3

PowerPoint Presentation by Charlie Cook

The University of West Alabama
 Chapter Objectives
After studying this chapter, you should be able to

• Explain the reasons behind passage of EEO

legislation.
• Prepare an outline describing the major laws
affecting equal employment opportunity.
Describe bona fide occupational qualification and
religious preference as EEO issues.
• Discuss sexual harassment and immigration
reform and control as EEO concerns.
• Explain the use of the Uniform Guidelines on
Employee Selection Procedures.
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 Chapter Objectives (cont’d)
After studying this chapter, you should be able to

• Understand the concepts of adverse impact and

disparate treatment.
• Understand EEOC record-keeping and posting
requirements.
• Explain how EEO discrimination charges are
processed.
• Describe affirmative action and the basic steps
in developing an affirmative action program.

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• Historical Perspective of EEO Legislation
• Equal Employment Opportunity (EEO)
The treatment of individuals in all aspects of
employment—hiring, promotion, training, etc.—in a
fair and nonbiased manner.
• Changing National Values
• Economic Disparity
• Early Legal Developments
Civil Rights Act (1866)
Executive Order 8802
Civil Rights Act (1964)
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• The Legal Environment

Regulatory Management
Concerns Laws Agencies
Action Responses

• Fairness issues • Passed by • Type

Federal
nameagencies
here • Rulings • Planning
• Economic disparity congress • State agencies • Written compliance
• Changing material • Passed by state Type title here
• Independent regulations strategies
values legislature commissions • Complaint • Formulating
• Interest group • Presidential investigations appropriate HR
agendas executive orders • Technical policies
• Political party assistance • Briefing and training
mandates • Lawsuits employees and
Challenges to Laws
• Loop-holes in managers
current legislation • Defending lawsuits
• Working with
State Federal government
Court Court Opinions and agencies lobbying
System System Decisions for policy changes

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• Government Regulation of EEO
• Protected Classes
Individuals of a minority race, women, older people,
and those with disabilities who are covered by
federal laws on equal employment opportunity

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FIGURE
Major Laws Affecting Equal Employment Opportunity
3.1

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

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FIGURE
Major Laws Affecting Equal Employment Opportunity (cont’d)
3.1

LAW PROVISIONS
Equal Pay Act of 1963 Requires all employers covered by the Fair Labor Standards Act
and others to provide equal pay for equal work, regardless of sex.

Title VII of Civil Rights Act
of 1964 (amended in 1972,
1991, and 1994)
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.

Age Discrimination in
Employment Act of 1967
(amended in 1986 and
1990)
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.

Equal Employment Amended Title VII of Civil Rights Act of 1964; strengthens EEO’s
Opportunity Act of 1972 enforcement powers and extends coverage of Title VII to
government employees, employees in higher education, and other
employers and employees.

Pregnancy Discrimination Broadens the definition of sex discrimination to include pregnancy,

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they are capable of performing their job duties.
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FIGURE
Major Laws Affecting Equal Employment Opportunity (cont’d)
3.1

LAW PROVISIONS
Americans with Prohibits discrimination in employment against people with
Disabilities Act of 1990 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.

Civil Rights Act of 1991 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.

Uniformed Services Protects the employment rights of individuals who enter the
Employment and military for short periods of service.
Reemployment Rights
Act of 1994

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• Section 703(a) of Title VII of the Civil Rights Act
• It shall be unlawful employment practice for an
employer:
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....

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• Jurisdiction of the Civil Rights Act of 1964
1. All private employers in interstate commerce who employ fifteen
or more employees for twenty or more weeks per year
2. State and local governments
3. Private and public employment agencies, including the U.S.
Employment Service
4. Joint labor-management committees that govern apprenticeship or
training programs
5. Labor unions having fifteen or more members or employees
6. Public and private educational institutions
7. Foreign subsidiaries of U.S. organizations employing U.S. citizens

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• Exemptions From Antidiscrimination Regulations
• 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.
• Business Necessity
Work-related practice that is necessary to the safe
and efficient operation of an organization.

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• Religious Preference
• Title VII of the Civil Rights Act
Prohibits discrimination based on religion in
employment decisions, though it permits employer
exemptions.
Defines religion to “include all aspects of religious
observance and practice, as well as belief.”
Does not require employers to grant complete
religious freedom in employment situations.
Requires that employers make a reasonable
accommodation (at minimum cost) without incurring
undue hardship in the conduct of the business.
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• Age Discrimination Actions
• Excluding older workers from important work activities.
• Making negative changes in the performance
evaluations of older employees.
• Denying older employees job-related education, career
development, or promotional opportunities.
• Selecting younger job applicants over older,
better-qualified candidates.
• Pressuring older employees into taking early
retirement.
• Reducing the job duties and responsibilities of older
employees.
©• Terminating older employees
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• What Is a “Disability”?
• The Americans With Disabilities Act (ADA)
defines a disability as:
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.

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• What Is a “Disability”? (cont’d)
• The ADA does not cover:
1. Homosexuality or bisexuality
2. Gender-identity disorders not resulting from
physical impairment or other sexual-behavior
disorders
3. Compulsive gambling, kleptomania, or pyromania
4. Psychoactive substance-use disorders resulting from
current illegal use of drugs
5. Current illegal use of drugs
6. Infectious or communicable diseases of public health
significance (applied to food-handling jobs only and
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FIGURE
ADA Suggestions for an Accessible Workplace
3.2
•Install easy-to-reach switches.
•Provide sloping sidewalks and
entrances.
•Install wheelchair ramps.
•Reposition shelves for the easy
reach of materials.
•Rearrange tables, chairs, vending
machines, dispensers, and other
furniture and fixtures.
•Widen doors and hallways.
•Add raised markings on control
buttons.
•Provide designated accessible
parking spaces.
•Install hand controls or
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•Provide flashing alarm lights.
•Remove turnstiles and revolving
doors or provide alternative
accessible paths.
•Install holding bars in toilet areas.
•Redesign toilet partitions to increase
access space.
•Add paper cup dispensers at water
fountains.
•Replace high-pile, low-density
carpeting.
•Reposition telephones, water
fountains, and other needed
equipment.
•Add raised toilet seats.
•Provide a full-length bathroom mirror.
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FIGURE
EEO Rules Applicable to Federal Contractors and Agencies
3.3

LAW PROVISIONS

Vocational Rehabilitation Prohibits federal contractors from discriminating against

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

Executive Order 11246 Prohibits employment discrimination based on race, color,

(1965), as amended by religion, sex, or national origin by government contractors
Order 11375 (1966) 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 Obligates the federal government to ensure that all
(1969) personnel actions affecting applicants for employment be
free from discrimination based on race, color, religion, sex,
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• Fair Employment Practice Laws
• Fair Employment Practices (FEPs)
State and local laws governing equal employment
opportunity that are often more comprehensive
than federal laws.
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.

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• Sexual Harassment
• Sexual Harassment (under Title VII)
Unwelcome advances, requests for sexual favors,
and other verbal or physical conduct of a sexual
nature in the working environment
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.

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 Types of Sexual Harassment

Quid Pro Quo Hostile Environment

Subjective
Submission Rejection Uncomfortable
Response

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• 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.
Oncale v Sundowner Offshore Services (1998)
❖ Same-sex sexual harassment (male-to-male,
female-to-female) is covered under Title VII.

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• Sexual Harassment (cont’d)
• 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.

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• Sexual Orientation
• Title VII of the Civil Rights Act of 1964 lists
“sex” (gender) as a protected class.
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.
No federal law bars discrimination based on sexual
orientation, or transgender and transsexual
individuals.
Companies—in support of their diversity
initiatives—are fostering “gay-friendly” work places.
Of the nation’s top 500 companies, 70 percent now
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• Immigration Reform and Control Act (1986)
• Employers must comply with the Act by:
1. Having employees fill out their part of Form I-9.
2. Checking documents establishing an employee’s
identity and eligibility to work.
3. Complete the employer’s section of Form I-9.
4. Retain Form I-9 for at least three years.
5. Present Form I-9 for inspection to an Immigration
and Naturalization Service officer or to a
Department of Labor officer upon request.

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• Uniform Guidelines on Employee Selection
Procedures
• Uniform Guidelines on Employee Selection
Procedures
Is a procedural document published in the Federal
Register to assist employers in complying with
federal regulations against discriminatory actions.
Applies to employee selection procedures in the
areas of hiring, retention, promotion, transfer,
demotion, dismissal, and referral.

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• Uniform Guidelines on Employee Selection
Procedures
• Uniform Guidelines on Employee Selection
Procedures define discrimination as:
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).
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• Validity
• 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.
• Proof of validity is established through
validation studies that show the job relatedness
or lack thereof for the selection instrument
under study.

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• Forms of Discrimination
• Adverse Impact
The rejection of a significantly higher percentage of
a protected class for employment, placement, or
promotion when compared with a nonprotected
class.
Possibly the unintentional result of an innocent act,
yet the outcome is still discriminatory.
• Restricted Policy (Disparate Treatment)
An employer’s intentional unequal treatment or
evaluation by different standards of protected-class
members.
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• Determining Discrimination
• Adverse Rejection Rate, or Four-Fifths Rule
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.
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• Griggs v Duke Power Company (1971)
• The Supreme Court ruled:
1. 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.
2. Employers have the burden of proving that
employment requirements are job-related or
constitute a business necessity absolutely necessary
for job success.
• Good intent, or absence of intent to discriminate, is not
a sufficient defense of adverse impact.
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• Determining Discrimination
• McDonnell Douglas Test
To establish a prima facie case of discrimination:
1. The person must be a member of a protected class.
2. The person must have applied for a job for which he or she
was qualified.
3. The person must have been rejected, despite being qualified.
4. After rejection, the employer continued to seek other
applicants with similar qualifications.
The burden of proof now shifts to the employer to
prove that the action taken against the individual
was not discriminatory.
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• Workforce Utilization Analysis
• Workforce Utilization Analysis
The process of comparing the composition by race
and sex for jobs within an organization against
composition of the employer’s relevant labor
market.
The workforce is at parity when its composition
matches the relevant labor market.
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.
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• The Equal Employment Opportunity
Commission (EEOC)
• Composition of EEOC
Five members and a general counsel appointed by
the president and confirmed by the Senate
Members serve staggered five-year terms
No more than three commission members from the
same political party.
General counsel serves a four-year term.
• Purpose of EEOC
Formulating EEO policy and approving all litigation
involved in maintaining equal employment
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FIGURE
U.S. Equal Employment Opportunity Commission Case
3.4 Figures, Fiscal Years 2001–2007

* The number for total charges reflects the number of individual charge filings. Because individuals often
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file charges under multiple bases, the number of total charges for any given fiscal year will be less than
the total of the eight bases listed.
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4
2007 EEO-1
Survey

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5
EEOC
Poster

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FIGURE
Filing a Charge of Employment Discrimination
3.5

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• How to Achieve Fairness in EEO
1. Correct stereotyped thinking.
2. Eliminate irrelevant job requirements.
3. Open job and promotion opportunities to all protected
classes.
4. Promote on the basis of merit rather than seniority.
5. Provide equal pay for equal work.
6. Modify employee benefits to needs of women,
minorities, and working families.
7. Management training in EEO requirements.

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6
EEOC Guidelines on Retaliation

An employer may not fire, demote, harass, or otherwise “retaliate” against an

individual for filing a charge of discrimination, participating in a discrimination
proceeding, or otherwise opposing discrimination. The same laws that prohibit
discrimination based on race, color, sex, religion, national origin, age, and disability, as
well as wage differences between men and women performing substantially equal
work, also prohibit retaliation against individuals who oppose unlawful discrimination or
participate in an employment discrimination proceeding.
In addition to the protections against retaliation that are included in all of the laws
enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals
from coercion, intimidation, threat, harassment, or interference in their exercise of their
own rights or their encouragement of someone else’s exercise of rights granted by the
ADA.
There are three main terms that are used to describe retaliation. Retaliation 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. These three terms are described below.
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6
EEOC Guidelines on Retaliation (cont’d)
Adverse Action
An adverse action is an action taken to try to keep someone from opposing a
discriminatory practice, or from participating in an employment discrimination
proceeding. Examples of adverse actions include:
• employment actions such as termination, refusal to hire, and denial of promotion,
• other actions affecting employment such as threats, unjustified negative
evaluations, unjustified negative references, or increased surveillance.
Adverse actions do not include petty slights and annoyances, such as stray negative
comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or
negative comments that are justified by an employee’s poor work performance or
history.
Covered Individuals
Covered individuals are people who have opposed unlawful practices, participated in
proceedings, or requested accommodations related to employment discrimination
based on race, color, sex, religion, national origin, age, or disability. Individuals who
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a close association with of who engaged in such protected activity also
someone
are covered individuals.
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6
EEOC Guidelines on Retaliation (cont’d)
Opposition to a practice believed to be unlawful discrimination
Opposition is informing an employer that you believe that he/she is engaging in
prohibited discrimination.
Opposition is protected from retaliation as long as it is based on a reasonable,
good-faith belief that the complained of practice violates anti-discrimination law; and
the manner of the opposition is reasonable.
Examples of protected opposition include:
• Complaining to anyone about alleged discrimination against oneself or others;
• Threatening to file a charge of discrimination;
• Picketing in opposition to discrimination; or
• Refusing to obey an order reasonably believed to be discriminatory.

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6
EEOC Guidelines on Retaliation (cont’d)
Participation in an employment discrimination proceeding.
Participation means taking part in an employment discrimination proceeding.
Participation is protected activity even if the proceeding involved claims that ultimately
were found to be invalid. Examples of participation include:
• Filing a charge of employment discrimination;
• Cooperating with an internal investigation of alleged discriminatory practices; or
• Serving as a witness in an EEO investigation or litigation.
A protected activity can also include requesting a reasonable accommodation based
on religion or disability.

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• Preventing Discrimination Charges
• 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

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• Diversity Management:
Affirmative Action Issues
• Affirmative Action
Policy that goes beyond equal employment
opportunity by requiring organizations to comply
with the law and correct past discriminatory
practices by increasing the numbers of minorities
and women in specific positions
• Reverse Discrimination
The act of giving preference to members of
protected classes to the extent that unprotected
individuals believe they are suffering discrimination
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• Diversity Management:
Affirmative Action Issues
• Establishing Affirmative Action Programs
1. Provide an organizational profile that graphically
illustrates their workforce demographics
2. Establish goals and timetables for employment of
underutilized protected classes
3. Develop actions and plans to reduce
underutilization, including initiating proactive
recruitment and selection methods
4. Monitor progress of the entire affirmative action
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7
Basic Steps in Developing an Effective
Affirmative Action Program

1. Issue a written equal employment opportunity policy and affirmative

action commitment.
2. Appoint a top official with responsibility and authority to direct and
implement the program.
3. Publicize the policy and affirmative action commitment.
4. Survey present minority and female employment by department and
job classification.
5. Develop goals and timetables to improve utilization of minorities and
women in each area where underutilization has been identified.
6. Develop and implement specific programs to achieve goals.
7. Establish an internal audit and reporting system to monitor and
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8.
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• Managing Diversity: Affirmative Action
• Challenges to Affirmative Action (AA):
AA has not improved protected groups employment.
Individuals hired under AA feel prejudged as inferior
performers, and are often viewed as “tokens.”
AA programs have failed in assimilating protected
classes into the workforce.
Preferences shown toward one protected class may
create conflicts between other minority groups.

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• The Supreme Court and Affirmative Action
• Court Rulings on AA:
Race can be one factor in an evaluation process as
long as other competitive factors are considered.
AA programs were not illegal per se as long as rigid
quota systems were not established.
Voluntary AA programs are permissible where they
attempt to eliminate past racial imbalances in
traditionally segregated job categories.
AA programs are permissible if shown to promote
“compelling” governmental interests in redressing
past discrimination and not motivated by notions of
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• Affirmative Action Court Cases (cont’d)
• 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.

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• Court Decisions on Affirmative Action
• 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.
• 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.
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 • Managing Diversity: Affirmative Action
• Grutter v 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.

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 adverse impact
affirmative action
bona fide occupational
qualification (BFOQ)
business necessity
charge form
disabled individual
disparate treatment
EEO-1 report
equal employment opportunity
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fair employment practices
(FEPs)
four-fifths rule
protected classes
reasonable accommodation
reverse discrimination
sexual harassment
Uniform Guidelines on Employee
Selection Procedures
workforce utilization analysis
53
Employers can determine adverse impact by using the method outlined in the interpretive manual for the Uniform
Guidelines on Employee Selection Procedures.
A. Calculate the rate of selection for each group (divide the number of people selected from a group by the
number of total applicants from that group).
B. Observe which group has the highest selection.
C. Calculate the impact ratios by comparing the selection rate for each group with that of the highest group
(divide the selection rate for a group by the selection rate for the highest group).
D. Observe whether the selection rate for any group is substantially less (usually less than four-fifths, or 80
percent) than the selection rate for the highest group. If it is, adverse impact is indicated in most
circumstances.

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