Chapter 03 – The Legal Environment of HRM: Equal Employment Opportunity
CHAPTER 3 – IMPORTANT TERMS
Affirmative action – The extent to which employers make an effort through their personnel
practices to attract, retain, and upgrade members of protected classes or persons with
disabilities.
the “determinative factor” in a personnel decision.
Alternative dispute resolution – An alternative to litigation, such as mediation and arbitration
Bona fide occupational qualifications – Discriminatory practices whenever these practices are
“reasonably necessary to the normal operation of the organization”
Class action – A judge certifies a class of people who make “common” claims against a company
advantageous (or disadvantageous) to members of one protected group compared to members
of another group
Disparate impact – The unintentional but illegal discrimination based on the disproportionate
negative effect on members of a protected group. Can be used in Title VII and ADEA cases
Disparate treatment – The intention to discriminate in treatment of a group of persons based
Chapter 03 – The Legal Environment of HRM: Equal Employment Opportunity
Harassment – Unwelcomed conduct that is based on race, color, sex, religion, national orgin,
disability, and/or age.
Implied contract – What exists by the actions or statements of an employer (in this chapter,
refers to implied employment contract).
various job categories, even when there is no evidence of past discrimination.
OFCCP– The Office of Contract Compliance Programs (OFCCP) in the U.S. Department of Labor
monitors the written affirmative action plans developed by federal contractors and
subcontractors in order to ensure equal employment opportunity.
Prima facie case – Means “presumed to be true until proven otherwise” must show a high
scores based on the ethnicity/gender of the test taker. Prohibited by CRA of 1991
Reasonable Accommodations – Changes to a disabled person unessential job functions that
include reassignment, part-time works, flexible schedule, readers, interpreters, assistants, etc.
Retaliation – In context of this chapter, special form of disparate treatment due to filing an EEO
claim
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other verbal or physical conduct of a sexual nature explicitly or implicitly as a condition of
employment, or submission or rejection of such affect employment decisions, or interferes with
performing work.
Standard deviation rule- The rule uses probability distributions to investigate adverse impact.
The SD analysis looks at the difference between the expected representation (e.g., hiring or
study, and (4) data showing the similarity of the applicants under study.
Validity generalization (VG) – Accumulated evidence of validity, based on a meta-analysis,
available for a selection procedure can justify its use in a new situation without conducting a
local validation study. In these instances, use of the selection procedure may be based on
demonstration of the generalized validity inferences from that selection procedure, coupled
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CHAPTER 3 – COURT CASES
Albemarle Paper Company v. Moody – Clarified job-relatedness defense, requiring a careful job
analysis to identify the specific knowledge, skills, and abilities necessary to perform the job or
study correlating scores on a procedure with job performance. Also required employer to use
specific criteria on which to evaluate job performance in showing job relatedness
hurdle staffing procedure
EEOC v. Waffle House – An agreement between an employer and an employee to arbitrate
employment-related disputes does not bar the EEOC from pursuing victim-specific judicial
relief, such as back pay, reinstatement, and damages, in an ADA enforcement action.
Faragher v. City of Boca Raton – An employer is vicariously liable for actionable discrimination
practicing ‘reverse age discrimination’ where older workers are favored over younger workers
who are over 39.
Gratz v. Bollinger (2004); Grutter v. Bollinger (2004) – The Court ruled that race can be a factor
in college admissions since a social value may be derived from greater “diversity” in the
classroom (Grutter v. Bollinger). However, race cannot be an “overriding” factor in admissions
Harris v. Forklift – Supreme Court ruled Harris does not have to present evidence of
psychological damage/effects to constitute harassment. Only a ‘reasonable person’ needed to
find it hostile or abusive.
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Johnson v. Santa Clara Transportation – First time that Supreme Court explicitly ruled that
women as well as blacks and other minorities could receive preferential treatment.
Organizations may adopt voluntary programs to hire and promote qualified minorities and
women to correct a “manifest imbalance” in their representation in various job categories, even
when there is no proven evidence of past discrimination. Selection must be from pool of
equally qualified candidates.
Mastie v. Great Lakes Steel Corp. – ADEA case found the controlling issue should be whether
age was a determinative factor in the personnel decision, not the absolute accuracy or
Meritor Savings Bank v. Vinson – Any workplace conduct that is “sufficiently severe or
pervasive to alter the conditions of employment and create an abusive working environment”
constitutes illegal sexual harassment.
Oncale v. Sundowner Offshore Services– The sexual harassment policy should stipulate that the
policy applies to same-sex harassment as well.
Smith v. Jackson (2005) – employers must show an age-neutral “business necessity” for their
actions. The Court thus shifted the burden to employers once evidence is presented, usually
statistical, showing “prima facie” discrimination. But as Fortune Magazine put it so delicately,
“there usually is a ‘business necessity’ for dumping workers over 50.” That “business necessity”
is cost reduction. Older workers tend to make more money than what it would cost the
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(such as an investigation or a lawsuit). Employers are also prohibited from retaliating against a
United Steelworkers v. Weber – Approved Kaiser Aluminum’s voluntary affirmative action plan
because it did not unnecessarily trammel the interests of majority employees and because it
was a temporary measure that would cease when blacks reached parity with their
representation in the labor market. It is acceptable to use affirmative action programs to
remedy “manifest racial imbalance” regardless of whether an employer had been guilty of
for subjective employment practices.
Chapter 03 – The Legal Environment of HRM: Equal Employment Opportunity
CHAPTER 3 – LEGISLATION
Age Discrimination in Employment ACT of 1967, Amended in 1978 & 1986 – The ADEA’s broad
ban against age discrimination for people 40 years and older.
Americans with Disabilities ACT of 1990 – The ADA prohibits discrimination on the basis of
disability in all employment practices.
Civil Rights Act of 1991 – made major changes to CRA of 1964 against employment
discrimination enforced by EEOC. Enacted in part to reverse several Supreme Court decisions
that limited the rights of persons protected by these laws, the Act also provides additional
protections. Prohibits race/gender norming. The Act authorizes compensatory and punitive
damages in cases of intentional discrimination and provides for obtaining attorneys’ fees and
same employer under similar working conditions.
Executive Order 11246– contractors and subcontractors are required to develop a written
affirmative action plan that is designed to ensure equal employment opportunity.
Genetic Information Nondiscrimination ACT (GINA) 2008 – The legislation is designed to
address concerns that workers could be denied employment or job benefits due to
Title VII of the 1964 US Civil Rights ACT – Title VII prohibits not only intentional discrimination,
but also practices that have the effect of discriminating against individuals because of their
race, color, national origin, religion, or sex.
Family and Medical Leave Act – For this chapter, this law provides additional protection related
to pregnancy
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CHAPTER 3 – DISCUSSION QUESTIONS
1. In terms of EEO, how can customer requirements or preferences be used in hiring
people?
In the case of Diaz v. Pan American World Airways, the court found that customer preference
was not a legally defensible reason for discrimination. Customer requirements or preferences
2. Given the great economic incentives for plaintiffs’ attorneys today, why is the EEOC even
necessary? Why can’t a person simply be allowed to sue without the involvement of the
EEOC?
The EEOC has been instrumental in providing guidelines to organizations regarding EEO. The
form that the EEOC requires companies to file (EEO-1) is one of the ways in which the EEOC can
3. Describe the procedures required to file a discrimination lawsuits under the disparate
impact and disparate treatment theories. How is adverse impact determined? Provide a
scenario illustrating evidence of adverse impact in an employment decision.
A yardstick recommended by the EEOC and adopted in numerous cases for determining
disparate or adverse impact is the “four–fifths” rule. This means that a selection rate (number
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4. Based on your reading of the major EEO laws, what information should an employer
include in a personnel policies and procedures manual given to all employees?
The employer should outline what the organization’s personnel policies and procedures are and
how they are written to comply with all of the major EEO laws (Title VII, ADA, ADEA, PDA, GINA,
etc).
5. What will be the impact of the 2008 ADA Amendments Act? Explain your answer
The ADA Amendments ACT will increase the number of ADEA cases because of the recent
6. What steps would you take to prevent ADEA cases after a major restructuring or
reduction in force?
Determining which employees to let go during a major restructuring or reduction in workforce
should be based on objective factors other than age (E.G., performance and/or seniority). For
example, in an effort to substantially reduce labor costs, it may appear most efficient to lay off
older workers first since they tend to make more money than younger workers. However, this
type of decision-making process is likely to conflict with ADEA guidelines. Organizations should
be aware of the requirements for establishing a prima facie case of age discrimination. They
are:
1. The employee is a member of the protected age group (40 or older),
2. The employee has the ability to perform satisfactorily at some absolute or relative level
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7. Would you be less likely to join an organization that required you to agree to binding
arbitration regarding labor disputes and to waive your right to a jury trial?
While a jury trial can award huge settlements to the wronged party, the cost of time and
attention required to go to trial is very high. Most cases that go to trial spend years in litigation.
8. Should Title VII of the Civil Rights Act be amended to include sexual orientation? Justify
your position.