Human Resource
Management
1
ELEVENTH EDITION
GARY DESSLER
Part 1 | Introduction
Chapter 2
Equal Opportunity and the
Law
PowerPoint Presentation by Charlie Cook
The University of West Alabama
After studying this chapter, you should
be able to:
1.
Cite the main features of at least five employment
discrimination laws.
2.
Define adverse impact and explain how it is proved
and what its significance is.
3.
Explain and illustrate two defenses you can use in the
event of discriminatory practice allegations.
4.
Avoid employment discrimination problems.
5.
Cite specific discriminatory personnel management
practices in recruitment, selection, promotion, transfer,
layoffs, and benefits.
6.
Define and discuss diversity management.
2
Equal Employment Opportunity
1964–1991
Title VII of the 1964
Civil Rights Act
EEOC
Executive Orders
Federal Agency
Guidelines
Pregnancy
Discrimination Act
of 1978
Vocational
Rehabilitation Act
of 1973
11246, 11375
OFCCP
Equal
Employment
Opportunity
Equal Pay Act
of 1963
Age Discrimination
in Employment Act
of 1967
3
Griggs v. Duke Power Company
Prior to the passage of the Civil Rights Act of 1964, Duke Power
Company had a policy of segregating employees according to race.
Specifically, at its Dan River plant, African-Americans were allowed to
work only in its Labor department, which constituted the lowest-paying
positions in the company.
After the Civil Rights Act was passed, the company changed its
policies, adding a requirement of a high school diploma or a minimum
score on an IQ test for positions in areas other than the Labor
department. This had the effect of eliminating a large number of African
American applicants for positions outside the Labor department.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=401&inv
ol=424
4
Early Court Decisions Regarding
Equal Employment Opportunity
Griggs v. Duke Power Company
1
Burden of proof is on the employer.
2
Employer’s intent is irrelevant.
3
“Fair in form” practice must also be nondiscriminatory.
4
Business necessity is a defense for adverse impact.
5
Test or practice must be related to job performance.
5
Albemarle Paper Company v. Moody
The plaintiffs in Moody consisted of present and former AfricanAmerican employees of Albemarle Paper Company's mill in Roanoke
Rapids, North Carolina. They charged that the company's seniority
system perpetuated the overt segregation that existed in the plant's
departmental job assignment system prior to 2 July 1965 (the effective
date of Title VII), and they sought injunctive and back pay relief.
Read more: http://www.answers.com/topic/albemarle-paper-co-vmoody#ixzz1CGHFoqqN
6
Early Court Decisions Regarding
Equal Employment Opportunity
(cont’d)
 Albemarle Paper Company v. Moody

If a test is used to screen candidates, then the job’s specific
duties and responsibilities must be analyzed and
documented.

The performance standards for the job should be clear and
unambiguous.

Federal guidelines on validation are to be used for validating
employment practices.
7
Equal Employment Opportunity
1990–91–present
Money Damages
Burden of Proof
Compensatory
Punitive
Disparate Impact
Civil Rights Act
of 1991
Mixed Motives
Desert Palace Inc.
v. Costa
8
Desert Palace Inc.
v. Costa
Facts of the Case
Catharina Costa was fired from her job as a heavy equipment operator
at Desert Palace Casino. She filed a sexual discrimination lawsuit,
charging that the firing was the culmination of discrimination that had
occurred during her employment. Jurors during the trial were
instructed by the judge to rule for Costa if they determined that sex
was a motivating factor in the firing, even if other (legal) factors were
present as well. The jury ruled for Costa. Desert Palace appealed,
saying that the instructions incorrectly shifted the burden of proof to
the defendant in the case. A three judge panel from the 11th Circuit
Court of Appeals agreed, ruling for the casino, but a subsequent
review of the case by all 11 judges of the 11th Circuit reversed the
panel's decision.
9
Equal Employment Opportunity
1990–91–present (cont’d)
AIDS
Americans with
Disabilities Act
(ADA) of 1990
Qualified Individual
Reasonable Accommodation
Employer Defenses
10
Americans with Disabilities Act
 The ADA imposes on employers and providers of
public transportation, telecommunications, and
public accommodations to accommodate
individuals with disabilities.
 Title I of the ADA prohibits employment
discrimination against qualified individuals with
disabilities.
11
Equal Employment Opportunity
Commission (EEOC)
 The federal administrative agency responsible for
enforcing most federal anti-discrimination laws.
 The EEOC is empowered to:




Conduct investigations
Interpret the statutes
Encourage conciliation between employees
and employers
Bring suit to enforce the law
12
AMERICANS WITH DISABILITIES – 2005 STATS.
Epileptic
Speech impaired
5%
5%
Mentally retarded
6%
51%
24%
Developmentally
disabled
Paralyzed
HIV infected
3%
3%
2% 2% 2%
Wheelchair users
Totally blind
Legally blind
Hearing impaired
Can you guess what disability covers 51% of the population?
Hearing Impaired
13
“What?”
14
Department of Fair Employment and Housing
Carper/2001 California Partnership
November 4, 2005
San Francisco County Superior Court
Complainant Carper has severe degenerative joint disease and requested an accessible
parking space and extra keys for her live-in caregiver. Respondent 2001 California
Partnership denied the request for reasonable accommodation in violation of the Fair
Employment and Housing Act (FEHA). After an eight day trial, the jury found the
landlord liable for disability harassment and denial of a reasonable accommodation and
awarded compensatory damages. Before the jury returned to deliberate on the amount
of punitive damages, the parties settled the case for $1 million dollars and affirmative
relief. The affirmative relief included requiring the landlord to: develop and disseminate
to all residents a written policy regarding their right to receive, and the owner’s duty to
provide, reasonable accommodation under the FEHA; undergo training regarding the
duties of a landlord under the FEHA; post the court’s order that the landlord violated
the FEHA.”
15
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.
16
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 to create a new job for the
disabled worker nor reassign that person to a lightduty 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 be “regarded as”
disabled and protected under the ADA.
17
18
State and Local Equal Employment
Opportunity Laws
 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.
19
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.
20
Proving Sexual Harassment
Quid Pro Quo
Hostile Environment
Created by
Supervisors
Proving Sexual
Harassment
Hostile Environment
Created by
Co-Workers or
Nonemployees
21
TABLE 2–2
Summary of Important Equal Employment
Opportunity Actions
Title VII of 1964 Civil Rights Act, as amended
Executive orders
Federal agency guidelines
Supreme Court decisions:
Griggs v. Duke Power Co.,
Albemarle v. Moody
Equal Pay Act of 1963
Age Discrimination in Employment Act of 1967
State and local laws
Vocational Rehabilitation Act of 1973
Pregnancy Discrimination Act of 1978
Vietnam Era Veterans’ Readjustment Assistance Act of 1974
Ward Cove v. Atonio
Price Waterhouse v. Hopkins
Americans with Disabilities Act of 1990
Civil Rights Act of 1991
Note: The actual laws (and others) can be accessed at: http://www.legal.gsa.gov/legal(#1)fcd.htm.
22
Sexual Harassment: Court
Decisions
Meritor Savings Bank, FSB v. Vinson
Sexual
Harassment
Burlington Industries v. Ellerth
Faragher v. City of Boca Raton
23
Lets Exam the
changing of
these laws
Meritor Savings Bank v. Vinson
 Respondent former employee of petitioner bank brought an
action against the bank and her supervisor at the bank,
claiming that, during her employment at the bank, she had
been subjected to sexual harassment by the supervisor in
violation of Title VII of the Civil Rights Act of 1964, and seeking
injunctive relief and damages. At the trial, the parties
presented conflicting testimony about the existence of a sexual
relationship between respondent and the supervisor. The
District Court denied relief without resolving the conflicting
testimony, holding that, if respondent and the supervisor did
have a sexual relationship, it was voluntary, and had
nothing to do with her continued employment at the bank,
and that therefore respondent was not the victim of sexual
harassment. The court then went on to hold that, since the
bank was without notice, it could not be held liable for the
supervisor's alleged sexual harassment.
 477 U.S. 57 (1986)
25
BURLINGTON INDUSTRIES, INC.
v. ELLERTH
 Respondent Kimberly Ellerth quit her job after 15 months as a
salesperson in one of petitioner Burlington Industries’ many
divisions, allegedly because she had been subjected to
constant sexual harassment by one of her supervisors, Ted
Slowik. Ellerth refused all of Slowik’s advances, yet suffered no
tangible retaliation and was, in fact, promoted once. Moreover,
she never informed anyone in authority about Slowik’s conduct,
despite knowing Burlington had a policy against sexual
harassment. Under Title VII, an employee who refuses the
unwelcome and threatening sexual advances of a supervisor,
yet suffers no adverse, tangible job consequences, may
recover against the employer without showing the
employer is negligent or otherwise at fault for the
supervisor’s actions, but the employer may interpose an
affirmative defense.
 The Court ruled in favor of the employee in this case.
 Decided June 26, 1998
26
FARAGHER v. CITY OF BOCA
RATON
 After resigning as a lifeguard with respondent City of Boca
Raton (City), petitioner Beth Ann Faragher brought an action
against the City and her immediate supervisors, Bill Terry and
David Silverman, for nominal damages and other relief, alleging,
among other things, that the supervisors had created a "sexually
hostile atmosphere" at work by repeatedly subjecting Faragher
and other female lifeguards to "uninvited and offensive
touching," by making lewd remarks, and by speaking of women
in offensive terms, and that this conduct constituted
discrimination in the "terms, conditions, and privileges" of her
employment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2(a)(1). Following a bench trial, the
District Court concluded that the supervisors' conduct was
discriminatory harassment sufficiently serious to alter the
conditions of Faragher's employment and constitute an abusive
working environment. Decided June 26, 1998
27
Justice Antonin Scalia
 “US Supreme court held that
sexual harassment law
doesn’t cover ordinary
“intersexual flirtation.” In this
ruling, Justice Antonin Scalia
said courts must carefully
distinguish between “simple
teasing and truly abusive
behavior.”
Dessler, 2008
28
March 04, 2008 Court Examines
Workplace Flirtation
 What the court said. In order to prove a
hostile work environment claim, the employee
had to show: (1) that she suffered intentional
discrimination because of her sex, (2) the
discrimination was severe or pervasive, (3) it
detrimentally affected her, (4) it would have
detrimentally affected a reasonable person in
like circumstances, and (5) there is a basis for
employer liability. The court examined the
manager's behavior against this standard.
http://hr.blr.com/news.aspx?id=78061
29
30
HR in Practice: What Employers Should Do to Minimize
Liability in Sexual Harassment Claims
1.
Take all complaints about harassment seriously.
2.
Have the victim to inform the harasser directly that the conduct is unwelcome and must stop.
3.
Conduct a thorough investigation of any complaint of harassment.
4.
Issue a strong policy statement condemning harassing behaviors.
5.
Inform all employees about the policy prohibiting sexual harassment and of their rights under the
policy.
6.
Communicate to employees that sexual harassment will not be tolerated.
7.
Establish a management response system that includes an immediate reaction and investigation by
senior management.
8.
Provide training to supervisors and managers to increase their awareness of the issues.
9.
Discipline managers and employees involved in sexual harassment.
10. Keep thorough records of complaints, investigations, and actions taken.
11. Conduct exit interviews that uncover any complaints.
12. Re-publish the sexual harassment policy periodically.
13. Encourage upward communication to discover evidence of sexual harassment
14. Do not retaliate against an individual for opposing employment practices that discriminate based on
sex or for filing a discrimination charge, testifying, or participating in an investigation, proceeding, or
litigation under Title VII.
Sources: www.eeoc.gov/types/sexual_harrasment.html, accessed May 6, 2007, and © 1991by CCH
Incorporated. All rights reserved. Reprinted with permission from Sexual Harassment Manual for
Managers and Supervisors, published in 1991, by CCH Incorporated, a WoltersKluwer Company.
31
California State
University,
Fresno:
Complaint Form
for Filing a
Complaint of
Harassment or
Discrimination
Stacy Johnson-Klein
Source: California State University, Fresno.
32
*Adverse Impact
(*Against a protected group)
Showing
Adverse Impact
Disparate
Rejection Rates
Restricted
Policy
Population
Comparisons
McDonnellDouglas Test
33
HR Guide to the Internet:
WALKER v. SECRETARY OF TREASURY, I.R.S. | Leagle.com
34
Adverse Impact
 Federal agencies use a “4/5ths rule” to assess disparate






rejection rates. A selection rate for any racial, ethnic, or sex
group, which is less than four-fifths or 80% of the rate for the
group with the highest rate, will generally be regarded as
evidence of adverse impact, while a greater than four-fifths rate
will generally not be regarded as evidence of adverse impact.
4/5ths = 80% or .80
Example:
Suppose the employer hires 60% Caucasian and only 30%
Hispanic applicants.
.60 x .80 = .48 or 48%
48% is less than 30% = Variance of .18 or 18%
Adverse impact exists as far as the Federal agencies are
concerned.
35
Adverse Impact
 4/5ths = 80% or .80
 Example:
 Suppose the employer hires 52% Black and only 37% Hispanic




applicants, 11 % other.
.52 x .80= .416 or 42%
42% is less than 37% = Variance of .05 or 5%
Adverse impact exists as far as the Federal agencies are
concerned.
Under Affirmative Action, HR would have to strengthen the
number of hired Hispanic workers in order to be in compliance.
Showing *Disparate Treatment
(*Against a PERSON)
McDonnell-Douglas Test for **Prima Facie Case
1
The person belongs to a protected class.
2
The person applied and was qualified for the job.
3
The person was rejected despite qualification.
4
The employer continued seeking applications.
**Latin for "at first view." A prima-facie case is a lawsuit that
alleges facts adequate to prove the underlying conduct supporting
the cause of action and thereby prevail. (Blacks Law Dictionary)
37
Bona Fide Occupational
Qualification
Age
Bona Fide
Occupational
Qualification (BFOQ)
Religion
Gender
National Origin
38
Business Necessity
 “Business Necessity”

A defense requiring employers to 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 can serve as a
business necessity defense.
39
Spurlock v. United Airlines
40
Hooters Settles Suit By Men Denied
Jobs
 Published: October 1, 1997
 Hooters has agreed to pay $3.75 million to settle a lawsuit filed
by men who were denied jobs by the restaurant chain, which is
known for its voluptuous and scantily clad female bartenders
and servers.
 The settlement allows Hooters to continue luring customers with
a female staff of Hooters Girls. But the chain also agreed to
create a few other support jobs, like bartenders and hosts,
that must be filled without regard to sex.
 Three men from the Chicago area sued Hooters after being
denied employment at an Orland Park, Ill., restaurant. Each of
them will get $19,100. Four men who filed a similar lawsuit in
Maryland will receive $10,350 each.
http://query.nytimes.com/gst/fullpage.html?res=9904E6DA1E3AF932A35753C1A961958260
41
Hooters Unable to Justify BFOQ over
uniform disputes…. Settles
Any
wonder?
42
DISCRIMINATORY
EMPLOYMENT PRACTICES
AND THE EEOC
Other Considerations in
Discriminatory Practice Defenses
1. Good intentions are no excuse.
2. Employers cannot hide behind collective
bargaining agreements—equal opportunity
laws override union contract agreements.
3. Firms should react by agreeing to eliminate
an illegal practice and (when required) by
compensating the people discriminated
against.
44
Discriminatory Employment
Practices
Recruitment
Selection
Personal Appearance
Word of Mouth
Unnecessary Educational
Requirements
Dress Attire - (If not
necessary to the
position)
Misleading Information
Help Wanted Ads that
have discriminatory type
language, attractive,
young, etc.
Unfair
Testing/Requirements
Preference to Relatives
(Nepotism)
Hair (Color preference,
length etc.)
Uniforms- (Hooters)
Height, Weight, and
Physical Characteristics
(Not BFOQ or Business
Necessity)
Arrest Records (Not BFOQ
or Business Necessity)
Application FormsDischarge Due to
Garnishment
45
The EEOC Enforcement Process
EEOC Claim and Enforcement Process
1
File Charge
2
Charge Acceptance
3
Serve Notice
4
Investigation/Fact-Finding
5
Cause/No Cause
6
Conciliation
7
Notice to Sue
46
FIGURE 2–4
The EEOC ChargeApplicant or employee files charge
Filing Process
EEOC advises employer of charge
and if mediation is an option
Unsuccessful mediation
EEOC may ask employer to
submit statement of position
of employer’s side of story
Finds no reasonable cause
Successful mediation
EEOC may ask employer to
respond to request for information
(personnel files, etc.)
EEOC completes investigation
Issues charging party
Dismissal and
Notice of Rights
EEOC may ask employer to permit
onsite visit by EEOC and to provide
information for witness interview
Finds reasonable cause
Issues Letter of Determination
Offers parties conciliation
Charging party may file
lawsuit in Federal Court
within 90 days
Conciliation fails
EEOC may
litigate in Federal
Court within 180
days of charge
Conciliation successful
EEOC may decide not to litigate
Sends charging party notice of Right to Sue
Party may sue within 90 days
Note: Parties may settle at any time.
Source: Based on information at www.eeoc.gov.
47
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?
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, 1999), pp. 36–37; “EEOC Investigations—What an Employer Should Know,” Equal
Employment Opportunity Commission (http://www.eoc.gov/employers/investigations.html), accessed May 6, 2007.
48
MANDATORY ARBITRATION
49
Mandatory Arbitration
 Gilmer v. Interstate/Johnson Lane Corp.

Employers can compel employees to agree
to mandatory arbitration of employment-related
disputes.
 Recommendations

Request party be compelled to arbitrate claim.

Insert arbitration clause in employment
applications and employee handbooks.

Protect arbitration process from appeal.
 Alternative Dispute Resolution (ADR)
50
Gilmer v. Interstate/Johnson Lane Corp
51
Addressing EEOC Claims
During the EEOC Investigation:
1
Follow Three Principles
2
Meet with the Employee
3
Limits of EEOC Authority
4
Submitting Documents
5
Position Statement
52
Addressing EEOC Claims (cont’d)
During the FactFinding Conference:
During EEOC Determination
and Attempted Conciliation:
1
Official Records
1
Review Carefully
2
Employer’s Attorney
2
Conciliate Prudently
3
Information
4
Witnesses
53
Diversity Management Program
Steps in a Diversity Management Program:
1
Provide strong leadership
2
Assess the situation
3
Provide diversity training and education
4
Change culture and management systems
5
Evaluate the diversity management program
54
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 stepping stones 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?
55
Designing an Affirmative Action
Program
 Good Faith Effort Strategy
Eliminating the present effects of past practices
that excluded or underutilized protected groups.
 Identification through numerical analysis.
 Proactive elimination of employment barriers.
 Increased minority or female applicant flow.
 Increasing Employee Support for Affirmative Action
 Transparent selection procedures
 Communication
 Justifications

56
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.
57
REVERSE DISCRIMINATION
Discrimination against non-minority
applicants and employees by quotabased systems.
58
Reverse Discrimination
 Reverse Discrimination

Discrimination against non-minority applicants
and employees by quota-based systems.

Bakke v. Regents of the University of California

Wygant v. Jackson Board of Education

U.S. v. Paradise

Johnson v. Transportation Agency, Santa Clara
County
59
60
Bakke v. Regents of the University
of California
http://www.oyez.org/cases/197 61
0-1979/1977/1977_76_811
62
Wygant v. Jackson Board of Education
US Supreme Court Ruling…
63
U.S. v. Paradise
64
Johnson v. Transportation Agency, Santa
Clara County
65
KEY TERMS
Title VII of the 1964 Civil Rights Act
Equal Employment Opportunity
Commission (EEOC)
affirmative action
Office of Federal Contract Compliance
Programs (OFCCP)
Equal Pay Act of 1963
Age Discrimination in Employment Act
of 1967 (ADEA)
Vocational Rehabilitation Act of 1973
Vietnam Era Veterans’ Readjustment Act
of 1974
Pregnancy Discrimination Act (PDA)
uniform guidelines
sexual harassment
Federal Violence Against Women Act
of 1994
protected class
Civil Rights Act of 1991 (CRA 1991)
mixed motive case
Americans with Disabilities Act (ADA)
qualified individuals
adverse impact
disparate rejection rates
restricted policy
bona fide occupational qualification (BFOQ)
alternative dispute resolution or ADR
program
good faith effort strategy
reverse discrimination
66