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PART ONE INTRODUCTION
C H A P T E R
T T w o
Managing Equal Opportunity
and
Diversity
2
Lecture Outline
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I. Equal Employment Opportunity Laws
A. Background
B. Equal Pay Act of 1963
C. Title VII of the 1964 Civil Rights Act
D. Executive Orders
E. Age Discrimination in Employment Act of 1967
F. Vocational Rehabilitation Act of 1973
G. Pregnancy Discrimination Act of 1978
H. Federal Agency Uniform Guidelines
I. Selected Court Decisions
J. The Civil Rights Act of 1991
K. The Americans with Disabilities Act
L. Uniformed Services Employment and
Reemployment Rights Act
M. Genetic Information Non-Discrimination Act of
2008
N. State and Local EEO Laws
O. Religious and Other Types of Discrimination
P. Trends in Discrimination Law
Q. Diversity Counts
R. Social Media and HR
II. Defenses Against Discrimination Allegations
A. The Central Role of Adverse Impact
B. Bona Fide Occupational Qualification
C. Business Necessity
III. Illustrative Discriminatory Employment
Practices
A. Recruitment
C. Mandatory Arbitration of Discrimination Claims
V. Diversity Management and Affirmative Action
A. Diversity’s Barriers and Benefits
I. Equal Employment Opportunity Laws
A. Background
in pay on the basis of sex when jobs involve equal work, equivalent skills,
effort, and responsibility, and are performed under similar working
conditions.
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C. Title VII of the 1964 Civil Rights Act
1. Background
a. The act makes it unlawful to fail or refuse to hire or to discharge
an individual or otherwise to discriminate against any individual
2. The EEOC (Equal Employment Opportunity Commission) was
established by Title VII. It consists of five members (serving five-year
terms), appointed by the president with the advice and consent of the
Senate. The EEOC investigates job discrimination complaints and
may file charges in court.
D. Under executive orders by various presidents, most employers who do
business with the U.S. government have an obligation to refrain from
employment discrimination. Executive Orders 11246 and 11375 require
E. The Age Discrimination in Employment Act (ADEA) of 1967 makes it
contracts of more than $2500 to take affirmative action for the
employment of disabled persons.
G. Pregnancy Discrimination Act (PDA) of 1978, an amendment to Title VII of
H. Federal Agency Uniform Guidelines on Employee Selection Procedures
are uniform guidelines for employers issued by federal agencies charged
with ensuring compliance with equal employment federal legislation.
These guidelines explain, for instance, how to validate a selection
procedure.
I. Selected Court Decisions Regarding Equal Employment Opportunity
(EEO)
1. Griggs v. Duke Power Company, 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
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2. Albemarle Paper Company v. Moody, a case in which the Supreme
J. The Civil Rights Act (CRA) of 1991 places burden of proof back on
employers and permits compensatory and punitive damages.
1. Burden of Proof was shifted back to where it was prior to the 1980s
with the passage of CRA 1991; thus, the burden is once again on
2. Money Damages — CRA 1991 provides that an employee who is
claiming intentional discrimination (disparate treatment) can ask for
3. Mixed Motives — Employers cannot avoid liability by proving it would
have taken the same action—such as terminating someone—even
without the discriminatory motive.
K. The Americans with Disabilities Act requires employers to make
reasonable accommodations for qualified individuals with disabilities, and
it prohibits discrimination against disabled persons. A disability is any
physical or mental impairment that substantially limits one or more major
life activities. Mental disabilities account for the greatest number of ADA
claims. “Mental impairment” includes “any mental or psychological
disorder, such as . . . emotional or mental illness.” Examples include
major depression, anxiety disorders, and personality disorders.
1. Qualified Individual — The act prohibits discrimination against those
2. Reasonable Accommodation — If the individual cannot perform the job
3. Traditional Employer Defenses and the “New ADA” — Employers
used to prevail in about 96% of federal appeals court ADA decisions.
A U.S. Supreme Court decision typifies why. An assembly worker
sued Toyota, arguing that carpal tunnel syndrome prevented her from
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show that their disability is influencing one of their “major life
activities.”
L. Uniformed Services Employment and Reemployment Rights Act — Under
the Uniformed Services Employment and Reemployment Rights Act
M. Genetic Information Non-Discrimination Act of 2008 — GINA prohibits
discrimination by health insurers and employers based on people’s
genetic information.
N. State and Local Equal Employment Opportunity Laws — All states and
many local governments prohibit employment discrimination, many cover
O. Religious and Other Types of Discrimination — The EEOC has argued
that sexual orientation claims by lesbian, gay, transgender, and bisexual
P. Trends in Discrimination Law — The U.S. Supreme Court decision that
the Defense of Marriage Act’s exclusion of state-sanctioned, same-sex
marriages was unconstitutional has implications for HR practices. The
Sexual Harassment — This is harassment on the basis of sex that has the
purpose or effect of substantially interfering with a person’s work
performance or creating an intimidating, hostile, or offensive work
environment.
1. What is Sexual Harassment? Submission is either explicitly or
2. Proving Sexual Harassment. There are three main ways to prove
sexual harassment.
a. Quid Pro Quo — The most direct way is to prove that
rejecting a supervisor’s advances adversely affected what the
EEOC calls a “tangible employment action.”
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b. Hostile Environment Created by Supervisors — Supervisor
c. Hostile Environment Created by Coworkers or Nonemployees
— An employee’s coworkers or customers can cause the
employer to be held responsible for sexual harassment. An
employer is liable for sexually harassing acts by its
nonsupervisory employees if the employer knew or should
have known of the harassing conduct.
d. When Is the Environment Hostile? The intimidation, insults,
and ridicule were sufficiently severe enough to alter the
working conditions.
e. Supreme Court Decisions — The Supreme Court used the
Meritor Savings Bank, FSB v. Vinson case to endorse the
Q. Diversity Counts —
1. In sexual harassment — When harassing behaviors are not blatant,
defining how a reasonable person would interpret the behavior
2. What the Employee Can Do — courts generally look to whether the
harassed employee used the employer’s reporting procedures to file a
complaint promptly.
R. Social Media and HR — Employees’ increasing use of social media to
harass others can be problematic for employers. At a minimum,
employers should have a zero-tolerance policy on social media bullying.
II. Defenses Against Discrimination Allegations
Discrimination law distinguishes between disparate treatment and disparate
impact. Disparate treatment means intentional discrimination. It “requires no
more than a finding that women (or protected minority group members) were
intentionally treated differently because they were members of a particular
race, religion, gender, or ethnic group.” 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 — Refers to the total employment
process that results in a significantly higher percentage of a protected
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1. Disparate Rejection Rates — One shows disparate rejection rates by
2. The Standard Deviation Rule — In selection, the standard deviation
3. Restricted Policy — The restricted policy approach means
4. Population Comparisons — This approach compares (1) the
5. The McDonnell-Douglas Test requires four rules be applied: (1) The
(4) After the rejection, the position remained open and the employer
continued seeking applications from persons with the complainant’s
qualifications.
B. Bona Fide Occupational Qualification (BFOQ) — A defense used to justify
an employment practice that may have an adverse impact on members of
a protected class. It is a requirement that an employee be of a certain
religion, sex, or national origin where that is reasonably necessary to the
organization’s normal operation. This is ever more narrowly interpreted by
the courts.
1. Religion as a BFOQ — Religion may be a BFOQ in religious
3. National Origin as a BFOQ — A person’s country of national origin
may be a BFOQ.
C. Business Necessity — A defense created by the courts, which requires an
employer to show an overriding business purpose for the discriminatory
practice and that the practice is therefore acceptable.
III. Illustrative Discriminatory Employment Practices
A note on what you can and cannot do — Pre-employment questions are
not inherently legal or illegal. Rather, the impact of the questions is what the
courts assess in making determinations about discriminatory practice.
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“Problem questions” are those which screen out members of a protected
group.
A. Recruitment — If the workforce is not truly diverse, relying on word of
mouth to spread information about job openings can reduce the likelihood
B. Selection Standards — Educational requirements and tests that are not
job related, or which result in adverse impact can be found to be illegal.
Showing preference to relatives may also contribute to a lack of racial
C. Sample Discriminatory Promotion, Transfer, and Layoff Practices —Fair
employment laws protect not just job applicants but also current
IV. The EEOC Enforcement Process
A. Processing a Discrimination Charge — All managers should have a
working knowledge of the steps in the EEOC claim process.
1. File Claim — Under CRA 1991, the charge generally must be timely
2. EEOC Investigation — The EEOC can either accept the charge or
refer it to the state or local agency. Serve notice — After the charge
has been filed, the EEOC has 10 days to serve notice on the
employer.
B. Voluntary Mediation — A neutral third party may aid the parties in
reaching voluntary resolution. The EEOC will ask the employer to
participate if the claimant agrees to mediation. Employer options include
mediating the charge, making a settlement offer, or preparing a position
statement for the EEOC.
C. Mandatory Arbitration of Discrimination Claims — Many employers, to
avoid EEO litigation, require applicants and employees to agree to
V. Diversity Management and Affirmative Action
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Diversity means being diverse or varied, and at work means having a
workforce composed of two or more groups of employees with various racial,
ethnic, gender, cultural, national origin, handicap, age, and religious
backgrounds.
A. Diversity’s Barriers and Benefits — Behavioral barriers that undermine
work team collegiality and cooperation include stereotyping, prejudice,
discrimination and gender-role stereotypes. Tokenism, ethnocentrism also
may cause problems.
B. Managing Diversity — Means taking steps to maximize diversity’s
potential advantages while minimizing the potential barriers, such as
prejudices and biases that can undermine the functioning of a diverse
C. Equal Employment Opportunity Versus Affirmative Action — Equal
employment opportunity aims to ensure that anyone, regardless of race,
D. Reverse Discrimination — Means discriminating against nonminority
applicants and employees. Employers should emphasize recruiting and
Key Terms
Equal Pay Act of 1963
The act requiring equal pay for equal work, regardless of sex.
Title VII of the 1964 Civil
Rights Act
The section of the act that says an employer cannot
discriminate on the basis of race, religion, sex, or national
origin with respect to employment.
EEOC
The commission, created by Title VII, is empowered to
investigate job discrimination complaints and sue on behalf of
complainants.
OFCCP
The office responsible for implementing the executive orders
and ensuring compliance of federal contractors.
Age Discrimination in
Employment Act of 1967
The act prohibiting arbitrary age discrimination and specifically
protecting individuals over 40 years old.
Voc. Rehab. Act of 1973
The act requiring certain federal contractors to take affirmative
action for disabled persons.
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Pregnancy Discrimination
Act (PDA)
An amendment to Title VII of the Civil Rights Act that prohibits
sex discrimination based on “pregnancy, childbirth, or related
medical conditions.”
Griggs v. Duke Power Co.
Supreme Court case 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.
Protected class
Persons such as minorities and women protected by equal
opportunity laws including Title VII.
Civil Rights Act of 1991
(CRA 1991)
The act that places the burden of proof back on employers and
permits compensatory and punitive damages.
Disparate impact
An unintentional disparity between the proportion of a protected
group applying for a position and the proportion getting the job.
Disparate treatment
An intentional disparity between the proportion of a protected
group and the proportion getting the job.
Americans with Disabilities
Act (ADA)
The act requiring employers to make reasonable
accommodation for disabled employees. It prohibits
discrimination against disabled persons.
Sexual harassment
Harassment on the basis of sex that has the purpose or effect
of substantially interfering with a person’s work performance or
creating an intimidating, hostile, or offensive work environment.
Adverse impact
The overall impact of employer practices that result in
significantly higher percentages of members of minorities and
other protected groups being rejected for employment,
placement, or promotion.
BFOQ
Requirement that an employee be of a certain religion, sex, or
national origin where that is reasonably necessary to the
organization’s normal operation. Specified by the 1964 Civil
Rights Act.
Business necessity
Justification for an otherwise discriminatory employment
practice, provided there is an overriding legitimate business
purpose.
Diversity
Having a workforce comprising two or more groups of
employees with various racial, ethnic, gender, cultural, natural
origin, handicap, age, and religious backgrounds.
Gender-role stereotypes
The tendency to associate women with certain (frequently
nonmanagerial) jobs.
Discrimination
Taking specific actions toward or against the person based on
the person’s group.
Affirmative action
Making an extra effort to hire and promote those in protected
groups, particularly when those groups are underrepresented.
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Reverse discrimination
Discriminating against nonminority applicants and employees.
DISCUSSION QUESTIONS
2-1. Present a summary of what employers can and cannot do legally with respect to
recruitment, selection, and promotion and layoff practices. (LO 2.2: Explain the basic
defenses against discrimination allegations.)
Answers can vary but students should identify several of the following:
a. Ensure that recruitment practices are nondiscriminatory, avoiding word-of-mouth
dissemination of information about job opportunities when the workforce is
b. Avoid asking pre-employment questions about an applicant’s race, color, religion, sex,
or national origin.
c. Do not deny a job to a disabled individual if the person is qualified and able to perform
d. Apply tests and performance standards uniformly to all employees and job candidates.
Avoid tests that disproportionately screen out minorities or women and are not job
related.
e. Do not give preference to relatives of current employees if your current employees are
substantially nonminority.
f. Do not establish requirements for physical characteristics unless you can show they
are job related.
i. Do not ask applicants whether they have ever been arrested or spent time in jail.
However, you can ask about conviction records.
j. Assure that all layoff practices comply with any federal, state, or local employment
laws. Special emphasis should be placed on the ADEA or Age Discrimination
Employment Act.
2-2. Explain the Equal Opportunity Commission enforcement process. (LO 2.4: Explain
the Equal Employment Opportunity Commission enforcement process.) Equal
employment opportunity aims to ensure that anyone, regardless of race, color, sex,
religion, national origin, age, or disability status has an equal chance for a job based on
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2-3. List five strategies for successfully increasing diversity in the workforce. (LO 2.5:
List five strategies for successfully increasing diversity of the workforce.)
2. Assess the organizational situation as it relates to equal employment hiring.
4. Change culture and management systems.
2-4. What is Title VII? What does it state? (LO 2.1: Summarize the basic equal opportunity
2-5. What important precedents were set by the Griggs v. Duke Power Company case?
The Albemarle Paper Co. v. Moody case? (LO 2.1: Summarize the basic equal
2-6. What is adverse impact? How can it be proven? (LO 2.1: Summarize the basic equal
2-7. Explain the defenses and exceptions to discriminatory practice allegations. (LO 2.2:
Explain the basic defenses against discrimination allegations.) The two main defenses you
2-8. What is the difference between affirmative action and equal employment
opportunity?
This item can be assigned as a Discussion Question in MyLab Management. Student
responses will vary.
2-9. Working individually or in groups, respond to these three scenarios based on what
you learned in this chapter. Under what conditions (if any) do you think the
INDIVIDUAL AND GROUP ACTIVITIES
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following constitutes sexual harassment? (a) A female manager fires a male
employee because he refuses her request for sexual favors. (b) A male manager
refers to female employees as “sweetie” or “baby.” (c) A female employee
overhears two male employees exchanging sexually oriented jokes. (LO 2.1:
2-10. Working individually or in groups, discuss how you would set up an affirmative
action program. (LO 2.5: List five strategies for successfully increasing diversity of the
2-11. Working individually or in groups, use the Web to compile examples of actual EEOC
claims that have used each of the methods we discussed (such as the standard
2-12. Working individually or in groups, write a paper entitled “What the manager should
know about how the EEOC handles a person’s discrimination charge.” (LO 2.4:
Explain the Equal Employment Opportunity Commission enforcement process.) The
students should include the following information in their papers: The EEOC can either
2-13. Assume you are the manager in a small restaurant. You are responsible for hiring
employees, supervising them, and recommending them for promotion. Working
individually or in groups, compile a list of potentially discriminatory management
practices you should avoid. (LO 2.3: Give examples of what employers can and cannot
legally do with respect to recruitment, selection, and promotion and layoff practices.)
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2-14. For this activity you will need the documents titled (1) “HRCI PHR® and SPHR®
Certification Body of Knowledge,” and (2) “About the Society for Human Resource
Management (SHRM) Body of Competency and KnowledgeTM Model and
Certification Exams.” Your instructor can obtain these two documents from the
Pearson Instructor Resource Center and pass them on to you. These two
documents list the knowledge someone studying for the HRCI or SHRM certification
exam needs to have in each area of human resource management (such as in
Strategic Management, and Workforce Planning). In groups of several students, do
four things: (1) review the HRCI and/or SHRM documents; (2) identify the material in
this chapter that relates to HRCI’s or SHRM’s required knowledge lists; (3) write
four multiple choice exam questions on this material that you believe would be
suitable for inclusion in the HRCI exam and/or the SHRM exam; and (4) if time
permits, have someone from your team post your team’s questions in front of the
class, so that students in all teams can answer the exam questions created by the
2-15. Summarize the basic equal employment opportunity laws regarding age, race, sex,
2-16. Explain the basic defenses against discrimination allegations. (LO 2.2)
HR in Action Case Incident 1: An Accusation of Sexual Harassment in Pro Sports
2-17. Do you think Ms. Browne Sanders had the basis for a sexual harassment suit? Why
or why not? (LO 2.1: Summarize the basic equal opportunity laws and how each impacts
2-18. From what you know of this case, do you think the jury arrived at the correct
decision? If not, why not? If so, why? (LO 2.1: Summarize the basic equal opportunity
APPLICATION EXERCISES
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2-25. Given the fact that each of its stores has only a handful of employees, is her
company in fact covered by equal rights legislation (LO 2.1: Summarize the basic
2-26. And finally, aside from the specific problems, what other human resource
management matters (application forms, training, and so on) have to be reviewed
given the need to bring them into compliance with equal rights laws. (LO 2.1:
Summarize the basic equal opportunity laws and how each impacts HR functions such as
recruitment and selection.)
The company should do several things:
a. Develop an employee handbook that contains policy statements about equal
employment opportunity, sexual harassment, and so on.
Experiential Exercise: The Interplay of Ethics and Equal Employment
Purpose: The purpose of this exercise is to increase your understanding of how ethics and equal
employment are interrelated.
Required Understanding: Be thoroughly familiar with the material presented in this chapter.
How to Set Up the Exercise/Instructions:
2-27. Divide the class into groups of three to five students.
2-28. Each group should use the Internet to identify and access at least five more
companies that emphasize how ethics and equal employment are interrelated.
2.29. Next, each group should develop answers to the following questions: (LO 2.1:
Summarize the basic equal opportunity laws and how each impacts HR functions such as
recruitment and selection.)
a. Based on your Internet research, how much importance do employers seem to
place on emphasizing the ethical aspects of equal employment?
b. What seem to be the main themes these employers emphasize with respect to
ethics and equal employment?
c. Given what you have learned here, explain how you would emphasize the ethical
aspects of equal employment if you were creating an equal employment training
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program for new supervisors.
The responses from the student groups will vary but each student group should identify at least
one or more of the following:
Training supervisors and employees to avoid sexual and other forms of harassment has
always been important, but recent developments have made such training even more vital.
Recently, the U.S. Supreme Court ruled that employers may escape liability for punitive
In addition, the Supreme Court issued two decisions (Faragher v. City of Boca Raton, 97–
282 and Burlington Industries Inc. v. Ellerth, 97–569) stating that employers are
automatically liable for sexual harassment by their supervisors—unless a supervisor’s
harassment did not result in tangible harm to the employee and the company can show
that:
It acted reasonably to prevent and correct the harassment.
The employee acted unreasonably by failing to use internal processes or
otherwise prevent the harm.
1. Citicorp recently faced a billion-dollar discrimination suit. Use Web sites such as
http://www.forbes.com/2008/04/06/citigroup-women-discrimination-face-markets-face-
cx_ra_0404autofacescan05.html to discuss what happened with these suits. The
complaint charges that, among other things, Citicorp/Smith Barney discriminates in the
2. Using sites such as http://www.foxnews.com/story/2009/04/21/texas-man-settles-
discrimination-lawsuit-against-hooters-for–not-hiring-male/ discuss the details of the
discrimination suit against Hooters. The complainant filed a complaint against Hooters of
America in January alleging its Corpus Christi franchise would not hire him as a waiter
WEB-e’s EXERCISES
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3. What conclusions can you draw from sites such as
http://www.usatoday.com/news/health/weightloss/2008-05–20-overweight-bias_N.htm
about handling and avoiding discrimination against obese people? Weight discrimination,
1. What is sexual harassment? How can an employee prove sexual harassment? (LO 2.1:
and (3) hostile environment created by coworkers or nonemployees.
2. What is the difference between disparate treatment and disparate impact? (LO 2.1:
3. Explain with examples how the evolution of equal employment law in the 1960s helps
illustrate how public policy considerations drove the original EEO legislation. (LO 2.1:
Summarize the basic equal opportunity laws and how each impacts HR functions such as
recruitment and selection.) The Civil Rights Act of 1964 was a landmark piece of legislation in
4. Give at least three examples of how current EEOC policy reflects public policy
decisions. (LO 2.1: Summarize the basic equal opportunity laws and how each impacts HR
functions such as recruitment and selection.) Embarking on an historic new area of
ADDITIONAL ASSIGNMENTS
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