3995-3627_dessler_ch2

© 2009 Dorling Kindersley (I) Pvt. Ltd.© 2009 Dorling Kindersley (I) Pvt. Ltd.All rights reserved.All rights reserved.

1

Human Resource Human Resource ManagementManagement

ELEVENTH EDITIONELEVENTH EDITION

G A R Y D E S S L E RG A R Y D E S S L E R

B I J U V A R K K E YB I J U V A R K K E Y

Equal Opportunity and the LawEqual Opportunity and the Law

Chapter 2Chapter 2

Part 1 | IntroductionPart 1 | Introduction

2–2© 2009 Dorling Kindersley (I) Pvt. Ltd. All rights reserved.

After studying this chapter, you should be able to:After studying this chapter, you should be able to:

1.1. Cite the main features of at least five employment Cite the main features of at least five employment discrimination laws.discrimination laws.

2.2. Define Define adverse impactadverse impact and explain how it is proved and explain how it is proved and what its significance is.and what its significance is.

3.3. Provide a brief overview of important labor legislations Provide a brief overview of important labor legislations

in India.in India.

4.4. Avoid employment discrimination problems.Avoid employment discrimination problems.

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

6.6. Define and discuss Define and discuss diversity managementdiversity management..


Laws related to Industrial Relationships Laws related to Industrial Relationships

1. The Trade Unions Act, 1926.

2. The Industrial Employment (Standing Orders) Act, 1946.

3. The Industrial Disputes (ID) Act, 1947.


The Trade Unions Act, 1926 The Trade Unions Act, 1926

• The act allows freedom for any seven employees to apply to register a trade union, but a later amendment (2001) specified the minimum membership as 10% of the unionizable employees or 100 employees, whichever is less.

• Trade unions are to be registered with the appropriate government-appointed Registrar of Trade Unions.


Industrial Employment (Standing Orders) Act, 1946 Industrial Employment (Standing Orders) Act, 1946 • The act formally defines conditions of employment

including recruitment, discharge, disciplinary action, working hours, holidays and leaves.

• The act is applicable to industrial establishments under the jurisdiction of central and state governments.

• It serves to reduce conflict and communication mechanism between management and labor.

Industrial Disputes (ID) Act, 1947 Industrial Disputes (ID) Act, 1947 The act was formulated with the objective of having a

machinery and procedure for the investigation and settlement of industrial disputes in place.


Laws Related to WagesLaws Related to Wages

1. The Payment of Wages Act, 1936The act ensures payment of wages on time.

2. The Minimum Wages Act, 1948a. The act sets the framework for declaring the

minimum wages payable for occupations, both in formal and the informal sectors.

b. It specifies the structure and procedure for fixing and revising the minimum wages at regular intervals.


Laws Related to Working Hours, Conditions of Services and EmploymentLaws Related to Working Hours, Conditions of Services and Employment1. The Factories Act, 1948

The act safeguards the health, safety and welfare of workers in establishments covered by the act.

2. The Shops and Commercial Establishments Act, 1961 a. The act deals with work-related aspects of shops

and commercial establishments.

b. It prohibits employment of children, underage people, and women during night hours.

c. It lays down the procedure for dismissal, discharge, and termination of employment.


Laws Related to Equality and Empowerment of Women Laws Related to Equality and Empowerment of Women 1. The Maternity Benefit Act, 1961

It provides job security and support to pregnant women.

2. The Equal Remuneration Act, 1976 • The act prevents gender-based discrimination in

employment and wages.


Laws Related to Social Security Laws Related to Social Security

1. Workmen’s Compensation Act, 1923 a. The act provides compensation to employees in cases of mis-

happening at work.

2. Employees State Insurance Act, 1948

a. The act provides relief to employees and dependents in cases of sickness or events that prevent them from working.

b. Various benefits given to eligible employees are:i. Sickness benefit – in cash

ii. Maternity benefit – in cash

iii. Disablement benefit –in cash

iv. Dependents’ benefit – in cash

v. Funeral expenses – in cash

vi. Medical benefit – as service and kind


Laws Related to Social Security (Contd.)(Contd.) Laws Related to Social Security (Contd.)(Contd.)

3. Employees’ Provident Funds And Miscellaneous Provisions Act, 1952The act provides security to employees during times of distress and old age.

4. Payment of Gratuity Act, 1972

The act provides for gratuity payment to all employees at the prescribed rates, currently 15 days for every year of service.


Guidelines for Handling Sexual Guidelines for Handling Sexual Harassment ComplaintsHarassment Complaints Guidelines for Handling Sexual Guidelines for Handling Sexual Harassment ComplaintsHarassment Complaints

The Supreme Court of India has given the following guidelines for defining sexual harassment of women:1. Sexually determined behavior (whether directly or

by implication)

2. Physical contact and advances

3. A demand or request for sexual favors

4. Sexually colored remarks

5. Showing pornography

6. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.


Equal Employment Opportunity 1964–91 (US)Equal Employment Opportunity 1964–91 (US)

Title VII of the 1964 Civil Rights Act

EEOC

Executive Orders11246, 11375

OFCCP

Equal Pay Act of 1963

Age Discrimination in Employment Act

of 1967

Vocational Rehabilitation Act

of 1973

Pregnancy Discrimination Act

of 1978

Federal Agency Guidelines

Equal Employment Opportunity


Equal Employment Opportunity Equal Employment Opportunity 1990–91–present (US) 1990–91–present (US)

Civil Rights Act of 1991

Burden of ProofDisparate Impact

Mixed MotivesDesert Palace Inc.

v. Costa

Money DamagesCompensatory

Punitive


Equal Employment Opportunity Equal Employment Opportunity 1990–91–present (US) (cont’d) 1990–91–present (US) (cont’d)

AIDS

Qualified Individual

Reasonable Accommodation

Employer Defenses

Americans with Disabilities Act (ADA) of 1990


Adverse ImpactAdverse Impact

Disparate Rejection

Rates

McDonnell-Douglas Test

Restricted Policy

Showing Adverse Impact

Population Comparisons


Showing Disparate TreatmentShowing Disparate Treatment

1

The employer continued seeking applications.

The person applied and was qualified for the job.

McDonnell-Douglas Test for Prima Facie Case

The person belongs to a protected class.

The person was rejected despite qualification.

2

3

4


Bona Fide Occupational QualificationBona Fide Occupational Qualification

Age

Religion

Gender

National Origin

Bona Fide Occupational

Qualification (BFOQ)


Business NecessityBusiness Necessity

• ““Business Necessity”Business Necessity” A defense requiring employers to show that there A defense requiring employers to show that there

is an overriding business purpose (i.e., “irresistible is an overriding business purpose (i.e., “irresistible demand”) for a discriminatory practice. demand”) for a discriminatory practice. Spurlock v. United AirlinesSpurlock v. United Airlines

• ValidityValidity The degree to which the test or other employment The degree to which the test or other employment

practice is related to or predicts performance on the practice is related to or predicts performance on the job can serve as a business necessity defense.job can serve as a business necessity defense.


Other Considerations in Discriminatory Other Considerations in Discriminatory Practice DefensesPractice Defenses

1.1. Good intentions are no excuse.Good intentions are no excuse.

2.2. Employers cannot hide behind collective Employers cannot hide behind collective bargaining agreements—equal opportunity bargaining agreements—equal opportunity laws override union contract agreements.laws override union contract agreements.

3.3. Firms should react by agreeing to eliminate an Firms should react by agreeing to eliminate an illegal practice and (when required) by illegal practice and (when required) by compensating the people discriminated compensating the people discriminated against.against.


Discriminatory Employment PracticesDiscriminatory Employment Practices

Selection

Educational Requirements

Tests

Preference to Relatives

Height, Weight, and Physical Characteristics

Arrest Records

Application Forms

Discharge Due to Garnishment

Recruitment

Word of Mouth

Misleading Information

Help Wanted Ads

Personal Appearance

Dress

Hair

Uniforms


The EEOC Enforcement ProcessThe EEOC Enforcement Process

1

2

3

4

5

6

7

EEOC Claim and Enforcement Process

Charge Acceptance

File Charge

Serve Notice

Investigation/Fact-Finding

Cause/No Cause

Conciliation

Notice to Sue


Addressing EEOC ClaimsAddressing EEOC Claims

1

2

3

4

5

During the EEOC Investigation:

Meet with the Employee

Follow Three Principles

Limits of EEOC Authority

Submitting Documents

Position Statement


Addressing EEOC Claims (cont’d)Addressing EEOC Claims (cont’d)

1

2

3

4

During the Fact-Finding Conference:

Employer’s Attorney

Official Records

Information

Witnesses

1

2

During EEOC Determination and Attempted Conciliation:

Conciliate Prudently

Review Carefully


Diversity Management ProgramDiversity Management Program

1

2

3

4

5

Steps in a Diversity Management Program:

Assess the situation

Provide strong leadership

Provide diversity training and education

Change culture and management systems

Evaluate the diversity management program


Is the Diversity Initiative Effective?Is the Diversity Initiative Effective?

• Are there women and minorities reporting directly to Are there women and minorities reporting directly to senior managers?senior managers?

• Do women and minorities have a fair share of job Do women and minorities have a fair share of job assignments that are stepping stones to successful assignments that are stepping stones to successful careers in the company?careers in the company?

• Do women and minorities have equal access to Do women and minorities have equal access to international assignments? international assignments?

• Are female and minority candidates in the company’s Are female and minority candidates in the company’s career development pipeline?career development pipeline?

• Are turnover rates for female and minority managers Are turnover rates for female and minority managers the same or lower than those for white male managers?the same or lower than those for white male managers?


Designing an Affirmative Action ProgramDesigning an Affirmative Action Program

• Good Faith Effort StrategyGood Faith Effort Strategy Eliminating the present effects of past practices Eliminating the present effects of past practices

that excluded or underutilized protected groups.that excluded or underutilized protected groups. Identification through numerical analysis.Identification through numerical analysis.Proactive elimination of employment barriers.Proactive elimination of employment barriers. Increased minority or female applicant flow.Increased minority or female applicant flow.

• Increasing Employee Support for Increasing Employee Support for Affirmative ActionAffirmative Action Transparent selection proceduresTransparent selection procedures CommunicationCommunication JustificationsJustifications


Steps in an Affirmative Action ProgramSteps in an Affirmative Action Program1.1. Issues a written equal employment policy.Issues a written equal employment policy.

2.2. Appoints a top official to direct and implement the program.Appoints a top official to direct and implement the program.

3.3. Publicizes the equal employment policy and affirmative action Publicizes the equal employment policy and affirmative action commitment.commitment.

4.4. Surveys minority and female employment to determine where Surveys minority and female employment to determine where affirmative action programs are especially desirable.affirmative action programs are especially desirable.

5.5. Develops goals and timetables to improve utilization of minorities Develops goals and timetables to improve utilization of minorities and females. Carefully analyzes employer human resources and females. Carefully analyzes employer human resources practices to identify and eliminate hidden barriers. practices to identify and eliminate hidden barriers.

6.6. Uses focused recruitment to find qualified applicants from the Uses focused recruitment to find qualified applicants from the target group(s). target group(s).

7.7. Establishes an audit and reporting system to monitor and Establishes an audit and reporting system to monitor and evaluate progress of the program.evaluate progress of the program.

8.8. Develops support for the affirmative action program, both inside Develops support for the affirmative action program, both inside the company and in the community.the company and in the community.


Reverse DiscriminationReverse Discrimination

• Reverse DiscriminationReverse Discrimination

Under the U.S. law, discrimination against non-Under the U.S. law, discrimination against non-minority applicants and employees by quota-based minority applicants and employees by quota-based systems is reversed discrimination. systems is reversed discrimination.


Important Indian Labor LawsImportant Indian Labor Laws 1. Trade Unions Act, 19262. Industrial Employment (Standing Orders) Act, 19463. Industrial Disputes (ID) Act, 19474. Payment of Wages Act, 19365. Minimum Wages Act, 19486. Factories Act, 19487. Shops and Commercial Establishments Act, 19618. Maternity Benefit Act, 19619. Workmen’s Compensation Act, 192310. Employees State Insurance Act, 194811. Employees’ Provident Funds And Miscellaneous12. Provisions Act, 195213. Payment of Gratuity Act, 1972


K E Y T E R M SK E Y T E R M S

Indian Labor LawsIndian Labor Laws Title VII of the 1964 Civil Rights ActTitle VII of the 1964 Civil Rights Act

Equal Employment Opportunity Equal Employment Opportunity Commission (EEOC)Commission (EEOC)

affirmative actionaffirmative action

Office of Federal Contract Compliance Office of Federal Contract Compliance Programs (OFCCP)Programs (OFCCP)

Equal Pay Act of 1963Equal Pay Act of 1963

Age Discrimination in Employment ActAge Discrimination in Employment Act

of 1967 (ADEA)of 1967 (ADEA)

Vocational Rehabilitation Act of 1973Vocational Rehabilitation Act of 1973

Vietnam Era Veterans’ Readjustment Act Vietnam Era Veterans’ Readjustment Act of 1974of 1974

Pregnancy Discrimination Act (PDA)Pregnancy Discrimination Act (PDA)

uniform guidelinesuniform guidelines

sexual harassmentsexual harassment

Federal Violence Against Women Act Federal Violence Against Women Act

of 1994of 1994

protected classprotected class

Civil Rights Act of 1991 (CRA 1991)Civil Rights Act of 1991 (CRA 1991)

mixed motive casemixed motive case

Americans with Disabilities Act (ADA)Americans with Disabilities Act (ADA)

qualified individualsqualified individuals

adverse impactadverse impact

disparate rejection ratesdisparate rejection rates

restricted policyrestricted policy

bona fide occupational qualification (BFOQ)bona fide occupational qualification (BFOQ)

alternative dispute resolution or ADR alternative dispute resolution or ADR programprogram

good faith effort strategygood faith effort strategy

reverse discriminationreverse discrimination