Mgmt 383 Chapter 5 Managing Equal Employment and Diversity Fall 2008

Mgmt 383Mgmt 383

Chapter 5Chapter 5Managing Equal Employment and Managing Equal Employment and

DiversityDiversityFall 2008Fall 2008

DiversityDiversity

• Race/ethnicityRace/ethnicity• AgeAge• GenderGender• Physical disabilitiesPhysical disabilities• Sexual orientationSexual orientation

The Diversity/EEO ParadoxThe Diversity/EEO Paradox

• Diversity Diversity – recognizing differences.– recognizing differences.

• EEOEEO – ignoring differences based on race, – ignoring differences based on race, color, religion, sex, national origin, age, and color, religion, sex, national origin, age, and disability.disability.

Affirmative ActionAffirmative Action

• Recruitment of underrepresented/Recruitment of underrepresented/

underutilized groups.underutilized groups.• Changing management attitudes.Changing management attitudes.• Removing discriminatory obstaclesRemoving discriminatory obstacles

(employment practices creating disparate (employment practices creating disparate impact).impact).

• Preferential treatment.Preferential treatment.

Developing An Affirmative Developing An Affirmative Action PlanAction Plan

• Three general components under Three general components under Revised Order No.4Revised Order No.4: : • (1)(1) Utilization AnalysisUtilization Analysis

• (2)(2) Goals and TimetableGoals and Timetable

• (3)(3) An Action PlanAn Action PlanSource: Source: 41 C.F.R. Part 60-2 41 C.F.R. Part 60-2


• Conditions that must be met in order to be Conditions that must be met in order to be permissible permissible under Title VIIunder Title VII. . Steelworkers v. Weber,Steelworkers v. Weber, 443 U.S. 193, 208 (1979):443 U.S. 193, 208 (1979):• Must be justified (remedial).Must be justified (remedial).• Cannot create an absolute bar.Cannot create an absolute bar.• Cannot unnecessarily trammel the rights of Cannot unnecessarily trammel the rights of

members of nonfavored groups.members of nonfavored groups.• Must be temporary in natureMust be temporary in nature..


• Failure to meet the standards provided in Failure to meet the standards provided in Steelworkers v. Weber Steelworkers v. Weber will result in will result in reverse reverse discriminationdiscrimination..

• Hiring an Hiring an ununqualified individual simply because he qualified individual simply because he or she is a member of an underutilized group will or she is a member of an underutilized group will establish “reverse discrimination.”establish “reverse discrimination.”


• Grutter v. BollingerGrutter v. Bollinger, the Supreme Court has , the Supreme Court has declared that “diversity” can serve as a declared that “diversity” can serve as a justification in college admissions.justification in college admissions.• Only deals with state, local, and federal Only deals with state, local, and federal

government programs.government programs.• Note: the applicant must still be minimally Note: the applicant must still be minimally

qualified.qualified.• This justification has This justification has notnot been applied to been applied to

employment and contract award situationsemployment and contract award situations (yet).(yet).

Requirements for Immigrants & Requirements for Immigrants & Foreign-Born WorkersForeign-Born Workers

• Visas & Work PermitsVisas & Work Permits• Insure that the worker has authorization to work in the Insure that the worker has authorization to work in the

US:US:• H-1B for professional employees (good for 6 years). for professional employees (good for 6 years).• L-1L-1 for intra company transfers. for intra company transfers.

• SSAN and employee name mismatchesSSAN and employee name mismatches• Unreported name change.Unreported name change.• Marital status change.Marital status change.• Stolen identity.Stolen identity.• Clerical error.Clerical error.• Fraud (likely an illegal alien).Fraud (likely an illegal alien).

National Origin & English-Only National Origin & English-Only RulesRules

• English-Only work rulesEnglish-Only work rules• Must be justified.Must be justified.• Cannot create a universal prohibition.Cannot create a universal prohibition.• Must describe consequences for Must describe consequences for

noncompliancenoncompliance• Must be communicated to all employees.Must be communicated to all employees.Source:Source: Garcia v. Spun Steak Garcia v. Spun Steak, 13 F.3d 296 (9th Cir. 1993), 13 F.3d 296 (9th Cir. 1993)

Racial/Ethnic HarassmentRacial/Ethnic Harassment

• Note that in our discussion of sexual Note that in our discussion of sexual harassment, what applies to sex may be harassment, what applies to sex may be applied to race, religion, and national applied to race, religion, and national origin.origin.

Categories of Sex Categories of Sex DiscriminationDiscrimination

• Disparate TreatmentDisparate Treatment• Disparate ImpactDisparate Impact• Sexual HarassmentSexual Harassment• Sex-PlusSex-Plus• PregnancyPregnancy• Pay DifferentialsPay Differentials

What is Sexual Harassment?What is Sexual Harassment?

Any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature constitutes harassment when:

Submission to such requests is made explicitlyor implicitly a condition of one's employment (i.e., hiring,firing, raises, promotions, etc.).

What is Sexual Harassment?What is Sexual Harassment?

• Submission to such conduct is used as the basis for employment decisions.

• Such behavior has the purpose or effect of "unreasonably" interfering with an individual's performance on the job or creating an intimidating, hostile, or offensive work environment.

Common Examples ofCommon Examples of..Sexual Harassment.Sexual Harassment.

Unwanted physical contact, including touching, pinching, brushing the body, coerced sexual intercourse, or assault.

Verbal sexual innuendoes, graphic comments about an individual's body, jokes of a sexual nature, suggestive comments, sexual propositions, or threats.

Displays in the workplace of sexually suggestiveobjects or pictures

Proofs for Proofs for Quid Pro QuoQuid Pro Quo Sexual Sexual HarassmentHarassment

1. The complaining party is a member of a protected class.

2. The conduct of a sexual nature was unwelcomed. The complaining party did not encourage it by word or deed.

3. But for the complaining party's sex, she would not have been subjected to the unwelcomed conduct.

Proofs for Proofs for Quid Pro QuoQuid Pro Quo Sexual Sexual HarassmentHarassment

4. The complaining party's acceptance or rejection of the unwelcomed conduct would affect tangible job benefits.

5. Respondeat superior. When the employer is liable for the actions of its agents

Since tangible job benefits are involved, only management personnel can perpetrate quid pro quo sexual harassment.

Respondeat SuperiorRespondeat Superior

• Literally, “let the master Literally, “let the master answer.”answer.”

• The employer is responsible for The employer is responsible for the wrongful acts of its servants the wrongful acts of its servants or agents.or agents.

Proofs for Hostile EnvironmentProofs for Hostile Environment

1. The complaining party is a member of a protected class.

2. The conduct of a sexual nature was unwelcomed. The complaining party did not encourage it by word or deed.

3. But for the complaining party's sex, he or she would not have been subjected to the unwelcomed conduct.

Proofs for Hostile EnvironmentProofs for Hostile Environment

4. The unwelcomed conduct was so severe or pervasive as to alter the employee’s conditions of employment by creating an intimidating and adverse work environment.

5. Respondeat superior.

The perpetrator of hostile environment sexual harassment may be anyone: managers, coworkers, vendors, clients, customers, etc.

It is Not a Civility CodeIt is Not a Civility Code

• ““The prohibition of harassment on the basis of sex The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively workplace; it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim's offensive as to alter the ‘conditions’ of the victim's employment. Conduct that is not severe or pervasive employment. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's would find hostile or abusive -- is beyond Title VII's purview.” purview.” Harris v. Forklift Systems, IncHarris v. Forklift Systems, Inc., 510 U.S. 17, ., 510 U.S. 17, 21, citing 21, citing Meritor Savings Bank, FSB v. VinsonMeritor Savings Bank, FSB v. Vinson, 477 , 477 U.S. 57, 67.U.S. 57, 67.

Recent DevelopmentsRecent Developments

• Faragher v. City of Boca RatonFaragher v. City of Boca Raton and and Burlington Burlington Industries v. EllerthIndustries v. Ellerth decided on June 26, 1998, decided on June 26, 1998, created new federal guidelines for determining created new federal guidelines for determining employer liability in sexual harassment employer liability in sexual harassment complaints.complaints.

• Oncale v. Sundowner Offshore Services, Inc.Oncale v. Sundowner Offshore Services, Inc. decided on March 4, 1998, held that same-sex decided on March 4, 1998, held that same-sex sexual harassment is actionable under Title VII.sexual harassment is actionable under Title VII.

Employer Liability for Employer Liability for CoworkersCoworkers

• Direct LiabilityDirect Liability for sexual harassment initiated by for sexual harassment initiated by coworkers, vendors, clients, customerscoworkers, vendors, clients, customers.. • The employer is liable when:The employer is liable when: The employer knew, or should have known The employer knew, or should have known

(constructive knowledge), that the sexual (constructive knowledge), that the sexual harassment was occurring and failed to take harassment was occurring and failed to take immediate and appropriate corrective action.immediate and appropriate corrective action.

Sources:Sources: Katz v. DoleKatz v. Dole, 709 F.2d 251; , 709 F.2d 251; Barrett v. Omaha Nat’l BankBarrett v. Omaha Nat’l Bank, 726 F.2d 424., 726 F.2d 424.

Employer Liability for Employer Liability for SupervisorsSupervisors

• Vicarious (Indirect, Strict) LiabilityVicarious (Indirect, Strict) Liability for sexual for sexual harassment committed by supervisory personnel.harassment committed by supervisory personnel.• The employer is liable for the actions of its The employer is liable for the actions of its

agents regardless of whether or not the agents regardless of whether or not the employer knew or should have known, of its employer knew or should have known, of its agent’s sexual harassment, agent’s sexual harassment, even after taking even after taking prompt corrective actionprompt corrective action..

• Sources:Sources: Miller v. Bank of AmericaMiller v. Bank of America, 600 F.2d 211 (9th Cir. 1979)., 600 F.2d 211 (9th Cir. 1979).

Employer LiabilityEmployer Liability

Quid Pro Quo Hostile Environment

By Supervisor Vicarious (Strict) Liability ( No Affirmative Defense)

Vicarious (Strict) Liability (Affirmative Defense)

By Coworkers, Customers, Vendors

Not Applicable

Direct Liability

TheThe Faragher/Ellerth Faragher/Ellerth Affirmative DefenseAffirmative Defense

• FaragherFaragher & & EllerthEllerth permit an employer to avoid permit an employer to avoid vicarious liability provided they can demonstrate a vicarious liability provided they can demonstrate a two-part affirmative defensetwo-part affirmative defense::• (1)(1) The employer exercised The employer exercised reasonable carereasonable care to to

prevent & promptly correct any sexually harassing prevent & promptly correct any sexually harassing behavior, andbehavior, and

• (2)(2) the complaining party the complaining party unreasonably failedunreasonably failed to to take advantage of any preventative or corrective take advantage of any preventative or corrective opportunities provided by the employer or to other opportunities provided by the employer or to other wise avoid harm.wise avoid harm.

Reasonable CareReasonable Care

• Anti-Harassment Policy is now a necessary, Anti-Harassment Policy is now a necessary, though not sufficient, part of any though not sufficient, part of any affirmative defense.affirmative defense.

• Not only must there be a written policy, it Not only must there be a written policy, it must be:must be:• DisseminatedDisseminated• Consistently enforcedConsistently enforced

• Train supervisory personnel.Train supervisory personnel.

““Unreasonably Failed”Unreasonably Failed”

• The second part of the defense is that The second part of the defense is that employers must also show that the CP employers must also show that the CP unreasonably failedunreasonably failed to avail herself of the to avail herself of the organization’s protective policy & organization’s protective policy & procedures.procedures.• Show the policy was disseminated.Show the policy was disseminated.• Show the policy had been enforced.Show the policy had been enforced.• Show the CP was aware of the policy Show the CP was aware of the policy

(documentation).(documentation).

What is a Manager's What is a Manager's Responsibility?Responsibility?

Understand. Know your company's policies on sexual harassment, and its complaint and investigation procedures.

Observe.1. Be aware of what goes on around you.2. Be conscious of how your subordinates interact.3. Watch for more subtle forms of sexual harassment and how they may negatively affect the work and self-esteem of some of your subordinates.

What is a Manager's What is a Manager's Responsibility?Responsibility?

Model. 1. Set the example of the behavior you expect from your subordinates.2. Let your subordinates know that you will take action if a case of sexual harassment comes to your attention.3. Demonstrate your willingness to discuss the issue.

Investigate. Take all allegations seriously and begin the formal investigation process upon notification.

Company incentives to Company incentives to investigateinvestigate

It violates federal civil rights laws.

Size of Employer’s Maximum Combined PunitiveWork Force and Compensatory Damages

15-200 $50,000 201-300 $100,000 301-500 $200,000 >500 $300,000

Failure to do so may diminish the firm's reputation.

Sex Discrimination TermsSex Discrimination Terms

• Nontraditional JobNontraditional Job - historically male jobs - historically male jobs (construction, factory, mining etc.)(construction, factory, mining etc.)

• Glass CeilingGlass Ceiling - discriminatory practices that - discriminatory practices that prevent women from advancing to executive-level prevent women from advancing to executive-level jobs.jobs.

• Glass WallsGlass Walls - practices that preclude women from - practices that preclude women from certain executive-level jobs (i.e., key line certain executive-level jobs (i.e., key line positions).positions).

• Glass ElevatorGlass Elevator – synonymous with glass walls. – synonymous with glass walls.

Developments in Age Developments in Age DiscriminationDiscrimination

• Age Discrimination in Employment Act of 1967 Age Discrimination in Employment Act of 1967 (ADEA)(ADEA) • Even if you replace one >40 employee with Even if you replace one >40 employee with

another >40 employee you can still violate the another >40 employee you can still violate the ADEA if the replacement was based upon age. ADEA if the replacement was based upon age.

• An older >40 employee was replaced by a An older >40 employee was replaced by a substantially younger >40 employee. substantially younger >40 employee. O’Connor v. O’Connor v. Consolidated Coin CaterersConsolidated Coin Caterers, 519 U.S. 1040 , 519 U.S. 1040 (1996).(1996).

Developments in Age Developments in Age DiscriminationDiscrimination

• Age Discrimination in Employment Act of 1967 Age Discrimination in Employment Act of 1967 (ADEA)(ADEA) • General Dynamics Land Systems v. ClineGeneral Dynamics Land Systems v. Cline, 540 , 540

U.S. 581 (2004), the U.S. Supreme Court held that U.S. 581 (2004), the U.S. Supreme Court held that the ADEA only prohibits age-based discrimination the ADEA only prohibits age-based discrimination against relatively older individuals. against relatively older individuals.

Religious DiscriminationReligious Discrimination

• Religious BFOQ (§702)Religious BFOQ (§702)• [Title VII]...shall not apply ... to a [Title VII]...shall not apply ... to a religious religious

corporation, association, educational corporation, association, educational institution, or societyinstitution, or society with respect to the with respect to the employment of individuals of a particular employment of individuals of a particular religion to perform work connected with the religion to perform work connected with the carrying on by such corporation, association, carrying on by such corporation, association, educational institution, or society of its educational institution, or society of its activities."activities."

Source: 42 U.S.C. section 2000e-1(a).Source: 42 U.S.C. section 2000e-1(a).

Religious AccommodationReligious Accommodation

• Religious Accommodation - Religious Accommodation - In his or her In his or her rebuttal, the employer must showrebuttal, the employer must show that thethat the obligation obligation to "reasonably" accommodate the employee’s to "reasonably" accommodate the employee’s religious beliefs and practices was met, or that the religious beliefs and practices was met, or that the accommodation would impose an undue hardship on accommodation would impose an undue hardship on the employer.the employer. • By showing that the employee’s desired By showing that the employee’s desired

accommodation would impose an undue hardship, accommodation would impose an undue hardship, the accommodation becomes "unreasonable".the accommodation becomes "unreasonable".

Source: Chalmer v. Tulon Company of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996).Source: Chalmer v. Tulon Company of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996).

Religious AccommodationReligious Accommodation

• Prima faciePrima facie case of religious discrimination based on case of religious discrimination based on accommodation by demonstrating that:accommodation by demonstrating that:(1)(1) the individual has a the individual has a bona fidebona fide belief that compliance belief that compliance

with an employment requirement would be contrary to with an employment requirement would be contrary to his religious beliefs or practice,his religious beliefs or practice,

(2)(2) the individual informed the employer of the conflict, the individual informed the employer of the conflict, andand

(3)(3) the individual was disciplined or discharged for failing the individual was disciplined or discharged for failing to comply with the conflicting employment to comply with the conflicting employment requirement.requirement.

Source: Wilson v. U.S. West CommunicationsSource: Wilson v. U.S. West Communications , 58 F.3d 1337, 1340 (8th Cir. 1995)., 58 F.3d 1337, 1340 (8th Cir. 1995).

Traditional Training Traditional Training Approaches to DiversityApproaches to Diversity

• Legal awarenessLegal awareness – legal implications of – legal implications of discrimination.discrimination.

• Cultural awareness Cultural awareness – attempts to deal with – attempts to deal with stereotypes through discussion and stereotypes through discussion and exercises.exercises.

• Sensitivity trainingSensitivity training – sensitizes people to – sensitizes people to the differences among them and how their the differences among them and how their words and behaviors are perceived by words and behaviors are perceived by othersothers..

Diversity-Demographic TrendsDiversity-Demographic Trends

• The “white” population declined from 76% in The “white” population declined from 76% in 1990 to 69% in 2003.1990 to 69% in 2003.

• Hispanics became the largest ethnic minority Hispanics became the largest ethnic minority according to the 2000 census. according to the 2000 census.

• Their growth rate was 58% for 1990 to 2003 Their growth rate was 58% for 1990 to 2003 compared to 13% for the total US population.compared to 13% for the total US population.

• There is a greater need for bilingual There is a greater need for bilingual supervisors/managers.supervisors/managers.

Diversity-Demographic TrendsDiversity-Demographic Trends

• Workforce will become older (Mean age: 77., Workforce will become older (Mean age: 77., men 74.0, women, 80.7)men 74.0, women, 80.7)• The 16 to 24 year-old group will decrease The 16 to 24 year-old group will decrease

(fertility rate is 2.08)(fertility rate is 2.08)..

• More phased retirement.More phased retirement.• A range of industries will experience shortages A range of industries will experience shortages

of qualified workers.of qualified workers.• More disabled employee participation.More disabled employee participation.

Effects of Increased Female Effects of Increased Female ParticipationParticipation

• More flexible work schedules.More flexible work schedules.• More shared work.More shared work.• More part-time work.More part-time work.

• Greater variety of benefits to attract women.Greater variety of benefits to attract women.• Child care.Child care.• Maternity leaveMaternity leave..

• More job placement for spouses.More job placement for spouses.• More sex discrimination litigation.More sex discrimination litigation.

Effects of Ethnic Minority Effects of Ethnic Minority Participation on HRMParticipation on HRM

• More training in English as a second language.More training in English as a second language.• Greater demand for multilingual employees Greater demand for multilingual employees

(especially supervisors).(especially supervisors).• More cultural awareness and diversity training.More cultural awareness and diversity training.• Increased ethnic tensions in the work place, Increased ethnic tensions in the work place,

including minority v. minority conflict.including minority v. minority conflict.• More discrimination litigation.More discrimination litigation.


• Requisite skill shortages.Requisite skill shortages.• Only 33% of immigrants have a high school Only 33% of immigrants have a high school

education.education.• 800,000 to 900,000 legal immigrants arrive 800,000 to 900,000 legal immigrants arrive

annually.annually.• Low skills from Mexico, Sudan, and the Low skills from Mexico, Sudan, and the

Balkans.Balkans.• Inpatriates in technical skill becoming common Inpatriates in technical skill becoming common

(primarily India and Asia)(primarily India and Asia)


• Ethnic minorities with college degrees are often Ethnic minorities with college degrees are often over-represented in low demand areas and under-over-represented in low demand areas and under-represented in high demand areas (from a business represented in high demand areas (from a business perspective):perspective):

• Ethnic minority degrees are over concentrated in:Ethnic minority degrees are over concentrated in:• Social workSocial work• Liberal artsLiberal arts• Ethnic studiesEthnic studies

Mixed Reviews on Diversity Mixed Reviews on Diversity Training’s EffectivenessTraining’s Effectiveness

• Draws attention to differences and builds Draws attention to differences and builds walls rather than breaking them down.walls rather than breaking them down.

• Is viewed as being “politically correct” by Is viewed as being “politically correct” by focusing on blaming the majority group for focusing on blaming the majority group for past wrongs that are no longer relevant.past wrongs that are no longer relevant.

Documents

Mgmt 383 Chapter 5 Managing Equal Employment and Diversity Fall 2008