, and those with disabilities who are covered by federal laws on equal employment opportunity.

Major Laws Affecting Equal Employment Opportunity

Section 703(a) of Title VII of the Civil Rights Act • It shall be unlawful employment practice for an employer: To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin....

Jurisdiction of the Civil Rights Act of 1964 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

Exemptions From Antidiscrimination 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.

Age Discrimination Actions • 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.

What Is a “Disability”? • 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.

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

EEO Rules Applicable to Federal Contractors and Agencies

Sexual Harassment • 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.

Hostile Environment Quid Pro Quo Submission Rejection Uncomfortable Subjective Response Sexual Harassment Unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the working environment. Types of Sexual Harassment

Sexual Harassment • 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.

Sexual Harassment (cont’d) • Hostile Environment • Occurs when unwelcome sexual conduct “has the 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, and personal ridicule and insult constitute sexual harassment when an employee finds them offensive. • Courts use a “reasonable person” test for hostile environment.

Sexual Orientation • Title VII of the Civil Rights Act of 1964 lists “sex” (gender) as a protected class. • Court cases have consistently held that sexual orientation is not a valid defense against discrimination. • No federal law bars discrimination based on one’s sexual orientation. • Companies—in support of their diversity initiatives—increasingly are fostering “gay-friendly” work places. • Of the nation’s top 500 companies, 70 percent now offer health benefits to same-sex couples.

Validity • 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.

Forms of Discrimination • 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 • An employer’s intentional unequal treatment or evaluation by different standards of protected-class members.

Determining Discrimination • 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.

Determining Discrimination • McDonnell Douglas Test • Establish a Prima Facie Case of Discrimination: • The person is a member of a protected class. • The person applied for a job for which he or she was qualified. • The person was rejected,despite being qualified. • 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.

Determining Adverse Impact:The Four-fifths Rule Source: Adoption of Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, Federal Register 44, no. 43 (March 2, 1979): 11998.

Determining Adverse Impact: 4/5ths Rule An employer interviews 150 applicants – 100 white, 50 black. If 25 whites are hired, what’s the least number of blacks that have to be hired to avoid charges of adverse impact? 1. Determine selection rate of majority 2. Determine 80% of selection rate White hired = 25 = 25% x =.8 (80% black hired) White interviewed = 100 25 (whites hired) x = (.8)(25) x = 20% (selection rate) 3. Determine 80% of selection rate of minority x = 20% 50 (black applicants) x = (.20) (50) x = 10 blacks must be hired

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

Workforce Utilization Analysis • 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 paritywhen 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.

Significant Court Cases • 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.

Significant Court Cases (cont’d) • Albemarle Paper Company v Moody (1975) • Supreme Court strengthened requirements on employers to demonstrate that tests used in hiring or promotion decisions arejob-related and valid predictors of job success.

Affirmative Action Issues • 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.

Affirmative Action Court Cases • 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.

Affirmative Action Court Cases (cont’d) • 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.

Court Decisions on Affirmative Action • 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.

Managing Diversity: Affirmative Action • Grutter v Bollinger • The Supreme Court held in that colleges and universities can consider an applicant’s race as a factor in admission decisions. • The decision upheld an admission policy at the University of Michigan Law School in which officials considered an applicant’s race along with other factors when making admission decisions.

adverse impact affirmative action bona fide occupational qualification (BFOQ) business necessity charge form disabled individual disparate treatment EEO-1 report equal employment opportunity fair employment practices (FEPs) four-fifths rule protected classes reasonable accommodation reverse discrimination sexual harassment Uniform Guidelines on Employee Selection Procedures workforce utilization analysis Key Terms

Equal Employment Opportunity