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After studying this chapter, you should be able to:Cite the main
features of at least five employment discrimination laws.Define
adverse impact and explain how it is proved and what its
significance is.Explain and illustrate two defenses you can use in
the event of discriminatory practice allegations.Avoid employment
discrimination problems.Cite specific discriminatory personnel
management practices in recruitment, selection, promotion,
transfer, layoffs, and benefits.Define and discuss diversity
management.
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Equal Employment Opportunity 19641991
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Early Court Decisions Regarding Equal Employment
OpportunityBusiness necessity is a defense for adverse
impact.Employers intent is irrelevant.Griggs v. Duke Power
CompanyBurden of proof is on the employer.Fair in form practice
must also be nondiscriminatory.Test or practice must be related to
job performance.
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Early Court Decisions Regarding Equal Employment Opportunity
(contd)Albemarle Paper Company v. MoodyIf a test is used to screen
candidates, then the jobs 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.
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Equal Employment Opportunity 199091present
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Equal Employment Opportunity 199091present (contd)
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Employer Obligations Under ADAAn 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.
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Disabilities and ADACourts 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 light-duty 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.
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State and Local Equal Employment Opportunity LawsState and Local
LawsCannot 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.
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Title VII: Sexual HarassmentSexual HarassmentHarassment on the
basis of sex that has the purpose or effect of substantially
interfering with a persons 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
1994A person who commits a violent crime motivated by gender is
liable to the party injured.
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Proving Sexual Harassment
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TABLE 22Summary of Important Equal Employment Opportunity
ActionsTitle VII of 1964 Civil Rights Act, as amendedExecutive
ordersFederal agency guidelinesSupreme Court decisions:Griggs v.
Duke Power Co.,Albemarle v. MoodyEqual Pay Act of 1963Age
Discrimination in Employment Act of 1967State and local
lawsVocational Rehabilitation Act of 1973Pregnancy Discrimination
Act of 1978Vietnam Era Veterans Readjustment Assistance Act of
1974Ward Cove v. AtonioPrice Waterhouse v. HopkinsAmericans with
Disabilities Act of 1990Civil Rights Act of 1991Note: The actual
laws (and others) can be accessed at:
http://www.usa.gov/Topics/Reference_Shelf.shtml#Laws.
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Sexual Harassment: Court Decisions
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FIGURE 21HR in Practice: What Employers Should Do to Minimize
Liability in Sexual Harassment Claims
Take all complaints about harassment seriously.Have the victim
inform the harasser directly that the conduct is unwelcome and must
stop.Conduct a thorough investigation of any complaint of
harassment.Issue a strong policy statement condemning harassing
behaviors.Inform all employees about the policy prohibiting sexual
harassment and of their rights under the policy.Communicate to
employees that sexual harassment will not be tolerated.Establish a
management response system that includes an immediate reaction and
investigation by senior management.Provide training to supervisors
and managers to increase their awareness of the issues.Discipline
managers and employees involved in sexual harassment.Keep thorough
records of complaints, investigations, and actions taken.Conduct
exit interviews that uncover any complaints.Re-publish the sexual
harassment policy periodically.Encourage upward communication to
discover evidence of sexual harassmentDo 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.
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FIGURE 22California State University,Fresno: Complaint Form for
Filing a Complaint of Harassment or DiscriminationSource:
California State University, Fresno.
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Adverse Impact
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Showing Disparate TreatmentThe employer continued seeking
applications.The person applied and was qualified for the
job.McDonnell-Douglas Test for Prima Facie CaseThe person belongs
to a protected class.The person was rejected despite
qualification.
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Bona Fide Occupational Qualification
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Business NecessityBusiness NecessityA defense requiring
employers to show that there is an overriding business purpose
(i.e., irresistible demand) for a discriminatory practice. Spurlock
v. United AirlinesValidityThe 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.
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Other Considerations in Discriminatory Practice DefensesGood
intentions are no excuse.Employers cannot hide behind collective
bargaining agreementsequal opportunity laws override union contract
agreements.Firms should react by agreeing to eliminate an illegal
practice and (when required) by compensating the people
discriminated against.
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Discriminatory Employment PracticesSelectionEducational
RequirementsTestsPreference to RelativesHeight, Weight, and
Physical CharacteristicsArrest RecordsApplication FormsDischarge
Due to GarnishmentRecruitmentWord of MouthMisleading
InformationHelp Wanted AdsPersonal AppearanceDressHairUniforms
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The EEOC Enforcement ProcessEEOC Claim and Enforcement
ProcessCharge AcceptanceFile ChargeServe
NoticeInvestigation/Fact-FindingCause/No CauseConciliationNotice to
Sue
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FIGURE 24The EEOC Charge-Filing ProcessNote: Parties may settle
at any time.Source: Based on information at www.eeoc.gov.
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FIGURE 23Questions to Ask When an Employer Receives Notice That
EEOC Has Filed a Bias ClaimExactly what is the charge and is your
company covered by the relevant statutes?What protected group does
the employee belong to? Is the EEOC claiming disparate impact or
disparate treatment?Are there any obvious bases upon which you can
challenge and/or rebut the claim?If it is a sexual harassment
claim, are there offensive comments, calendars, posters,
screensavers, and so on, on display in the company?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. 3637; EEOC InvestigationsWhat an Employer Should
Know, Equal Employment Opportunity Commission
(http://www.eoc.gov/employers/investigations.html), accessed May 6,
2007.
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Mandatory ArbitrationGilmer v. Interstate/Johnson Lane
Corp.Employers can compel employees to agree to mandatory
arbitration of employment-related disputes.RecommendationsRequest
party be compelled to arbitrate claim.Insert arbitration clause in
employment applications and employee handbooks.Protect arbitration
process from appeal.Alternative Dispute Resolution (ADR)
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Addressing EEOC ClaimsDuring the EEOC Investigation:Meet with
the EmployeeFollow Three PrinciplesLimits of EEOC
AuthoritySubmitting DocumentsPosition Statement
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Addressing EEOC Claims (contd)During the Fact-Finding
Conference:Employers AttorneyOfficial
RecordsInformationWitnessesDuring EEOC Determination and Attempted
Conciliation:Conciliate PrudentlyReview Carefully
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Diversity Management ProgramSteps in a Diversity Management
Program:Assess the situationProvide strong leadershipProvide
diversity training and educationChange culture and management
systemsEvaluate the diversity management program
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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 companys career development pipeline?Are
turnover rates for female and minority managers the same or lower
than those for white male managers?
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Designing an Affirmative Action ProgramGood Faith Effort
StrategyEliminating 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 ActionTransparent selection
proceduresCommunicationJustifications
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Steps in an Affirmative Action ProgramIssues a written equal
employment policy.Appoints a top official to direct and implement
the program.Publicizes the equal employment policy and affirmative
action commitment.Surveys minority and female employment to
determine where affirmative action programs are especially
desirable.Develops goals and timetables to improve utilization of
minorities and females.Develops and implements specific programs to
achieve these goals.Establishes an audit and reporting system to
monitor and evaluate progress of the program.Develops support for
the affirmative action program, both inside the company and in the
community.
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Reverse DiscriminationReverse DiscriminationDiscrimination
against non-minority applicants and employees by quota-based
systems.Bakke v. Regents of the University of CaliforniaWygant v.
Jackson Board of EducationU.S. v. ParadiseJohnson v. Transportation
Agency, Santa Clara County
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K E Y T E R M STitle VII of the 1964 Civil Rights ActEqual
Employment Opportunity Commission (EEOC)affirmative actionOffice of
Federal Contract Compliance Programs (OFCCP)Equal Pay Act of
1963Age Discrimination in Employment Actof 1967 (ADEA)Vocational
Rehabilitation Act of 1973Vietnam Era Veterans Readjustment Act of
1974Pregnancy Discrimination Act (PDA)uniform guidelinessexual
harassmentFederal Violence Against Women Act of 1994protected
classCivil Rights Act of 1991 (CRA 1991)mixed motive caseAmericans
with Disabilities Act (ADA)qualified individualsadverse
impactdisparate rejection ratesrestricted policybona fide
occupational qualification (BFOQ)alternative dispute resolution or
ADR programgood faith effort strategyreverse discrimination