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Chapter 2
Equal Employment and Discrimination
Chapter Overview
This chapter explores the concept of equal employment opportunity. It first briefly describes the
history of Equal Employment Opportunity (EEO) in the United States and explains protected
categories, disparate treatment, and disparate impact. Then additional EEO concepts such as
business necessity and job relatedness, bona fide occupational qualification (BFOQ), burden of
proof, and non–retaliatory practices are discussed.
Next the chapter covers the provisions of the following federal laws that forbid discrimination in
employment and/or require affirmative action: Title VII of the Civil Rights Act of 1964,
Executive Orders 11246, 11375, and 11478, and the Civil Rights Act of 1991. Also issues around
managing racial issues and racial harassment are included. Affirmative action and affirmative
action plans are explained and the debate about affirmative action is included.
Then discrimination laws and issues dealing with sex and gender are explored. This discussion
includes the topics of pregnancy discrimination, equal pay, and sexual harassment. Issues dealing
with individuals with differing sexual orientations, nepotism, and consensual relationships at
work are also presented. The section ends with a discussion of sexual harassment including the
different types of sexual harassment, employer responses, liability, and harassment likelihood.
The next section deals with discrimination and issues surrounding individuals with disabilities.
The Americans with Disabilities Act (ADA) is discussed including the definition of “disabled,”
mental disabilities, and amendments to ADA included in ADAAA. Genetic bias regulations
including the Genetic Information Nondiscrimination Act (GINA) are presented. The section
ends with a discussion of managing disabilities in the workforce including common means of
reasonable accommodation.
The next section covers age discrimination and discusses the major laws, the Age Discrimination
in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA), and how
to manage age discrimination issues. Then religion and spirituality diversity issues are presented
followed by information regarding other discrimination issues including immigration reform,
language issues, military status, sexual orientation, and appearance.
The chapter concludes with coverage of diversity training including the components of diversity
training, mixed results, and the backlash against this type of training.
Chapter Outline
I. The Nature of Equal Employment Opportunity
Equal employment opportunity (EEO) means that employment decisions
must be made on the basis of job requirements and worker qualifications.
Unlawful discrimination occurs when those decisions are made on the basis
of protected characteristics such as the race, age, sex, disability, or
religion of the worker. Under federal, state, and local laws employers are
prohibited from considering the following factors in making hiring and other
employment decisions:
Age
Color
Disability
Genetic information
Military status or experience
These categories are considered protected characteristics under EEO laws
and regulations. All workers are provided equal protection; the laws do not
Equal employment opportunity is a broad-reaching concept that
essentially requires employers to make status-blind employment decisions.
Most employers are required to comply with equal employment opportunity
A. Sources of Regulation and Enforcement
The employment relationship is governed by a wide variety of regulations. All three branches
of government have played a role in shaping these laws. Federal statutes enacted by Congress
form the backbone of the regulatory environment. State and city legislatures also enact laws
Government agencies responsible for enforcing laws issue guidelines and rules to provide
The two main enforcement bodies for EEO are the Equal Employment Opportunity
Commission (EEOC) and the U.S. Department of Labor (in particular, the Office of Federal
Contract Compliance Programs [OFCCP]). The EEOC enforces employment laws for
Discrimination remains a concern as the U.S. workforce becomes more diverse. Charges filed
with the EEOC continue to rise. The EEOC has also been held accountable for filing lawsuits
II. Theories of Unlawful Discrimination
There are two types of unlawful employment discrimination:
Disparate treatment—occurs when either di,erent standards are used
to judge individuals or the same standard is used but it is not related to
Disparate impact—occurs when an employment practice that does not
appear to be discriminatory has a disproportionally adverse impact on
Unlawful discrimination can occur in all employment-related decisions from
external hiring to internal promotions, selection for training opportunities,
A. Equal Employment Opportunity Concepts
Court decisions and administrative rulings have helped to define several basic EEO concepts.
The four key concepts—business necessity and job relatedness, bona fide occupational
Business Necessity and Job Relatedness
A business necessity is a practice necessary for safe and efficient organizational
operations, such as restricting employees from wearing garments that might get caught in
machinery although the attire may be required by an employee’s religion. Business
Bona Fide Occupational Qualification
Employers may discriminate on the basis of sex, religion, or national origin if the
characteristic can be justified as a bona fide occupational qualification reasonably
necessary to the normal operation of the particular business or enterprise. Thus, a bona
Burden of Proof
When a legal issue regarding unlawful discrimination is raised, the burden of proof must
be satisfied to file suit against an employer and establish that unlawful discrimination has
occurred. The plaintiff charging discrimination must establish a prima facie case of
discrimination through either factual or statistical evidence. The prima facie case means
Nonretaliatory Practices
Employers are prohibited from retaliating against individuals who file discrimination
III. Broad-Based Discrimination Laws
Comprehensive equal employment laws provide broad-based protection for
applicants and employees. The following sections explain these major laws
A. Civil Rights Act of 1964, Title VII
Title VII, the employment section of the Civil Rights Act of 1964, details the
legal protections provided to applicants and employees and defines
Title VII of the Civil Rights Act states that it is illegal for an employer to:
Fail or refuse to hire or discharge any individual, or otherwise discriminate against any
Limit, segregate, or classify his employees or applicants for employment in any way
that would deprive or tend to deprive any individual of employment opportunities or
Title VII Coverage
Title VII, as amended by the Equal Employment Opportunity Act of 1972, covers most
employers in the United States. Any organization meeting one of the following criteria
must comply with rules and regulations that specific government agencies have established
to administer the act:
All private employers of 15 or more employees
All educational institutions, public and private
State and local governments
Title VII has been the basis for several extensions of EEO law. For example,
in 1980, the EEOC interpreted the law to include sexual harassment.
B. Civil Rights Act of 1991
In response to several Supreme Court decisions during the 1980s, Congress amended the Civil
Rights Act of 1964 to strengthen legal protection for employees, provide for jury trials, and
C. Executive Orders 11246, 11375, and 11478
Several important executive orders have been issued by U.S. Presidents
that a,ect the employment practices of federal contractors and
subcontractors. The O)ce of Federal Contract Compliance Programs
Federal contractors are required to develop and maintain a written
a-rmative action program (AAP) that outlines proactive steps the
organization will take to attract and hire members of underrepresented
D. Managing Racial and Ethnic Discrimination Issues
The original purpose of the Civil Rights Act of 1964 was to address race
discrimination in the United States. This concern continues to be important
Charges of racial discrimination continue to make up one-third of all
complaints filed with the EEOC. Employment discrimination can occur in
Racial/Ethnic Harassment
Racial/ethnic harassment is such a concern that the EEOC has issued guidelines on it. It is
IV. Sex/Gender Discrimination Laws and Regulations
The inclusion of sex as a basis for protected status in Title VII of the 1964 Civil Rights Act has
A. Pregnancy Discrimination
The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII to require that
employers treat maternity leave the same as other personal or medical leaves. Closely related
to the PDA is the Family and Medical Leave Act (FMLA) of 1993, which requires that
Unlawful discrimination can occur if a pregnant applicant is not hired or is transferred or
terminated. Courts have generally ruled that the PDA requires employers to treat pregnant
B. Equal Pay and Pay Equity
The Equal Pay Act of 1963 requires employers to pay similar wage rates for similar work
without regard to gender. A common core of tasks must be similar, but tasks performed only
intermittently or infrequently do not make jobs different enough to justify significantly
different wages. Differences in pay between men and women in the same jobs are permitted
because of:
Differences in seniority
Differences in performance
In response to a procedural issue in her pursuit of a fair pay claim, Congress enacted the Lilly
Ledbetter Fair Pay Act in 2009, which eliminates the statute of limitations for employees who
Pay equity is the idea that pay for jobs requiring comparable levels of knowledge, skill, and
ability should be similar, even if actual duties differ significantly. This theory has also been
C. Managing Sex/Gender Issues
The growth in the number of women in the workforce has led to more sex/gender issues
related to jobs and careers. Since women bear children and traditionally have a primary role in
For years, women’s groups have alleged that women in workplaces encounter a glass ceiling,
which refers to discriminatory practices that have prevented women and other minority status
A related problem is that women have tended to advance to senior management in a limited
D. Sexual Orientation
Demographers estimate that about 3% to 5% of Americans identify themselves as being
lesbian, gay, bisexual, or transgender (LGBT). The U.S. Census reports that 650,000 couples
reported living with same-sex partners, with 130,000 reporting being married. While there is
E. Nepotism
Many employers have policies that restrict or prohibit nepotism, the practice of allowing
relatives to work for the same employer. Other firms require only that relatives not work
F. Consensual Relationships and Romance at Work
When work-based friendships lead to romance and off-the-job sexual relationships, managers
and employers face a dilemma: Should they monitor these relationships to protect the firm
from potential legal complaints, thereby “meddling” in employees’ private, off-the-job lives?
Or do they simply ignore these relationships and the potential problems they present?
Most executives and HR professionals agree that workplace romances are risky because they
have great potential for causing conflict. However, looking beyond the legal issues and
dealing with this as a strategic issue allows leaders to consider both the costs and the benefits
