Chapter 2 Equal Opportunity and the Law

HUMAN RESOURCE MANAGEMENT

BY:GARY DESSLER

NINTH EDITION

PEARSON EDUCATION INTERNASIONAL

COPY RIGHT 2003

USA

After studying this chapter you should be able to:

·                 Avoid employment discrimination problems.

·                 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.

·                 Cite specific discriminatory personnel management practices in recruitment, selection, promotion, transfer, layoffs and benefits.

·                 Explain and illustrate two defenses you can use in the event of discriminatory practice allegations.

·                 Define and discuss diversity management.

STRATEGIC OVERVIEW Some experts argue that diverse workforce produce conflicts and rising costs. But that argument is lost on the owners of Longo Toyota in El Monte, California. Longo’s strategy is to cater to its increasingly diverse customer base by hiring and developing salespeople who speak everything from Spanish and Korean to Mandarin and Tagalog. And by following that strategy, Longo may now be one of America’s top grossing auto dealers.

Chapter 1 laid out the plan of this book and explained that we’ll focuses on basic HR practices like recruiting and selecting employees and on training, appraising and compensating them. But as a practical matter, no manager can handle tasks like these without facing discrimination related issues.

Every time you advertise a job opening, recruit, interview, test or select a candidate or appraise an employee, its necessary to take equal rights laws into account. The main purpose of this chapter is to provide you with the knowledge you’ll need to deal effectively with equal employment opportunity questions on the job. The main topics we’ll cover are equal opportunity laws from 1964 to 1991, the laws from 1991 to the present, defenses against discrimination allegations, illustrative discriminatory employment practices, the EEOC enforcement process and diversity management and affirmative action programs. In the following chapter, Job Analysis we’ll discuss, among other things how laws like these apply to writing job descriptions and specifying the sorts of people required.

EQUAL EMPLOYMENT OPPORTUNITY 1964-1991

Legislation barring discrimination against members of minority groups in the United States is certainly nothing new. For example, the Fifth Amandement to the U.S. Constitution states (ratified in 1791), “no person shall be deprived of life, liberty, or property, without due process of the law.”The 13 th Ammandement (ratified in 1865) outlawed slavery and courts have held it bars racial discrimination. The 14^th Ammandement (ratified in 1868) makes it illegal for any state to “make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,”and the courts have generally viewed this law as barring discrimination based on sex, national origin, or race. Section 1981 of Title 42 of the U.S. Code, passed over 100 years ago as the Civil Rights Act of 1866, gives all persons the same right to make and enforce contracts and to benefit from the laws of the land. Other laws as well as various court decisions made discrimination against minorities illegal as early as the return of the 20 th century at least in theory.

But as a practical matter, Congress and various presidents were reluctant to take dramatic action on equal employment issues until the early 1960s. At that point, “they were finally prompted to act primarily as a result of civil unrest among the minorities and women” who were eventually protected by the new equal rights legislation we discuss in this chapter.

 Title VII the 1964 Civil Rights Act

Title VII of the 1964 Civil Rights Act was one of the first of these 1960s era laws. Title VII (as amanded by the 1972 Equal Employment Opportunity Act) states that an employers cannot discriminate based on race, color, religion, sex or national origin. Specifically, it states that it shall be an unlawful employment practice for an employer:

(1)   To fail or refuse to hire or to discharge an individual or otherwise to discriminate againist any individual with respect to his/her compensation, terms, conditions or privileges of employment, because of such individuals race, color, religion, sex or national origin.

(2)   To limit, segregate, or clasify his/her employees or applicants for employment in any way that would deprive or tend todeprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee because of such individuals race, color, religion, sex or national origin.

It bars public and private employment agencies from failing or refusing to refer for employment any idividual because of race, color, religion, sex or national origin. And it bars labor unions with 15 or more members from excluding, expelling, or clasifying their membership because of race, color, religion, sex or national origin. Joint labor management committees established for selecting workers for apprenticeships and training similarly cannot descriminate against individuals.

Who Does Title VII Cover? Title VII bars discrimination on the part of most employers, including all public or private employers of 15 or more persons. In addition, it covers all private and public educational institutions, the federal government, and state and local government. It bars public and private employment agencies from failing or refusing to refer for employment any idividual because of race, color, religion, sex or national origin. And it bars labor unions with 15 or more members from excluding, expelling, or clasifying their membership because of race, color, religion, sex or national origin. Joint labor management committees established for selecting workers for apprenticeships and training similarly cannot descriminate against individuals. 

The EEOC Title VII established the EEOC, which stands for Equal Employment Opportunity Commision. The EEOC consists of five members appointed by the president with the advice and consent of the Senate. Each member serves a five year term.

The EEOC receives and investigates job discrimination complaints from aggrieved individuals. When it finds reasonable cause that the charges are justified, it attemps to reach an agreement eliminating all aspects of the discrimination. If this conciliations fails, it has the power to go to court to enforce the law. Under the Equal Employment Opportunity Act of 1972, the EEOC may file discrimination charges on behalf of aggrieved individuals, or the individuals may file themselves. We’ll discuss this procedure later in this chapter.

Executive Orders

Various U.S. president have issued executive orders expanding equal employment in federal agencies. For example, Executive Orders 11246 and 11375, issued by the Johnson administration (1963-1969), don just ban discrimination; they require that contractors take affirmative action to ensure equal employment opportunity. All federal contractors with contracts over $50,000 and 50 or more employee must develop and implement such programs.

These orders established the office of Federal Contract Compliance Programs (OFCCP). It implements the orders and ensures compliance. For example, it reached a settlement with aviation contractor Triad International Management Company, which paid over $240,000 to settle claims that women and blacks were subjected to a “perversely hostile work environment,” including racial slurs.

Equal Pay Act of 1963

The Equal Pay Act of 1963 (amanded in 1972) made it unlawful to discriminate in pay on the basis of sex when jobs involve equal work; require equivalent skills, effort, and responsibility; and are performed under similar working conditions. Differences based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or based on any factor other than sex do not violate the act.

Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) made it unlawful to discriminate against employees or applicants for employment who are between 40 and 65 years of age. Subsequent amandements eliminated the age cap, effectively anding most mandatory retirement at age 65. A 1973 Supreme Court ruling held that most states and local agencies when acting in the role of employer must also adhere to provisions of the act that protect workers from age discrimination.

How young is young? In O’Connor v. Consolidated Coin Caterers Corp., the Supreme Court held that an employee who is over 40 may sue for discrimination if he or she is replaced by a “significantly younger” employee, even if the replacement is also over 40. The court didn’t specify  what “significantly younger” meant, but did seem to suggest that just three or four years would be insignificant. O’Connor had been replaced by someone 16 years younger.

One fifth of court actions filed by the EEOC recently were ADEA cases (Another 30% were sex discrimination cases.). This act is a “favored statute” among employees and lawyers, since it allows jury trials and double damages to those proving “wilfull”discrimination.

Vocational Rehabilitations Act of 1973

The Vocational Rehabilitation Act of 1973 requires employers with federal contracts over $2,500 take affirmative action in employing handicapped persons. It does not require hiring an unqualified person. It does require an employer to take steps to accommodate a handicapped worker unless doing so imposes an undue hardship on the employer. A federal district court held that compensatory damages are available under the 1973 Rehabilities Act.

Vietnam Era Veterans ‘Readjusment Assistance Act of 1974

The provision of the Vietnam Era Veterans Readjusment Assistance Act of 1974 require that employers with government contracts $10,000 or more take affirmative action to employ and advance disabled veterans and qualified veterans of the Vietnam era. OFCCP administers the act.

Pregnancy Discrimination Act of 1978

Congress passed the Pregnancy Discrimination Act (PDA) in 1978 as an amandement to Title VII. It prohibits using pregnancy, childbirth or related medical conditions to discriminate in hiring, promotion, suspension, or discharge or any term or condition of employment. Also if any employer offers its employees disability coverage, then it must treat pregnancy and childbirth like any other disability and include it in the plan as a covered condition. The U.S. Supreme court ruled in California Federal Savings and Loan Assosiation v. Guerra that if an employer offers no disability leave to any of its employees, it can grant pregnancy leave to a women disabled for pregnancy, childbirth, or a related medical condition.

Federal Agency Guidelines

The federal agencies charged with ensuring compliance with these laws and executive oders issue their own guidelines. These spell out recommended procedures to follow in complying with the law.

The EEOC, Civil Service Commision, Department of Labor and Department of Justice together have uniform guidelines for employees to use. They set forth “highly recommended” procedures regarding matters like employee selection, record keeping, preemployment inquiries, and affirmative action programs. As an example, they specify that employees must validate any employment selection devices. The OFCCP has its own guidelines. The EEOC and other agencies also periodically issue updated guidelines clarifying and revising their positions on matters such as national origin discrimination and sexual harassement.

The American Psychological Association has its own Standards for Educational and Psylogical Testing. Many experts expect that this document, which represents a consensus among testing authorities, “to help judges resolve disagrements about the quality of…validity studies that arise during litigation.

Sexual Harasment

EEOC guidelines say employers have an affirmative duty to maintain a workplace free of sexual harassement and intimidation. Harassment based on sex violates Title VII, when such conduct has the purpose or effect of substantially interfering with a person work performance or creating an intimidating, hostile, or offensive work environment. The Civil Rights Act of 1991 (discussed below) added teeth to this. It permits Victims to have jury trials and to collect compensatory damages for pain and suffering and punitive damages where the employer acted with “malice or reckless indiferrence “ to the individuals rights.

EEOC guidelines define sexual harassment as “unwelcome sexual advances requests for sexual favors and other verbal or physical conduct of a sexual nature that takes place under any of the following conditions”:

1.  Submission to such conduct is made either explicity or implicity a term or condition of an individuals employment.
2.  Submission to rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.
3. Such conduct has the purpose or effect of unreasonably interfering with an individuals work performance or creating an intimidating, hostile, or offensive work environment.

Employees can also file discrimination suits claiming sexual harassment by people of their own gender. In one case, a worker on an offshore oil rig claimed his male supervisors restrained him while another worker harassed him and that he ultimately had to quit for fear of being raped.

An employee can prove sexual harassement in three main ways.

Quid Pro Quo Prove that rejecting a supervisors advances adversely affected tangible benefits, like raises or promotions. In one case, a worker on an offshore oil rig claimed his male supervisors restrained him while another worker harassed him and that he ultimately had to quit for fear of being raped.

An employee can prove sexual harassment in three main ways.

Quid Pro Quo Prove that rejecting a supervisor’s advances adversely affected tangible benefits, like raises promotions. In one case, the employee was able to show that continued job success, advancement, and positive performance evaluations were dependent on her agreeing to the sexual demands of her supervisors.

Hostile Environment Created by Supervisors Showing tangible consequences is not always necessary. In one case, the court found that a make supervisors sexuality harassing behavior affected a female employees emotional and psychological ability to the point she felt she had to quit her job. Although there were no direct threats or promioses in exchange for sexual advances, the fact that the advances interfered with performance and created an offensive work environment was enough to prove that sexual harassment existed.

Hostile Environment Created by Co-Workers or Nonemployees. The advances do not have to  come from the person’s supervisor. EEOC guidelines state that an employer is liable for the sexuality harassing acts of its nonsupervisory employees if the employer knew or should have known of the harssing conduct.

Court Decisions The U.S. Supreme Court’s first decision on sexual harassment was Meritor Saving Bank, ESB v. Vinson, dedicted in June 1986. In this case, there three issues before the Court:

1. Whether a hostile work environment (due to the victim’s sex) in which the victim does not suffer any econmic injury violates Title VII.
2. Whether an employees voluntary participation in sexual acts with a manager constitutes a valid defense for an employer to a title VII complaint and
3. )   Whether an employer is liable for the conduct of supervisors or co workers when the employer is unaware of that conduct.

The Court’s ruling endorsed the EEOC guidelines. The clear message was that employers should establish acessible and meaningful complaint procedures for employee claims of sexual harassment. However, the gist of more recent decisions is that employers are responsible if the employers managers knew or reasonably should have known about the harassing behavior.

In one, Burlington industries v. Ellerth the employee accused her supervisor of “quid pro quo” harassment. She said her boss propositioned her and threatened her with demotion if she did not respond. He did not carry out the threats and the employer did promote her. In a second case, Faragher v. City of Boca Raton the employee accused the city of condoning a hostile work environment; she said she quit her lifeguard job after repeated taunts from other lifeguards. The court ruler in favor of the employees in both cases. These decisions will make some harassment lawsuits against employers easier to win, but will limit the exposure of employers who have antiharassment policies in place.

What the employer should do? Employers (1) should take steps to ensure harassment does not take place, and (2) should take immediate corrective action even the offending party is a nonemployee, once it knows of harassing conduct. Liability is another matter.

Experts say the EEOC and the courts will ask two basic questions when determining whether a company is liable for sexual harassment:

1.  Did the company know or should it have known that harassment was taking place?

2.  Did the company take any action to stop the harassment?

Employers can take steps to prevent such claims from arising and to minimize liability if someone files a sexual harassment claim:

1. Take all complaints about harassment seriously. As one sexual harassment manual for managers and supervisors advises,”When confronted with sexual harassment complaints or when sexual conduct is observed in the workplace, the best reaction is to address the complaint or stop the conduct.”One study concludes: If complaints are not taken seriously, or it’s risky to complain, or perpetrators are unlikely to be punished, the firms employees are likely to experience considerably higher levels of harassment.

2.  Issue a strong policy statement condemning such behavior. This should include a definition of sexual harassment, spell out possible actions against those who harass others and make it clear that the employer will not tolerate retaliatory action against an employee who makes charges.

3.    Inform all employees about the policy and their rights under the policy.

4.    Install a complaint procedure.

5. Establish a management response system that includes an immediate reaction and investigation by senior management. There is less likelihood of employer liability when the employer’s response is “adequate” and reasonably calculated to prevent future harassment.

6.    Train supervisors and managers to increase their awareness of the issues.

7.    Discipline managers and employees involved in sexual harassment.

8.    Keep through records of complaints, investigations, and action taken.

9.   Conduct exit interviews that uncover any complaints and that acknowledge by signature the reasons for leaving.

10.  Republish the sexual harassment policy periodically.

11. Encourage upward communication through periodic written attitude surveys, hotlines, suggestion boxes and other feedback procedures to discover any evidence of sexual harassment.

What the Employee can do Employee should recognize sexual harassment when they see it. Quid pro quo is relatively obvious. “Hostile environment“ sexual harassment generally means discriminatory intimidation and ridicule permeated the work place and that the insult was sufficiently  severe or pervasive to alter the conditions of employment. (Courts look at whether the questionable conduct is frequent or severe whether is it physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance). Did the person perceive the work environment as abusive? Courts will look at things such as whether she or he welcomed the conduct or immediately made it clear that the conduct was unwelcome, undesirable or offensive.

Steps an employee can take include:

1.    File a verbal contemporaneous complaint or protest with the harasser and the harasser’s boss stating that the unwanted overtures should cease because the conduct is unwelcome; follow up in writing if necessary.

2.    If the unwelcome conduct does not ceases, file a report regarding the unwelcome conduct and unsuccessful efforts to get it to stop with the harasser’s manager and or with the human resource director verbally and in writing.

3.    If the letters and appeals to the employer do not suffice, turn to the local office of the EEOC.

4.    The employee can also consult an attorney about suing the harasser for assault and battery, international infliction of emotional distress, and injunctive relief and to recover compensatory and punitive damages if the harassment is serious.

The Federal Violance Against Women Act of 1994 provides another avanue through which women can seek relief for violent sexual harassment. It provides that a person “who commits a crime violance motivated by gender and thus deprives another “ of her rights shall be liable to the party injured.

Early Court Decisions Regarding Equal Employment Opportunity

Several court decisions between 1964 and 1991 helped create the interpretive foundation for EEO laws such as Title VII

Griggs v. Duke Power Company Griggs was a landmark case, since the Supreme Court used it to define unfair discrimination. Lawyers sued the Duke Power Company on behalf of Willie Griggs, an applicant for a job as a coal handler. The company required its coal handlers to be high school graduates. Griggs claimed the requirement was illegally discriminatory because it wasn’t related to success on the job and because it resulted in more blacks than whites being rejected for these jobs. Griggs won the case. The decision of the Court was unanimous and in his written opinion, Chief Justice Burger laid out three crucial guidelines affecting equal employment legislation.

First the Court ruled discrimination by the employer need not be overt. In other words the employer does not have to be shown to have intentionally discriminated against the employee or applicant; it need only be shown that discrimination did take place. Second the court held that an employment practice must be job related if it has an unequal imopact on members of a protected class. Third, Chief Justice Burger’s opinion placed the burden of proof on the employer to show that the hiring practice is job related. Thus, the employer must show that the emplyment practice is necessary for satisfactory job performance if the practice discriminates against members of a protected class.

In the words of Justice Burger,

The act proscribes not only overt discrimination, but also practice that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performace, the practice is prohibited.

Griggs established the following principles:

1.   A test or other selection practice must be job related and the burden of proof is on the employer.

2.   An employers intent not to discriminate is irrelevant.

3.   If a practice is “fair in form but discriminatory in operation, “the courts will not uphold it.

4.   Business necessity is the defense for any existing program that has adverse impact. The court did not define business necessity.

5.   Title VII does not forbid testing. However the test must be job related or valid, in that performance on the test must be related to performance on the job.

Albamarie Paper Company v. Moody The Albamarle case is important because here the court provided more details regarding how an employer should validate its screening tools. It helped clarify how employers could prove that the test or other screening tools are related to or predict performance on the Job. The court said that if an employer is to use a test to screen candidates for a job, then the nature of that job its specific duties and responsibilities must first be carefully analyzed and documented. Furthermore, the performance standards for employees on the job in question should be clear and unambiguous, so the employer can identify which employees are performing better than others. The Court’s ruling also had the effect of establishing the EEOC gidelines on validation as the procedures for validating employment practices.

Equal Employment Opportunity 1989-1991: A Shifting Supreme Court

After more or less championing the cause of minorities and women in the workplace for three decades, in a series of decisions in 1989 the Supreme Court signaled a shift toward a narrower scope for civil rights protection. Various factors, including the addition of several conservative justices to the Court, caused the change. But whatever the factors, the results were quite dramatic.

In one case, Price Waterhouse v. Hopkins, the plainitif, a woman, was a candidate for partnership in the Price Waterhouse v. Hopkins, the plainitiff, a woman, was candidate for partnership in the Price Waterhouse accounting firm, but her promotion was held for further consideration. She responded by resigning and bringing suit under Title VII.

At the trial, the Court found that both lawful and lawful factors contributed to her being passed over. She showed that her sex had been an unlawful factor in  her denial of promotion, while the employer showed that “abrasiveness” had been a lawful factor. She won her case and won appeal, but the U.S. Supreme Court eventually (on May 1,1989) reserved the U.S. Court of Appeals. The Supreme Court found she would have been passed over any  way due to her “abrasiveness,” and so found the firm’s actions were not illegally discriminatory.

In Wards Cove Packing Company v. Atonio the Supreme court acted in a case of alleged racial discrimimnation in Alaskan salmon canneries. Nonwhite Alaskans filled most unskilled jobs in the canneries. White employees filled most higher paid noncannery jobs; they also got more desireable, better insulted bunkhouses. The racial minorities sued claiming that the employment practices had the effect of blocking them from getting the higher paying jobs. Lower courts decisions were mixed; the U.S. Supreme Court’s ruling favored the employer.

The result was dramatic. It put the burden of proof on the employee. In Griggs the Supreme Court had placed the burden of proof on the employer to show trhat the hiring practice in question is job related when it adversely affects members of a protected class. After the griggs case providing that you were illegally discriminated against often meant just showing statistically, for example, that one classification of jobs was primarily held by whites while a second, less attractive classification was held mostly by nonwhites. With this statistical case made, the burden of proof shifted to the employer to prove that its employment practices served a necessary business purpose. This defense became known as the business necessity defense. Mounting a defense in such a case was often so expensive that many employers didn’t try.

Wards Cove changed that. After Wards Cove, the employee had the burden of proving the statistical imbalance was caused by an employment policy or practice of the employer.

EQUAL EMPLOYMENT OPPORTUNITY 1991-PRESENT

Supreme Court rulings such as Wards Cove and Price Waterhouse had the effect of limiting women and minority groups’ protection under equal employment laws and this prompted Congres to act. The Civil Rights Act of 1991 (CRA 1991) became law in November 1991.

The Civil Rights of 1991

CRA 1991s basic effect was to reverse several U.S. Supreme Court decisions, including Wards Cove and others. But CRA 1991 didn’t just roll back the clock: The effect was to make it even more important for employees and their managers to adhere to both the letter and spirit  of EEO law. We can summarize the act’s main provisions as follows.

Burden of Proof (Wards Cove) Here the civil Rights Act of 1991 basically turns the EEO clock back to where it was prior to Wards Cove. With the passage of CRA 1991, the burden today is once again on employers to show that the practice is required a business necessity.

Money damages CRA 1991 provides that an employee who is claiming intentional discrimination can ask for (1) compensatory damages and (2) punitive damages. To do so the employer must have engaged in discrimination “with malice of reckless indifference to the federally protected rights of an aggrieved individual. Before CRA 1991, Victims of intentional discrimination who had not suferred financial loss and who sued under Title VII could not then sue for compensatory or punitive damages. They could only expect to have their jobs reinstated or to be awarded a particular job. They were also eligble for back pay, attorney fees, and court costs.

Mixed Motives (Price Waterhouse) Under CRA 1991, an employer can no longer avoid liability by proving it would have taken the same action even without the discriminatory motive. CRA 1991 states:

An unlawful employment practice is established when the complaining part demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

Proof of Discrimination CRA 1991 could actually make it a bit more difficult for minorities to prove discrimination. One section says that test scores cannot be “adjusted” to alter the results of employment related tests on the basis of race, color, religion, sex or national origin.”Up to 1991 some employers might have allowed the hiring of minority applicants who scored, say, 80, on a test, while nonminority applicants had to score 90. CRA 1991 does not permit such adjusments.

THE NEWWORKPLACE

Federal legislation generally applies only within U.S. territorial borders unless specifically stated otherwise. With the passage of CRA 1991, EEO coverage was greatly expanded. The law amanded the definition of the term employee in Title VII to include U.S. citizens employed in a foreign country by a U.S. owned or U.S. controlled company. At least theoritically, U.S. citizens working overseas for U.S. companies now enjoy the same equal employment opportunity protection as those working within U.S. borders.

Two factors limit the application of CRA 1991 to U.S. employees abroad. First, there are numerous exclusions to the civil rights protections. For example, an employer need not comply with Title VII if doing so would cause the employer to violate the law of the host country.

A more vexing problems is the practical difficulty of enforcement. For example, the EEOC investigators first duty is to analyuze the finances and organizational structure of the overseas employer. But in practice, few investigators are trained for this duty and no standards exist for such investigation. And one expert argues that U.S. courts “will be little help in overseas investigations, because few foreign nations cooperate with the intrusive enforcement of U.S. civillaw.” Here therefore, CRA 1991’s bark will be worse than its bite.

The American with Disabilities Act

The Americans with Disabilities Act (ADA) of 1990 prohibits  employment discrimination against qualified disabled individuals. Employers with 15 or more workers are prohibited from discriminating against qualified individuals with disabilities with regard to applications, hiring, discharge, compensation, advancement, training, or other terms, conditions, or privileges of employment. It also says employers most make “reasonable accomodations” for physical or mental limitations unless doing so imposes an “undue hardship” on the business.

ADA does not list specific disabilities. Instead the EEOCs guidelines say an individual isdisabled when he or she has a physical or mental impairment that substantially blimits one or more major life activities, impairments include any physicologoical disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems, or any mental or psychological disorder. The act does specify certain conditions that are not to be regarded as disabilities, including homesexuality, bisexuality, voyeurism, compulsive gambling, pyromania, and certain disorders resulting from the current illegal use of drugs.

The EEOC’s position is that the ADA prohibits discriminating against people with AIDS and numerous state laws also protect people with AIDS from discrimination. Similarly, the Labor Depatment’s office of Federal Contract Compliance Programs requires treating AIDS type diseases under the Vocational Rehabilitation Act. The bottom line for most employers is that discriminating against people with AIDS is generally unlawful.

Qualified Individual Simply hiring disabled doesn‘t quality someone for a job, of course. Instead, the act prohibits discrimination against qualified individuals those who, with a reasonable accomodation, can carryout the essential functions of the job. The individual must have the requisite skills, educational background and experience to do the job. A job function is essential when for instance it is the reason  the position exist or it so highly specialized the person is hired for his or her expertise or ability to perform that particular function.

Reasonable Accomodation If the individual can’t perform the job as currently structured, the employer must make a “reasonable accomodation” unless doing so would present “undue hardship”. Reasonable accomodation might include redisigning the job, modifying work schedules or modifying  or acquirig equipment or other devices to assist the person. Undue hardship is the rule through: An employee with a bad back who worked as a Wal-Mart that door greaters asked Wal-Mart if she could sit on a stool while on duty and the store rejected her request. She sued. The Federal district court agreed with Wal Mart that door greeters must act in an “aggresively hospitable manner” which can’t be done sitting on a stool. Standing was an essential job function.

Attorneys, employers and the courts are still working through the question of what “reasonable accomodation” means. One expert noted, “three federal appeals court have held that for it to be a resonable accomodation, the employee must show that the costs of the accomodation do not outweigh the benefit.

Many employers have successfully defended themselves. In one case a social worker threatened to throw her co worker out a window and to “kick her”, and continued her tirade after returning from a 10 day suspension. After trasfer to another job, she was diagnosed as paranoid; after telling her supervisor several times she was “ready to kill her,” she was fired. She sued under ADA. The court dismissed her case because, although she had a debilitating mental illness, ADA does not require intention of employees who make threats. In another case, the court held that the employer did not discriminate against a blind bartender by requiring her to transfer to another job because she was unable to spot underage or intoxicated customers. One the other hand, one U.S. circuit court held that punctuality was not an essential job function of a laboratory assisstant who was habitually late. The court decided he could perform 7 ½ hours of data entry even if he arrived late.

Mental Impairments and the ADA The types of disabilities alleged in ADA charges have been somewhat surprising. They haven’t been common conditions associated with disability, like vision, hearing or mobility impairments. Mental disabilities now account for the greatest number of claims brought under the ADA.

Under EEOC guidelines, “mental impairment” includes “any mental or psychological disorder, such as….emotional or mental illness.”Examples include major depression, anxiety disorders, panic disorders, obsessive compulsive disorder and personality disorders. Tge guidelines basically say employers should be alert and personality disorders. The guidelines basically say employers should be alert to the possibility that traits normally regarded as undesirable may be linked to mental impairments covered by the ADA. Reasonable accomodation, says the EEOC, might then include providing room dividers, partitions or other barriers between work spaces to accommodate individuals who have disability related limitations.

Employer Obligation The ADA imposes certain legal obligations on employers;

1.      An employer must not deny a job to a disabled individual if the person is qualified and able to perform the essential functions of the job. If the person is otherwise qualified but unable to perform an essential function, the employer must make a resonable accomodation unless doing so would result in undue hardship.

2.      Employers are not required to lower existing performance standards or stop using tests for a job. However those standard or test must be job related and uniformly applied to all employees and job candidates.

3.      Employers may not make preemployment inquiries about a person’s disability, but they may ask questions about the persons ability to perform specific essential job functions. Preemployment medical exams or medical histories may not be required, but employers may condition job offers on the results of a postoffer medical exam. Under EEOC guidelines, “disability related” questions cannot be asked at the initial interview stage. For example, the EEOC says it is illegal to ask: “Do you have AIDS?” Have ever filed for workers compensation?”What presciption drugs are you currently taking?”Have you been treated for mental health problems?””How much alcohol do you drink each week?”

4.      Much the same limitations apply to medical exams for current employees. In one case, superiors ordered a Chicago police officer to take blood test to determine if the level of Prozac his Physician said he was taking would seriously impair his ability to do his job. At the time, the officer had not engaged in any behavior that suggested any performance problems. The court said the blood test was therefore not job related and violated the ADA’s prohibition against inquiries into the nature or severity of an individuals disability.

5.      Employers should review job application forms, interview procedures, and job description for illegal questions and statements. For example, check for questions about health, disabilities, medical histories, or previous workers compensation claims.

6.      The ADA does not require employers to have job descriptions, but it’s probably advisable to have them. As one expert writers, In virtually any ADA legal action, a critical question will be what are the essential functions of the position involved? …If for example, a disabled employee is terminated because he or she cannot perform a particular function, in the absence of a job descriptrion that includes such function it will be difficult to convince a court that the function truly was an essential part of the job.

The ADA in Practice ADA complains are flooding the EEOC and the courts. However, the chances of prevailing in ADA cases are against the plaintiff: Employers prevailed in almost 96% of federal circuit court decisions in one recent year.

Employees are failing to show that they are disabled and or qualified to do the job. One experts says that just because an employee has a disability does not mean he or she is protected under the ADA. Instead many things determine if he or she is protected under the ADA. Instead many things determine if he or she is protected. Employers should ask questions such as, “Does the employee have a disability that substantially limits a major life activity?” Is the employee qualified to do the job?” “Can the employee perform the essential functions of the job?”Can any resonable accomodation be provided without creating an undue hardship on the employer?” Is the Impairment permanent or of significant duration to be qualified as an ADA disability?

However, don’t assume employers always prevail. Wal-Mart recently had to reinstate hearing impaired workers and pay a $750,000 fine for discrimination under the ADA.

State and Local Equal Employment Opportunity Laws

In addition  to the federal laws, all states and many local governments prohibit employment discrimination.

The effect of the state and local laws is ussually to further ristrict employers treatment of job applicant and employees. Many state laws cover employees not covered by federal legislation. Some extend the protection of age discrimination laws to young people, barring discrimination against not only those over 40, but those under 17; here, for instance, it would be illegal to advertise for “mature” applicants because that might discourage some teenagers from applying.

The point is that many actions that might be legal under federal laws are illegal under state and local laws. In Arizona for instance the legislature amanded the Arizona Civil Rights Act so that plaintiffs can bring sexual harassment claims against employers with as few as one employee. Massachuts’s Fair Employment Practice Act requires employers to adopt policies and encorages employers to conduct sexual harassment employee training. In both New York and New Jersey genetic testing is now generally barred as is discrimination based on genetic information.

State and local equal employment opportunity agencies play a role in the equal employment compliance process. When the EEOC receives a discrimination charge, it usually defers it for a limited time to the state and local agencies that have comparable jurisdiction. If that doesn’t achieve satisfactory remedies, the charges go back to the EEOC for resolution.

DEFENSES AGAINST DISCRIMINATION ALLEGATIONS

Discrimination law distinguishes between disparate tretment and disparate impact. Disparate tretment “reqires no more than a finding that women intentionally trested differently because of their gender.

Disparate impact “means that an employer engages in an employment practice or policy that has a greater adverse impact on the members of a protected group under Title VII than on other employees, regardless of intent. Requiring a college degree for a job would have an adverse impact on some minority groups, for instance. Disparate impact claims do not require proof of discriminatory intent. Instead, the plaintiff must show a significant disparity between the proportion of women in the available labor pool and the proportion hired and an apparently neutral employment practice that is causing the disparity. He or she must show there’s been an adverse impact.

Adverse Impact

Showing adverse impact therefore plays a central role in discriminatory practice allegations. Under Title VII and the Civil Rights Act of 1991, a person who believes he or she was unintentionally discriminated against as a result of an employers practices need only establish a prima facie case of discrimination. This means showing that the employers selection procedures did have an adverse impact on a protected minority group. Adverse impact”refers to the total emplyment process that results in a substantially different rate of hiring, promotions, or other employment decisions which works to the disadvantage of members of a minority or other protected group.

What does this mean? If a protected group applicant feels he or she was a victim discrimination, the person need only show that the employer’s selection process resulted in an adverse impact on his or her group. Then, once the employee had proved his or her point, the burden of proof shifts to the employer: It becomes the employers task to prove that its test, application blank, interview, or the like is a valid predictor of performance on the job.

How can someone Show Adverse Impact? It is actually not too difficult for an applicant to show that one of an employers procedures has an adverse impact on a protected group. There are four basic approaches:

1.      Disparate rejection rates. This means comparing the rejection rates for a minority group and another group. For example, ask, “Is there a disparity between the percentage of blacks among those applying for a particular position and the percentage of blacks among those hired for the position?”Or, Do proportionately more blacks than whites fail the written examination we give to all applicants? If the answer to either question is yes, your firm could be faced with a lawsuit.

Federal agencies have a formula to determine disparate rejection rates: “a selection rate for any racial, ethnic or sex group which is less than 4/5 or 80% of the adverse impact, while a greater than 4/5 rate will generally be regarded as evidence of adverse impact.”For example, suppose 90% of male applicants are hired but only 60% of female applicants. Since 60% is less than four fifths of 90% adverse impact exists as far as these federal agencies are connected.

2.    Restricted policy. The restricted policy approach means demonstrating that the employers policy intentionally or unintentionally excluded members of a protected group. Here the problem is ussually obvious such as policies against hiring bartenders under six feet tall. Evidence of restricted policies such as these is enough to prove adverse impact and to expose an employer to litigation.

3. Population comparisons, This approach compares (1) the percentage of Hispanic and white workers in the organization with (2) the percentage of the corresponding groups in the labor market, where labor market is ussually defined as the U.S. Cencus data for that Standard Metropolitan Statistical Area.

For some jobs, such as laborer of secretary, it make senses to compare the percentage of minority employees with the percentage of minorities in the surrounding community, since these employees will come from that community. However, for other jobs, such as engineers, the surrounding community may not be the relevant labor market, since recruiting maybe nation wide or even global. Determining whether an employeer has enough black engineers might thus involve determining the number of black engineers available nationwide rather than just in the surrounding community. Defining the relevant labor market is therefore crucial.

4. McDonnell Douglas test. In this approach, the applicant was qualified but the employer rejected the person and continued seeking applicants. This test is for disparate treatment situations, rather than adverse impact ones.

The U.S. Supreme court set the following conditions for applying the McDonnell-Douglas approach: (a) that the person belongs to a protected class; (b) that he or she applied and was qualified for a job for which the employer was seeking applicants; (c) that dispite this qualification, he or she was rejected; and (d) that, after his or her rejection, the position remained open and the employer continued seeking applications from persons with the complainants qualifications. If the plaintiff meets all these conditions, then a prima facie case disparate treatment is established. At that point, the employer must articulate a legitimate nondiscriminatory reason for its action and produce evidence but not prove that it acted on the basis of such a reason. If it meets this relatively easy standard, the plaintiff then has the burden of proving that the employers articulated reason is merely a pretext of angaging in unlawful discrimination.

Adverse Impact: Example Assume you turn down a member of a protected group for a job with your firm. You do this based on a test score. Further assume that this person feels he or she was discriminated against due to being in a protected class, and decides to sue your company.

Basically all he or she must do is show that your HR procedure had an adverse impact on members of his or her minority group. There are four approaches that he or she can apply here: disparate rejection rates, restricted policy, population comparisons, and the Mc Donnell Douglas test. Once the person shows the existence of adverse imopact to the court’s satisfaction, the burden of proof shifts to you to defend against the discrimination charges.

Note that there is nothing in the law that says that because one of your procedures has an adverse impact on a protected group, you cannot use the procedure. In fact, it could happen that some tests screen out disproportionately higher numbers of say blacks than whites. What the law does say is that once your applicant has made his or her case , the burden of proof shifts to you. Now you must defend use the procedure.

There are then basically two defenses employers use to justify an emplyment practice that has an adverse impact on members of a minority group. The bonafide occupational qualification defense and the business necessity defense.

Bona Fide Occupational Qualification

An employer can claim that the employment practice is a bona fide occupational qualification (BFOQ) for performing the job. Title VII provides that “it should not be an unlawful employment practice for an employer to hire an employee…on the basis religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”

Courts usually interpret the BFOQ exception narrowly. It is essentially a defense to a disparate treatment case based upon direct evidence of intentional discrimination, and not to disparate discrimination. As a practical matter, employers use it mostly as a defense against charges of intentional discrimination based on age.

Age as a BFOQ. The Age Discrimination in Employment Act (ADEA) permits disparate treatment in those instances when age is a BFOQ. For example, age is a BFOQ when federal requirements impose a compulsory age limit, such as when the Federal Aviation Agency sets a ceiling of age 60 for pilots. In March 2001 over objection by the FAA and the two major commercial pilots to fly up to age 65, if in good health a five year increase. Actors require for youthful or elderly roles or persons used to advertise or promote the sales of products designed for youthful or erderly consumers suggest other instances when age be BFOQ. A court said a bus line’s maximum age hiring policy for bus drivers was a BFOQ. The court said the essence of the business was safe transportation of passangers, and given that , the employer could strive to employ the most qualified persons available.

Employer defenses against such claims usually fall into once of two categories: BFOQ or FOA. Employers using the BFOQ defense admit they based their personnel decisions on age, but seek to justify them by showing that the decisions were reasonably necessary to normal business operations. An employer who raises the FOA defense generally argues that its actions were “reasonable”based on some factor other than age, such as the terminated person’s poor performance.

Religion As a BFOQ Religion may be a BFOQ in the case of religious organizations or societies that require employees to share their particular religion. For example, religion may be a BFOQ when hiring persons to teach in a denominational school. Similarly, practice such as requiring Saturday work that adversely affect certain religious groups are justifiable if the employer “is unable to reasonably accommodate…without undue hardship.”However, remember courts construe the BFOQ defense very narrowly.

Gender As a BFOQ Gender may be a BFOQ for positions requiring specific physical characteristics necessarily posessed by one sex. These include positions like actor, model, and rest room attendant. However most job today, its difficult to claim that gender is a BFOQ. For example, gender is not a BFOQ for parole and probation officers. It is not a BFOQ for positions just because the positions require overtime or the lifting of heavy objects.

National Origin As a BFOQ A person’s country of national origin may be a BFOQ. For example, an employer who is running the Chinese pavilion at a fair might claim that Chinese heritage is a BFOQ for persons to deal with the public.

Business Necessity

“Business necessity” is a defense created by the courts. It requires shwing that there is an overriding business purpose for discriminatory practice and that the practice is therefore acceptable.

It’s not easy proving business necessity. The Supreme Court has made it clear that business necessity does not encompass such matters as avoiding an inconvenience, annoyance, or expense to the employer. For example, an employer can’t generally discharge employees whose wages have been garnished merely because garnishment creates inconvinience. The second circuit court of appeals held that business necessity means an “irresistible demand,”and that to be used the practice “must not only directly foster safety and efficiency” but also be sufficiently compelling to overide any racial impact; and the challanged practice must effectively carry out the business purpose it is alleged to serve.

However, many employers have used the business necessity defense successfully. In Spurlock v. United Airlines, a minority candidate sued United Airlines, stating that its requirements that pilot candidates have 500 flight hours and college degrees were unfairly discriminatory. The court agreed that the requirements did have an adverse impact on members of the persons minority group. But it held that in light of the cost of the training program and the tremendous human and economic risks involved in hiring unqualified candidates, the selection standards were a business necessity and were job related.

In general, when a job requires a small amount of skill and training the courts scrutinize closely any preemployment standards or criteria that discriminate against minorities. The employer in such instances has a heavy burden to demonstrate the practices are job related. There is correspondingly lighter burden when the job requires a high degree of skill and when the economic and human risks of hiring an unqualified applicant are great.

Attempts by employers to show that their selection tests or other employment practices are valid are an example of the business necessity defense. Here the employers is required to show that the test or other practice is job related in other words, that is a valid predictor of performance on the job. Where the employer can establish such validity, the courts have generally supported the use of the test or other employment practice as a business necessity. In this context validity means the degree to which the test or other employment practice is related to or predicts performance on the job;

Other Consideration in Discriminatory Practice Defenses

There are three other points to remember about discrimination charges. First,good intensions are no excuse. As the Supreme court held in the Griggs case,

Good intent or absence of discriminatory intent does not redeem procedures or testing mechanisms that operate as built in headwinds for minority groups and are related to measuring job capability.

Second, do not count on hiding behind collective bargaining agreements. Courts have often held that equal employment opportunity laws take precedence over the rights embodied in a labor contract.

Finally remember that although a defense is often the most sensible respose to charges of discrimination, it is not the only response. When confronted with the fact that one or more of your personnel practice is discriminatory, you can react by agreeing to eliminate the illegal practice and by compensating the people you discriminated against.

SOME DISCRIMINATORY EMPLOYMENT PRACTICES

Before proceeding, lets review what federal fair employment laws allow you to say and do.

Federal laws like Title VII usually don’t expressly ban preemployment questions about an applicants race, “with the exception of personnel policies calling for outright discrimination against the members of some protected group, “it’s not the questions but their impact. For example, it is not illegal to ask a job candidate about her marital status. You can ask such a question as long as you can show either that you do not discriminate or that you can defend the practice as a BFOQ or business necessity.

But in practice there are two good reasons why most employers avoid such questions. First although federal law may not bar asking such questions, many state and local laws do. Second, the EEOC has said that it will disapprove of such practices, so just asking the questions may draw its attention.

Inquiries and practices like those on the next few pages are thus usually not illegal per se. They are “problem questions” because they tend to identify an applicant as a member of a protected group or to adversely affect members of a protected group. They become illegal if a complainant can show they are used to screen out a greater proportion of his or her protected groups applicants, and the employer can’t prove that practice is required as a business necessity or BFOQ.

Discriminatory Recruitment Practices

Word of Mouth You cannot rely upon word of mouth dissemination of information about job opportunities when your workforce is all white or all members of some other class such as all female, all hispanic, and so,on. Doing so reduces the likelihood that others will become aware of the jobs and thus apply for them.

Misleading Information It is unlawful to give false or misleading information to members of any group or to fail or refuse to advise them of work opportunities and the procedures for obtaining them.

Help Wanted Ads “Help wanted male”and”help wanted female” advertising classification are violations unless gender is a bona fide occupational qualification for the job. The same applies to ads that suggest you discriminate based on age. For example, you cannot advertise for a “young” man or woman.

Discriminatory Selection Standards

Educational Requirements Courts have found educational qualifications to be illegal when (1) minority groups are less likely to possess the educational qualification and (2) such qualifications are also not job related.

Test Courts deem tests unlawful if they disproportionately screen out minorities or women and are not job related. According to former Chief Justice Burger,

Nothing in the [Title VII] act procedures the use of testing or measuring procedures; obviously they are useful. What congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrating a reasonable measure of job performance.

Preference to Relatives You cannot give preference to relatives of current employees with respect to employment opportunities if your current employees are substantially nonminority.

Height, Weight, and Physical Characteristics Requirements for physical characteristics are unlawful unless the employer can show they’re job related. For example, the court held that a company’s requirement that a person weigh a minimum of 150 pounds for positions on its assembly lines discriminated unfairly against women. Maximum weight rules generally don’t trigger adverse legal rulings. However, some minority groups have a higher incidence of obesity, so employers must be sure their weight rules don’t adversely impact these groups. To qualify for reasonable accomodation, obese applicants must demonstrate they are 100% above their ideal weight or there is a physiological cause for their disability. In practice employers sometimes treat overweight female applicants and employees to their disadvantage and this is potential problem.

Arrest Records Unless security clearance is necessary, you cannot ask an applicant whether he or she has ever been arrested or spent time in jail, or use an arrest record to disqualify a person for a position automatically. There is always a presumption of innocence until proven guilty. In addition, (1) arrest records in general are not valid for predicting job performance and (2) police have arrested a higher proportion of minorities than whites. Thus, disqualifying applicants based on arrest records automatically has an adverse impact on minorities. However you can ask about conviction records and the determine on a case by case basis whether the facts justify refusal to employ an applicant in a particular position.

Appliant Form Employment applications generally shouldn’t contain questions about applicant’s disabilities, workers compensation history, age, arrest record or U.S. citizenship. Personal information required for legitimate tax or benefit reasons is best collected after you hire the person.

Discharge Due to Garnishment A disproportionately higher number of minorities are subjected to garnishment procedures. Therefore, firing a minority member whose salary is garnished is illegal, unless you can show some overriding business necessity.

Sample Discriminatory Promotion,Transfer and Layoff Practices

Fair employment laws protect not just job applicants but also current employees. Any emplyment practices regarding pay, promotion, termination, discipline, or benefits that (1) are applied differently to different classes of persons; (2) adversely impact members of a protected group and; (3) can not be shown to be required as a BFOQ or business necessity may be held to be illegally discriminatory. For example, the eequal pay act requires that equal wages be paid for substantially similar work performed by both men and women.

Personal Appearance Regulation and Title VII Employees have filed suit against employers dress and appearance codes under Title VII, ussually claiming sex discrimination but sometimes claiming racial discrimination. A sampling of what courts have ruled to be acceptable or unacceptabe follows:

·         Dress. In general, employers do not violate Title VII’s ban on sex bias by requiring all employees to dress conservatively. For example, a supervisor’s suggestion that a female attorney tone down her attire was permissioble when the firm consistently sought to maintain a concervative dress style and it also counceled men on dressing concervatively.

·         Hair. Here again, the courts usually rule in favor of the employers. For example, employer rules against facial hair do not constitute sex discrimination because they discriminate only between clean-shaven and bearded men, a type of discrimination not qualified as sex bias under Title VII. In many cases, courts also rejected arguments that grooming regulations are racially biased and infringe on bleck employees expression of cultural identification. In one case involving American Airlines, the court decided that a braided hairstyle is a characteristic easily changed and not worn exclusively or even predominantly.

·         Uniforms. When it becomes to discriminatory uniforms and suggestive attire, however, courts have frequently sided with the employee. For example, a bank’s dress policy requiring female employees to wera precribed uniforms consisting of five basic color coordinated items but requiring male employees only to wear “appropriate business attire” is an example of a discriminatory policy. And requiring female employees to wear “appropriate business attire” is an example of a discriminatory policy. And requiring female employees to wear sexually suggestive attire as a condition of employment has also been ruled as violating Title VII in many cases.

THE EEOC ENFORCEMENT PROCESS

People file about 80,000 charges of alleged discrimination annually with the EEOC. Even the most prudent employer may encounter an employment discrimination claim, so it is helpful to be familiar with EEOC enforcement process.

Processing a Charge

Under CRA 1991 the charge itself is to be filed within two years after the alleged incident took place. It must be filed in writing and under oath, by either the aggrieved person or by a member of the EEOC who has reasonable cause to believe that a violation occurred. The EEOC’s common practice is to accept a charge and orally refer to the state or local agency on behalf the charging party. If the agency waives jurisdiction or cannot obtain a satisfactory solution, the EEOC processes it upon the expiration of the federal period without requiring the filling of anew charge.

After a charge is filed the EEOC has 10 days to serve notice on the employer. The EEOC then investigates the charge to determine whether there is reasonable cause to believe it is true; it is to make this determination within 120 days. If no reasonable cause is found the EEOC must dismiss the charge, and must issue the charging party a Notice of Right to Sue. The person then has 90 days to file a suit on his or her own behalf.

If the EEOC does find reasonable cause for the charge, it must attempt a conciliation. If this conciliation is not satisfactory, it may bring a civil suit in a federal district court, or issue a Notice of Right to Sue to the person who filed the charge.

Conciliation Proceedings

The EEOC has 30 days to work out a conciliation agreement between the parties before bringing suit. The EEOC conciliator meets with the employee to determine what remedy would be satisfactory and then tries to persuade the employer to accept it. If both parties accept the remedy they sign and submit a conciliation agreement to the EEOC for approval. If the EEOC can’t obtain an acceptable conciliation agreement, it may sue the employer in federal district court. The EEOC also experimenting with using outside mediators to settle claims in selected cities.

The EEOC seems to be getting more efficient. In one recent year its backlog of pending cases dropped from about 81,000 to about 65,000. And in 2000 the EEOC won a record $307.3 million in benefits for discrimination victims. It obtains much of this money without suing, during the preliminary, administrative and conciliation processes. In one year, the EEOC obtained about $178 milion for plaintiffs that way which underscores the need to understand how to respond to a discrimination charge and deal with the EEOC.

1.      To what protected group does the worker belong? Is the employee protected by more than one statue?

2.      Would the action complained of have been taken if the worker were not a member of a protected group? Is tha action having an adverse impact on other members of a protected group?

3.      Is the employees charge of discrimination subject to attack because it was not filed on time, according the applicable law?

4.      In the case of a sexual harassment claim, are there offensive posters or calenders on display in the workplace?

5.      Do the employees personnel records demonstrate discriminatory treatment in the form of unjustified warnings and reprimands?

6.      In reviewing the nature of the action complained of, can it be characterized as disparate impact or disparate treatment? Can it be characterized as an individual complaint or a class action?

7.      What are the company’s probable defenses and rebutial?

8.      Who are the decision makers involved in the employment action and what would be their effectiveness as potential witnesses?

9.      What are the prospects for a settlement of the case that would be satisfactory to all involved?

How to Respond to Employment Discrimination Charges

Here are some key things to keep in mind when confronted by a charge of illegal employment discrimination.

The EEOC Investigation First, remember that EEOC investigators are not judges and aren’t empowered to act as courts; they cannot make findings of discriminations. If the EEOC eventually determines that an employer may be in violation of a law, its only resource is to file a suit or issue aNotice of Right to Sue the person who filed the charge.

Some experts advice meeting with the employee who made the complaint to clarify all the relevant issues. For example, ask: What happened? Who was involved? When did the incident take place? Did it affect the employees ability to work? Were there any witnesses? Then prepare a written statement summarizing the complaints, fact, dates and issues involved and request that the employee sign and date it.

With respect to providing documents to the EEOC , it is often in the employer’s best interest to cooperate. However, remember that the EEOC can only ask employers to submit documents and ask for the testimony of witnesses under oath. It cannot compel employers to comply. If an employer refuses to cooperate, the commisions only recourse is to obtain a court subpoena.

It may also be in the employers best interest to give the EEOC a position statement based on its own investigation of the matter. One congressional investigation found that EEOC investigators were using the employers position statement to write up cases because the EEOC was under pressure to resolve cases quickly. According to one management attorney, employers position statements should contain words to the effect that “We understand that a charge of discrimination has been against this establishment and this statement is to inform the agency that the company has a policy complaint.”Support the statement with some statistical analysis of the workforce, copies of any documents that support the employer’s position and or explanation of any legitimate business justification for the decision that is the subject of the complaint.

If a settlement isn’t reached, the EEOC will do a thorough investigation. Here there are three major principles an employer should follow. First, ensure there is information in the EEOC’s file demonstrating lack of merit of the charge. Often the best way to do that is not by answering the EEOC’s questionaire, but by providing a detailed statement describing the firm’s defense in its best and most persuasive light.

Second, limit the information supplied to only those issues raised in the charge it self. For example, do not respond to an EEOC request for a breakdown of employees by age and sex if the charge only alleges sex discrimination. Releasing too much information may just invite more probing by the EEOC. Third, get as much information as possible about the charging party’s claim, in order to ensure you understand the claim and its ramification.

  

The Fact Finding Conference The EEOC says these conferences are informal meetings held early in the investigation, aimed, at defining issues and determining if there is basis for negotiation. According to one expert, however, the EEOCs emphasis is on settlement. Its investigators use the conferences to find weak spots in each party’s respective position that they can use a leverage to push for a setlement.

If an employer wants a settlement, the fact finding conference can be a good place to negotiate, but there are four things to look out for. First, the only official records is the notes taken by the EEOC investigator, and the parties cannot have access to them to rectify mistakes or clarify facts. Second, the employer can bring an attorney, but EEOC often “seems to go out of its way to tell employers that an attorney’s presence is unnecessary.” Third, these conferences often occur soon after a charge is filed, before the employer is fully informed of the charges and facts of the case.

Fourth, the parties may use witnesses statements as admissions against the employer’s interests. Therefore, before appearing, witnesses need to be aware of the legal significance of the facts they will present and of the possible claims the charging party and other witnesses may make.

EEOC Determination Attempted Conciliation If the fact finding conference does not solve the matter, the EEOC’s investigator will determine whether there is reason to believe or not to believe that discrimination may have taken place. There are several things to keep in mind here.

First, the investigator recommendation is often the determining factor in whether the EEOC finds cause, so it is ussually best to be courteous and cooperative. Second, if there is a finding of cause you should review the finding very carefully; make sure to point out inaccuracies in writing to the EEOC.  Use this letter to again try to convince the EEOC, the charging party and the charging party’s attorney that the charge is without merit. Finally, keep in mind that even with a no cause finding, the charging party will still get a Notice of Right to Sue letter from the EEOC and have 90 days from receipt to bring his or her own lawsuit.

If the EEOC issues a cause finding, it has 30 days to work out a conciliation agreement between the parties. Some experts argue against conciliating. First, the EEOC often views conciliation not as a compromise but as complete relief to the chaqrging party. Second, if you have properly investigated and evaluated the case previously, there maybe no real advantage in settling at this stage. It is more than likely that no suit will be filed by the EEOC. “Even if the EEOC or the charging party later files a suit, the employer can consider settling after receiving the complaint.

Voluntary Mediation Today, the EEOC refers about 10% of its charges to a voluntary mediation mechanism. It says this is”an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution of a charge of discrimination. If the plaintiff agrees to mediation, the EEOC asks the employer to participate. A mediartion session ussually lasts up to four hours. If no agreement is reached or one of the parties rejects participation, the charge is then processed through the EEOC’s usual mechanisms. The program seems to be successful. Since its implementation, about 11,600 private sector charges have been resolved; charging parties have obtained more than $150 million. Nine out of 10 participants say they would participate again.

Faced with an offer to mediate, three responses are generally possible: agree to mediate the charge; make a settlement offer without mediation; or prepare a “position statement” for the EEOC. If the employer does not mediate or make an offer, the position statement is required. It should include information relating to rules or policies and procedures that are applicable; and the chronolohgy of the offense that led to the adverse action.

Mandatory Arbitration of Discrimination Claims

Conciliation, mediation and litigation are not the only options when it comes to resolving claims: Arbitration is another. The U.S. Supreme Court’s decisions make it clear that “employment discrimination plaintiffs may be complied to arbitrate their claims under some circumtances. Since many courts may come to view compulsory arbitration as an acceptable alternative to litigation, the following suggestions are in order:

·         Employers should review all employment discrimination suits filed against them in state and federal courts immediately to determine whether they involve an employee subject to some type of agreement to arbitrate. They should then decide whether to move to compel arbitration of the claim.

·         Employers “may wish to consider inserting a mandatory arbitration clause in their employment applications or employee handbooks.

·         To protect such a process against appeal, the employer should institute steps to protect against arbitrator bias; allow the arbitrator to afford a claimant broad relief; and allow for a reasonable amount or prehearing discovery.

·         For example, after a long and expensive equal employment lawsuit, Rockwell International implemented a grievance procedure that provides for binding arbitration as the last step. Initially, Rockwell’s 970 executives had to sign a mutual agreement to arbitrate employment disputes as a condition of participation in an executive stock plan. Rockwell later extended the program to cover all nonunion employees at some locations. New hires at Rockwell must sign it prior to promotion or transfer. ADR plans are becoming more popular, although the EEOC reasserted its opposition to such plans for handling workplace bias claims.

HIGH PERFORMANCE INSIGHT With or without ADR, handling EEOC claims can be expensive and the documentation accounts for much of the expense. Typical complaints include complex files with hundreds or thousands of pages. The data are private and sensitive. Case files must be available for review at various levels in a company, and forwarded to the EEOC hearings. Many complaints could be in process at any given time. Labor and resources for handling these tasks must be diverted from other activities and undermine a firm’s competitiveness.

In response, Rock Island Arsenal set up a new computer system to automate the processing of EEO complaints. The firm previously created documents manually stored them in cabinets and transferred them by mail. Postage and copying costs were high and security was a problem. Case files were sometimes lost or misfied.

To safeguard and reduce the time and cost of handling EEO case files, RIA purchased a computerized system that electronically creates, maintains, and transfres the files, RBP Associates of Landover, Maryland, designed the system for approximately $25,000. It runs on a Pentium based PC, has a 40 page per minute scanner and provides secure transmission over the internet andencryption on CD ROMs. The Paperiess EEO system eliminates reproduction costs and misfiled or misplaced documents. It provides increased acessibility, greater security and lower overall processing costs. The new system reduced overall processing costs by nearly 70%.

DIVERSITY MANAGEMENT AND AFFIRMATIVE ACTION PROGRAMS

To some extent, the goals of equitable and fair tretment driving equal employment legislation are being overtaken by demographic changes and globalization Today, white males no longer dominate the labor force and women and minorities represent the lion’s share of labor growth over the foreseeable future. Furthermore, globalization increasingly requires employers to hire minority members with the cultural and language skills global companies need.

As a result, companies today are increasingly striving for racial, ethnic, and sexual workforce balance, “not because of legal imperatives, but as a matter of enlightened economic self-interest. “Increasingly in other words, employers realize they have to actively recruit and maintain a diverse workforce in order to tap the changing demographics in this country and abroad. At least one study suggests that cultural diversity contributes to improved productivity, return on equity and marker performance.

While there’s no unanimity about what diversity means, there’s considerable agreement about its components. In one study, most respondents listed race, gender, culture, national origin, handicap, age and religion. In other words, these comprised the demograpphic building blocks that represent diversity at work and that people often think of when they ask what diversity means to employers.

Managing Diversity

Managing diversity means taking steps to maximize diversity’s potential advantages while minimizing the potential barriers such as prejudice and bias that can undermine the functioning of a diverse workforce.

In practice, diversity management involves both compulsory actions can reduce the more blatant diversity barriers, blending a diverse workforce into a close knit and thriving community also requires voluntary steps. Based on his review of research studies, one diversity expert concludes that five sets of voluntary organizational activities are at the heart of any diversity management program. These are:

1.      Provide strong leadership. Chief executives who champion diversity such as David Kearns, the former Xerox chairman typically have companies with exemplary reputations in managing diversity. Leadership in this case means, for instance taking a personal stand on the need for change and becoming a role model for the behaviors required for the change. Some firms are more proactive than others. AOL Time Warner recently appointed Patricia Fili Krushel, a former webMD executive, to head efforts to improve opportunities for women and minorities in the company’s workforce.

2.      Assess the situation. The company must assess the current state of affairs with respect to diversity management. This might entail administering surveys to measures current atitudes and perceptions toward different cultural groups within the company. Tool for measuring diversity include equal employment hiring and retention metrics, employee attitude survey, management and employee evaluations and focus groups.

3.      Provide diversity training and education. One expert says that “the most commonly utilized starting point for managing diversity is some type of employee aducation program.

4.      Change culture and management system. For example, change the performance appraisal criteria to measure supervisors based partly on their success in reducing intergroup conflicts.

5.      Evaluate the managing diversity program. For example, do the employee attitude surveys now indicate any imoprovement in atitudes toward diversity?

STRATEGIC HR Longo Toyota’s Competitive advantage

Evidence suggests most firm’s don’t address diversity beyond what the EEOC requires and that “many organizations have interpreted diversity as a human resourcen cost to be managed instead of a human resource asset to be fostered. “However, taking that view may be a mistake.

Workforce diversity actually makes strategic sense. For one thing different opinions provided by culturally diverse groups may produce better decisions; In one study ideas produced by ethnically diverse groups were judged to be of higher quality than those produced by homogeneous groups. Employers that overcome resistance to diversity may also be in a better position to handle other types of change. Companies pursuing growth strategies may need employees who are flexible in their thinking, and diversity may foster such flexibility. And as firms reach out to a broader customer base, they need employees who understand particular customer preferences and requirements.

Longo Toyota built its competitive strategy on that the last advantage. With a 60 person sales force that speaks more than 20 language, Longo’s staff provides it with a powerful competitive advantage for catering to an increasingly diverse customer base. The HR department has thus contributed to Longo’s success. While other dealerships lose half their salespeople every year, Longo retains 90% of its staf, in part by emphasizing a promotion from within policy that’s made more than two thirds of its managers minotities. It’s also taken steps to attract more women for instance by adding a sales management staff to spend time providing the training inexperienced salespeople ussually need. In a business in which competitors can easily imititate products, showrooms and must services Longo has built a competitive advantage based employee diversity.

Boosting Workforce Diversity

Employers use various means to boost workforce diversity. For example, Baxter Healthcare’s diversity program starts with a written philosophy (“Baxter International believes that a multi-cultural employee population is essential to the company’s leadership in healthcare around the world”).

Next, Baxter takes the tangible steps to foster workplace diversity program efforts, recruits minority members to the board of directors and interacts with representative minority groups and networks. Diversity training at Baxter aims to sensitize all employees to the need to value differences, build self esteem and generally create a more smoothly functionining and hospitable environment for the firm’s diverse workforce.

Some employers manage diversity through voluntary affirmative action programs. Affirmative action means employers make an extra effort to hire and promote those in protected groups. The aim is to voluntary enhance employment opportunities for woman and minorities (in contrast to the involuntary affirmative action programs courts imposed on some employers since enactment of the 1964 Civil Rights Act).

Read literally, CRA 1991 may bar employers from giving concideration to an individual status as a racial or ethnic minority or as a woman when making an employment decision. Employers therefore need to emphasize the external recruitment and internal development need of better qualified minority and female employees, “while basing employment decisions on legitimate criteria. “Furthermore, nonbeneficiaries may react negatively when they feel such programs result in them being treated unfairly. Even beneficiaries may react badly. In one study, subjects who felt they benefited from affirmative action based preferential selection gave themselves unfavorable self-evaluations. Yet, in spite of this, voluntary programs are often advisable. And sometimes the court orders them.

Equal Employment Opportunity Versus Affirmative Action

Equal employment opportunity aims to ensure that anyone, regardless of race, color, sex, religion, national religion, or age, has an equalchance for a job based on his or her qualifications. Affirmative action thus includes specific actions to eliminate the present effects of past discrimination. According to the EEOC, results are the most important measure of an affirmative action program. It should result in “measureable, yearly improvements in hiring, training and promotion of minorities and females”in all parts of the organization.

Affirmative Action: Two Basic Strategies

When designing an affirmative action plan, employers can use two basic strategies the good faith effort strategy or the quota strategy. Each has its own risks. The first emphasizes identifying and eliminating the obstacles to hiring and promoting women and minorities on the assumption that this will result in increased utilization of women and minorities on the assumption that this will result in increased utilization of women and minorities. The quota strategy mandates bottom line results through hiring and promotion restrictions.

4. Whereas the good faith strategy tries to get results by eliminating obstacles, the quota strategy aims at getting results through hiring and promotion restrictions. With the quota strategy, “desirable” hiring goals are treated as required employment quotas.

The courts have been grappling with the use of quotas in hiring and practicularly with claims by white males of reverse discrimination. Many cases addressed these issues, but no consistent answer has emerged. For example, in Bakke v. Regents of the University of California (1978) the university of California at Davis Medical school denied admission to white student Allen Bakke, allegedly because of the schools affirmative action quota system, which required that a specific number of openings go to minority applicants. In a 5 to 4 vote, the Court struck down the policy that made race the only factor in considering applicants for a certain number of class openings and thus allowed Bakke’s admission.

In Wygant v. Jacfkson Board of Education (1986), the Court struck down a mechanism in a collective bargaining agreement that gave preferential treatment to minority teachers in the event of alayoff. In International Association of Firefighters v. City of Cleveland (1986), the Court upheld a consent decree that reserved a specific number of promotions for minority firefighters and established percentage goals for minority promotions. In U.S. v Paradise (1987) the court ruled that the lower courts can impose racial quotas to address the most serious cases of racial discrimination. In Johnson v. Transportation Agency, Santa Clara Country (1987), the Court held that public and private employers may voluntarily adopt hiring and promotion goals to benefit minorities and women. This ruling limited claims of reverse discrimination by white males. And in June 2001, the U.S. Supreme Court refused to hear texas challenge to a ruling that its law school affirmative action program, which gives special consideration to black and mexican american student applicants, discriminated against whites.

The legal uncertainities suggest that the good faith strategy is often preferable to the quota strategy. An employer might reasonably ask, therefore, “what specific actions should I take to be able to show that I have in fact made a goof faith effort?

One study helps answer this question. Researchers sent questionnaires to EEOC compliance officers. It asked them to rate the importance of about 30 possible actions for evaluating the compliance effort of a hypothetical company. The questionnaire described the company as having determined that it had under utilized minorities in several blue collar and white collar jobs. They had to indicate which of the 30 possible actions they thought the employer could take in order to show it had an acceptable good faith effort affirmative action program. The results showed the compliance officers preferred six areas for action:

1.      Increasing the minority or female applicant flow.

2.      Demonstrating top management support for the equal employment policy for instance, by appointing a high ranking EEO administrator.

3.      Demonstrating equal employment commitment to the local community for instance, by providing in house remedial training.

4.      Keeping employees informed about the specifics of the affirmative action program.

5.      Broadening the work skills of incumbent employees.

6.      Institutionalizing the equal employment policy to encourage supervisor’s support of it for instance, by making it part of their performance appraisals.

Recruitng Minorities Online

Talking about hiring more minorities is one thing; actually doing it is another. In practice many minorities are less likely to be using the internet, for instance, and less likely to hear about good jobs from their friends. As Keith Fulton, director of technology programs and policy at the National Urban League, puts it, “its one thing to be trained, but if don’t know where to find the pools of ready and willing workers, you may miss qualified people by default.

One option is to direct recruiting ads to one or more of the online minority oriented job markets. For example, recruiting online lists dozens of online diversity candidate resources. As the webnote shows, diversity candidate web sites with job banks include the African American Network, National Action Council of Minorities in Engineering, National Urban League, Hispanic Online, Latino Web, Society of Hispanic Engineers, Gay.com Association for Women in Science and Minorities Job Bank.

The National Urban League’s Web site is a good example. Clicking on its Career center tab brings you to a page with five options: Job search; Post A job; Resume Center; Job Agents; and Career Resources. The job agents section lets job seekers create their own job profiles. It then searches for employers listings that may match, and sends a nessage to the job seeker when it finds a match.