Human Resource

Management
ELEVENTH EDITION
1
GARY DESSLER

Part 1 | Introduction

Chapter 2

Equal Opportunity and the Law

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All rights reserved. The University of West Alabama
After studying this chapter, you should be able to:

1. Cite the main features of at least five employment

discrimination laws.
2. Define adverse impact and explain how it is proved
and what its significance is.
3. Explain and illustrate two defenses you can use in the
event of discriminatory practice allegations.
4. Avoid employment discrimination problems.
5. Cite specific discriminatory personnel management
practices in recruitment, selection, promotion, transfer,
layoffs, and benefits.
6. Define and discuss diversity management.
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 Equal Employment Opportunity 1964–1991

Title VII of the 1964

Civil Rights Act
EEOC

Federal Agency Executive Orders

11246, 11375
Guidelines OFCCP

Equal
Employment
Pregnancy Opportunity Equal Pay Act
Discrimination Act
of 1963
of 1978

Vocational Age Discrimination

Rehabilitation Act in Employment Act
of 1973 of 1967

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Early Court Decisions Regarding
Equal Employment Opportunity
Griggs v. Duke Power Company

1 Burden of proof is on the employer.

2 Employer’s intent is irrelevant.

3 “Fair in form” practice must also be nondiscriminatory.

4 Business necessity is a defense for adverse impact.

5 Test or practice must be related to job performance.

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Early Court Decisions Regarding
Equal Employment Opportunity (cont’d)
• Albemarle Paper Company v. Moody
 If a test is used to screen candidates, then the job’s
specific duties and responsibilities must be analyzed
and documented.
 The performance standards for the job should be
clear and unambiguous.
 Federal guidelines on validation are to be used for
validating employment practices.

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 Equal Employment Opportunity
1990–91–present

Money Damages
Burden of Proof
Compensatory
Disparate Impact
Punitive

Civil Rights Act

of 1991

Mixed Motives
Desert Palace Inc.
v. Costa

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

AIDS

Qualified Individual
Americans with
Disabilities Act
(ADA) of 1990
Reasonable Accommodation

Employer Defenses

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Employer Obligations Under ADA
• An employer must make a reasonable accommodation for
a qualified disabled individual unless doing so would result
in undue hardship.
• Employers are not required to lower existing performance
standards or stop using tests for a job.
• Employers may ask pre-employment questions about essential
job functions but can not make inquiries about disability.
• Medical exams (or testing) for current employees must be
job-related.
• Employers should review job application forms, interview
procedures, and job descriptions for illegal questions and
statements.
• Employers should have up-to-date job descriptions that identify
the current essential functions of the job.

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Disabilities and ADA
• Courts will tend to define “disabilities” quite narrowly.
• Employers are not required to tolerate misconduct
or erratic performance, even if the behaviors can be
attributed to the disability.
• Employers do not have to create a new job for the
disabled worker nor reassign that person to a light-duty
position for an indefinite period, unless such a position
exists.
• Employers should not treat employees as if they are
disabled so that they will not be “regarded as” disabled
and protected under the ADA.

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State and Local Equal Employment
Opportunity Laws
• State and Local Laws
 Cannot conflict with federal law but can extend
coverage to additional protected groups.
 The EEOC can defer a discrimination charge to state
and local agencies that have comparable jurisdiction.

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Title VII: Sexual Harassment
• Sexual Harassment
 Harassment on the basis of sex that has the purpose
or effect of substantially interfering with a person’s
work performance or creating an intimidating, hostile,
or offensive work environment.
 Employers have an affirmative duty to maintain
workplaces free of sexual harassment and
intimidation.
• Federal Violence Against Women Act of 1994
 A person who commits a violent crime motivated by
gender is liable to the party injured.

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 Proving Sexual Harassment

Hostile Environment
Quid Pro Quo Created by
Supervisors

Proving Sexual
Harassment

Hostile Environment
Created by
Co-Workers or
Nonemployees

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TABLE 2–2 Summary of Important Equal Employment Opportunity Actions

Title VII of 1964 Civil Rights Act, as amended

Executive orders
Federal agency guidelines
Supreme Court decisions:
Griggs v. Duke Power Co.,
Albemarle v. Moody
Equal Pay Act of 1963
Age Discrimination in Employment Act of 1967
State and local laws
Vocational Rehabilitation Act of 1973
Pregnancy Discrimination Act of 1978
Vietnam Era Veterans’ Readjustment Assistance Act of 1974
Ward Cove v. Atonio
Price Waterhouse v. Hopkins
Americans with Disabilities Act of 1990
Civil Rights Act of 1991
Note: The actual laws (and others) can be accessed at:
http://www.usa.gov/Topics/Reference_Shelf.shtml#Laws.
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 Sexual Harassment: Court Decisions

Meritor Savings Bank, FSB v. Vinson

Sexual
Burlington Industries v. Ellerth
Harassment

Faragher v. City of Boca Raton

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FIGURE 2–1 HR in Practice: What Employers Should Do to Minimize Liability in
Sexual Harassment Claims

1. Take all complaints about harassment seriously.

2. Have the victim inform the harasser directly that the conduct is unwelcome and must stop.
3. Conduct a thorough investigation of any complaint of harassment.
4. Issue a strong policy statement condemning harassing behaviors.
5. Inform all employees about the policy prohibiting sexual harassment and of their rights under
the policy.
6. Communicate to employees that sexual harassment will not be tolerated.
7. Establish a management response system that includes an immediate reaction and
investigation by senior management.
8. Provide training to supervisors and managers to increase their awareness of the issues.
9. Discipline managers and employees involved in sexual harassment.
10. Keep thorough records of complaints, investigations, and actions taken.
11. Conduct exit interviews that uncover any complaints.
12. Re-publish the sexual harassment policy periodically.
13. Encourage upward communication to discover evidence of sexual harassment
14. Do not retaliate against an individual for opposing employment practices that discriminate
based on sex or for filing a discrimination charge, testifying, or participating in an
investigation, proceeding, or litigation under Title VII.
Sources: www.eeoc.gov/types/sexual_harrasment.html, accessed May 6, 2007, and © 1991by CCH
Incorporated. All rights reserved. Reprinted with permission from Sexual Harassment Manual for
Managers and Supervisors, published in 1991, by CCH Incorporated, a WoltersKluwer Company.
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FIGURE 2–2
California State
University,
Fresno: Complaint
Form for Filing a
Complaint of
Harassment or
Discrimination

Source: California State University, Fresno.

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 Adverse Impact

Showing
Adverse Impact

Disparate
Restricted Population McDonnell-
Rejection
Policy Comparisons Douglas Test
Rates

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 Showing Disparate Treatment

McDonnell-Douglas Test for Prima Facie Case

1 The person belongs to a protected class.

2 The person applied and was qualified for the job.

3 The person was rejected despite qualification.

4 The employer continued seeking applications.

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 Bona Fide Occupational Qualification

Age

Religion
Bona Fide
Occupational
Qualification (BFOQ)
Gender

National Origin

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Business Necessity
• “Business Necessity”
 A defense requiring employers to show that there
is an overriding business purpose (i.e., “irresistible
demand”) for a discriminatory practice.
 Spurlock v. United Airlines

• Validity
 The degree to which the test or other employment
practice is related to or predicts performance on the
job can serve as a business necessity defense.

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Other Considerations in Discriminatory
Practice Defenses
1. Good intentions are no excuse.
2. Employers cannot hide behind collective
bargaining agreements—equal opportunity
laws override union contract agreements.
3. Firms should react by agreeing to eliminate an
illegal practice and (when required) by
compensating the people discriminated
against.

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 Discriminatory Employment Practices

Recruitment Selection Personal Appearance

Word of Mouth Educational Dress
Misleading Information Requirements Hair
Help Wanted Ads Tests Uniforms
Preference to Relatives
Height, Weight, and
Physical Characteristics
Arrest Records
Application Forms
Discharge Due to
Garnishment

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The EEOC Enforcement Process

EEOC Claim and Enforcement Process

1 File Charge

2 Charge Acceptance

3 Serve Notice

4 Investigation/Fact-Finding

5 Cause/No Cause

6 Conciliation

7 Notice to Sue

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FIGURE 2–4
The EEOC Charge-
Filing Process Applicant or employee files charge

EEOC advises employer of charge

and if mediation is an option

Unsuccessful mediation Successful mediation

EEOC may ask employer to EEOC may ask employer to EEOC may ask employer to permit
submit statement of position respond to request for information onsite visit by EEOC and to provide
of employer’s side of story (personnel files, etc.) information for witness interview

Finds no reasonable cause EEOC completes investigation Finds reasonable cause

Issues charging party Issues Letter of Determination

Dismissal and
Notice of Rights
Offers parties conciliation

Charging party may file Conciliation fails Conciliation successful

lawsuit in Federal Court
within 90 days
EEOC may EEOC may decide not to litigate
litigate in Federal
Court within 180
days of charge Sends charging party notice of Right to Sue

Party may sue within 90 days

Note: Parties may settle at any time.
Source: Based on information at www.eeoc.gov.
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FIGURE 2–3 Questions to Ask When an Employer Receives Notice That
EEOC Has Filed a Bias Claim

1. Exactly what is the charge and is your company covered by the

relevant statutes?
2. What protected group does the employee belong to? Is the
EEOC claiming disparate impact or disparate treatment?
3. Are there any obvious bases upon which you can challenge
and/or rebut the claim?
4. If it is a sexual harassment claim, are there offensive comments,
calendars, posters, screensavers, and so on, on display in the
company?
5. Who are the supervisors who actually took the allegedly
discriminatory actions and how effective will they be as potential
witnesses?

Sources: Fair Employment Practices Summary of Latest Developments, January 7, 1983, p. 3, Bureau of National Affairs, Inc. (800-372-1033); Kenneth
Sovereign, Personnel Law (Upper Saddle River, NJ: Prentice Hall, 1999), pp. 36–37; “EEOC Investigations—What an Employer Should Know,” Equal
Employment Opportunity Commission (http://www.eoc.gov/employers/investigations.html), accessed May 6, 2007.
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Mandatory Arbitration
• Gilmer v. Interstate/Johnson Lane Corp.
 Employers can compel employees to agree to
mandatory arbitration of employment-related
disputes.

• Recommendations
 Request party be compelled to arbitrate claim.

 Insert arbitration clause in employment applications

and employee handbooks.
 Protect arbitration process from appeal.

• Alternative Dispute Resolution (ADR)

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Addressing EEOC Claims

During the EEOC Investigation:

1 Follow Three Principles

2 Meet with the Employee

3 Limits of EEOC Authority

4 Submitting Documents

5 Position Statement

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Addressing EEOC Claims (cont’d)

During the Fact- During EEOC Determination

Finding Conference: and Attempted Conciliation:

1 Official Records 1 Review Carefully

2 Employer’s Attorney 2 Conciliate Prudently

3 Information

4 Witnesses

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Diversity Management Program

Steps in a Diversity Management Program:

1 Provide strong leadership

2 Assess the situation

3 Provide diversity training and education

4 Change culture and management systems

5 Evaluate the diversity management program

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Is the Diversity Initiative Effective?
• Are there women and minorities reporting directly to
senior managers?
• Do women and minorities have a fair share of job
assignments that are stepping stones to successful
careers in the company?
• Do women and minorities have equal access to
international assignments?
• Are female and minority candidates in the company’s
career development pipeline?
• Are turnover rates for female and minority managers
the same or lower than those for white male managers?

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Designing an Affirmative Action Program
• Good Faith Effort Strategy
 Eliminating the present effects of past practices
that excluded or underutilized protected groups.
 Identification through numerical analysis.
 Proactive elimination of employment barriers.
 Increased minority or female applicant flow.

• Increasing Employee Support for

Affirmative Action
 Transparent selection procedures
 Communication
 Justifications

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Steps in an Affirmative Action Program
1. Issues a written equal employment policy.
2. Appoints a top official to direct and implement the program.
3. Publicizes the equal employment policy and affirmative action
commitment.
4. Surveys minority and female employment to determine where
affirmative action programs are especially desirable.
5. Develops goals and timetables to improve utilization of minorities
and females.
6. Develops and implements specific programs to achieve these
goals.
7. Establishes an audit and reporting system to monitor and evaluate
progress of the program.
8. Develops support for the affirmative action program, both inside
the company and in the community.

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Reverse Discrimination
• Reverse Discrimination
 Discrimination against non-minority applicants and
employees by quota-based systems.
 Bakke v. Regents of the University of California
 Wygant v. Jackson Board of Education
 U.S. v. Paradise
 Johnson v. Transportation Agency, Santa Clara
County

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 KEY TERMS

Title VII of the 1964 Civil Rights Act Federal Violence Against Women Act
Equal Employment Opportunity of 1994
Commission (EEOC) protected class
affirmative action Civil Rights Act of 1991 (CRA 1991)
Office of Federal Contract Compliance mixed motive case
Programs (OFCCP)
Americans with Disabilities Act (ADA)
Equal Pay Act of 1963
qualified individuals
Age Discrimination in Employment Act
adverse impact
of 1967 (ADEA)
disparate rejection rates
Vocational Rehabilitation Act of 1973
restricted policy
Vietnam Era Veterans’ Readjustment Act
of 1974 bona fide occupational qualification (BFOQ)
Pregnancy Discrimination Act (PDA) alternative dispute resolution or ADR
program
uniform guidelines
good faith effort strategy
sexual harassment
reverse discrimination

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