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Equal Employment Opportunity:

Legal Aspects of Human Resource Management
McGraw-Hill/Irwin Human Resource Management, 10/e © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

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Introduction

Today,

lawsuits are common In 1960, about 59,000 civil suits were filed in U.S. district courts In 2004, around 281,338 were filed Defective products account for much of the litigation, but suits against employers are increasing rapidly

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Introduction
To

study the relationship between HRM and the law, research equal employment opportunity EEO impacts almost every HRM activity EEO programs are implemented to Prevent employment discrimination Take remedial action to offset employment discrimination

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Introduction
HR

officials and managers in every function must get involved in EEO issues and programs to: Ensure that the organization complies with the law Avoid fines Establish a discrimination-free workplace managers must assist by: Changing their attitudes about protected-category employees Helping all employees adjust to the changes EEO brings to the workplace

Operating

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How Did EEO Emerge?

Three

factors that led to the development of EEO: Changes in societal values The economic status of women and minorities The emerging role of government regulation

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Societal Values and EEO
The

American dream: Any individual, through hard work, can advance from the most humble origins to the highest station, according to the worth of his or her contributions motives also encourage equal opportunity Discrimination means losing access to talent It helps eliminate such societal problems as poverty, crime, high taxes, and civic disorder

Profit

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Societal Values and EEO
Differences

between ideals and reality fueled the civil rights conflict of the 1960s Seeing demonstrators attacked with cattle prods, dogs, and fire hoses shocked the public Overt discrimination gradually declined as recognition of the problems grew The business community shared this attitude change, voluntarily supporting EEO-related efforts as the National Alliance of Businessmen

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Societal Values and EEO
Congress

passed civil rights laws prohibiting discrimination in: Education Voting Public accommodations Employment The administration of federal programs

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Economic Status of Minorities
Economic

inequality helped focus national attention on employment discrimination The inequalities were especially striking in income comparisons between African-Americans and whites These inequalities could not be attributed entirely to differences in education levels

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The Government
Organizations

spend billions of dollars to comply with federal regulations EEO laws comprise a large portion of human resource managers' compliance responsibilities EEO has given employees specific rights in their relationship with employers

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EEO Laws: Content and Interpretations
Title

VII of the 1964 Civil Rights Act Prohibits covered entities from discrimination on the basis of race, color, religion, sex, or national origin Covered organizations include: Private employers with 15 or more employees Labor organizations with 15 or more members Employment agencies Federal, state and local government employers

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EEO Laws: Content and Interpretations
Title

VII specifically exempts:

Private

membership clubs Native American tribes Religious organizations (in some cases)

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Discrimination: Current Legal Definitions
Title

VII and other EEO laws do not provide definitions of illegal discrimination This task falls upon courts civil rights problems: Economic inequality Denial of employment opportunities to minorities

The

Courts

hold that both intentional and unintentional acts may constitute illegal employment discrimination

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Disparate Treatment
Disparate

treatment means: Applying different standards/treatment to groups of employees or applicants in a protected category Persons filing suit must establish a prima facie case proving that: He/she belongs to a protected class He/she applied or was considered for a job for which he/she was qualified He/she suffered an adverse employment action The employer continued to seek applicants with qualifications similar to those of the plaintiff

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Disparate Treatment
Upon

establishing a prima facie case, the employer may file a rebuttal: A BFOQ defense is most likely to be accepted when exclusion of a protected group relates to the ability to perform a job safely A BFOQ defense may also be upheld for customer preferences in narrow situations (authenticity) The courts have rejected companies' claims of BFOQ due to customer preference (flight attendants)

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Disparate Impact
Disparate

impact: a neutral employment practice that disproportionately excludes a protected group VII says disparate impact is established if: A complaining party shows that a respondent uses an employment practice that causes a disparate impact; and either The respondent fails to show that the challenged practice is job related and consistent with business necessity; or The respondent refuses to adopt an alternative employment practice

Title

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Disparate Impact
The

four-fifths rule states that discrimination typically occurs if the selection rate for one group is less than 80 percent of the selection rate for another group Example: If 20 out of 100 white applicants were selected, at least 16 (4/5 of 20) nonwhite applicants should be selected

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Retaliation
Retaliation

claims filed with the EEOC have risen significantly over the past decade Employees who oppose discriminatory practices or participate in a protected activity are protected by: Title VII Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act (ADA) Equal Pay Act (EPA) may seek both compensatory and punitive damages

Employees

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Retaliation
Three

essential elements of a retaliation claim: Protected employee activity Adverse action by an organization A causal connection between the protected activity and adverse action

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Retaliation
Employee

activities that are protected include: Opposition to discrimination Participation in a protected proceeding manner of opposition must be reasonable There must also be a reasonable, good faith belief that the opposed employment practice was discriminatory

The

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Retaliation
Examples

of protected opposition: Threatening to file a charge or other formal complaint alleging discrimination Complaining to anyone about alleged discrimination against oneself or others Refusing to obey an order because of a reasonable belief that it is discrimination Requesting a reasonable accommodation for a disability or religion

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Retaliation
Protected

participation activities include: “Filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing" These activities are protected regardless of whether underlying discrimination claims are valid Employees are protected for activities against both current and former employers

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Retaliation
Actions

which may be considered retaliatory: Termination Denial of promotion Denial of job benefits Refusal to hire Demotion or suspension Threats or reprimands Negative evaluations Harassment Limiting access to complaint or grievance procedures Providing negative references with retaliatory motives

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Retaliation
Both

direct and circumstantial evidence may be used to prove that a causal connection exists Direct evidence includes written or oral statements expressing a retaliatory motive causal connection may be inferred if: The adverse action occurred shortly after the protected activity The person who undertook the adverse action was aware of the complainant's protected activity before taking the action

A

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Title VII and Sexual Harassment
Sexual

harassment claims filed with the EEOC have steadily increased since the 1990s Several resulted in multimillion-dollar settlements harassment is considered a form of sex discrimination It is actionable whether it occurs between the same or opposite sex individuals

Sexual

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Title VII and Sexual Harassment
There

are two forms of sexual harassment: Quid pro quo harassment— the exchange of sexual favors for job benefits Hostile work environment—the creation of an offensive working environment

Employers

are always liable for quid pro quo harassment A supervisor’s acts are viewed as the acts of the employer

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Quid Pro Quo
Five

elements must exist to successfully prove quid pro quo harassment: Plaintiff is a member of a protected class Plaintiff was subject to unwelcome sexual harassment from someone with authority over the plaintiff The harassment was based on sex Submission to unwelcome advances was a condition for receiving job benefits, or refusal resulted in a tangible job detriment The employer knew or should have known of the harassment

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Hostile Work Environment
Hostile

work environment was first recognized in Meritor Savings Bank v. Vinson A tangible job detriment does not have to exist for sexual harassment to be actionable Unwelcome conduct must be “sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment” between hostile work environment and quid pro quo sexual harassment is important for determining employer liability

Distinguishing

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Hostile Work Environment
An

employer may fulfill its duty to prevent or remedy hostile work environment harassment by:
Developing

an anti-harassment policy Promptly and thoroughly investigating harassment allegations Properly disciplining offenders

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Recent Developments
Recent

U.S. Supreme Court decisions: Made employers liable for sexual harassment by a supervisor who has authority over the harassed employee Established a two-part defense that employers may assert if the harassment resulted in no tangible loss: Reasonable care was taken to promptly prevent and correct sexually harassing behavior The plaintiff failed to take advantage of preventive or corrective opportunities provided by the employer or otherwise avoid harm

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Recent Developments
Organizations

must update and strengthen antiharassment policies to include: Specific definitions and prohibition of sexual harassment Strong prohibitions of retaliation for reporting allegations of harassment Multiple channels for making complaints Assurances of prompt investigations and appropriate remedial actions Provisions for confidentiality and privacy

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Title VII and Pregnancy Discrimination
Under

this act, employers must: Avoid discrimination in providing benefits, such as vacation time, sick leave, and health insurance Allow women to work until their pregnancy results in physical disability that interferes with their job performance Allow employees to return to work after childbirth on the same basis as for other disabilities

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Title VII and Religious Minorities
The

number of religious discrimination cases filed with the EEOC has been increasing Most involve employers telling employees to work days/times that conflict with religious beliefs Religious participation has steadily increased since 1987 Policies on religion in the workplace are becoming common

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Title VII and “English-Only” Rules
A

rising number of organizations are implementing "English-only" rules Organizations claim such rules are needed for: Harmony among employees Effective communication and supervision Safe working conditions too broadly, these rules: Create controversy among employees Can result in claims of disparate impact national origin discrimination

Applied

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Title VII and “English-Only” Rules

The

EEOC presumes that English-only rules violate Title VII unless justified by a business necessity Federal courts, however, have upheld English-only rules in which employees are allowed to: Speak another language during breaks Communicate with non-English-speaking customers

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Civil Rights Act of 1991
The

Civil Rights Act of 1991 (CRA 1991): Deters harassment and intentional employment discrimination Codifies some disparate impact discrimination concepts Expands the scope of existing EEO statutes

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Civil Rights Act of 1991
Major

provisions of CRA 1991: Allows compensatory and punitive damages Allows plaintiffs to demand a jury trial Codified disparate impact concepts Prohibited adjusting test scores or using different cutoff scores on the basis of a protected category Clarified the concept of mixed motive

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Civil Rights Act of 1991
Major

provisions of CRA 1991 (continued): Extended the coverage of Title VII and the ADA to U.S. citizens employed by covered entities operating in foreign countries Charged the EEOC with providing technical assistance training, education, and outreach Expanded the coverage of Title VII to the House of Representatives and agencies of the legislative branch Encouraged the use of alternative dispute resolution

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Executive Order 11246 (1965)
Issued

by President Lyndon B. Johnson in 1965 Prohibits employment discrimination on the basis of race, color, religion, sex, or national origin Applies to federal contractors, subcontractors, and federally assisted construction contracts Prohibits the same actions as Title VII Plus, contractors must develop a written plan of affirmative action and establish numerical goals and timetables

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Equal Pay Act of 1963
The

Equal Pay Act (EPA) is designed to: Eliminate wage differentials between men and women performing the same work applies to jobs which: Require equal skill, effort, and responsibility Are performed under similar working conditions are allowed when mandated by a: Seniority or merit system System that measures earnings by quantity or quality of production Differential based on any factor other than sex

It

Exceptions

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Age Discrimination Employment Act (1967)
Protects

individuals 40 years of age and older from employment discrimination based upon age The act covers the actions of: Private employers with 20 or more employees Employment agencies Labor organizations with at least 25 members Federal, state, and local governments Native American tribes are exempt from coverage

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Age Discrimination Employment Act (1967)
Reductions

in force (RIF) has emerged as a major issue in age discrimination cases Financial concerns result in the termination of higher paid employees, who are often the older workers Plaintiffs may defend termination of protected employees with legitimate reasons other than age facing older workers: Company economics Management attitudes Stereotypes

Barriers

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Age Discrimination Employment Act (1967)
Advantages

to hiring older workers: Lower turnover Greater consciousness of safety Longer work experience More maturity More loyalty to the enterprise

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Americans with Disabilities Act (ADA)

Prior

to passage of the ADA, over 43 million Americans had physical or mental disabilities  The number of Americans with disabilities will increase as our population ages Society has historically isolated and discriminated against the disabled, who often had no legal recourse

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Covered Entities & Protected Individuals
The

ADA prohibits discrimination against qualified individuals on the basis of their disabilities Applies to job application procedures, hiring, advancement, discharge, The Rehabilitation Act of 1973 has compensation, training, and other extra requirements aspects of employment for federal governCovers private sector companies ment employers & contractors with with 15 or more employees, state federal contracts and local government, & Congress exceeding $2,500

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Covered Entities & Protected Individuals
Both

the Rehabilitation Act and the ADA define an individual with a disability as: Someone who has a physical or mental impairment that substantially limits one or more major life activities

Physical

disabilities: visual and hearing impairments, cancer, HIV/AIDS Mental impairments: depression, bipolar disorder, anxiety disorders, schizophrenia, personality disorders

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Reasonable Accommodations
Employers

must make reasonable accommodations for the known disabilities of a qualified individual Someone with a disability who, with or without accommodation, can perform the essential functions of a job Accommodations are not required if doing so would create undue hardship for the employer

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Reasonable Accommodations
Reasonable

accommodations may include: Making existing facilities accessible Restructuring jobs Modifying work schedules Reassigning employees Providing readers or interpreters

More

than 50 percent of these accommodations cost virtually nothing 30 percent cost less than $500

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Ongoing Developments
Three

cases narrowed the definition of a disability by excluding correctable conditions Sutton et al. v. United Airlines, twin sisters were rejected as airline pilots because they didn’t meet a minimum uncorrected vision requirement Albertsons, Inc. v. Kirkingburg, a truck driver was discharged for failing to meet DOT vision standards Murphy v. United Parcel Service Inc., a mechanic was discharged because of high blood
Whether

corrective measures must fully control an impairment to preclude ADA coverage remains unclear

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State Laws
Many

states have "fair employment" laws similar to Title VII Some antedate Title VII If a state's law is strong enough, the federal government turns discrimination cases over to the state fair employment practices agency

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Enforcing The Law
The

EEOC enforces: Title VII The Civil Rights Act of 1991 The Equal Pay Act The Age Discrimination in Employment Act The Americans with Disabilities Act

The

Office of Federal Contract Compliance Programs (OFCCP) enforces: Executive Order 11246 courts enforce and interpret EEO laws

Federal

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Equal Employment Opportunity Commission
Title

VII gave EEOC the power to resolve charges of discrimination and interpret the meaning of the act The EEOC can bring lawsuits against employers in the federal courts The agency can not issue directly enforceable orders EEOC cannot order an employer to discontinue a discriminatory practice It cannot force an employer to give back pay to victims of discrimination However, the EEOC has won on these issues in out-of-court settlements

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Equal Employment Opportunity Commission
EEOC

does have the power to: Require employers to report employment statistics Process charges of discrimination Investigation process: Interview the complainants You have 180 Collects facts from all parties days from the occurrence of the If the charge appears valid, attempt discriminatory act an out-of-court settlement through to file a charge conciliation If conciliation fails, the EEOC can sue the employer

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Equal Employment Opportunity Commission
In

2001, the EEOC: Resolved 90,106 claims Received 80,840 new charges Filed 431 lawsuits Won $247.8 million for charging parties substantial backlog of cases remains

A

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The Courts
The

courts are constantly interpreting the laws All employment discrimination laws provide for court enforcement Federal courts are involved with Title VII in two ways: Settling disputes between the EEOC and employers Deciding the merits of discrimination charges when out-of-court conciliation fails The process can be confusing because every step of the process can be appealed

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The Courts
Once

a final court decision is reached in a Title VII case, the court can provide drastic remedies: Back pay Hiring quotas Reinstatement of employees Promotion of employees Abolition of testing programs Creation of special recruitment or training programs court-ordered action depends on the facts surrounding the case

The

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Affirmative Action in Organizations
What

is affirmative action? “Those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity”

Does

affirmative action grant special treatment to some individuals to the detriment of others? The legality of special treatment depends partly on whether the action is involuntary or voluntary Any employer with a federal contract of at least $50,000 and employing 50 individuals must have a written affirmative action plan (AAP)

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Voluntary Affirmative Action Plans
The

Supreme Court established criteria for lawful voluntary AAPs in organizations: The AAP must exist to eliminate past imbalances based upon a protected group category The AAP must not unnecessarily trammel the rights of the majority The plan must be temporary The plan must not provide for set-aside positions

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Involuntary Affirmative Action Plans
These

steps are an integral part of an affirmative action plan:
Step Step Step

I: Analyze under-representation and availability 2: Set goals 3: Specify how goals are to be attained

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