EEO Lecture #4. Fall 2008MGMT 412 | EEOPage 2 Why Worry? Motherhood Maternity. $375,000. Pregnancy (refused to hire pregnant applicants). Motherhood Maternity

EEO

Lecture #4

Fall 2008MGMT 412 | EEOPage 2

Why Worry?

• Motherhood Maternity. $375,000. Pregnancy (refused to hire pregnant applicants).

• GLC Restaurants (McDonald’s franchise). $550,000. Sexual harassment (middle-aged male manager, teenaged female employees, as young as 14).

• AT & T. $756,000. Two employees. Religion (Jehovah’s Witnesses).

• Sheet Metal Workers’ International Association. $6.2

million. Race / national origin. • Walgreen’s. $24 million. Racial discrimination in

management hiring.


EEO Laws

• Equal Pay Act (1963)• Civil Rights Act, Title VII (1964)• Age Discrimination in Employment Act (1967)• Executive Order 11246 (1964)• Rehabilitation Act (1973) [disabilities, applies to federal

contractors, so enforced by OFCCP]• Vietnam Era Veterans Readjustment Act (1974) [applied to

federal contractors, also enforced by OFCCP]• Pregnancy Discrimination Act (1978)• Americans with Disabilities Act (1990)• Civil Rights Act (1991)• Uniformed Services Employment and Reemployment Rights Act

(1994)


Executive Order 11246

• This order forbids employment discrimination by federal government contractors and subcontractors (doing at least $10,000 business in a year)

• Requires that Compliance Reports be filed annually• Further, it calls for affirmative action plans by contractors• Who is a government contractor?

• Well, they employ about 22% of the workforce• Any bank that is a depository for federal funds or that

issues and cashes U.S. Savings Bonds is a federal contractor• Incidentally, EO 11246 is enforced by a Department of

Labor agency, the Office of Federal Contract Compliance programs (OFCCP)


Civil Rights Act (1991)

• Clean-up law• Provisions:

• Compensatory and punitive damages in cases of intentional discrimination

• Legal fees• Jury trials• Mixed motive cases• The burden of proof in a disparate impact case has

moved from the plaintiff (the person suing) to the defendant (the person being sued)

• Race norming is forbidden• Finally, the Act extends U.S. EEO law to protects

American citizens working in foreign countries for American companies


Other Sources of EEO Guidance

• Uniform Guidelines on Employee Selection Procedures (1978)• Outlines standards for validating selection

procedures (any procedure is a “test”)• Defines adverse impact and adverse

treatment• 4/5 rule• Mandates recordkeeping

• Court cases (Federal courts)


EEO Enforcement

• Equal Employment Opportunity Commission (EEOC)

• Federal Gov’t contractors:• Office of Federal Contract Compliance

Programs (part of Department of Labor)

• State & local gov’ts:• Employment Litigation Section, U.S.

Department of Justice Source: Shuit (2003).


EEO Complaints by Type and Year

0

5,000

10,000

15,000

20,000

25,000

30,000

35,000

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

# of

Cha

rges

Religion Gender National Origin Race Disability Age


What Do You Do?

• Individual files charge with EEOC, within 180 days of alleged discriminatory act

• EEOC determines if there is “reasonable cause”

• If not, individual is issued “right to sue” letter and can bring suit

• If “reasonable cause” exists, EEOC will:• Attempt to settle• Mediation• File suit

Also see Cascio, p. 92


Court Cases (1)

• Griggs vs. Duke Power (1971)• Lack of discriminatory intent was not a valid defense

against a charge of discrimination.• Further, selection tests must be job related if adverse

impact occurs, and the employer bears the burden of proof if 4/5 rule shows that adverse impact has occurred.

• Phillips v. Martin Marietta Corp (1971)• Disparate treatment issues• Applications were not accepted from women with

pre-school aged children; men under no such burden


Court Cases (2)

• U.S. vs. Georgia Power (1973)• This case addresses issues of validity; the validation

strategy used must follow the Uniform Guidelines.• Further, the population used in the validation studies

must be representative of applicant pool and must include protected classes.

• McDonnell Douglas vs. Green (1973)• This case established the standards for disparate

treatment.


Court Cases (3)

• Spurlock vs. United Airlines (1972)• In this case, a procedure was established for

determining job-relatedness for selection procedures other than tests

• Also, the economic and human risks of hiring unqualified applicants were determined to be a valid factor in determining how heavy a burden of proof an employer must bear.

• Connecticut vs. Teal (1982).• All parts of a multi-step selection procedure must be

valid.• Watson vs. Ft. Worth Bank and Trust (1988).

• Since adverse impact can occur with an interview, the interview procedure also needs to be validated.


Court Cases (4)

• Auto Workers vs. Johnson Controls (1991)• Not selection procedures, but job assignment• Safety exception to BFOQ defense applies only when

gender or pregnancy actually interferes with ability to perform job.

• In addition, the company cannot make decisions about reproductive safety for the employee.

• Price Waterhouse vs. Hopkins (1989)• Gender discrimination based on sexual stereotypes• “Take a course at charm school;” “walk more femininely,

talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”


Court Cases (5)

• Wards Cove Packing vs. Atonio (1989)• In this case. a challenged employment practice

needs to have a “legitimate business justification”, not be “essential” or “indispensable.”

• Also, the plaintiff bears the burden of proof in disparate impact cases (though this was later overturned by the Civil Rights Act of 1991).

• Harris vs. Forklift Systems, Inc., (1993)• Sexual harassment – the “reasonable woman” test

• Ledbetter vs. Goodyear Tire & Rubber Co. (2007)• Plaintiff held to 180 day time limit on filing charges


EEO Coverage: What’s Covered?

• Recruitment, hiring and firing• Pay• Transfer and promotion• Use of company facilities• Training programs• Other terms and conditions of

employment


EEO Coverage: Who’s Covered?

• Gender• Pregnancy treated as other medical conditions• Sexual harassment

• Race or color• Religion• National origin• Age (> 40)• Disability• In Federal Government: marital status, parental status,

political affiliation, sexual orientation• State laws may add additional factors


The WalMart Suit

• Filed in 2001 (Dukes vs. Wal-Mart Stores, Inc. )• Based on gender and promotions to management

• 2/3 of employees female; only 1/3 of managers• Only 14% of store managers are women

• In 2004, certified as a class action (1.5 to 1.6 million potential plaintiffs) [as of December 2007, class action status reaffirmed]

• Cost to WalMart???• Recently….WalMart has started to release

EEO-1 reports


Remedies Under EEO

• Back pay• Hiring• Promotion• Reinstatement• Reasonable accommodation• Changes in practices (consent decree)• Other actions that will make an individual "whole” *• Payment of:

• Attorneys' fees• Expert witness fees• Court costs

• Compensatory & punitive damages in the case of intentional discrimination (Civil Rights Act of 1991)

* In the condition s/he would have been but for the discrimination


Equal Pay Act (1963)

• Covers gender only• Requires equal pay for work requiring similar:

• Effort• Skill• Responsibility• Working conditions

• Exceptions for:• Merit• Seniority

• Must raise lower-paid workers, not lower pay of higher paid workers

Remember these… They’ll appear again...


Women’s Earnings as a Percentage of Men’s

60%

70%

80%

90%

100%

1979 1982 1985 1988 1991 1994 1997 2000 2003 2006


Uniform Guidelines on Employee Selection Procedures (1978)

EEO Terminology

• Protected class• Exceptions and BFOQ• Reliability and validity• Disparate treatment• Disparate impact


EEO Exceptions

• Seniority systems (as with the Equal Pay Act)

• Legitimate pre-employment inquiries

• Use of tests (see Griggs vs. Duke Power)

• No preferential treatment required


BFOQ

• Bona fide occupational qualification• A legal basis for taking into account an

otherwise impermissible factor (but not race)• Why?

• Authenticity (actress, undercover police officer)• Personal service (nursing assistant, clothing fitter)• Religion (religious organizations)• Public safety

• Why not?• Paternalism• Perceived customer preference• Stereotypes


Reliability

• Selection procedures need to be both reliable and valid• Called for under Uniform Guidelines, but a standard

psychometric concept• Reliability

• Does a procedure (test, interview) provide consistent results?

Interviewer A Interviewer BCandidate 1 90% 87%

Candidate 2 45% 51%

Candidate 3 71% 75%

Candidate 4 85% 90%

Candidate 5 18% 18%


Validity

• Does the procedure measure what it is designed to measure?

• Called for under Uniform Guidelines, but, again, a standard psychometric concept

• Establishing validity• Criterion• Content• Construct

50556065707580859095

100

0 1 2 3 4 5

50556065707580859095

100

0 1 2 3 4 5


Disparate Treatment (1)

• Differential treatment of individuals in a protected class

• Set forth by McDonnell Douglas vs. Green case• Can be direct or circumstantial evidence• For a circumstantial case, plaintiff must

establish:• Claim asserted falls under Civil Rights Act of 1964,

ADEA or ADA• Harm or disadvantage to plaintiff• Plaintiff qualified for job• Job actually exists or someone else received more

favorable treatment


Disparate Treatment (2)

• Examples• Asking only female applicants about child ca

re arrangements• Requiring minority applicants to have a high

school diploma, but not white applicants

• To defend: • Show nondiscriminatory reason for the

practice• Plaintiff can then rebut by presenting

evidence that the nondiscriminatory reason is a pretext for a discriminatory reason

Harrah’s case


How Disparate Impact Works

• Procedure• Statistically determine (4/5 rule) if protected classes

are impacted by a employment procedure• Assumption is that a prima facie case of

discrimination exists; defendant then bears burden of proof

• Defending against a disparate impact case• BFOQ• Establish validity of procedure• Business necessity or job-relatedness


Disparate Impact - 4/5 Rule

Group# of

Applicants # Hired % Hired4/5

Test

Male 100 80 80%Female 50 10 20% 25%

White 40 30 75%Black 60 40 67% 89%


Americans With Disabilities Act

• Disability• Essential function• Reasonable accommodation• Undue hardship• Prohibited inquiries

• Pre-employment physicals only after a contingent offer of employment made

• Medical records must be stored separately from other HR records


What is a Disability?

• A disability is an physical or mental impairment that substantially limits a major life activity

• Normally, a temporary condition is not a disability• The individual may:

• Have the disability• Have a record of having the disability• Be regarded as having the disability

• However, many sexual disorders / deviancies are not included as disabilities

• Current users of illegal drugs are not included (although recovered addicts are); drinkers are included, though.


Essential Functions

• Second, what is an “essential function”? Here, don’t forget your job descriptions. Basically, a function is essential if:

• The position exists to perform the function• Only a limited number of other employees are available to perform the

function• It is a highly specialized function, and the person is hired to perform it.

• If the functions are essential, the applicant or employee must be able to perform them, with or without a reasonable accommodation.

• Reasonable accommodations may be quite simple:• Making facilities usable• Restructuring job duties• Modifying work schedules• Providing materials in large type or Braille• Modifying selection procedures

• Also, the cost of these modifications may be covered by community organization grants and the like.


Undue Hardship

• Undue hardship is determined on a case-by-case basis• What is an undue hardship for Joe’s

Bait Shop may not be an undue hardship for Target

• Think – size of organization, financial resources


Questions?

• It is prohibited to question an applicant about whether there are disabilities

• You may ask if he or she can perform the essential job functions (even if the disability is obvious, but remember that most are not)

• It is up to the applicant to disclose the disability and to ask for an accommodation.


Other EEO Issues and Controversies

• Gender• Sexual harassment• “Glass Ceiling”

• Race• Affirmative action

• Religion• The extent of accommodations


Sexual Harassment

• Sexual harassment defined• Employer’s responsibilities

• Is it a “female thing” ???• In 2007, 16% of charges filed with

EEOC were filed by men


What is Sexual Harassment?

• Typically male female, but can be any combination• Quid pro quo

• Sexual favors as a condition of employment• Hostile environment

• Creating an intimidating, hostile or offensive work environment

• Reasonable person vs. reasonable woman standard (Harris case)

• Can also involve third parties: suppliers, vendors, customers, clients, independent contractors and the general public

• Finally, third parties may also have standing; that is, other people may also have been discriminated against, either quid pro quo or hostile environment

• Important: Harassment can also involve race, religion or disability status


Hostile Environment

• An intimidating, hostile or offensive work environment• Causes harm

• Reduced work performance• Psychological harm• Forced resignation

• Pervasive conduct (one or two incidents not sufficient)• What can it include

• Offensive or demeaning language or references (“dumb-a** women”

• Inappropriate behaviors• Pictures, graffiti, etc.


Sexual Harassment: The Organization’s Policies

• Company can be liable if no policy for handling harassment is in place and enforced

• Have a policy, communicate it and train employees• What to include in a policy?

• Define sexual harassment and make clear that it is not tolerated

• Complaint procedure (including method for reporting harassment by direct supervisor)

• Time frame for investigation• Penalties for violating policy• Confidentiality for complainant and alleged harasser• Protection against retaliation (inside or outside the workplace)


“Glass Ceiling”

• Belief that there is a barrier preventing women and minorities from rising beyond a certain level in organizations

• Does it exist?• Women are generally under-represented at higher

levels of the organization• Pervasive discrimination?• Time will take care of it?• Women make less investment in work?• Women gravitate towards staff vs. line positions• Undervaluing “emotional” work


Affirmative Action and Diversity

• Definitions• Affirmative action: catching up with past

discrimination, making uses of goals and timetables for bringing protected classes into the workforce

• Diversity management: taking advantage of the diverse workforce, without expecting those who are different to fit in or conform

• Legal issues with affirmative action• Voluntary plans• OFCCP (Federal contractors,banks)• Consent decrees


Religion and Work

• Religion and hiring: religion can be a BFOQ [religious institutions]

• “An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.”

• However, “reasonable” is less than under ADA: “de minimis” cost or burden”


In General…..

• Illegal to:• Coerce religious participation or non-participation• Hire or fire based on religion (unless a BFOQ)• Have mandatory devotional services

• Time off for religious observances is generally covered• You may require the employee to find someone to cover

shift• Can require employees to use vacation time or other

leave• Employers don’t have to accommodate long absences (for

example, a several week pilgrimage)


Religious Activities at Work…

• Allowing employees to actively proselytize at work is a bad idea

• Employee religious activities on their own time ok, if all religions have opportunities

• Watch out for training programs that may violate employees’ beliefs:• So-called “New Age” training can be a problem• Some employees have problems with parts of

diversity programs


Harassment

• Harassment based on religion (language, statements about others’ values) is treated as any other form of harassment


Some Sticky Issues

• Dress• Pants and head coverings• Safety issues• The Church of Body Modification

• Conscience issues

• Workplace Religious Freedom Act

Documents

EEO Lecture #4. Fall 2008MGMT 412 | EEOPage 2 Why Worry? Motherhood Maternity. $375,000. Pregnancy (refused to hire pregnant applicants). Motherhood Maternity