Have you ever been,
or do you know
someone, who has
been the victim of any
form of
discrimination?
What do you
think about title
IX
Sports Programs
Boston University eliminates funds for Men’s golf,
diving, and rowing. Adds women’s field hockey,
rowing, and tennis.
 Canisius College eliminates men’s baseball, track, and
football. Adds women’s Tennis, softball and field
hockey
 Pepperdine University funds division 1 women’s soccer
not men’s soccer.
 West Virginia cuts 9 football grants-in-aid to expand
women’s sports programs per Title IX
 Does anyone care what happens to the poor
male participants at these schools?

Title IX
 No
person, on the basis of
sex, shall be excluded from
participation in, denied
benefits of, or be subjected
to discrimination under any
education program receiving
federal financial assistance.
What do you think
about the
University of
Michigan cases
What do you think
about the State of
Texas meritocracy
program for high
school graduates?
3-2
The Emergence of EEO
Economic Status
of Women and
Minorities
EEO
Role of
Government
Regulation
Changes in
Societal
Values
7
3-3
EEO Laws and Regulations:
Title VII of the 1964 Civil Rights
Act



Discrimination with regard to any employment
condition, including hiring, firing, promotion, transfer,
compensation, and admission training programs
Defined protected categories or classes
Further clarifications by subsequent court cases and
the 1991 Civil Rights Act
3-4
EEO Laws and
Regulations:
Forms of Discrimination
DISPARATE TREATMENT
(Intentional)
DISPARATE OR
ADVERSE IMPACT
(Unintentional)
3-5
Forms of Discrimination:
Disparate Treatment


Applying different standards to different groups
from protected categories or classes
Bona fide occupational qualification (BFOQ) may
justify discrimination
must be a legitimate nondiscriminatory reason
(see Diaz v. Pan Am World Airways)
courts have applied the BFOQ defense very
narrowly

Retaliation prohibitions apply
Disparate Treatment




Intentional discrimination
Employers apply different standards or
treatment to different groups of employees
or applicants based upon a protected
category
Key U.S. Supreme Court case:
 McDonnell Douglas v. Green
Plaintiff must first establish a prima facie
case proving disparate treatment
 Applied, was qualified, was denied, job
open
3-6
Forms of Discrimination:
Disparate Impact


Employment practices that disproportionately
exclude groups based upon a protected category
(See Griggs v. Duke Power Co.)
Occurs when a racially neutral
employment practice has the effect of
disproportionately excluding a group
based upon a protected category

Four-fifths rule often used to evaluate potential disparities

Showing validation or business necessity may justify discrimination

Retaliation prohibitions again apply
Four-Fifths Rule


Used to evaluate whether disparate
impact exists
Discrimination typically occurs if the
selection rate for one group is less than 80
percent (4/5) of the selection rate for
another group
Retaliation

Federal EEO laws prohibit retaliation
against employees who:



oppose discriminatory practices, or
participate in a protected investigation,
proceeding, or hearing
Retaliation includes:



termination
denial of promotion or job benefits
demotion, suspension, or threats
Whadd’ya mean discriminatory
practices?????

Any employment practice applied
unfairly against a protected group
 Testing
 Recruiting
 Promotions
 Salary increases
 training
Discrimination
Disparate
Treatment
Disparate
Impact
Bona Fide
Occupational
Qualification
(BFOQ)
Four-fifths
Rule
Retaliation
3-7
Workplace Discrimination:
Special and Contemporary Issues
TITLE VII AND SEXUAL HARASSMENT

Sexual harassment is considered a form of sex
discrimination

Two forms of sexual harassment exist:
Quid pro quo: exchanging sexual favors for job benefits.
Hostile work environment: creating an offensive work
environment.
See Meritor Savings Bank v. Vinson

Recent developments broaden employer responsibility
See Faragher v. City of Boca Raton and Burlington v. Ellerth
3-8
Workplace Discrimination:
Special and Contemporary Issues
Title VII and Pregnancy Discrimination
Pregnancy Discrimination Act of 1978 amendment
Title VII and Religious Minorities
Focuses on hours worked and working conditions
Title VII and “English-Only” Rules
Potential for disparate impact claims
Showing business necessity may justify
discrimination
3-9
Workplace Discrimination:
Special and Contemporary Issues
Civil Rights Act of 1991
amended Title VII
Provided additional remedies and
expanded its scope
Executive Order 11246
Extends Title VII-like requirements
to federal contractors
3-10
Workplace Discrimination:
Special and Contemporary Issues
Equal Pay Act of 1963
Prohibit pay differentials between men and women
Age Discrimination in Employment Act of 1967
Protects individuals 40 years of age or older
Americans with Disabilities Act of 1990 (ADA)
Covers “qualified individuals”
Requires “reasonable accommodations”
Courts decide who’s “disabled” and what
is “reasonable”
3-11
Workplace Discrimination:
Regulatory Enforcement
FEDERAL OFFICES AND AGENCIES
 Equal Employment Opportunity Commission (EEOC)
Enforces most Federal employment
discrimination laws
 Office of Federal Contract Compliance Programs
(OFCCP)
Enforces Executive Order 11246
STATE OFFICES AND AGENCIES
THE COURTS
EEO and Affirmative Action




EEO is the law and
not voluntary
Applies to everyone
Is colorblind
Protects against
discrimination based
on race, religion, sex,
national origin, and
age



Affirmative Action is
voluntary
Is temporary
Designed to correct
past injustices.
Workplace Discrimination:
3-13
Affirmative Action Plans
Voluntary Plans




Designed to eliminate
past imbalances
Must not unnecessarily
trammel the rights of
the majority (known as
reverse discrimination)
Must be temporary
Must not provide for
set aside positions
Involuntary Plans



Analyze underrepresentation and
availability
Set goals
Specify how goals are
to be attained
3-12
Workplace Discrimination:
Affirmative Action



Designed to overcome past imbalances based upon a protected
group category
Commonly equated with preferences and special treatment
Legality depends on its source
 Involuntary or Court Mandated
EO 11246 requirement or court ordered
 Voluntary
Considerable court scrutiny (see United Steelworkers v.
Weber
and Johnson v. Transportation Agency)

The debate lives on in court
Sexual Harassment




Any form of conduct a reasonable person
would find offensive; physical, verbal or
environmental.
Unwelcome sexual advances.
Request for sexual favors.
Other verbal or physical contact of a sexual
nature when any of following
apply........
Sexual Harassment...continued.



Submission to such conduct is made
explicitly or implicitly a term or condition of
one’s employment
Submission to or rejection of such conduct
is used as basis for decisions affecting
employment
The conduct has purpose of unreasonable
interfering with performance, or.......
Sexual Harassment....continued


Has a purpose of creating an
intimidating, hostile, or offensive work
environment.
Burden is on employer to remove
offensive items or stop offensive
behavior. May also extend to off-duty and
off-premises conduct.
Sexual Harassment, Employer
Responsibility



Develop a policy against sexual
harassment.
Promptly and thoroughly investigate
all complaints.
Properly discipline all offenders
Contents of Sexual
harassment
Policy





Define sexual harassment.
Encourage people to come forward with
complaints.
Promise confidentiality.
Alternative channel for filing complaints.
Promise prompt & thorough investigation.
Contents of Sexual harassment
Policy



Promise the company may take interim
steps pending full investigation.
Appropriate disciplinary action against
offenders.
Assure that there will be no retaliation or
punishment for complaining.
ADA Disability Definition
 An
individual who has a physical
or mental impairment that
substantially limits one or more of
the major life activities, who has a
record of such impairment or who
is regarded as having an
impairment.
ADA Prohibited Questions
Do you have aids? Asthma?
Mental Condition?
 Do you have a disability that
would interfere with your ability
to perform this job?
 What prescription drugs are you
taking

Permissible Questions Under
ADA


Can you perform the functions of
this job with or without
reasonable accommodation?
Please describe or demonstrate
how you would perform these
functions.
Permissible Questions Under
ADA



Can you meet the attendance
requirements of this job?
How much do you weigh? Height?
Do you regularly eat three meals a
day? ( Be careful here, Why do you
need info?)
Reasonable Accommodation



Unless employer can prove undue
hardship the term reasonable
accommodation may include following.
Make existing facilities readily accessible
and usable by disabled.
Restructure job; part-time or modified
work schedules; reassign to vacant
position; acquire or modify equipment;
provide qualified readers or interpreters.
Pre-employment Medical
Exams
No medical exam before conditional
offer of employment.
 Physical agility / fitness tests O.K.
 Certain psychological tests measuring
ability to perform O.K.
 Drug and Alcohol tests O. K.

How to proceed safely under
ADA



Assume the employee is disabled if so
claimed and try to determine
reasonable accommodation.
Initiate an interactive discussion with
employee about accommodation.
Do as much as you can and then a
little more.
Title VII of the Civil Rights Act of
1964

Prohibits discrimination against employees
on the basis of (protected categories):






race
color
religion
sex
national origin
Prohibits discrimination with regard to any
employment condition
Title VII of the Civil Rights Act of
1964 (continued)

Covered entities include:





Private employers with 15 or more employees
Labor organizations with 15 or more members
Employment agencies
Federal, state, and local government
employers
Exempt entities include:


Private membership clubs
Native American tribes
Sexual Harassment (1 of 2)

Considered a form of sex discrimination
under Title VII of the Civil Rights Act of 1964


is actionable when it occurs between same as
well as opposite sex individuals
Forms of sexual harassment:

Quid pro quo – exchange of sexual favors for
job benefits

Hostile work environment – creation of an
offensive working environment
Sexual Harassment (2 of 2)

Key U.S. Supreme Court cases:




Pease v. Alford Photo Industries, Inc.
Meritor Savings Bank v. Vinson
Faragher v. City of Boca Raton
Burlington Industries v. Ellerth
Five elements for “quid pro quo.”





Plaintiff is a member of protected class
Plaintiff was subject to unwelcome SH from
supervisor
Harassment claimed was based on sex
Submission was an implied condition to
receiving some form of job benefit.
Employer knew or should have known
What can an employer do?






Have a written policy on Sexual
harassment.
Publicize the policy
Prohibit relation for reporting Sexual
harassment
Multiple channels for reporting complaints
Assure prompt investigation and remidial
action.
Provisions of confidentiality
Pregnancy Discrimination Act of
1978


Amended Title VII to protect pregnant
women from employment discrimination
Prohibits employers from discrimination in
providing employee benefits such as:




vacation time
sick leave
health insurance
Pregnancy to be treated on same basis as
any other medical problem or disability
Other Title VII Issues
Religious
Discrimination
Prentice Hall, 2001
“English-Only”
Rules
Chapter 1
45
Civil Rights Act of 1991 (1 of 3)




Amends Title VII
Allows plaintiffs to seek compensatory and
punitive damages for intentional
discrimination
Allows plaintiffs to demand jury trial for
intentional discrimination claims
Reverses the U.S. Supreme Court’s decision
in the Wards Cove Packing Co. v. Atonio
case
Civil Rights Act of 1991 (2 of 3)



Prohibits adjusting test scores or using
different cutoff scores on the basis of a
protected category
Clarifies the concept of mixed motive in
disparate treatment cases
Extends the coverage of Title VII and the
Americans with Disabilities Act to U.S.
citizens employed by covered entities
operating in foreign countries
Civil Rights Act of 1991 (3 of 3)



Charges the EEOC with the tasks of
providing technical assistance, education,
and outreach
Expands the coverage of Title VII to the
U.S. House of Representatives and agencies
of the legislative branch
Encourages the use of alternate dispute
resolution to resolve employment
discrimination disputes.
Executive Order 11246 (1965)

Federal contractors, subcontractors, and
federally assisted construction projects
must:


develop a written plan of affirmative action
establish numerical goals and timetables to
achieve integration and equal opportunity
Equal Pay Act of 1963

Established the concept of equal pay for
equal work

Prohibits wage differentials based on
gender between men and women
performing the same work in organizations
Age Discrimination in Employment
Act of 1967 (ADEA)


Protects individuals 40 years of age and
older from employment discrimination
based upon their age
The act covers the actions of:




private employers with 20 or more employees
employment agencies
labor organizations with at least 25 members
federal, state, and local governments
Americans with Disabilities Act of
1990 (ADA) (1 of 3)

Prohibits discrimination against qualified
individuals with disabilities on the basis of
those disabilities in all aspects of employment




private employers with 15 or more employees
state and local government employers
U.S. Congress
Federal government employers and
contractors are covered under the
Rehabilitation Act of 1973
Americans with Disabilities Act of
1990 (ADA) (2 of 3)


Employers must make reasonable
accommodations for the known disabilities
of a qualified individual with a disability
Qualified individual with a disability:


can perform the essential functions of a job
with or without reasonable accommodation
Americans with Disabilities Act of
1990 (ADA) (3 of 3)


Employers are not required to make
disability accommodations if doing so would
create undue hardship for the organization
Key U.S. Supreme Court cases:



Sutton et al. v. United Airlines
Albertsons, Inc. v. Kirkingburg
Murphy v. United Parcel Service Inc.
Americans with Disabilities Act of
1990 (ADA) (3 of 3)


Employers are not required to make
disability accommodations if doing so would
create undue hardship for the organization
Key U.S. Supreme Court cases:



Sutton et al. v. United Airlines
Albertsons, Inc. v. Kirkingburg
Murphy v. United Parcel Service Inc.
Enforcing the Law

Equal Employment Opportunity Commission
(EEOC)


Office of Federal Contract Compliance
Programs (OFCCP)


Title VII
Executive Order 11246
The Courts

interpret the laws governing EEO
Voluntary Affirmative Action
Plans

Key U.S. Supreme Court cases:



United Steelworkers of America v. Weber
Johnson v. Transportation Agency
The Supreme Court’s decisions established
the criteria necessary for lawful voluntary
affirmative action plans (AAP) in
organizations
Criteria for Voluntary AAPs




The AAP must exist to eliminate past
imbalances based on a protected group
category
The AAP must not necessarily trammel the
rights of the majority
The plan must be temporary
The plan must not provide for set-aside
provisions
Involuntary Affirmative Action
Plans (1 of 2)


OFCCP Revised Order No. 4 – suggests the
format and parts of an AAP
Integral steps in developing an AAP:
1. Analyze under representation and availability
2. Set goals
3. Specify how goals are to be attained
Involuntary Affirmative Action
Plans (2 of 2)

Key U.S. Supreme Court cases:


Adarand Constructors Inc. v. Peńa
Hopwood v. State of Texas
Summary



EEO programs are designed to eliminate
bias in HRM programs
The role of EEO and the law as a significant
force in shaping HRM policies and programs
is an accepted fact in society
The law, executive orders, and court
interpretations will continue to influence
every phase of HRM programs and activities
Sample topics









Examine a company from HR perspective
Industry practices
Glass ceiling
Careers
Benefits of future
Employee burnout
Outplacement and Layoffs
Corporate culture
Introducing change in an organization