Equal Employment Opportunity and Human Resources Management

1. Equal Employment Opportunity and Human Resources Management The Challenges of Human Resources Management

2. The Four Layers of Diversity

3. Historical Perspective of EEO Legislation • Equal Employment Opportunity (EEO) • The treatment of individuals in all aspects of employment—hiring, promotion, training, etc.—in a fair and nonbiased manner. • Changing National Values • Economic Disparity • Early Legal Developments • Civil Rights Act (1866) • Unemployment Relief Act (1933) • Executive Order 8802 (1941)

4. Government Regulation of Equal Employment Opportunity

5. What’s Your Knowledge of EEO Law?

6. Age Discrimination Actions • Excluding older workers from important work activities. • Making negative changes in the performance evaluations of older employees. • Denying older employees job-related education, career development, or promotional opportunities. • Selecting younger job applicants over older, better-qualified candidates. • Pressuring older employees into taking early retirement. • Reducing the job duties and responsibilities of older employees. • Terminating older employees through downsizing.

7. Government Regulation of Equal Employment Opportunity • Protected Classes • Individuals of a minority race, women, older people, and those with disabilities who are covered by federal laws on equal employment opportunity • More specifically the classes include race, color, religion, national origin, sex, age, and those with physical or mental disabilities.

8. Major Federal Laws

9. Jurisdiction of the Civil Rights Act of 1964 • All private employers in interstate commerce who employ fifteen or more employees for twenty or more weeks per year • State and local governments • Private and public employment agencies, including the U.S. Employment Service • Joint labor-management committees that govern apprenticeship or training programs • Labor unions having fifteen or more members or employees • Public and private educational institutions • Foreign subsidiaries of U.S. organizations employing U.S. citizens

10. Exemptions From Antidiscrimination Regulations • Business Necessity • Work-related practice that is necessary to the safe and efficient operation of an organization. • Spurlock v. United Airlines • Valid selection tests • Kinds of validity • Correlation • Bona Fide Occupational Qualification (BFOQ) • Suitable defense against a discrimination charge only where age, religion, sex, or national origin is an actual qualification for performing the job. • Safety-based mandatory retirement ages for commercial airline pilots • Court cases • Pan American v. Diaz • Joseph Garcia v. Hooters • Carol Cameron v. La VielleMaison

11. These Correlations Have Actually Been Observed. What’s Up Here? The more people weigh, the higher their salaries. The greater the number of storks nesting on roofs in Northern Europe, the greater the number of births nine months later. The number of cows per acre the lower the crime rate. The bigger the CEO’s home, the worse the company’s stock fares.

13. Exemptions From Antidiscrimination Regulations • Business Necessity • Work-related practice that is necessary to the safe and efficient operation of an organization. • Spurlock v. United Airlines • Valid selection tests • Kinds of validity • Correlation • Bona Fide Occupational Qualification (BFOQ) • Suitable defense against a discrimination charge only where age, religion, sex, or national origin is an actual qualification for performing the job. • Safety-based mandatory retirement ages for commercial airline pilots • Court cases • Pan American v. Diaz • Joseph Garcia v. Hooters • Carol Cameron v. La VielleMaison

14. Gender and BFOQs (essence of business) • Joseph Garcia v. Hooters Hooters Restaurants had a competitive strategy of appealing to the young, affluent male population through a number of features.  Large-screen television for sports events, happy hours, sports celebrity events, and very attractive scantily clad waitresses were part of their strategy.  Joseph Garcia was a waiter from Chicago who worked at similar restaurants for over 10 years.  He heard from a friend that Hooters was hiring.  However, he was told that he would have to apply in person.  When he showed up at one of the 25 franchise establishments, he was told that they were not in fact hiring.  He learned a few weeks later that an attractive female had been hired at the same restaurant.  He filed a timely complaint with the EEOC. • Carol Cameron v. La VielleMaison La VielleMaison is a five-star restaurant in East Cupcake, Florida.  Carol Cameron, a waitress with over 10 years experience in "upscale" restaurants and an esoteric knowledge of wine, applied for a job at La VielleMaison in a period when the restaurant was hiring waiters in preparation for the heavy winter season.  She was not hired.  The restaurant employs only waiters and makes the argument that five-star French restaurants traditionally employ only waiters.  After learning that the restaurant hired three new waiters, Ms. Cameron filed a timely Title VII lawsuit against the restaurant.

15. Religious Preference • Title VII of the Civil Rights Act • Prohibits discrimination based on religion in employment decisions, though it permits employer exemptions. • Defines religion to “include all aspects of religious observance and practice, as well as belief.” • Does not require employers to grant complete religious freedom in employment situations. • Requires that employers make a reasonable accommodation (at minimum cost) without incurring undue hardship in the conduct of the business.

16. Religious Preference(cont.) • Managers or supervisors may have to accommodate an employee’s religion in the specific areas of • holidays and observances (scheduling), • personal appearance (wearing beards, veils, or turbans), and • religious conduct on the job (missionary work among other employees).

17. What Is a “Disability”? • The Americans With Disabilities Act (ADA) defines a disability as: • A physical or mental impairment that substantially limits one or more of the major life activities. • Walking -- Caring for oneself • Seeing -- Performing manual tasks • Hearing -- Sitting • Breathing -- Standing • Thinking -- Lifting • Learning • A record of such impairment. • Being regarded as having such an impairment.

18. Americans with Disabilities Act of 1990 • The act requires employers to make a reasonable accommodation for disabled people • Reasonable accommodation is an attempt by employers to adjust, without undue hardship, the working conditions or schedules of employees with disabilities or religious preferences • A requested reasonable accommodation poses an undue hardship if: • it involves a significant difficulty that disrupts the business; • it involves a significant expense; or • it requires the employer to change the basic nature of its business.

19. Example: Ashley applies for a wait staff position at a nightclub. She has a vision impairment that makes it very difficult for her to see in dim lighting. Ashley requests, as a reasonable accommodation, that the nightclub be brightly lit. The employer would probably be able to show that this accommodation poses an undue hardship. Bright lights would damage the atmosphere of the club and make it difficult for the patrons to see the stage shows.

20. Example: Kyung applies for a job as a cashier at a fast food restaurant. Kyung is qualified for the job in every way, but the employer is reluctant to hire him, fearing that Kyung's cleft palate will offend customers. If the employer refuses to hire Kyung for this reason, the employer will not be able to show undue hardship. An employer cannot claim undue hardship based on customers' (or employees')fears or prejudices about a person's disability.

21. Americans with Disabilities Act of 1990 (cont.) • The ADA does not cover: • Homosexuality or bisexuality • Gender-identity disorders not resulting from physical impairment or other sexual-behavior disorders • Compulsive gambling, kleptomania, or pyromania • Psychoactive substance-use disorders resulting from current illegal use of drugs • Current illegal use of drugs • Infectious or communicable diseases of public health significance (applied to food-handling jobs only and excluding AIDS)

22. Americans with Disabilities Act of 1990 (cont.)

23. PGA Tour v. Casey Martin Casey Martin, a talented golfer with a degenerative circulatory condition (a congenital anomaly called Klippel-Trenaunay-Weber syndrome) that makes it painful to walk, filed suit against the Professional Golf Association (PGA) under the Americans with Disabilities Act (ADA) after the PGA refused to waive its rule requiring all competitors to walk the golf course in its events. The PGA argued that allowing Martin to ride, rather than walk the course, would "fundamentally alter the nature" of the game played on the PGA Tour because walking the course introduced a factor of fatigue into the game that Martin would not be subjected to if he were allowed to ride between shots.  Secondly, the PGA believed that the ADA did not apply in this case, because the PGA Tour was not a place of "public accommodation," as set forth in Title III of the ADA. Martin asserted that the essential feature of golf was shot making, and that being allowed to ride in a golf cart did not alter the fundamental nature of the game. He further argued that he had all the necessary skills to compete at the level of other PGA golfers, but needed an individualized accommodation that would allow his golfing skill to be fairly pitted against the skill of the other golfers on the Tour.

24. PGA Tour v. Casey Martin (cont’d) • Should Casey Martin be protected under the Americans with Disabilities Act (ADA) and allowed to use a cart to compete during the PGA Tour? Why or why not? • If you feel Martin should be protected under the ADA, should this coverage extend to other golfers with back problems, heart problems, or arthritis? Why or why not?

25. Other Federal Laws and Executive Orders

26. Don’t Ask, Don’t Tell Repeal Act of 2010 • In 2010, the Don’t Ask, Don’t Tell Repeal Act was enacted to end the ban on gay or bisexual persons openly serving in the U.S. military • The ban was established as a compromise between the Clinton Administration and Congress in the mid-1990s to prevent members of the military from being dishonorably discharged for being gay, so long as they did not openly reveal their sexual orientation.

27. Fair Employment Practice Laws • Fair Employment Practices (FEPs) • State and local laws governing equal employment opportunity that are often more comprehensive than federal laws. • Although Title VII of the Civil Rights Act exempts employers with fewer than fifteen employees, many states extend antidiscrimination laws to smaller employers with one or more workers.

28. Sexual Harassment • Sexual Harassment (under Title VII) • Unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the working environment • An employer is considered guilty of sexual harassment when: • The employer knew or should have known about the unlawful conduct and failed to remedy it or to take corrective action. • The employer allows nonemployees (customers or salespeople) to sexually harass employees.

29. Two Kinds of Sexual Harassment • Quid Pro Quo • Hostile Work Enviornment

30. Sexual Harassment • Quid Pro Quo Harassment • = this for that. • Lawyers sometimes refer to this as “put out or get out.” • Occurs when “submission to or rejection of sexual conduct is used as a basis for employment decisions.” • Involves a tangible or economic consequence, such as a demotion or loss of pay.

31. Sexual Harassment (cont.) • Hostile Environment • Occurs when unwelcome sexual conduct “has the purpose or effect of unreasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment.” • Dirty jokes, vulgar slang, nude pictures, swearing, and personal ridicule and insult constitute sexual harassment when an employee finds them offensive. • Courts use a “reasonable person” test for hostile environment.

32. Sexual Orientation • Title VII of the Civil Rights Act of 1964 lists “sex” (gender) as a protected class. • Sexual orientation is not a valid defense against discrimination—gender applies to one’s sex at the time of birth and not to one’s sexual orientation. • No federal law bars discrimination based on sexual orientation, or transgender and transsexual individuals. • Companies—in support of their diversity initiatives—are fostering “gay-friendly” work places. • Most companies in the Fortune 500 now offer health benefits to same-sex couples

33. Immigration Reform and Control Act (1986) • The U.S. Department of Justice, lists five actions that employers must take to comply with the law: • Having employees fill out their part of Form I-9. • Checking documents establishing an employee’s identity and eligibility to work. • Complete the employer’s section of Form I-9. • Retain Form I-9 for at least three years. • Present Form I-9 for inspection to an Immigration and Naturalization Service officer or to a Department of Labor officer upon request.

34. Emerging Employment Discrimination Issues • Caregivers and Discrimination • Von Bergen, C. W. (2008). “The Times They are A-Changin”:_Family Responsibilities Discrimination and the EEOC. Employee Responsibilities and Rights Journal, 20, 177-194. • Attractiveness and Discrimination • Weight Discrimination

35. Weight Discrimination: Hooters Sued for Weight Discrimination • Hooters was sued in Michigan for allegedly violating a state law that bars discrimination on the grounds of religion, race, age, sex, height and, weight. • Other jurisdictions with weight discrimination laws • Birmingham, NY • Santa Cruz, CA • Madison, WI • San Francisco, CA • Washington, DC • Urbana, IL

36. Takeaway from this suit … • Hooters officials say that their waitresses can be considered entertainers and the company’s image is reliant on fit, attractive waitresses. Hooters’ girls are responsible for maintaining their “image” just as other entertainers are. • If you want to have your employees look a certain way, you may be challenged. Be prepared to defend any position you (employer) take as to appearance. • A business has a right to protect the image it wants to present, but it must have to balance this against the possibility of discrimination.

37. Uniform Guidelines on Employee Selection Procedures • Uniform Guidelines on Employee Selection Procedures • Is a procedural document published in the Federal Register to assist employers in complying with federal regulations against discriminatory actions. • Applies to employee selection procedures in the areas of hiring, retention, promotion, transfer, demotion, dismissal, and referral.

38. Uniform Guidelines on Employee Selection Procedures(Cont.) • Uniform Guidelines on Employee Selection Procedures define discrimination as: • The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines (or, certain other provisions are satisfied).

39. Validity • The requirement that, when using a test or other selection instrument to choose individuals for employment, employers must be able to prove that the selection instrument bears a direct relationship to job success. • Proof of validity is established through validation studies that show the job relatedness or lack thereof for the selection instrument under study. • Content validity • Concurrent validity • Predictive validity • Construct validity

40. Forms of Discrimination • Disparate Treatment • Means intentional discrimination • Exists where an employer treats an individual differently because that individual is a member of a particular race, religion, gender, ethnic group, age, …. • “We don’t hire women because they should be at home raising kids.” • Disparate/Adverse Impact • The rejection of a significantly higher percentage of a protected class for employment, placement, or promotion when compared with a non-protected class. • Possibly the unintentional result of an innocent act, yet the outcome is still discriminatory. • “Employees must have a college degree.” • Utilization Analysis • A comparison of the race, sex, and ethnic composition of an employer’s workforce with that of the available labor supply.

41. Employee Screening Devices with Potential Adverse/Disparate Impact

42. Determining Discrimination • Adverse Rejection Rate, or Four-Fifths Rule • Rule of thumb followed by the EEOC in determining adverse impact for use in enforcement proceedings. • According to the Uniform Guidelines, a selection program has an adverse impact when the selection rate for any racial, ethnic, or sex class is less than four-fifths (or 80 percent) of the rate of the class with the highest selection rate. • The four-fifths rule is not a legal definition of discrimination, rather it is used to monitor severe discrimination practices.

43. Dennis Goebel et al. v. Jayjoe Clothiers • A division of Jayjoe Clothiers had 16 openings for assistant store manager last year and, as part of the company's affirmative action program, filled the vacancies with 10 blacks and 6 whites.  The selection process used was a multiple-hurdle approach which began with an application form and an intelligence test.  Applicants who scored 60 (out of 100) or higher were invited back for an interview by the store managers.  Based on the interview performance, the 16 vacancies were filled. Applicants BlackWhite Number scoring 60 or higher                         25            74 Number scoring lower than 60                       26            29 Total        51           103 • Dennis Goebel, black applicant who scored 39 on the test, filed suit on behalf of all black applicants who failed the exam.  Mr. Goebel claimed race discrimination based on Title VII of the Civil Rights Act. Jayjoe Clothiers has argued that over 62 percent of the actual supervisory vacancies were filled with blacks (i.e. 10 out of 16), therefore, there was obviously no racial discrimination in the selection process.

44. Jayjoe Clothiers (cont’d) • Were Mr. Goebel and the other black candidates victims of racial discrimination? Explain your position. Show me the math. 2. Given the results of your disparate impact analysis, what action should the defendant (Jayjoe) take next? Be specific.

45. Determining Discrimination • Restricted Policy (Disparate Treatment) • An employer’s intentional unequal treatment or evaluation by different standards of protected-class members. • A situation in which protected class members receive unequal treatment or are evaluated by different standards • Workforce utilization analysis • A process of classifying protected-class members by number and by the type of job they hold within the organization

46. Utilization Analysis • http://www.ok.gov/opm/documents/AffirmativeActionPlanManual-2011.pdf

47. Enforcing Equal Employment Opportunity Legislation • Composition of EEOC • Five members and a general counsel appointed by the president and confirmed by the Senate • Members serve staggered five-year terms • No more than three commission members from the same political party. • General counsel serves a four-year term. • Purpose of EEOC • Formulating EEO policy and approving all litigation involved in maintaining equal employment opportunity.

48. Equal Employment Opportunity Commission • U.S. EEOC home page • Statistics • Various types of discrimination prohibited by the laws enforced by EEOC

50. Retaliation • Managers and supervisors must not retaliate against individuals who invoke their legal rights to file charges or to support other employees during EEOC proceedings • Title VII of the Civil Rights Act states that an employer may not discriminate against any of his employees because the employee has opposed any unlawful employment practice, or because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceedings, or hearing under this Act.