Chapter 3: Equal Employment Opportunity
Chapter 3
Equal Employment Opportunity
Learning Objectives
After students have read this chapter, they should be able to:
• Identify the major government agencies that enforce employment discrimination
laws.
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.
Chapter 3: Equal Employment Opportunity
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 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.
Chapter Outline
Chapter 3: Equal Employment Opportunity
I. 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
HR Headline: Discrimination at Wal-Mart
Wal-Mart continues to struggle against claims of discrimination from its female
workforce. More than 1.5 million women joined together to fight the retail giant in a
class action lawsuit. They claimed that they were repeatedly passed over for
promotions and pay increases in favor of male candidates. Using statistical evidence
and anecdotal claims about the corporate culture, they argued that Wal-Mart has a
pattern of discriminating against women in employment decisions.
The women involved in the lawsuit, however, are not giving up. They are dividing
themselves into smaller groups and filing suits in state courts in California, Texas,
and other regions. Their hope is that they can show a pattern of sex discrimination
Chapter 3: Equal Employment Opportunity
• Pregnancy
• Race
• Religion
• Sexual orientation (some states and cities)
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 laws. Affirmative action
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 the legislature form the backbone of the regulatory environment. State and
city legislatures also enact laws governing activity within their domains. The courts
interpret these laws and rule on cases. Case law helps employers to understand how
laws are applied and what they must do to comply. Executive Orders are issued by the
President of the United States to help government departments and agencies manage
their operations.
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Multinational companies face a confusing array of nondiscrimination laws in different
countries. Organization leaders determine the best approach to manage their
international operations electing to either use the highest standards in all nations or
comply with each nation’s specific regulations.
II. Theories of Unlawful Discrimination
There are two types of unlawful employment discrimination:
• Disparate treatment—occurs when either different standards are used to
judge individuals or the same standard is used but it is not related to the
Unlawful discrimination can occur in all employment-related decisions from external
hiring to internal promotions, selection for training opportunities, and layoffs and
terminations. Job analysis, recordkeeping, and reviewing the results of all
employment decisions are important steps to prevent lawsuits on the basis of
disparate treatment and disparate impact. Companies can also provide training to
managers to increase awareness of discrimination and help to prevent unlawful
decisions.
A. Equal Employment Opportunity Concepts
Business Necessity and Job Relatedness
Chapter 3: Equal Employment Opportunity
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.
During the economic recession in 2008–2010 the credit standing of many individuals
was negatively impacted because of job loss. They were further harmed when
employers used credit history during the hiring process and denied them
employment. A number of states then enacted laws to prevent the use of negative
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
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
Chapter 3: Equal Employment Opportunity
discrimination has occurred. On the basis of the evolution of court decisions, current
laws, and regulations, the plaintiff charging discrimination must establish a prima
facie case of discrimination through either factual or statistical evidence. The prima
Retaliation
Employers are prohibited from retaliating against individuals who file discrimination
charges. Retaliation occurs when employers take punitive actions against
individuals who exercise their legal rights. An important aspect of retaliation charges
is that the charging party may lose the case on the basis of discrimination but still
win if the employer took punitive action against him or her.
To prevent charges of retaliation, the following actions are recommended for
employers:
• Create and disseminate an antiretaliation policy.
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III. Broad-Based Discrimination Laws
Comprehensive equal employment laws provide broad-based protection for
applicants and employees. The following sections explain these major laws and
compliance requirements.
A. Civil Rights Act of 1964, Title VII
Title VII, the employment section of the Civil Rights Act of 1964, details the legal
HR Perspective: Retaliation Claimant Prevails
In May of 2012 the EEOC won a judgment against Cognis Corporation for taking
retaliatory action against Steven Whitlow, a former employee. Cognis
Steven Whitlow had worked at the company for 19 years and he refused to sign
this agreement. Cognis, in turn, fired him in retaliation for not signing the
agreement. The court ruled in favor of the EEOC and Mr. Whitlow stating that the
company acted unlawfully when it violated this fundamental right of employees in
the United States. Employees are permitted to file charges or lawsuits when they
believe an employer discriminated against them. Employers cannot interfere or
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the following:
• Fail or refuse to hire or discharge any individual, or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, 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
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. Further, a
number of concepts identified in Title VII are the foundation for court decisions,
regulations, and other laws.
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
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C. Executive Orders 11246, 11375, and 11478
Several important executive orders have been issued that affect the employment
practices of federal contractors and subcontractors. The Office of Federal Contract
Compliance Programs (OFCCP) in the U.S. Department of Labor is responsible for
D. Managing Affirmative Action Requirements
Federal contractors are required to develop and maintain a written affirmative
action program (AAP) that outlines proactive steps the organization will take to
attract and hire members of underrepresented groups. This data-driven program
includes analysis of the composition of company’s current workforce with a
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E. 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 today
and employers must be aware of potential HR issues that are based on race,
national origin, and citizenship to take appropriate actions.
HR Ethics: Should Political Views Be Protected?
Many characteristics about individuals cannot be used in employment matters.
Under Title VII of the Civil Rights Act of 1964, employers cannot consider the race,
color, sex, national origin, or religion of an applicant or employee when making
hiring and other employment decision. Age and disability discrimination laws also
restrict employers from considering aspects about people that have little or
nothing to do with job performance. However, an individual’s political beliefs are
not protected under the law. In other words, an employer might use that
information to make an employment decision. But, just because it is not illegal,
doesn’t make it ethical.
The case highlights an ethical dilemma in human resource management. Decisions
made by organizations may be legal, but may still violate basic human rights. The
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Sometimes racial discrimination is very subtle. For example, some firms have
tapped professional and social networking sites to fill open positions. However,
Racial/Ethnic Harassment
The area of racial/ethnic harassment is such a concern that the EEOC has issued
guidelines on it. It is recommended that employers adopt policies against harassment
of any type, including ethnic jokes, vulgar epithets, racial slurs, and physical actions.
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 led to additional areas of legal protection and a number of laws and regulations now
address discrimination based on sex or gender.
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
Women across the globe have experienced discrimination because of pregnancy despite
legal protections for childbirth and child rearing. Discrimination may occur because of
employer perceptions of how the pregnancy might affect the employee’s job
performance and attendance, or from questions asked during an employment interview
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standards and expectations of pregnant employees but should be cautious to use the
same standards for nonpregnant employees and employees with other medical
conditions. A careful review of FMLA policy decisions is important to prevent
discrimination claims under the PDA for attendance issues.
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
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 called comparable worth in earlier cases. Some state laws have mandated pay
equity for public-sector employees. However, U.S. federal courts generally have ruled
that the existence of pay differences between the different jobs held by women and men
is not sufficient to prove that illegal discrimination has occurred.
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increases for women. Employers can take steps to reduce pay inequities, such as:
• Include all benefits and other items that are part of pay to calculate total
compensation for the most accurate overall picture.
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. Because women bear children and traditionally have a
primary role in raising children, issues of work-life balance can emerge. Respect for
employees’ lives outside of the workplace can pay off in terms of attracting and
retaining high quality talent. Organizations offer a range of options to help employees
Employees at different career stages and with different household structures may seek
different elements to help balance work and family obligations. Organizations
considering implementing work-family balance programs have a wide range of choices
and benefit most from customizing to their specific culture rather than adopting a one-
size-fits-all approach.
Glass Ceiling
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
Chapter 3: Equal Employment Opportunity
fact that organizations with greater gender diversity enjoy better financial
performance than those with less diversity, women still hold a small percentage of
top leadership jobs in corporations. In Asia and developing markets, gender diversity
is more important than in Latin America, Europe, and North America.
Breaking the Glass
A number of employers have recognized that breaking the glass, whether ceilings,
walls, or elevators, is good business for both women and racial minorities. Some of
the most common means used to “break the glass” are as follows:
• Establish formal mentoring programs for women and members of racial/ethnic
minorities.
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 no federal law prohibiting discrimination on the basis of sexual
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EEOC have ruled that sex discrimination under Title VII applies to a person’s gender at
birth. Thus, it does not apply to the new gender of those who have had sex
transformation operations. However, managers and employees are becoming more
tolerant of such situations and there is a growing respect for individuals undergoing
these procedures.
E. Nepotism
Many employers have policies that restrict or prohibit nepotism, the practice of
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?
V. Sexual Harassment
The Equal Employment Opportunity Commission has issued guidelines designed to curtail
sexual harassment. Sexual harassment is unwelcome verbal, visual, or physical conduct
Chapter 3: Equal Employment Opportunity
Most of the sexual harassment charges filed involve harassment of women by men. Most
claims of harassment go unreported as victims are reluctant to speak out for fear of
retribution. Supervisors are the most frequent harassers, but coworkers and even
subordinates have also been involved in these incidents.
A. Types of Sexual Harassment
Two basic types of sexual harassment have been defined by EEOC regulations and a
number of court cases. Figure 3-5 shows the two types and how they differ. They are
defined as follows:
• Quid pro quo is harassment in which employment outcomes are linked to the
individual granting sexual favors.
The second type, hostile environment harassment, may include actions such as
commenting on appearance or attire, telling jokes that are suggestive or sexual in nature,
allowing revealing photos and posters to be displayed, or making continual requests to
get together after work that can lead to the creation of a hostile work environment. If the
employer has taken appropriate steps to prevent sexual harassment, it may be possible
to offer an affirmative defense and prevail in a lawsuit.
B. Preventing Sexual Harassment
Chapter 3: Equal Employment Opportunity
A proactive prevention approach is the most effective way to reduce sexual harassment
in the workplace. Companies may avoid liability if they take reasonable care to prohibit
sexual harassment, the so-called affirmative defense. Important elements of the
affirmative defense include:
• Establish a sexual harassment policy.
C. International Context of Harassment
Fundamental differences regarding power between men and women and a cultural
support of sexual harassment lead to very different sexual harassment situations from
country to country.
VI. Disability Discrimination
Several federal laws have been enacted to advance the employment of disabled
individuals and to reduce discrimination based on disability. These laws and
A. Rehabilitation Act
The earliest law regarding disabled individuals was passed in 1973 and applied
only to federal contractors. The Rehabilitation Act defined many of the terms and
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workers.
B. Americans with Disabilities Act
The Americans with Disabilities Act (ADA) was enacted in 1990. This Act applies to
private employers, employment agencies, and labor unions with 15 or more
C. Americans with Disabilities Act Amendments Act
In 2009, Congress passed amendments to the ADA, which overruled several key
cases and regulations and reflected the original intent of the ADA. The effect was to
D. Who Is Disabled?
A three-pronged test is used to determine whether or not an individual meets the
definition as “disabled.” A person must meet one of the following three definitions
as stated in the ADA and modified by the Americans with Disabilities Act
Amendments Act (ADAAA). A disabled person is someone who:
• Has a physical or mental impairment that substantially limits that person in some
major life activities