Implementing
Equal
Employment
Opportunity
Chapter 3
McGraw-Hill/Irwin
Copyright © 2008 by The McGraw-Hill Companies, Inc. All Rights Reserved.
Chapter Overview
• EEOC Compliance
• Affirmative Action Plans
• Bona Fide Occupational Qualification
•
•
•
•
•
(BFOQ)
Business Necessity
Sexual Harassment
Comparable Worth and Equal Pay Issues
Other Areas of Employment
Discrimination
Summary of Learning Objectives
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EEOC Compliance – Legal Powers
• All organizations with 20 or more employees
must keep records that the EEOC or
OFCCP can request
• Section 713 of Title VII, Age Discrimination in
Employment Act (ADEA), Equal Pay Act,
Americans with Disabilities Act (ADA) of 1990,
and Civil Rights Act of 1991 authorize EEOC to
develop and publish procedural regulations
regarding enforcement of these acts
• EEOC has issued substantive regulations
(guidelines) interpreting Title VII, ADEA, Equal
Pay Act, ADA, and Civil Rights Act of 1991
• Has enforcement authority to initiate litigation
and to intervene in private litigation
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EEOC Posting Requirements
• Title VII requires employers, employment
agencies, and labor organizations
covered by act to post EEOC-prepared
notices summarizing requirements of Title
VII, the ADEA, Equal Pay Act, ADA, and
Civil Rights Act of 1991
• Willful failure to display it is punishable by a
fine of not more than $100 for each offense
• Organizations subject to notice
requirements by Executive Order 11246
and Title VII can display a poster meeting
requirements of both EEOC and OFCCP
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EEOC Poster
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EEOC – Records and Reports
• Employer Information Report (EEO–1) – Employers
with 100 or more employees are required to file
with EEOC; requires a breakdown of employer’s
workforce in specified job categories by race, sex,
and national origin
• Other, similar types of forms are required of unions,
political jurisdictions, educational institutions,
school districts, and joint labor–management
committees that control apprenticeship programs
• Title VII requires covered organizations to make
and keep certain records that may be used to
determine whether unlawful employment practices
have been or are being committed
• EEOC allows organizations to use a separate form,
often called an applicant diversity chart, for
collecting certain data
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Standard Form 100
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Standard Form 100 (Concluded)
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Applicant Diversity Chart
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EEOC – Compliance Process
• An individual may file a discrimination charge at any
EEOC office or with any representative of EEOC
• If charging party and respondent are in different
geographic areas, the office where charging party
resides forwards the charge to the office where
respondent is located
• Class action charges or charges requiring extensive
investigations are processed in EEOC’s Office of
Systemic Programs
• To determine whether discrimination against groups
protected by the law has occurred, EEOC uses
employment parity and occupational parity
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EEOC – Compliance Process
• Employment parity
• Situation in which proportion of minorities and women
employed by an organization equals proportion in
organization’s relevant labor market
• Occupational parity
• Situation in which proportion of minorities and women
employed in various occupations within an organization is
equal to their proportion in organization’s relevant labor
market
• Systemic discrimination
•
Large differences in either occupational or employment parity
• Relevant labor market
• Refers to geographical area in which a company recruits its
employees
• Companies can have different relevant labor markets
for different occupations
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EEOC – Compliance Process
• Underutilization
• Practice of having fewer minorities or females in a
particular job category than would reasonably be
expected when compared to their presence in relevant
labor market
• Concentration
• Practice of having more minorities or women in a job
category than would reasonably be expected when
compared to their presence in relevant labor market
• Right-to-sue letter
• Statutory notice by EEOC to charging party if EEOC
does not decide to file a lawsuit on behalf of charging
party
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Steps in Processing a Discrimination
Charge
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Affirmative Action Plans
• Written document outlining specific goals and
timetables for remedying past discriminatory
actions
• All federal contractors and subcontractors with contracts
over $50,000 and 50 or more employees required to
develop and implement written affirmative action plans,
monitored by OFCCP
• All U.S. government agencies to prepare affirmative
action plans
• While Title VII and the EEOC do not require any specific
type of written affirmative action plan, court rulings have
often required affirmative action when discrimination is
found
• A number of basic steps are involved in the
development of an effective affirmative action plan
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Affirmative Action Plans
•
Effective Affirmative Action Plans – EOCC Guidelines
• The CEO of organization should issue a written statement
describing their personal commitment to plan, legal
obligations, and importance of equal employment
opportunity as an organizational goal
• A top official of organization should be given authority and
responsibility for directing and implementing program. All
managers and supervisors within organization should
clearly understand their own responsibilities for carrying
out equal employment opportunity
• Organization’s policy and commitment to that policy
should be publicized both internally and externally
• Present employment should be surveyed to identify areas
of concentration and underutilization and determine
extent of underutilization
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Affirmative Action Plans
•
Goals and timetables for achieving goals should be developed
to improve utilization of minorities and females in each area
where underutilization has been identified
• Entire employment system should be reviewed to identify and
eliminate barriers to equal employment. Areas for review include
recruitment, selection, promotion systems, training programs,
wage and salary structure, benefits and conditions of
employment, layoffs, discharges, disciplinary actions, and union
contract provisions affecting these areas
• An internal audit and reporting system should be established to
monitor and evaluate progress in all aspects of program
• Company and community programs supportive of equal
opportunity should be developed. Programs might include
training supervisors in their legal responsibilities and
organization’s commitment to equal employment, and job and
career counseling programs
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Bona Fide Occupational Qualification
(BFOQ)
• Permits employer to use religion, age, sex or
national origin as a factor in its employment
practices when reasonably necessary to normal
operation of that particular business
• Most employers most frequently raise the BFOQ
exception because of sex
• Situations in which employers raise the BFOQ
exception normally fall within three general
categories
• Ability to perform (e.g., physical ability to perform jobs
that involve strenuous manual labor)
• Same-sex BFOQ that relates to accommodating
personal privacy of clients and customers
• Customer preference BFOQ where the customer states
a desire to be served only by a person of a given sex
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Bona Fide Occupational Qualification
(BFOQ)
• Courts have very narrowly interpreted the sex
discrimination defenses based on BFOQ
exception
• Courts have generally rejected BFOQ defense
in the area of ability to perform a job, and
have usually held that each individual job
applicant should be permitted an opportunity
to demonstrate ability to perform
• Courts have also generally rejected customer
preference as a BFOQ defense
• Age may be used as a BFOQ in certain limited
situations
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Business Necessity
• Condition that 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. The focus in business
necessity is on the validity of stated job
qualifications and their relationship to work
performed
• When BFOQ is established, an employer can
refuse to consider all persons of protected
group
• When business necessity is established, an
employer can exclude all persons who do not
meet specifications regardless of whether
specifications have an adverse impact on a
protected group
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Sexual Harassment
• Unwelcome sexual conduct that has the purpose or
effect of unreasonably interfering with an
individual’s work performance or creating an
intimidating, hostile, or offensive work environment
• Nature of sexual harassment sometimes makes it
difficult to prove
• Such conduct normally occurs secretly and outside
employer’s wishes and can grow out of or be alleged to
grow out of consensual relationships, making investigation
of complaints difficult
• When deciding to impose liability on an employer
for a supervisor’s sexual harassment, courts have
considered an employer’s failure to investigate
complaints of sexual harassment as significant
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Sexual Harassment
• In Bundy v. Jackson, the District of Columbia
Circuit Court established allocation of burden of
proof in a sexual harassment case
• Employee must establish a prima facie case by proving
he or she was
• Subjected to sexual harassment
• Denied a benefit for which he or she was eligible and
of which he or she had a reasonable expectation
• Burden then shifts to employer to prove, by clear and
convincing evidence, that its decision was based on
legitimate, nondiscriminatory grounds
• If employer succeeds in meeting that stringent burden,
the employee may then attempt to prove that the
employer’s stated reasons are pretextual
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Sexual Harassment
• Developing policies prohibiting sexual harassment
and promptly investigating and responding to
complaints of sexual harassment are essential to its
prohibition
• At the least, an organization’s policy on sexual
harassment should
• Define and prohibit sexual harassment
• Encourage any employee who believes that he or she has
been a victim of sexual harassment to come forward to
express those complaints to management
• It is important to note that acts of sexual harassment
can be committed not only by men against women,
but also by men against men, by women against
women, and by women against men
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EEOC’s Sex Discrimination
Guidelines
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Comparable Worth and Equal Pay Issues
• Comparable worth theory – The idea that every
job has a worth to the employer and society that
can be measured and assigned a value
• Each job should be compensated on basis of its value
and paid the same as other jobs with the same value
• Under this theory,
• Market factors such as availability of qualified workers
and wage rates paid by other employers would be
disregarded
• Entire classes of jobs are traditionally undervalued and
underpaid because they are held by women and that
this inequality amounts to sex discrimination in violation
of Title VII of the Civil Rights Act
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Comparable Worth and Equal Pay Issues
• Proponents of this theory argue that the Equal Pay
Act offers little protection to female workers
because it applies only to those job classifications
in which men and women are employed
• The most serious form of wage discrimination occurs when
women arrive at the workplace with education, training,
and ability equivalent to that of men and are assigned
lower-paying jobs that are held primarily by women
• EEOC stated that unequal pay for work of a similar
value wasn’t by itself proof of discrimination
• Cases that EEOC handled
• County of Washington v. Gunther
• AFSCME v. State of Washington
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Comparable Worth and Equal Pay Issues
•
Organizations can take these preventive steps to guard
against pay inequities
• Employers should attempt to avoid overconcentrations
of men or women (or members of various minority
groups) in particular jobs
• Employers should evaluate whether there is any direct
evidence of bias in setting wage rates, such as
discriminatory statements or admission. If so and in the
event of overconcentrations of females in particular
jobs, employer should formulate a new compensation
plan to correct disparity in future. The outline of any
plan will depend on each employer’s particular situation
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Comparable Worth and Equal Pay Issues
• Employers should resist, as far as possible, the
temptation to deviate from an internal job
evaluation survey or a market survey because of
difficulties encountered in hiring or retaining
employees at rates established by such surveys
• Employers who utilize a certain type of job
evaluation system companywide and then deviate
from it run a risk. Job evaluation is a procedure
used to determine the relative worth of different
jobs
• If an employer uses a job evaluation system or
systems, it should constantly monitor the system to
determine the average wages being paid to men
and women for comparable jobs. Any disparities
should be examined to see if they are defensible. If
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not, corrections should be made
Other Areas of Employment
Discrimination – Religion
•
•
Title VII, as originally enacted, prohibited discrimination
based on religion but did not define the term
• Most frequent accommodation issues under Title VII’s
religious discrimination provisions arise from conflict
between religious practices and work schedules
The EEOC’s Guidelines on Religious Discrimination
proposes
• Arranging for voluntary substitutes with similar
qualifications; promoting an atmosphere where such
swaps are regarded favorably; and providing a central
file, bulletin board, or other means of facilitating
matching of voluntary substitutes
• Flexible scheduling of arrival and departure times;
floating or optional holidays; flexible work breaks; and a
plan for using lunch time and other time to make up
hours lost due to the observation of religious practices
• Lateral transfers or changes in job assignments
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Other Areas of Employment
Discrimination – Religion
• TWA v. Hardison – The Supreme Court upheld
the discharge on the grounds that
• Employer had made reasonable efforts to
accommodate religious needs of employee
• Employer was not required to violate seniority
provisions of contract
• Alternative plans of allowing employee to work a fourday workweek would have constituted an undue
hardship for employer
• Undue hardship – Defined as more than a de
minimus cost
• Employer can prove it has reasonably accommodated
a religious preference if it can show that the
employee’s request would result in more than a small
(i.e., de minimus) cost to employer
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Other Areas of Employment
Discrimination
• Native Americans
•
Native Americans are protected by Title VII; Section 703(i) of Title
VII benefits Native Americans by exempting them from coverage
by the act, in that preferential treatment can be given to Native
Americans in certain employment
• HIV-Positive Status (Bragdon v. Abbott)
• Individuals diagnosed as HIV-positive, even if they haven’t
developed symptoms, are considered to be disabled and
entitled to protection of Americans with Disabilities Act
(ADA)
• Sexual Orientation
• Title VII does not prohibit employment discrimination
against effeminate males, homosexuals, or masculine
acting females
• Adverse action against individuals who undergo or
announce an intention to undergo sex-change surgery does
not violate Title VII
• People who fall in those groups are protected only when a
local or state statute is enacted to protect them
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Summary of Learning Objectives
• Explain the role of the Employer
•
•
•
•
•
•
Information Report, EEO–1
Define employment parity, occupational
parity, systemic discrimination,
underutilization, and concentration
Describe an affirmative action plan
Define bona fide occupational
qualification (BFOQ)
Explain what business necessity means
Define sexual harassment
Describe the comparable worth theory
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