CHAPTER 3: EQUAL EMPLOYMENT OPPORTUNITY AND HUMAN RESOURCE MANAGEMENT

● Equal employment opportunity (EEO)

o the treatment of individuals in all aspects of employment – hiring, promotion, training,
etc. – in a fair and nonbiased manner
o Three factors seem to have influenced the growth of EEO legislation:
o Changing national values
▪ Changing attitudes toward employment discrimination
▪ Changed dramatically with the beginning of the civil rights movement during the
late 1950s and early 1960s.
o Economic disparity
▪ Published reports highlighting the economic problems and injustices by minority
workers
▪ Minorities drew attention to their low economic and occupational position by
conducting marches, sit-ins, rallies, and clashes with the public authorities
● Led to a pronounced change in the attitude of society
▪ Companies can find themselves sued for discriminating against people in many
ways, including because of their age, religion, health, military status, the way
they dress, and even their attractiveness.
o Early legal developments
▪ A growing body of disparate discrimination laws and regulations at different
levels of government that legislator felt should be standardized.
● Civil rights act (1966) – extended to all people the right to enjoy full and
equal benefits of all laws, regardless of their race.
● Executive order 8802 – to ensure that every American citizen,
“regardless of race, creed, color, or national origin,” would be
guaranteed equal employment opportunities for workers employed by
firms awarded WWII defense contracts
● Civil Rights Act (1964)
GOVERNMENT REGULATION OF EEO
● Protected classes – individuals of a minority race, women, and older people, and those with
disabilities who are covered by federal laws on equal employment opportunity
● Major laws affecting equal employment opportunity
LAW
Equal Pay Act of 1963
Title VII of Civil Rights Act of 1964
(amended in 1972, 1991, and
1994)
Age Discrimination in Employment
Act of 1967 (amended in 1986 and
1990)
Equal Employment Opportunity
Act of 1972
Pregnancy Discrimination Act of
1978
Americans with Disabilities Act of
1990
Civil Rights Act of 1991
Uniformed Services Employment
and Reemployment Rights Act of
1994
o Equal Pay Act of 1963
PROVISIONS
Requires all employers covered by the Fair Labor Standards Act and
others to provide equal pay for equal work, regardless of sex.
Prohibits discrimination in employment on the basis of race, color,
religion, sex, or national origin; created the Equal Employment
Opportunity Commission (EEO) to enforce the provisions of Title II.
Prohibits private and public employers from discriminating against
people age 40 or older in any area of employment because of age;
exceptions are permitted when age is a bona fide occupational
qualification.
Amended Title VII of Civil Rights Act of 1964; strengthens EEO’s
enforcement powers and extends coverage of Title VII to
government employees, employees in higher education, and other
employers and employees.
Broadens the definition of sex discrimination to include pregnancy,
childbirth, or related medical conditions; prohibits employers from
discriminating against pregnant women in employment benefits if
they are capable of performing their job duties.
Prohibits discrimination in employment against people with physical
or mental disabilities or the chronically ill; enjoins employers to
make reasonable accommodation to the employment needs of the
disabled; covers employers with fifteen or more employees.
Provides for compensatory and punitive damages and jury trials in
cases involving intentional discrimination; requires employers to
demonstrate that job practices are job-related and consistent with
business necessity; extends coverage to U.S. citizens working for U.S.
companies overseas.
Protects the employment rights of individuals who enter the military
for short periods of service.
 ▪ Makes it illegal to discriminate against people in terms of the pay, employee
benefits, and pension they earn based on their gender when they ado equal
work.
● If a pay disparity between the sexes exists, employers cannot legally
lower the wages of the gender being underpaid
● Equal pay act was passed as an amendment to the fair labor standards
act
o Civil Rights Act of 1964
▪ Section 703(a) of Title VII of the Civil Rights Act 1964
● It shall be unlawful employment practice for an employer:
o To fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his [or her] compensation, terms, conditions, or privileges of
employment because of such individual’s race, color, religion,
sex, or national origin....
▪ Certain employers are excluded from coverage of the Civil Rights Act
● US government-owned companies
● Bona fide
o Bona Fide Occupational Qualification (BFOQ) – Suitable defense
against a discrimination charge only where age, religion, sex, or
national origin is an actual qualification for performing the job.
o Business Necessity – Work-related practice that is necessary to
the safe and efficient operation of an organization.
● Tax-exempt
● Organizations hiring Native Americans on or near a reservation
● Jurisdictions of the Civil Rights Act of 1964
o All private employers in interstate commerce who employ
fifteen or more employees for twenty or more weeks per year
o State and local governments
o Private and public employment agencies, including the U.S.
Employment Service
o Joint labor-management committees that govern apprenticeship
or training programs
o Labor unions having fifteen or more members or employees
o Public and private educational institutions
o Foreign subsidiaries of U.S. organizations employing U.S. citizens

● Religious preference
o Title VII of the Civil Rights Act
o Prohibits discrimination based on religion in employment
decisions, though it permits employer exemptions.
o Defines religion to “include all aspects of religious observance
and practice, as well as belief.”
 o Does not require employers to grant complete religious freedom
in employment situations.
o Requires that employers make a reasonable accommodation (at
minimum cost) without incurring undue hardship in the conduct
of the business.
● Amendments of the Civil Rights Act of 1964
o Equal employment opportunity act of 1972
▪ Coverage of the act was broadened to include state and local governments
and public and private institutions
▪ Law strengthened the enforcement powers of EEOC by allowing the agency
itself to sue employees in court to enforce the provisions of the act
o Civil Rights Act of 1991
▪ Employees who can prove they were intentionally discriminated against can
seek compensatory monetary damages
o Glass Ceiling Act of 1991
▪ The “glass-ceiling” represents and invisible barrier that prohibits protected
class members from reaching top organizational positions
▪ Age Discrimination in Employment Act of 1967
● Prohibits specific employers from discriminating against employees and applicants age 40
and older in any employment areas
● Managers and supervisors discriminate against older employee:
o Excluding older workers from important work activities.
o Making negative changes in the performance evaluations of older employees.
o Denying older employees job-related education, career development, or
promotional opportunities.
o Selecting younger job applicants over older, better-qualified candidates.
o Pressuring older employees into taking early retirement.
o Reducing the job duties and responsibilities of older employees.
o Terminating older employees through downsizing.
● Amendments to the ADEA
o Older Worker Benefit Protection Act 1990
▪ Prohibits employers from denying benefits to older employees except in limited
circumstances
▪ Many firms that have downsized have been able to legally offer older employees
early-retirement severance pay.
o Pregnancy discrimination act of 1978
▪ Pregnant women could be forced to resign or take a leave of absence because of
their condition
▪ Pregnancy is a disability and that pregnant employees in covered organizations
must be treated on an equal basis with employees having other medical
conditions.
▪ Leave dates are to be based on the individual pregnant employee’s ability to
work
● The Americans With Disabilities Act (ADA) of 1990
 o Prohibits employers from discriminating against individuals with physical and mental
disabilities and the chronically ill
o The law defines disability:
▪ A physical or mental impairment that substantially limits one or more of the
major life activities.
▪ A record of such impairment.
▪ Being regarded as having such an impairment.
o Requires employees to make a reasonable accommodation for disabled people who are
otherwise qualified to work, unless doing so would cause undue hardship to the
employer
▪ Reasonable accommodation – an attempt by employers to adjust, without
undue hardship, the working conditions or schedules of the employees with
disabilities or religious preferences
o The ADA does not cover:
▪ Homosexuality or bisexuality
▪ Gender-identity disorders not resulting from physical impairment or other
sexual-behavior disorders
▪ Compulsive gambling, kleptomania, or pyromania
▪ Psychoactive substance-use disorders resulting from current illegal use of drugs
▪ Current illegal use of drugs
▪ Infectious or communicable diseases of public health significance (applied to
food-handling jobs only and excluding AIDS)
● Genetic information nondiscrimination act (GINA) of 2008
o To alleviate people’s fears that their genetic information would be misused
o Under Title II of the act, employers are prohibited from requesting, requiring, or
purchasing the genetic information of workers or their family members
● Uniformed Services Employment and Reemployment Rights of 1994 (USERRA)
o People who enter the military for a total of five years can return to their private sector
jobs without risk of loss of seniority or benefits
o Amendments of the USERRA
▪ Veterans Benefits Improvement Act – requiring employers to provide a notice of
rights, benefits, and obligations of both employees and employers under
USERRA
● Other Federal Laws and Executive Orders
LAW PROVISIONS

Vocational Rehabilitation Act of Prohibits federal contractors from discriminating against disabled
1973 individuals in any program or activity receiving federal financial
(amended in 1974) assistance; requires federal contractors to develop affirmative action
plans to hire and promote disabled people.

Executive Order 11246 (1965), as Prohibits employment discrimination based on race, color, religion, sex,
amended by Order 11375 (1966) or national origin by government contractors with contracts exceeding
$10,000; requires contractors employing fifty or more workers to
 develop affirmative action plans when government contracts exceed
$50,000 per year.

Executive Order 11478 (1969) Obligates the federal government to ensure that all personnel actions
affecting applicants for employment be free from discrimination based
on race, color, religion, sex, or national origin.

● Fair Employment Practices (FEPs)

o State and local laws governing equal employment opportunity that are often more
comprehensive than federal laws.
o Although Title VII of the Civil Rights Act exempts employers with fewer than fifteen
employees, many states extend antidiscrimination laws to smaller employers with one or
more workers.
OTHER EQUAL EMPLOYMENT OPPORTUNITY ISSUES
● Sexual harassment
o Unwelcome advances, requests for sexual favors, and other verbal or physical conduct of
a sexual nature in the working environment
o Include offensive remarks about a person’s sex
o An employer is considered guilty of sexual harassment when:
▪ The employer knew or should have known about the unlawful conduct and
failed to remedy it or to take corrective action.
▪ The employer allows nonemployees (customers or salespeople) to sexually
harass employees.
o Types of sexual harassment:
▪ Quid Pro Quo Harassment
● Occurs when “submission to or rejection of sexual conduct is used as a
basis for employment decisions.”
● Involves a tangible or economic consequence, such as a demotion or
loss of pay.
● If supervisor promotes an employee only after the person agrees to an
after-work date, the conduct is clearly illegal
● Oncale v Sundowner Offshore Services (1998)
o Same-sex sexual harassment (male-to-male, female-to-female)
is covered under Title VII.
▪ Hostile Environment
● Occurs when unwelcome sexual conduct “has the purpose or effect of
unreasonably interfering with job performance or creating an
intimidating, hostile, or offensive working environment.”
● Dirty jokes, vulgar slang, nude pictures, swearing, and personal ridicule
and insult constitute sexual harassment when an employee finds them
offensive.
● Courts use a “reasonable person” test for hostile environment.
● Sexual orientation
 o Executive order 13087 – barring discrimination against civilian employees of the federal
government based on their sexual orientation
o Sexual orientation is not a valid defense against discrimination—gender applies to one’s
sex at the time of birth and not to one’s sexual orientation.
o No federal law bars discrimination based on sexual orientation, or transgender and
transsexual individuals.
o Companies—in support of their diversity initiatives—are fostering “gay-friendly” work
places.
o Of the nation’s top 500 companies, 70 percent now offer health benefits to same-sex
couples.
● Immigration reform and control
o Immigration and reform control act (IRCA)
▪ All employers covered by the law are prohibited from knowingly hiring or
retaining unauthorized aliens on the job
▪ Employers with four or more employees are prohibited from discriminating in
hiring or termination decisions on the basis of national origin or citizenship
▪ Employers must comply with the Act by:
● Having employees fill out their part of Form I-9.
● Checking documents establishing an employee’s identity and eligibility
to work.
● Complete the employer’s section of Form I-9.
● Retain Form I-9 for at least three years.
● Present Form I-9 for inspection to an Immigration and Naturalization
Service officer or to a Department of Labor officer upon request.
UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES
● Uniform Guidelines on Employee Selection Procedures define discrimination as:
o The use of any selection procedure which has an adverse impact on the hiring,
promotion, or other employment or membership opportunities of members of any race,
sex, or ethnic group will be considered to be discriminatory and inconsistent with these
guidelines, unless the procedure has been validated in accordance with these guidelines
(or, certain other provisions are satisfied).
● Validity
o Employers must be able to prove that the selection instrument bears a direct
relationship to success on the job
o The requirement that, when using a test or other selection instrument to choose
individuals for employment, employers must be able to prove that the selection
instrument bears a direct relationship to job success.
o Proof of validity is established through validation studies that show the job relatedness
or lack thereof for the selection instrument under study.
FORMS OF DISCRIMINATION
● Adverse Impact
o The rejection of a significantly higher percentage of a protected class for employment,
placement, or promotion when compared with a nonprotected class.
o Possibly the unintentional result of an innocent act, yet the outcome is still
discriminatory.
 ▪ Adverse rejection rate or four-fifths rule – a rule of thumb followed by the EEOC
in determining adverse impact for use in enforcement proceedings
▪ According to the Uniform Guidelines, a selection program has an adverse impact
when the selection rate for any racial, ethnic, or sex class is less than four-fifths
(or 80 percent) of the rate of the class with the highest selection rate.
▪ The four-fifths rule is not a legal definition of discrimination, rather it is used to
monitor severe discrimination practices.
● Restricted Policy (Disparate Treatment)
o An employer’s intentional unequal treatment or evaluation by different standards of
protected-class members.
● Willie Griggs vs Duke Power Company (1971)
o Griggs was black and had applied for the position of coal handler with the Duke Power
company. His request was denied because he was not a high school Graduate, a
requirement for the position. He claimed that the job standard was discriminatory
because it did not relate to job success and because the standard had an adverse impact
on a protected class.
o The Supreme Court ruled:
▪ Employer discrimination need not be overt or intentional to be
present—employment practices having an adverse impact on protected classes
are illegal even when applied equally to all employees.
▪ Employers have the burden of proving that employment requirements are
job-related or constitute a business necessity absolutely necessary for job
success.
o Good intent, or absence of intent to discriminate, is not a sufficient defense of adverse
impact.
● McDonnell Douglas Test
o To establish a prima facie case of discrimination:
▪ The person must be a member of a protected class.
▪ The person must have applied for a job for which he or she was qualified.
▪ The person must have been rejected, despite being qualified.
▪ After rejection, the employer continued to seek other applicants with similar
qualifications.
o The burden of proof now shifts to the employer to prove that the action taken against
the individual was not discriminatory.
● Workforce Utilization Analysis
o The process of comparing the composition by race and sex for jobs within an
organization against composition of the employer’s relevant labor market.
o The workforce is at parity when its composition matches the relevant labor market.
o If the workforce composition is below external figures, the affected protected classes are
underutilized and the employer should take affirmative steps to correct the imbalance.
ENFORCING EQUAL EMPLOYMENT OPPORTINITY LEGISLATION
● Composition of EEOC
o Five members and a general counsel appointed by the president and confirmed by the
Senate
o Members serve staggered five-year terms
 o No more than three commission members from the same political party.
o General counsel serves a four-year term.
● Purpose of EEOC
o Formulating EEO policy and approving all litigation involved in maintaining equal
employment opportunity.
● Employer Information Report (EEO-1) report – an employer information report that must be filed
annually by employers of 100 or more employees (except state and local government employers)
and the government contractors and subcontractors to determine employer’s workforce
composition.
● Charge form – a discrimination complaint filed with the EEOC by employees or job applicants

● Retaliation
o Occurs when an employer, employment agency, or labor organization takes an adverse
action against a covered individual because he or she engaged in a protected activity.
o Can include any punitive action taken against employees who elect to exercise their legal
rights
▪ Managers and supervisors must not retaliate against individuals who invoke
their legal rights to file chargers or to support other employees ducing EEOC
proceedings.
● How to Achieve Fairness in EEO
o Correct stereotyped thinking.
o Eliminate irrelevant job requirements.
o Open job and promotion opportunities to all protected classes.
o Promote on the basis of merit rather than seniority.
o Provide equal pay for equal work.
o Modify employee benefits to needs of women, minorities, and working families.
o Management training in EEO requirements.
● Preventing Discrimination Charges
o A comprehensive EEO training program for managers and supervisors will include:
 ▪ The prohibitions covered in the various EEO statutes
▪ Guidance on how to respond to complaints of discrimination
▪ Procedures for investigating complaints
▪ Suggestions for remedying inappropriate behavior
AFFIRMATIVE ACTION AND DIVERSITY MANAGEMENT
● Establishing Affirmative Action Programs
o Provide an organizational profile that graphically illustrates their workforce
demographics
o Establish goals and timetables for employment of underutilized protected classes
o Develop actions and plans to reduce underutilization, including initiating proactive
recruitment and selection methods
o Monitor progress of the entire affirmative action program
● Basic Steps in Developing an Effective Affirmative Action Program
o Issue a written equal employment opportunity policy and affirmative action
commitment.
o Appoint a top official with responsibility and authority to direct and implement the
program.
o Publicize the policy and affirmative action commitment.
o Survey present minority and female employment by department and job classification.
o Develop goals and timetables to improve utilization of minorities and women in each
area where underutilization has been identified.
o Develop and implement specific programs to achieve goals.
o Establish an internal audit and reporting system to monitor and evaluate progress in
each aspect of the program.
o Develop supportive in-house and community programs.
● Challenges to Affirmative Action (AA):
o AA has not improved protected groups employment.
o Individuals hired under AA feel prejudged as inferior performers, and are often viewed
as “tokens.”
o AA programs have failed in assimilating protected classes into the workforce.
o Preferences shown toward one protected class may create conflicts between other
minority groups.
● Court Rulings on AA:
o Race can be one factor in an evaluation process as long as other competitive factors are
considered.
o AA programs were not illegal per se as long as rigid quota systems were not established.
o Voluntary AA programs are permissible where they attempt to eliminate past racial
imbalances in traditionally segregated job categories.
o AA programs are permissible if shown to promote “compelling” governmental interests
in redressing past discrimination and not motivated by notions of racial inferiority or
simple racial politics.
● Affirmative Action Court Cases
o United Steelworkers of America v Weber (1974)
 ▪ The Supreme Court held that voluntary affirmative action programs are
permissible where they attempt to eliminate racial imbalances in “traditionally
segregated job categories.”
▪ In Weber, the Court did not endorse all voluntary affirmative action programs.
o Adarand Constructors v Peña (1995)
▪ The Supreme Court ruled that federal programs that use race or ethnicity as a
basis for decision making must be strictly scrutinized to ensure that they
promote “compelling” governmental interests.
o Hopwood v State of Texas (1996)
▪ The Court ruled in a decision affecting admission standards at the University of
Texas law school that diversity could not constitute a “compelling state interest”
justifying racial preference in selection decisions.
o Grutter vs Bollinger
▪ The Supreme Court held in that colleges and universities can consider an
applicant’s race as a factor in admission decisions.
▪ The decision upheld an admission policy at the University of Michigan Law
School in which officials considered an applicant’s race along with other factors
when making admission decisions.
o