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Copyright ©2017 Pearson Education, Inc.
Part One
Introduction
Chapter 2
Equal Opportunity and the Law
Lecture Outline:
Equal Opportunity Laws Enacted From 1964 to 1991
Title VII of the 1964 Civil Rights Act
Executive Orders
Equal Pay Act of 1963
Age Discrimination in Employment Act of 1967
Vocational Rehabilitation Act of 1973
Pregnancy Discrimination Act of 1978
Federal Agency Guidelines
Early Court Decisions Regarding Equal Employment Opportunity
The Laws Enacted from 1991 to the Present
The Civil Rights Act of 1991
The Americans with Disabilities Act
Uniformed Services Employment and Reemployment Rights Act
Genetic Information Nondiscrimination Act of 2008 (GINA)
State and Local Equal Employment Opportunity Laws
In Summary: Religious and Other Types of Discrimination
Recent Trends in Discrimination Law
Sexual Harassment
Trends Shaping HR: Digital and Social Media
Defenses Against Discrimination Allegations
The Central Role of Adverse Impact
Bona Fide Occupational Qualification
Business Necessity
Know Your Employment Law
The EEOC Enforcement Process
Voluntary Mediation
Mandatory Arbitration of Discrimination Claims
Improving Performance: HR Tools for Line Managers and Small Businesses
Diversity Management
Potential Threats to Diversity
Improving Performance: HR as a Profit Center
Managing Diversity
Improving Performance: HR as a Profit Center
Implementing the Affirmative Action Program
Reverse Discrimination
Chapter Review
Chapter 2: Equal Opportunity and the Law 2-2
Copyright ©2017 Pearson Education, Inc.
Where Are We Now…
The purpose of this chapter is to provide you with the knowledge to deal effectively with equal
employment questions on the job. The main topics we cover are equal opportunity laws enacted
from 1964 to 1991, the laws enacted from 1991 to the present, defenses against discrimination
allegations, illustrative discriminatory employment practices, the EEOC enforcement process,
and diversity management.
Interesting Issues:
A university recently fired its career services director after years of good evaluations. This
happened about a year after his new boss gave him his first poor evaluation while peppering him
with questions like “When are you going to retire?” The dismissed employee soon sued for age
discrimination. We will see how to avoid such problems.
Learning Objectives:
2-1. Explain the importance of and list the basic features of Title VII of the 1964 Civil
Rights Act and at least five other equal employment laws.
2-2. Describe post-1990 employment laws including Americans with Disabilities Act and
how to avoid accusations of sexual harassment at work.
2-3. Illustrate two defenses you can use in the event of discriminatory practice allegations,
and cite specific discriminatory personnel management practices in recruitment,
selection, promotion, transfer, layoffs, and benefits.
2-4. List the steps in the EEOC enforcement process.
2-5. Discuss why diversity management is important and how to install a diversity
management program.
Annotated Outline:
I. Equal Opportunity Laws Enacted from 1964 – 1991
The Fifth Amendment to the U.S. Constitution (ratified in 1791) states that, “no person
shall be deprived of life, liberty, or property, without due process of the law.” The
Thirteenth Amendment (1865) outlawed slavery, and courts have held that it bars racial
discrimination. The Civil Rights Act of 1866 gives all persons the same right to make and
enforce contracts and to benefit from U.S. laws.
A. Title VII of the 1964 Civil Rights Act – was one of the first of these laws. Title VII
bars discrimination on the part of most employers, including all public or private
employers of 15 or more persons and most labor unions. Title VII also established the
Equal Employment Opportunity Commission (EEOC) to administer and enforce the
Civil Rights Act at work. The EEOC consists of five members appointed by the
president with the advice and consent of the Senate.
1. The act says it is unlawful to fail or refuse to hire or to discharge an
individual or otherwise discriminate against any individual with respect to
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his/her compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin.
2. The act says it is unlawful to limit, segregate, or classify employees or
applicants for employment in any way that would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his/her status as an employee, because of such individual's
race, color, religion, sex, or national origin.
B. Executive Orders – various presidents have signed executive orders expanding equal
employment laws in federal agencies. The Office of Federal Contract Compliance
Programs was established to implement orders and ensure compliance.
C. Equal Pay Act of 1963 – the Equal Pay Act of 1963 (amended in 1972) made it
unlawful to discriminate in pay on the basis of sex when jobs involve equal work,
equivalent skills, effort and responsibility, and are performed under similar working
conditions.
D. Age Discrimination in Employment Act of 1967 – the Age Discrimination in
Employment Act of 1967 (ADEA) made it unlawful to discriminate against employees
or applicants for employment who are between 40 and 65 years of age.
E. Vocational Rehabilitation Act of 1973 – the Vocational Rehabilitation Act of 1973
requires employers with federal contracts over $2500 to take affirmative action for the
employment of handicapped persons.
F. Pregnancy Discrimination Act of 1978 – prohibits using pregnancy, childbirth, or
related medical conditions to discriminate in hiring, promotion, suspension, or
discharge, or in any term or condition of employment.
G. Federal Agency Guidelines – the EEOC, Civil Service Commission, Department of
Labor, and Department of Justice together set forth “highly recommended” employer
procedures regarding matters like employee selection, record keeping, pre-
employment inquiries, and affirmative action programs.
H. Early Court Decisions Regarding Equal Employment Opportunity
1. Griggs v. Duke Power Company was a case heard by the Supreme Court
in which the plaintiff argued that his employer's requirement that coal
handlers be high school graduates was unfairly discriminatory. In finding
for the plaintiff, the Court ruled that discrimination need not be overt to be
illegal, that employment practices must be related to job performance, and
that the burden of proof is on the employer to show that hiring standards
are job related if they have an unequal impact on members of a protected
class.
2. Albemarle Paper Company v. Moody was a Supreme Court case in which
it was ruled that the validity of job tests must be documented, and that
employee performance standards must be unambiguous.
II. The Laws Enacted from 1991 to the Present
A. The Civil Rights Act of 1991 (CRA 1991) – was signed into law to roll back equal
employment law to where it stood before the 1980s. It also permits compensatory and
punitive damages.
1. Burden of Proof – what the plaintiff must show to establish possible illegal
discrimination, and what the employer must show to defend its actions.
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2. Money Damages – CRA 1991 provides that an employee who is claiming
intentional discrimination (disparate treatment) can ask for 1) compensatory
damages and 2) punitive damages, if it can be shown the employer engaged in
discrimination “with malice or reckless indifference to the federally protected
rights of an aggrieved individual.”
3. Mixed Motives – under CRA 1991, an employer cannot avoid liability by proving
they would have taken the same action—such as terminating someone—even
without the discriminatory motive.
B. The Americans with Disabilities Act
1. The American with Disabilities Act (ADA) of 1990 – prohibits discrimination
against qualified disabled individual with disabilities, with regard to applications,
hiring, discharge, compensation, advancement, training, or other terms, conditions,
or privileges of employment. ADA also says employers must make “reasonable
accommodations” for physical or mental limitations unless doing so imposes an
“undue hardship” on the business.
2. Qualified Individual – the ADA prohibits discrimination against those
who, with or without a reasonable accommodation, can carry out the
essential functions of the job. The individual must have the requisite skills,
educational background, and experience. A job function is essential when,
for instance, it is the reason the position exists or it is so highly specialized
that the employer hires the person for his or her expertise or ability to
perform that particular function.
3. Reasonable Accommodation – if the individual cannot perform the job as
currently structured, the employer is required to make a “reasonable
accommodation,” unless doing so would present an “undue hardship.”
4. The ADA Amendments Act of 2008 (ADAAA) – employers traditionally
prevailed in almost all—96%—federal circuit court ADA decisions.
5. The “New” ADA – in 2008 amendments were made to the ADA. These
changes will make it easier for employees to show their disabilities are
limiting.
C. Uniformed Service Employment and Reemployment Rights Act – employers are
generally required, among other things, to reinstate employees returning from military
leave to positions comparable to those they had before leaving.
D. Genetic Information Nondiscrimination Act of 2008 (GINA) – the law prohibits
discrimination by health insurers and employers based on people’s genetic
information. Specifically, it prohibits the intentional acquisition of genetic
information about applicants and employees, and imposes strict confidentiality
requirements.
E. State and Local Equal Employment Opportunity Laws – usually cover employers (like
those with less than 15 employees) not covered by federal legislation. State and local
equal employment opportunity agencies (often called Human Resources Commission
or Fair Employment Commissions) also pay a role in equal employment compliance.
F. In Summary: Religious and Other Types of Discrimination – religious discrimination
involves treating someone unfavorably because of his or her religious beliefs. The law
protects not only people who belong to traditional organized religions such as
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Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have
sincerely held religious, ethical, or moral beliefs.
G. Recent Trends in Discrimination Law
H. Sexual Harassment – under EEOC guidelines, employers have an affirmative duty to
maintain workplaces free of sexual harassment and intimidation.
1. What is sexual harassment? EEOC guidelines define sexual harassment as
unwelcome sexual advances, requests for sexual favors, and any other verbal or
physical conduct of a sexual nature that takes place under any of the following
conditions:
a. Submission to such conduct is made either explicitly or implicitly a term or
condition of an individual's employment.
b. Submission to or rejection of such conduct by an individual is used as the
basis for employment decisions affecting the individual.
c. Such conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or
offensive work environment.
2. Proving Sexual Harassment – There are 3 main ways someone can prove sexual
harassment.
a. Quid Pro Quo – proves that rejecting a supervisor’s advances adversely
affected what the EEOC calls a “tangible employment action,” such as
hiring, firing, promotion, demotion, and/or work assignment.
b. Hostile Environment Created by Supervisors – shows that even though there
were no direct threats or promises in exchange for sexual advances,
advances interfered with performance and created an offensive work
environment.
c. Hostile Environment Created by Coworkers or Non-employees – an
employer is liable for the sexually harassing acts of its employees and in
some cases, customers, if the employer knew or should have known of the
harassing conduct.
3. When is the Environment “Hostile”? – generally means when the intimidation,
insults, and ridicule were sufficiently sever to alter the employee’s working
conditions.
4. Supreme Court Decisions – the case called Meritor Savings Bank, FSB v. Vinson to
endorse broadly the EEOC’s guidelines on sexual harassment. Two other
Supreme Court decisions further clarified sexual harassment law.
a. Burlington Industries v. Ellerth – the employee accused her supervisor of
quid pro quo harassment.
b. Faragher v. City of Boca Raton – the employee accused the employer of
condoning a hostile work environment.
6. Implications for Employers and Managers
7. When The Law Isn’t Enough – two practical considerations often trump the legal
requirements. First, “Women perceive a broader range of soci-sexual behaviors
(touching, for instance) as harassing. A second problem is that employees often
won’t complain.”
8. What The Employee Can Do – first, complain. In that context, steps an employee
can take include:
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a. File a verbal contemporaneous complaint with the harasser and the
harasser’s boss, stating that the unwanted overtures should cease because
the conduct is unwelcome.
b. If the unwelcome conduct does not cease, file verbal and written reports
regarding the unwelcome conduct and unsuccessful efforts to get it to
stop with the harasser’s manager and/or the human resource director.
c. If the letters and appeals to the employer do not suffice, contact the local
office of the EEOC to file the necessary claim. In very serious cases, the
employee can also consult an attorney about suing the harasser for
assault and battery, intentional infliction of emotional distress, injunctive
relief, and to recover compensatory and punitive damages.
8. Trends Shaping HR: Digital and Social Media
III. Defenses Against Discrimination Allegations – discrimination laws that distinguish
between disparate treatment and disparate impact. Disparate treatment means intentional
discrimination. Disparate impact means that “an employer engages in an employment
practice or policy that has a greater adverse impact (effect) on the members of a
protected group under Title VII than on other employees regardless of intent.”
A. The Central Role of Adverse Impact – an applicant or employee can use one of
the following five methods to show that one of an employer’s procedures (such
as a selection test) has an adverse impact on a protected group:
1. Disparate Rejection Rates – this method compares the rejection rates for a
minority group and another group (usually the remaining non-minority
applicants). Federal agencies uses a “4/5ths rule” to assess disparate
rejection rates.
2. The Standard Deviation Rule – is a statistically measure of variability. It is
a measure of the dispersion of a set of data from its mean.
3. Restricted Policy – is an approach that means demonstrating that the
employer’s policy intentionally or unintentionally excluded members of a
protected group.
4. Population Comparisons – is an approach that compares 1) the percentage
of the protected group and white workers in the organization with 2) the
percentage of the corresponding groups in the labor market, where the
labor market is usually defined as the U.S. Census data for the Standard
Metropolitan Statistical Area.
5. McDonnell-Douglas Test – when an applicant is qualified but rejected, and
the employer continues seeking applicants, the Court has determined that a
prima facie case of disparate treatment has been established under these
conditions. The U.S. Supreme Court set four rules for applying the
McDonnell-Douglas test:
a. the person belongs to a protected class;
b. that he or she applied and was qualified for the job for which
the employer was seeking applicants;
c. that despite the qualification, the person was rejected; and
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d. that after his or her rejection, the position remained open and
the employer continued to seek applications from persons with
the individual complainant’s qualifications.
6. Adverse Impact Example
B. Bona Fide Occupational Qualification (BFOQ) is usually a defense to a
disparate treatment case based upon direct evidence of intentional
discrimination, rather than to disparate impact (unintentional) cases.
1. Age as a BFOQ – ADEA does permit disparate treatment in those
instances when age is a BFOQ.
2. Religion as a BFOQ is justified in the case of religious organizations or
societies that require employees to share their particular religion.
3. Gender as a BFOQ is allowed for positions requiring specific physical
characteristics necessarily possessed by one sex.
4. National Origin as a BFOQ – a person’s national origin may be a BFOQ.
C. Business Necessity – business necessity is a defense created by the courts that requires
an employer to show an overriding business purpose for the discriminatory practice
and that the practice is therefore acceptable.
D. Know Your Employment Law
1. Examples of What You Can and Cannot Do
2. Recruitment
a. Word of Mouth – you cannot rely upon word-of-mouth dissemination of
information about job opportunities when your workforce is all white or all
members of some other class.
b. Misleading Information – it is unlawful to give false or misleading information
to members of any group.
c. Help Wanted Ads – help wanted ‘male’ or help wanted ‘female’ ads are
violations unless gender is a bona fide occupational qualification for the job.
3. Selection Standards
a. Educational Requirements – courts have found education qualifications to
be illegal when minority groups are less likely to possess the education
qualifications or qualifications are not job related.
b. Test – courts deem tests unlawful if they disproportionately screen out
minorities or women and they are not job related.
c. Preference to Relatives – do not give preference to relatives of current
employees with respect to employment opportunities.
d. Height, Weight, and Physical Characteristics – physical requirements such
as minimum height are unlawful unless the employee can show they are
job related.
e. Arrest Records – unless a job requires security clearance, do not ask an
applicant whether he or she has been arrested or spent time in jail or use an
arrest record to disqualify a person automatically.
f. Application Forms – employment applications generally shouldn't contain
questions about applicant’s disabilities, workers’ compensation history,
age, arrest record, or U.S. citizenship.
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g. Discharge Due to Garnishment – firing a minority member whose salary is
garnished is illegal unless you can show some overriding business
necessity.
4. Sample Discriminatory Promotion, Transfer, & Layoff Practices
a. Personal Appearance Regulations and Title VII – employees sometimes
file suits against employers’ dress and appearance codes under Title VII.
They usually claim sexual discrimination, but sometimes claim racial or
even religious discrimination. The chapter describes court rulings regarding
dress, hair, uniforms, tattoos, and body piercings.
IV. The EEOC Enforcement Process – even careful employers eventually face employment
discrimination claims and have to deal with the EEOC.
1. File Charge – the process begins when someone files a claim with the EEOC.
2. Charge Acceptance – the EEOC’s common practice is to accept a charge and
orally refer it to the state or local agency on behalf of the charging party.
3. Serve Notice – the EEOC has 10 days to serve notice on the employer.
4. Investigation/Fact-Finding Conference – the EEOC has 120 days to decide
whether there is reasonable cause to believe the charge. Early in the investigation,
the EEOC holds a fact-finding conference to find weak spots in each party’s
position. It uses these to push for a settlement.
5. Cause/No Cause – if no reasonable cause is found, the EEOC must dismiss the
charge. A Notice of Right to Sue is issued to the charging party who then has 90
days to file a suit on his or her own behalf.
6. Conciliation – if cause is found, the EEOC has 30 days to work out a conciliation
agreement.
7. Notice to Sue – if conciliation is not satisfactory, the EEOC may bring a civil suit
in federal district court, or issue a Notice of Right to Sue to the person who filed
the charge.
A. Voluntary Mediation – the EEOC refers about 10% of its charges to voluntary
mediation mechanism, an informal process in which a neutral third party assists the
opposing parties to reach a voluntary negotiated resolution of a charge of
discrimination.
B. Mandatory Arbitration of Discrimination Claims – many employers, to avoid EEO
litigation, require applicants and employees to agree to arbitrate such claims. The EEO
does not favor mandatory arbitration. However, the U.S. Supreme Court’s decisions
make it clear that employment discrimination plaintiffs may be compelled to arbitrate
their claims under some circumstances.
C. Improving Performance: HR Tools for Line Managers and Small Businesses
V. Diversity Management
A. Potential Threats to Diversity – workforce diversity produces both benefits and problems
for employers. Unmanaged, it can produce big behavioral behaviors that reduce
cooperation. Potential problems include: stereotyping, discrimination, tokenism, and
ethnocentrism.
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B. Managing Diversity – managing diversity means maximizing diversity’s potential
benefits while minimizing the potential problems. Activities that constitute managing
diversity include:
1. Providing strong leadership – companies with exemplary reputations in managing
diversity typically have CEOs who champion the cause of diversity.
2. Assess the situation – assessing a company's diversity includes equal employment
hiring and retention metrics, employee attitude surveys, management employee
evaluations, and focus groups.
3. Change culture and management systems.
4. Evaluate the diversity management program.
C. Improving Performance: HR as a Profit Center
D. Implementing the Affirmative Action Program – affirmative action is still a significant
workplace issue today. Affirmative action means taking action in recruitment, hiring,
promotion, and compensation to eliminate the current effects of past discrimination.
1. Employee resistance – avoiding employee resistance to affirmative action programs
is important to show that the program doesn't involve preferential selection
standards by providing details on the qualifications of all new hires.
2. Program Evaluation – how can you tell if the diversity initiatives are effective?
Some common sense questions can be asked:
a. Are the women and minorities reporting directly to senior managers?
b. Do women and minorities have a fair share of jobs that are traditionally
steppingstones to successful careers in the company?
c. Do women and minorities have equal access to international assignments?
d. Is the employer taking steps to ensure that female and minority candidates will
be in the company's career development pipeline?
e. Are turnover rates for female and minority managers the same or lower than
those for white males?
f. Do employees report that they perceive positive behavior changes as a result of
diversity efforts?
E. Reverse Discrimination
Chapter Review
Chapter Section Summaries:
2-1: Several of the most important equal employment opportunity laws became law in the
period from 1964 to 1991.
2-2: Equal employment law continues to evolve, with important new legislation being enacted
since 1990-1991.
2-3: Employers use various defenses against discrimination allegations.
2-4: All managers play an important role in the EEOC enforcement process.
2-5: With the increasingly diverse workforce, diversity management is a key managerial skill.
Discussion Questions:
