Gary Dessler

tenth edition

Chapter 2 Part 1 Introduction

Equal Opportunity and the Law

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 Equal Employment Opportunity
1964–1991
 Title VII of the Civil Rights Act (1964)
– An employer cannot discriminate on the basis of
race, color, religion, sex, or national origin with
respect to employment.
– Coverage
• All public or private employers of 15 or more persons.
• All private and public educational institutions, the federal
government, and state and local governments
• All public and private employment agencies
• All labor unions with 15 or more members

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 Title VII of the 1964 Civil Rights Act
 The Equal Employment Opportunity
Commission (EEOC)
– Consists of five members appointed by the
president with the advice and consent of the
Senate.
– Each member serves a five-year term.
– The EEOC has a staff of thousands to assist it in
administering the Civil Rights law in employment
settings.
– EEOC may file discrimination charges and go to
court on behalf of aggrieved individuals.

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 Employment Discrimination Laws
 Equal Pay Act of 1963
– The act requiring equal pay for equal work,
regardless of sex.
 Age Discrimination in Employment Act of
1967 (ADEA)
– The act prohibiting arbitrary age discrimination
and specifically protecting individuals over 40
years old.
 Vocational Rehabilitation Act of 1973
– The act requiring certain federal contractors to
take affirmative action for disabled persons.

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Employment Discrimination Laws (cont’d)
 Vietnam Era Veterans’ Readjustment Act of
1974
– An act requiring that employees with government
contracts take affirmative action to hire disabled
veterans.
 Pregnancy Discrimination Act (PDA) of 1978
– A Title VII amendment that prohibits sex
discrimination based on ―pregnancy, childbirth, or
related medical conditions.‖
• If an employer offers its employees disability coverage,
then it must treat pregnancy and childbirth like any other
disability, and include it in the plan as a covered
condition.
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 Federal Agency Guidelines
 Uniform Guidelines
– Guidelines issued by federal agencies charged
with ensuring compliance with equal employment
federal legislation explaining recommended
employer procedures in detail.
– The EEOC, Civil Service Commission, Department
of Labor, and Department of Justice together have
uniform guidelines for employers to use.

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 Title VII: Sexual Harassment
 Sexual harassment
– Harassment on the basis of sex that has the
purpose or effect of substantially interfering with a
person’s work performance or creating an
intimidating, hostile, or offensive work
environment.
• Employers have an affirmative duty to maintain
workplaces free of sexual harassment and intimidation.
 Federal Violence Against Women Act of 1994
– A person who commits a violent crime motivated
by gender is liable to the party injured.

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 Sexual Harassment Defined
 Unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a
sexual nature that takes place under any of the
following conditions:
– 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
is used as the basis for employment decisions affecting such
individual.
– 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.

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 Proving Sexual Harassment
 Quid pro quo
– Rejecting a supervisor’s advances adversely affects the
employee’s tangible benefits, such as raises or promotions.

 Hostile environment created by supervisors.

– Behaviors that substantially affect an employee’s emotional
and psychological ability to the point that they affect the
employee’s ability to continue with the employee’s job.

 Hostile environment created by co-workers or non-

employees.
– Advances by the employee’s co-workers (or even the
employer’s customers) can cause harassment.

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 Sexual Harassment: Court Decisions
 Meritor Savings Bank, FSB v. Vinson
 Burlington Industries v. Ellerth
 Faragher v. City of Boca Raton
– In a quid pro quo case it is not necessary for the
employee to have suffered a tangible job action to
win the case.
– The employer (in its defense) must show that it
took ―reasonable care‖ to prevent and promptly
correct any sexually harassing behavior and that
the employee unreasonably failed to take
advantage of the employer’s policy.

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 What Employers Should Do to Minimize Liability
in Sexual Harassment Claims
 Take all complaints about harassment seriously.
 Issue a strong policy statement condemning such behavior.
 Inform all employees about the policy and of their rights.
 Develop and implement a complaint procedure.
 Establish a management response system that includes an
immediate reaction and investigation by senior management.
 Begin management training sessions with supervisors and
managers to increase their awareness of the issues.

Sources: Commerce Clearing House, Sexual Harassment Manual for Managers and Supervisors (Chicago: Commerce Clearing
House, 1991), p. 8; Louise Fitzgerald et al., ―Antecedents and Consequences of Sexual Harassment in Organizations: A Test of
an Integrated Model,‖ Journal of Applied Psychology 82, no. 4 (1997), pp. 577–589;―New EEOC Guidance Explains Standards
of
Liability for Harassment by Supervisors,‖ BNA Fair Employment Practices (June 24, 1999), p. 75;―Adequate Response Bars
Liability,‖ BNA Fair Employment Practices (June 26, 1997), p. 74; Shereen Bingham and Lisa Scherer, ―The Unexpected Figure 2–1
Effects of a Sexual Harassment Educational Program,‖ Journal of Applied Behavioral Science 37, no. 2 (June 2001), pp. 125–
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 What Employers Should Do to Minimize Liability
in Sexual Harassment Claims (cont’d)
 Discipline managers and employees involved in harassment.
 Keep records of complaints, investigations, and actions taken.
 Conduct exit interviews that uncover any complaints and that
acknowledge by signature the reasons for leaving.
 Re-publish the sexual harassment policy periodically.
 Encourage upward communication through periodic written
attitude surveys, hotlines, suggestion boxes, and other feedback
procedures.

Sources: Commerce Clearing House, Sexual Harassment Manual for Managers and Supervisors (Chicago: Commerce Clearing
House, 1991), p. 8; Louise Fitzgerald et al., ―Antecedents and Consequences of Sexual Harassment in Organizations: A Test of
an Integrated Model,‖ Journal of Applied Psychology 82, no. 4 (1997), pp. 577–589;―New EEOC Guidance Explains Standards
of
Liability for Harassment by Supervisors,‖ BNA Fair Employment Practices (June 24, 1999), p. 75;―Adequate Response Bars
Liability,‖ BNA Fair Employment Practices (June 26, 1997), p. 74; Shereen Bingham and Lisa Scherer, ―The Unexpected Figure 2–1
Effects of a Sexual Harassment Educational Program,‖ Journal of Applied Behavioral Science 37, no. 2 (June 2001), pp. 125–
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 Early Court Decisions Regarding Equal
Employment Opportunity
 Griggs v. Duke Power Company
– Discrimination by the employer need not be overt;
employer’s intent is irrelevant.
– An employment practice must be job related and
valid if it has an unequal impact on members of a
protected class.
– The burden of proof is on the employer to show
that the employment practice is job related.
– Business necessity is the employer’s defense for
any practice that has adverse impact.

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 Early Court Decisions Regarding Equal
Employment Opportunity (cont’d)
 Albemarle Paper Company v. Moody
– If an employer uses a test to screen candidates,
then the job’s specific duties and responsibilities
must be carefully analyzed and documented.
– The performance standards for employees on the
job in question should be clear and unambiguous.
– EEOC (now federal) guidelines on validation are
to be used for validating employment practices.

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 Equal Employment Opportunity
1991–present
 Civil Rights Act of 1991 (CRA)
– It places burden of proof back on employers once
the plaintiff has made a prima facie case and
permits compensatory and punitive damages.
 Disparate impact
– A practice or policy that has a greater adverse
impact on the members of a protected group than
on other employees, regardless of intent.
 Disparate treatment
– Intentional discrimination on the part of the
employer.
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 Equal Employment Opportunity
1991–present
 Desert Palace Inc. vs. Costa.
– Mixed motive: an employer cannot avoid liability
by proving it would have taken the same action
even without the discriminatory motive.
– Workers do not have to provide evidence of
explicitly discriminatory conduct (such as
discriminatory employer statements), but could
provide circumstantial evidence (such as lowered
performance evaluations).

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 Americans with Disabilities Act (ADA)
 ADA of 1990
– Requires employers to make reasonable
accommodations for disabled employees; it
prohibits discrimination against disabled persons.
 Disability
– A physical or mental impairment that substantially
limits one or more major life activities.
• Excludes homosexuality, bisexuality, voyeurism,
compulsive gambling, pyromania, and disorders resulting
from the current illegal use of drugs.

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 ADA and Individuals
 Qualified individuals
– Under ADA, those who can carry out the essential
functions of the job.
 Reasonable accommodation
– If the individual can’t perform the job as currently
structured, the employer must make a ―reasonable
accommodation‖ unless doing so would present an
―undue hardship.‖

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 Employer Obligations under ADA
 An employer must make a reasonable accommodation for a
qualified disabled individual unless doing so would result in
undue hardship.
 Employers are not required to lower existing performance
standards or stop using tests for a job.
 Employers may ask pre-employment questions about essential
job functions but can not make inquiries about disability.
 Medical exams (or testing) for current employees must be job-
related.
 Employers should review job application forms, interview
procedures, and job descriptions for illegal questions and
statements.
 Employers should have up-to-date job descriptions that identify
the current essential functions of the job.

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 Disabilities and ADA
 Courts will tend to define “disabilities” quite narrowly.
 Employers are not required to tolerate misconduct or
erratic performance even if the behaviors can be
attributed to the disability.
 Employers do not have create a new job for the
disabled worker nor reassign that person to a light-
duty position for an indefinite period, unless such a
position exists.
 Employers should not treat employees as if they are
disabled so that they will not “regarded as” disabled
and protected under the ADA.

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 State and Local Equal Employment
Opportunity Laws
 The effect of the state and local laws is
usually to further restrict employers’ treatment
of job applicants and employees.
– State and local laws cannot conflict with federal
law but can extend coverage to additional
protected groups.
– The EEOC can defer a discrimination charge to
state and local agencies that have comparable
jurisdiction.

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 Sources of Discrimination Allegations
 Disparate treatment
– Intentional discrimination where an employer
treats an individual differently because that
individual is a member of a particular race,
religion, gender, or ethnic group.
 Disparate impact
– An apparently neutral employment practice that
creates an adverse impact—a significant disparity
—between the proportion of minorities in the
available labor pool and the proportion hired.

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 Adverse Impact
 Adverse impact
– The overall impact of employer practices that
result in significantly higher percentages of
members of minorities and other protected groups
being rejected for employment, placement, or
promotion.
– Used to help establish a prima facie case
of discrimination.

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 Showing Adverse Impact
 Disparate rejection rates
– A test that demonstrates that there is a
discrepancy between rates of rejection of
members of a protected group and of others.
 Four-fifths rule of thumb
– If the protected group’s hiring rate is less than
eighty percent (80%) of the majority group, then
a prima facie case for discrimination is indicated.

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 Showing Adverse Impact (cont’d)
 Restricted policy
– An employer’s hiring practices exclude a protected
group—whether intentionally or not.
 Population comparisons
– A comparison of the percentage of a minority/
protected group and white workers in the
organization with the percentage of corresponding
groups in the relevant labor market.

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 Showing Adverse Impact (cont’d)
 McDonnell-Douglas test
– A test for disparate (intentional) treatment
situations in which the applicant was qualified but
the employer rejected the person and continued
seeking applicants.
 Conditions for applying McDonnell-Douglas
– The person belongs to a protected class.
– The person applied and was qualified for the job.
– The person was rejected despite qualification.
– After rejection, the position remained open and
the employer continued seeking applications from
persons with the complainant’s qualifications.
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 Bona Fide Occupational Qualification
 Bona fide occupational qualification (BFOQ)
– Requirement that an employee be of a certain
religion, sex, or national origin where that is
reasonably necessary to the organization’s normal
operation. Specified by the 1964 Civil Rights Act.
• Age
• Religion
• Gender
• National Origin

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 Business Necessity
 “Business necessity”
– A defense created by the courts that requires
employers show that there is an overriding
business purpose (i.e., ―irresistible demand‖) for a
discriminatory practice.
• Spurlock v. United Airlines
 Validity
– The degree to which the test or other employment
practice is related to or predicts performance on
the job.

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 Other Considerations in Discriminatory
Practice Defenses
 Good intentions are no excuse.
 Employers cannot hide behind collective
bargaining agreements—equal opportunity
laws override union contract agreements.
 If a personnel practice is discriminatory, firms
should react by agreeing to eliminate the
illegal practice and (when required) by
compensating the people discriminated
against.

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 Discriminatory Employment Practices

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 Appearanc  Selection Charact
Recruitme e eristics
–
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– Word nal Records
– Hair
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– Help Weight, ment
Wanted and
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 Personal
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 Questions to Ask When an Employer Receives
Notice That EEOC has Filed a Bias Claim
1. Exactly what is the charge and is your company covered by the
relevant statutes?
2. What protected group does the employee belong to? Is the
EEOC claiming disparate impact or disparate treatment?
3. Are there any obvious bases upon which you can challenge
and/or rebut the claim?
4. If it is a sexual harassment claim, are there offensive
comments, calendars, posters, screensavers, and so on, on
display in the company?
5. Who are the supervisors who actually took the allegedly
discriminatory actions and how effective will they be as potential
witnesses?

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Sources: Fair Employment Practices Summary of Latest
Developments, January 7, 1983, p. 3, Bureau of National Affairs, Inc.
(800-372-1033); Kenneth Sovereign, Personnel Law (Upper Saddle
River, NJ: Prentice Hall, 1994), pp. 36–37;―EEOC Investigations— Figu
What an Employer Should Know,‖ Equal Employment Opportunity re 2–
Commission (http://www.eoc.gov/small/investigations.html), July 18, 3
2003.

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 and and

Note: Parties may

settle at any time.

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 The EEOC Enforcement Process
 Processing a charge
– A claim must be filed in writing within two years
after the alleged incident took place.
– After a charge is filed, the EEOC has 10 days to
serve notice on the employer.
– The EEOC has 120 days to investigate and to
make a reasonable cause determination and
attempt conciliation or dismiss the charge and
issue a Notice of Right to Sue to the filing party
who then has 90 days to file suit on their own.
– If conciliation fails, the EEOC can bring a civil suit
in a federal district court.

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 The EEOC Enforcement Process (cont’d)
 Conciliation proceedings
– The EEOC has 30 days to work out a conciliation
agreement between the parties before bringing
suit.
– The EEOC conciliator meets with the employee to
determine what remedy would be satisfactory and
then tries to persuade the employer to accept it.
– If both parties accept the remedy, they sign and
submit a conciliation agreement to the EEOC for
approval.

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 How to Respond to Employment
Discrimination Charges
 The EEOC investigation
– Provide a position statement in your defense that
demonstrates a lack of merit of the charge
– Furnish only information requested by the EEOC.
– Obtain as much information as possible about the
charging party’s claim.

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 How to Respond to Employment
Discrimination Charges (cont’d)
 The fact-finding conference
– EEOC notes are the only official record of the
conference.
– EEOC discourages the employer’s lawyers from
attending the conference.
– Conferences occur soon after the charge is filed.
– Witnesses’ statements can be used as admissions
against the employer’s interests.

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 How to Respond to Employment
Discrimination Charges (cont’d)
 EEOC determination and attempted
conciliation
– The investigator’s recommendation is often the
determining factor in finding cause, so be
courteous and cooperative (within limits).
– If there is a finding of cause, review the finding
very carefully; point out inaccuracies.
– Do not accept conciliation, wait for the lawsuit.
– In a no-cause finding, the charging party gets a
Notice of Right to Sue letter, and has 90 days to
bring a lawsuit.

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 Mandatory Arbitration of Discrimination Claims
 Gilmer v. Interstate/Johnson Lane Corp.
– An agreement, entered into for mandatory arbitration of all
employment-related disputes, can require the employee to
arbitrate claims arising under the Age Discrimination in
Employment Act.
 Recommendations
– Employers should consider asking that the party be
compelled to arbitrate the claim.
– Employers should consider inserting a mandatory arbitration
clause in their employment applications or employee
handbooks.
– Employers can forestall an appeal and protect against
arbitrator bias by allowing the arbitrator to afford a claimant
broad relief and allow for reasonable fact finding.

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 Diversity Management
 Managing diversity
– Provide strong leadership.
– Assess the situation.
– Provide diversity training and education.
– Change culture and management systems.
– Evaluate the diversity management program.
 Boosting workforce diversity
– Adopt strong company policies advocating the
benefits of a culturally, racially, and sexually
diverse workforce.
– Take concrete steps to foster diversity at work.

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 Is the Diversity Initiative Effective?
 Are there women and minorities reporting directly to
senior managers?
 Do women and minorities have a fair share of job
assignments that are steppingstones to successful
careers in the company?
 Do women and minorities have equal access to
international assignments?
 Are female and minority candidates in the company’s
career development pipeline?
 Are turnover rates for female and minority managers
the same or lower than those for white male
managers?

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 Equal Employment Opportunity Versus
Affirmative Action
 Equal employment opportunity
– Aims to ensure that anyone, regardless of race,
color, disability, sex, religion, national origin, or
age, has an equal chance for a job based on his or
her qualifications.
 Affirmative action
– Requires the employer to make an extra effort to
hire and promote those in a protected group that
results in measurable, yearly improvements in
hiring, training, and promotion of minorities and
females in all parts of the organization.

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 Differences Between Managing Diversity and
Meeting Affirmative Action Requirements

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 Practicing Diversity to Meet EEO/
Managing Diversity Affirmative Action Requirements

Is voluntary Is often mandatory

Focuses on productivity Focuses on legal, social, moral
justifications
Includes all elements of Includes only race, gender, and
diversity ethnicity
Emphasizes changing systems Emphasizes changing the mix of
and operations people
Offers a perception of equity Offers a perception of preference
Is long term and ongoing Is short term and limited
Is grounded in individuality Is grounded in assimilation

Source: National Institutes of Health.

Figure 2–5

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Steps in an Affirmative Action Program
1. Issues a written equal employment policy.
2. Appoints a top official to direct and implement the program.
3. Publicizes the equal employment policy and affirmative action
commitment.
4. Surveys minority and female employment to determine where
affirmative action programs are especially desirable.
5. Develops goals and timetables to improve utilization of
minorities, males, and females.
6. Develops and implements specific programs to achieve these
goals.
7. Establishes an audit and reporting system to monitor and
evaluate progress of the program.
8. Develops support for the affirmative action program, both
inside the company and in the community.
Designing an Affirmative Action Program
 Good faith effort strategy
– Aimed at changing practices that contributed to
excluding or underutilizing protected groups.
• Increasing the minority or female applicant flow.
• Demonstrating top-management support for the equal
employment policy.
• Demonstrating equal employment commitment to the
local community.
• Keeping employees informed about the specifics of the
affirmative action program.
• Broadening the work skills of incumbent employees.
• Institutionalizing the equal employment policy to
encourage supervisors’ support of it.
Reverse Discrimination
 Reverse discrimination
– A claim that due to affirmative action quota
systems, white males are discriminated against.
• Supreme Court’s June 2003 affirmative action decision
outlawed the University of Michigan’s quota-based
admissions program.
 Reverse discrimination cases
– Bakke v. Regents of the University of
California (1978): Race can be a factor, but
not be the deciding factor (no quotas).
– Wygant v. Jackson Board of Education (1986):
No preferential treatment of minorities in layoffs.
Reverse Discrimination (cont’d)
 Reverse discrimination cases (cont’d)
– International Association of Firefighters v. City of
Cleveland (1986): Quotas for promotions upheld.
– U.S. v. Paradise (1987): Quotas upheld to remedy
serious cases of racial discrimination.
– Johnson v. Transportation Agency, Santa
Clara County (1987): Voluntarily adopted
affirmative action goals and programs upheld.