Understanding Equal Opportunity
and the Legal Environment
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Equal Pay Act (1963)
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Prohibits pay discrimination based on gender
Men and women must receive equal pay for “equal work”
Allows pay differences based on
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Seniority
Merit
Productivity
Any factor other than gender
Civil Rights Act of 1964, Title VII
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Prohibits discrimination based on race, color, gender, religion,
national origin
Ers w/ 15+ Ees
“Protected class” vs. “Prohibited Basis”
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Reverse discrimination
Understanding Equal Opportunity
and the Legal Environment
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Age Discrimination Act (1967)
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Pregnancy Discrimination Act (1978)
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Prohibits age discrimination, 40+
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Complaints filed w/ EEOC up 40% in 2007 from ten years prior
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Also, increased calls re: pregnancy bias to hotlines
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However, many callers believe they can’t be terminated period when pregnant, or that
law requires paid leave
In 2000, average American woman had first child at ~25 years
of age, cf. 21.4 in 1970
More pregnant women staying in workforce rather than going
on early leave
Stereotypes about pregnant women persist (overly emotional,
often irrational, physically limited, less committed to jobs)
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Source: USA Today, 2/16/05; Wall Street Journal, 3/27/08
What’s the most ethical course of action when you’re
pregnant, but not visibly so, and looking for a job?
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Applicant not legally required to disclose pregnancy, but best
to share facts as soon as sure of them and make case for
ability to manage pregnancy and maternity leave
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Source: Wall Street Journal, 10/14/04
Understanding Equal Opportunity
and the Legal Environment
 Americans with Disabilities Act (1990)
 Prohibits discrimination based on
disability (provided Ee can perform
“essential functions”)
 Requires Er offer “reasonable
accommodation”
ADA in Practice
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Prohibits Ers from asking questions concerning
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Medical history
Prior workers’ comp or health insurance claims
Work absences due to illness
Past treatment of alcoholism
Mental illness
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Acquiring or modifying work equipment
Providing qualified readers or interpreters
Adjusting work schedules
Making existing facilities accessible
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Has a physical or mental impairment that limits one or more
“life activities”
Has a record of such an impairment
Is regarded as having such an impairment
Requires Ers to make “reasonable accommodation” by
Defines a disabled person as one who
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“Young Workers With Dyslexia, ADD Find
Office Less Accommodating Than School”
 More young adults entering workplace w/
known learning disabilities and history of
receiving accommodation
 But few Ers have adapted training or job
expectations for workers w/ learning disabilities
 Rude awakening for many – discrimination claims
involving learning disabilities increased 74% from
‘93 to ‘03
 ADA entitles some workers w/ disabilities to
accommodations such as quieter workplace,
doesn’t require Ers to offer same broad services
schools must provide learning-disabled students
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Source: Wall Street Journal, 10/12/06
Understanding Equal Opportunity
and the Legal Environment
 Civil Rights Act of 1991
 Adds compensatory and punitive
damages
 Right to jury trial
 Family and Medical Leave Act (1993)
 Requires Ers to provide up to 12 weeks
leave, unpaid, for family and medical
conditions
 Ers w/ 50+ Ees
Cases to Consider
 Nebraska telephone company Ee took
religious vow to wear a particular
antiabortion button that graphically
portrayed a fetus. Coworkers
objected to point that work became
disrupted and some threatened to
walk off job.
 What should mngt do?
Cases to Consider
 Incident 1: The Obese Ee
 Critical Thinking Questions
 Is an obese employee protected by any
EEO laws?
 Do you think John’s work reassignment was
job-related or discriminatory treatment?
 Team Exercise
 Should physical appearance matter in
making employment decisions?
“N.J. casino to fire weightier
waitstaff”
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Borgata Hotel Casino & Spa (Atlantic City) adopted new policy in
February 2005 – servers who gain more than 7 percent of their
body weight will be placed on unpaid suspension and given 90
days to lose that weight
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160 ‘Borgata Babes’ and 50 other male and female bartenders
New hires and incumbents weighed to establish baseline (in uniform,
wo/ shoes)
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During suspensions, Co will pay to put Ee through weight-loss program
and Ee will continue to have free access to casino’s spa
If weight is not lost, Ee will be terminated (unless Ee is pregnant or has
medical condition contributing to weight)
Casino’s “edgy marketing themes and sexy accents have helped
bowl over the competition”
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“Our costumed beverage servers are a huge part of our marketing and
our branding image”
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‘Babes’ wear low-cut designer bustiers
Female servers should have “natural hourglass figures” and male
servers should have “V-shaped torsos, broad shoulders, and slim
waists”
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Source: USA Today, 2/17/05
Cases to Consider
 Does Ee have right to display
Confederate flag decal on toolbox at
work?
 Ee is member of sons of Confederate
Veterans, descendent of member of
Confederate army
 Asserted that display is protected by First
Amendment
 Black co-worker complained, alleging
violation of Co’s anti-harassment policy
Comparison of Discrimination
Theories
 Disparate Treatment
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Intentional
Prima facie case
involves showing
plaintiff (1) was
qualified, (2) was
turned down, (3) job
remained open
Er’s defense is
legitimate,
nondiscriminatory
reason for decision or
BFOQ
Remedy is
compensatory and
punitive damages
 Adverse Impact
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Statistical
Prima facie case
involves showing
disparity in effects of
facially neutral practice
 E.g., four-fifths rule
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Er’s defense is to show
that practice is jobrelated
Remedy is equitable
relief (e.g., back pay)
Example of Four-Fifths rule
 Selection rate for men
 50 apply, 20 hired, rate = 40%
 Selection rate for women
 36 apply, 9 hired, rate = 25%
 Is there adverse impact?
 Is .25 < (.40)*(.8)?
 “Hiring by the numbers”
 How many more women would Co need
to hire to eliminate adverse impact?
New Haven Firefighters case
 Ricci v. DeStefano (U.S. S.Ct., 2009)
 Lawsuit brought against city by 18 firefighters (17
white, one Hispanic) alleging that city discriminated
against them with regard to promotions
 Firefighters had passed test for promotion to mngt
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Test developed by Industrial/Organizational Solutions
(Westchester, IL), “the nation’s leading public safety
human resources consulting firm” (Co website)
 City invalidated test results because none of black
firefighters who passed the exam had scored high
enough to be considered for promotion
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City feared lawsuit over test’s adverse impact (pass rate
for blacks ~1/2 that of whites)
Complainants claimed they were denied promotions
because of their race
 S.Ct. found in favor of complainants, 5-4
Sexual Harassment Defined
 Unwelcome sexual advances,
requests for sexual favors, and other
verbal or physical conduct of a sexual
nature, when:
 Quid pro quo
 Unreasonably interferes with work
performance or creates an intimidating,
hostile, or offensive work environment
Sexual Harassment Defined
 Elements of “hostile work environment”
 Severe and pervasive
 Reasonable person (woman?) test
 To what extent do men and women differ in
their perceptions?
 Employee need not have suffered any detriment
(e.g., termination)
 Basis for imputing liability to employer
 Conduct by supervisor
 Co-worker
 Client or customer
Sexual Harassment Defined
 Employer’s defense (when no tangible
employment action taken against
employee)
 employer “exercised reasonable care to prevent
and correct promptly any sexually harassing
behavior,” and
 “the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective
opportunities provided by the employer or to
avoid harm otherwise”
Elements Of An Effective
Harassment Prevention Policy
 Be in writing;
 Define what constitutes harassment and
declare that it will not be tolerated;
 Establish a complaint procedure;
 Involve training and education programs
to sensitize supervisors and employees to
harassment issues;
Elements Of An Effective
Harassment Prevention Policy
 Include a prompt and thorough
investigation of every complaint;
 Provide for prompt corrective action,
including appropriate disciplinary
action, if it is determined that
unlawful harassment occurred.
Hostile Work Environment and the
“Assumption of Risk”
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You are a restaurant manager and patrons are making arguably
offensive comments to female waitstaff. What do you do?
Does it matter whether it’s Hacienda or Hooters?
Hooters staff must sign Co SH policy, which includes
acknowledgement that “female sexual appeal is an essential
ingredient of the Hooters concept”
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Also must sign Ee handbook containing waiver:
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“Work environment is one in which joking and innuendo based on
female sex appeal is commonplace….I do not find my job duties,
uniform requirements, or work environment to be offensive.”
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Uniform requirements include orange shorts, Hooters t-shirt, half-shirt, tank
top, and “prom-like appearance” (hair, makeup, nails done neatly)
In Washington D.C. area, mngr filed SH case based in part on boss
taking her to lunch at Hooters
Settled hiring discrimination lawsuit in 1997, after EEOC dropped
action in 1996
Affirmative Action Plans
 Objective distinguishable from equal
employment opportunity – it is to take
“affirmative action” to increase
representation of historically
underrepresented groups
 Elements
 Utilization analysis
 Goals and timetables
 “goal” vs. “quota”
 Action steps
 OFCCP
Legal Status of Affirmative Action
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Voluntary AAPs should be ‘narrowly tailored’ to achieve
ends – temporary measure that would cease when
underrepresented group reaches parity w/ representation in
labor market
Preferences re: terminations or layoffs inappropriate, as are
barriers to selection/promotion of ‘overrepresented’ group
Preferential practices only appropriate where there is
indication of past discrimination
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Substantial, inexplicable disparity in number of
female/minority ees in certain occupations relative to
population statistics
Preferential practices only appropriate when job candidates
judged to be ‘equally qualified’
Care should be taken to avoid ‘reverse discrimination’
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Supreme Court decisions generally decided by narrow margin,
changing Court membership may tip decisions in opposite
direction
Affirmative Action Plans
 Supreme Court’s decision in the two cases involving the University
of Michigan
 Many large Cos filed briefs supporting UM
 Polls show Americans overwhelmingly opposed to preferences, but also
overwhelmingly in favor of diversity
 Court ruled undergraduate admission policy unconstitutional – granting
points to minority applicants too close to quota
 had also awarded points for athletic ability and “legacy” status, but not as
many
 Court ruled law school admission policy constitutional, in that it involved
individual consideration rather than mechanistic formula
 Racial diversity found to be a public interest
 Only highly selective universities (~20%) really impacted
 In 2001, 64% of whites, 55% of African-Americans, 52% of Latinos went
to college
 Some argue real problem is not access but low test scores, which impacts
admission to highly selective universities absent affirmative action
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Source: The Economist, 6/28/03
Current Issues
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Same-sex harassment (e.g., “locker room” horseplay)
 Actionable, but must show discrimination based on gender
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Sexual orientation harassment not unlawful
“Equal opportunity harassment” not unlawful
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But do men and women react similarly???
Sexual Orientation Discrimination
 Indiana Equality Coalition
 21 states (including IL but not IN, KY) prohibit
discrimination on basis of sexual orientation
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Nearly 90% of Fortune 500 Cos have such policies, while about
60% provide “domestic partner” medical benefits
Wal-Mart expanded antidiscrimination policies to include sexual
orientation
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Timothy Plan, a religious-based investment group, indicated they
wouldn’t sell their Wal-Mart stock but would object to certain diversity
training programs like “taking every employee in an organization and
indoctrinating them in the homosexual agenda” (NYT, 7/2/03)
Is Racial Discrimination Still an
Issue?
 Many white Americans think racial discrimination is no longer much
of a problem – many blacks think otherwise
 Recent Gallup poll asked: “Do you feel that racial minorities in this
country have equal job opportunities as whites, or not?”
 Whites: 55% yes, 43% no
 Blacks: 17% yes, 81% no
 Recent research study (Chicago and MIT economists):
 Applicants named Greg Kelly or Emily Walsh were 50% more likely to get
called for interviews than those named Jamal Jackson or Lakisha
Washington
 Putting white-sounding name on an application worth as much as an
extra eight years of work experience
 Resumes were tweaked to make them more appealing (added work
experience, some military experience, fewer periods for which no job was
listed, computer skills, etc.):
 Those white Ees w/better resumes called back 30% more than other
whites
 Black Ees w/same resume tweaks only called back 9% more often
Is Racial Discrimination Still an
Issue?
 Recent research study (Northwestern U sociologist):
 Two young HS grads w/similar job histories and
demeanors apply in person for jobs as waiters,
warehouse Ees, other low-skilled positions advertised
in a Milwaukee newspaper.
 One man is white, admits to having served 18 months in
prison for cocaine possession with intent to sell
 The other is black, w/no criminal record
 White applicant called back 17% of time, black
applicant 14%
 Acknowledging prison record cut white man’s chances of
getting called back by half, cut black man’s chances by
two-thirds
 Source: Wall Street Journal, 9/4/03
Fear of Bias Suits May Be Affecting
Hiring Decisions
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Perception that non-whites may make legal issue out of
dismissal more often than whites
Many of ‘rational’ justifications for these decisions based on
incorrect assumptions
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Last year, 0.2% of working African-Americans filed complaints
of racial discrimination w/EEOC (whereas 55% of AfricanAmericans report knowing co-worker who was treated unfairly
at work due to race in past year)
In press accounts of discrimination cases, plaintiffs won 85%;
in all cases, plaintiffs won 31%
In press accounts, median jury award $1.1m; in all cases,
$138k
HR consultants and lawyers overemphasize risk of lawsuits
However, fear of being target of discrimination complaint
may be more socially acceptable reason for discrimination
than acknowledging discomfort w/people who are different
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Source: Wall Street Journal, 9/11/03
End-of-Chapter Discussion
Questions
 You own a small construction business.
One of your workers is 55 years old and
had heart bypass surgery about six months
ago. He wants to come back to work, but
you are concerned that he will not be able
to handle the job’s physical tasks. What
should you do? What are you prohibited
from doing (if anything)?
 Should Ers have a policy that prevents Ees
from dating each other? Would such a
policy be legal? Ethical?
Case
 Incident 1: Wearing a Head Scarf on a
Temporary Assignment
 Susan is an experienced clerical worker who wears a
hijab (head scarf) in conformance w/ her Muslim
beliefs. ABC Temps places Susan in a long-term
assignment w/ one of its clients. The client contacts
ABC and requests that it instruct Susan to remove
her hijab while working at the front desk, or ABC
must provide an alternate person, effectively
displacing Susan from her job. According to the
client, Susan’s attire violates the firm’s dress code
and presents the ‘wrong image’ because it is a very
conservative firm. Should ABC comply with its
client’s request?