Human Resource Management Chapter 2

Retaliation

All of the law we enforce make it illegal to fire, demote, harass, or otherwise retaliate against people because they filed a charge, complained to their employer ot other covered entity about discrimination, or because they participated in a discrimination investigation or lawsuit

Sexual Harassment Causes

Is more likely to occur in a permissive social climate, one where employees conclude there's a risk to victims for complaining, the complaints won't be taken seriously and that there's a lack of sanctions against offenders

The Office of Federal Contract Compliance Programs (OFCCP)

Is responsible for ensuring the compliance of federal contracts

Utilization Analysis

Is the process of comparing the percentage of minority employees in a job at the company with the number of similarity trained minority employees available in the relevant labor market

Gender-Role Stereotypes

Is the tendency to associate women with certain (frequently nonmanagerial) jobs

Ethnocentrism

Is the tendency to view members of other social groups less favorably than one's own People feel like they are better than others

Quid Pro Quo

Is to prove that rejecting a supervisor's advances adversely affected a tangible employment action such as hiring, firing, promoting, or compensation Job success and advancement are dependent on agreeing to a supervisor's sexual demands

Sexual Harassment

Is unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature that takes place

Racial Harassment

Is verbal or physical conduct of a racial nature constitute racial harassment when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment

Religious Harassment

Is verbal or physical conduct of a religious nature constitute religious harassment when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment

Bullying

Is verbal or physical conduct when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment

Position Statement

Is when the employer does not mediate or make an offer It should include information relating to the company's business and the charging party's position, a description of any rules or policies and procedures that are applicable and the chronology of the offense that led to the adverse action

Steps in an Affirmative Action Program

Issue a written equal employment policy indiciating that the firm is an equal employment opportunity employer and the employer's commitment to affirmative action Demonstrate top-management support for the equal employment policy Publicize internally and externally the equal employment policy and affirmative action commitment

How many People does Executive Order 11246 Cover?

It covers about 26 million workers, about 22& of the U.S. workforce

If there is No Tangible Economic Loss, the Employer May Avoid Liability, If

It has a clear policy prohibiting harassment It has a program reasonably calculated to prevent harassment and to correct it if it occurs The employee unreasonably refuses to use the employer's corrective channels

What does Managing diversity Involve

It involves both compulsory (legal) and voluntary actions

Bona Fide Occupational Qualification

It is not an unlawful employment practice for an employer to hire an employee on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise The reasons for the discrimination must go to the essence of the business The bona fide occupational qualification is not explicitly allowed for race or color

Misleading Information

It is unlawful to give false or misleading information to members of any group or to fail to advise them of work opportunities and the procedures for obtaining them

What did the Civil Rights Act of 1991 Make Easier?

It made it easier to sue for money damages If provides that an employee who is claiming intentional discrimination can ask for both compensatory damages and punitive damages, if he or she can show the employer engaged in discrimination with malice or reckless indifference to the federally protected rights of an aggrieved individual

What does Diversity Management Rely On?

It relies on taking steps to encourage all employees to work together productively

When was the Title VII of the Civil Rights Act of 1964 Amended?

It was amended by the 1972 equal employment opportunity act

For Disparate Impact Cases, One Measures What?

The effect of the employer's actions by analyzing their averse impact on the employer's actual hiring results

Third, the burden of proof is placed on the employer to show that the hiring practice is job related

The employer must show that the employment practice is needed to perform the job satisfactorily if it has a disparate impact on members of a protected class

The Constitution

The equal protection clause

Who Signed the Civil Rights Act of 1991

The first President George Bush

The Equal Protection Clause is Part of What Amendment in the Constitution?

The fourteenth amendment

What did the Civil Rights Act of 1991 address?

The issue of burden of proof

How a Manager can Assess His or Her Company's Equal Employment and Diversity Efforts

The number of EEOC claims per year The cost of HR-related litigation Various measures for analyzing the survival and loss rate among new diverse employee groups

Uniforms

When it comes to discriminatory uniforms and suggestive attire, courts frequently side with the employee For example, requiring waitresses to wear sexually suggestive attire as a condition of employment has been rulled as violating Title VII in many cases

When is a Job Function Essential?

When it is the reason the position exists, or because the function is so specialized, the employer hires the person doing the job for his or her expertise or ability to perform that particular function

What Conditions are Not Considered as Disabilities

homosexuality Voyeurism Compulsive gambling Pyromania Certain disorders resulting from the person's currently using illegal drugs

File Claim Cont.

if it finds no reasonable cause, the EEOC must dismiss the charge, in which case the person who filed the charge has 90 days to file a suit on his or her own behalf If the EEOC does fine reasonable cause, the EEOC must attempt to conciliate If this conciliation is not satisfactory, the EEOC may bring a civil suit in a federal district court or issue a notice of right to sue the person who filed the charge

Responses to Mediation

Agree to mediate Make a settlement offer without participating in mediation Prepare a position statement for the EEOC

What you Can and Cannot Do

Title VII does not expressly ban preemployment questions about an application's race, color, religion, sex, age, or national origin

Civil Rights Acts of 1866 and 1871

Prohibited discrimination based on race in contracts

Encouraging Inclusiveness

A big part of managing diversity involves overcoming barriers to inclusion - to bringing all employees under the same tent

Diversity Benefits

A company who has diversity shows that the company promotes equal opportunity and inclusion Higher sales growth

What is AGEM

A four step diversity training process

Under the Civil Rights Act of 1991

A person who believes he or she has ben unintentionally discriminated against need only establish a prima facie case of discrimination

Eduational Requirements

An educational requirement (such as a high school degree) may be held illegal when it can be shown that minority groups are less likely to possess the educational qualification and such qualifications are not job related

Hostile Environment Created by Coworkers or Non-employees

An employee's coworkers or customers can also cause the employer to be held responsible for sexual harassment

Civil Rights Act of 1991 Liability

An employer generally can't avoid liability by proving it would have taken the same action - such as terminating someone - even without the discriminatory motive If there is any such motive, the practice may be unlawful

Promotion, Transfer and Layoff Procedures

Any employment practices regarding pay, promotion, termination, discipline, or benefits that the employer applies differently to different classes of persons, have the effect of adversely affecting members of a protected group, and cannot b shown to be required as a BFOQ or business necessity may be illegally discriminatory For example, employers may not discriminate against employees in connection with their benefits plans

What does AGEM Stand for?

Approach Goals Executive commitment Mandatory attendance

Example of Business Necessity Defense

Attempts by employers to show that their selections or other screening practices are valid

Why was Albemarle Paper Company v. Moody a Landmark Case?

Because it helped to clarify what the employer must do to prove that the test or other screening tool is related to performance on the job The Court also cited the EEOC guideline concerning acceptable selection procedures and made these guideline the law of the land

Why was Griggs v. Duke Power Company a Landmark Case?

Because the Supreme Court used it to define unfair discrimination The Supreme Court decided that a screening tool (such as a test) had to be job related or valid - that is, performance on the test must relate to performance on the job

Albemarle Paper Company v. Moody

Before using a test to screen job candidates, the performance standards for the job in question should be clear and unambiguous That way, the employer can identify which employees were performing better than others were (and thus whether the tests were effective)

What Defenses can an Employer Use Against a Discrimination Case?

Bona fide occupational qualification (BFOQ) defense The business necessity defense The decision was made on the basis of legitimate nondiscriminatory reasons

Pregnancy Discrimination Act of 1978

Broadens the definition of sex discrimination to include pregnancy, childbirth, or related medical conditions

Other Concerns

Bullying

Age Discrimination in Employment Act of 1967

Prohibits discrimination against people 40 and over Ended most mandatory retirement

Griggs v. Duke Power Company Result

Chief Justice Burger laid out three guidelines affecting equal employment legislation

Federal Legislation

Civil rights acts of 1866 and 1871 Equal pay act of 1963 Title VII of the civil rights act of 1964 Age Discrimination in Employment Act of 1967 Equal Employment Opportunity Act of 1972 Civil Rights Act of 1991

Mandatory Attendance

Consider making participation in the training mandatory

The Equal Employment Opportunity Commission (EEOC)

Consists of five members, appointed by the president with the advice and consent of the Senate Each member serves 5 years Has a staff of thousands to assist it in administering the civil rights law

Approach

Determine if diversity training is the solution or if other approaches (such as revised selection processes) are more advisable

What does Title VII Prohibit?

Disparate treatment Disparate impact

ADA Implications for Managers and Employers

Do not deny a job to a disabled individual if the person is qualified and able to perform the essential job functions Make a reasonable accommodation unless doing so would result in undue hardship Know what you can applicants Itemize essential job functions on the job descriptions Do not allow misconduct or erratic performance, even if that behavior is linked to the disability

Executive Orders 11246 and 11375

Don't just ban discrimination They require that contractors take affirmative action to ensure equal employment opportunity

Griggs v. Duke Power Company

Duke Power required its coal handlers to be high school graduates Griggs claimed that this requirement was illegally discriminatory because it hasn't related to success on the job and because it resulted in more blacks than whites being rejected

Selection Standards

Educational requirements Tests Preference to relative Height and weight Appearance Health questions Arrest records Application forms

Improving Productivity Through HRIS: Accommodating Disabled Employees

Employees with mobility or vision impairments may benefit from voice recognition software Word prediction software suggests words based on context with just one or two letters typed Real-time translation captioning enables employees to participate in meetings Vibrating text pagers notify employees when messages arrive Arizona created a disability friendly website to help link prospective employees and other to various agencies

Boosting Workforce Diversity

Employers use various menas to increase workforce diversity Many companies start by adopting strong company policies advocating the benefits of a culturally, racially and sexually diverse workforce

Application Forms

Employment applications generally shouldn't contain questions pertaining, for instance, to applicants' disabilities, workers' compensation history, age, arrest record, marital status, or U.S. citizenship Pesonal information required for legitimate reasons (such as who to contact in case of emergency) are best collected after you've hired the person

Equal Work

Equivalent skills, effort and responsibility

Reasons to Avoid Questionable Practices

First, although federal law may not bar such questions, many state and local laws do Second, the EEOC has said that it disapproves of such practices as asking women their marital status Employers who use such practices thus increase their chances of having to defend themselves

Guidelines Affecting Equal Employment Legislation from the Griggs v. Duke Power Company Case

First, discrimination on the part of the employer does not have to be shown to have intentionally discriminated against the employee or applicant - it need only be shown that discrimination took place Second, the court held that an employment practice must be shown to be job related if it has an unequal impact on members of a protected class - must be a business necessity Third, the burden of proof is placed on the employer to show that the hiring practice is job related

What are Steps an Employe can Take to File a Sexual Harassment Report?

Follow the employer's reporting policies and procedures File a verbal complaint with the harasser and the harasser's boss stating that the unwanted overtures are unwelcome and should cease If the unwelcome conduct does not cease, file verbal and written reports with the harasser's manager and/or the human resource director

Affirmative Actionterm-142

Goes beyond equal employment opportunity by requiring the employer to make an extra effort to hire and promote those in a protected group Includes specific actions to eliminate the present effects of past discrimination

Selected Court Decisions Regarding Equal Employment Opportunity (EEO)

Griggs v. Duke Power Company Albemarle Paper Company v. Moody

Help Wanted Ads

Help wanted-male and help wanted-female advertising classifieds are violations of laws forbidding sex discrimination in employment unless sex is a BFOQ for the job advertised Also, you cannot advertise in any way that suggests that the employer discriminates against applicants based on age (as in young man or woman)

Discrimination

Means taking specific actions toward or against the person based on the person's group

EEOC's Regulations Provide that an Individual is Disabled

If he or she has a physical or mental impairment that substantially limits one or more major life activities

An Employer is Liable Through Co-Worker or Customer

If the employer knew or reasonably should have known and failed to take prompt and effective corrective action

When is the Employer Automatic Liable for Sexual Harassment?

If there is a tangible economic loss

Goals

If training is the solution, then set measurable program goals, for instance, based on having trainees evaluate their units' diversity efforts

When did the Equal Protection Clause Take Effect?

In 1868

When Was Executive Order 11246 Issued?

In 1965

When was The Equal Pay Act of 1963 Amended

In 1972

Voluntary Affirmative Action Programs

In implementing voluntary affirmative action programs, the employer should ensure that its program does not conflict with the Civil Rights Act of 1991, which bar employers from giving any consideration whatsoever to an individual's status as a racial or ethnic minority or as a woman when making an employment decision Employers should emphasize the external recruitment and internal development of better-qualified minority and female employees while basing employment decisions on legitimate criteria

Impairment

Includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems, or any mental or psychological disorders

Gender harassment

Is a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals

Sterotyping

Is a process in which someone ascribes specific behavioral traits to individuals based on their apparent membership in a group For example, older people can't work hard Prejudice

Validity

Means the degree to which the test or other employment practice is related to or predicts performance on the job

Equal Pay Act of 1963

Made it unlawful to discriminate in pay on the basis of sex when jobs involve equal work and are performed under similar working conditions Requires equal pay for equal work, regardless of sex

Executive Commitment

Make sure a high-visibility executive commits to the program

The New Additions to Americans with Disabilities Act of 1990

Makes it much easier for employees to show that their disability is influencing one of their major life activities It does this by adding examples like reading, concentrating, thinking, sleeping and communicating to the list of ADA major life activities

What the Manager/Employer Should Do?

Managers must ensure that the organization's culture support employees who feel harassed

Height and Weight

Managers still must be against stigmatizing obese people Obese individuals are less likely to be hired, less likely to receive promotions, more likely to get less-desirable sales assignments and more likely to receive poor customer service as customers

Qualified Individuals

Mean the individual must have the requisite skills, educational background and experience to do the job's essential functions

Prejudice

Means a bias toward prejudging someone based on that person's traits For example, we won't hire him because he's old

Diversity

Means having a workforce comprise of two or more groups of employees with various racial, ethnic, gender, cultural, national origin, handicap, age and religious backgrounds

Managing Diversity

Means maximizing diversity's potential advantages while minimizing the potential barriers - such as prejudices and bias - that can undermine the functioning of a diverse workforce

Prima Facie Case of Discrimination

Means showing that the employer's selection procedures had an adverse impact on a protected minority group

Reasonable Accomodation

Might include redesigning the job, modifying work schedules, or modifying or acquiring equipment

State Legislation

Most states have enacted laws covering issues similar to federal laws Many state laws provide for heightened protections

Tests

Noting in the Title VII act precludes the use of testing or measuring procedures What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrating a reasonable measure of job performance The employer must be prepared to show that the test results are job related - for instance, that test scores relate to on-the-job performance

Sexual Harassment Laws Coverterm-51

Occasions when women harass men and when there is same-sex harassment Is a violation of Title VII when such conduct has the purpose or effect of substantially interfering with a person's work performance or creating an intimidating, hostile, or offensive work environment

Tokenism

Occurs when a company appoints a small group of women or minorities to high-profile positions, rather than more aggressively seeking full representation for that group Is a diversity barrier when it slows the process of hiring or promotion more members of the minority group

Hostile Environment Created by Supervisors

One need not show that the harassment had tangible consequences such as a demotion

Older Workers Benefits Protection Act of 1990

Permits early retirement incentives but protects benefits

Vocational Rehabilitation Act of 1973

Prohibits discrimination based on disability by federal contractors Requires employers with federal contracts over $2,500 to take affirmative action for the employment of handicapped persons The act does not require hiring an unqualified person Does require that an employer take steps to accommodate a handicapped worker unless doing so imposes an undue hardship on the employer

Title VII of the Civil Rights Act of 1964

Prohibits discrimination on the basis of race, color, religion, national origin and sex

Americans with Disabilities Act of 1990

Prohibits employment discrimination against qualified disabled individuals Prohibits discrimination against people with physical or mental disabilities or chronic illnesses; requires employers to make reasonable accommodation Requires that employers make reasonable accommodations for physical or mental limitations, unless doing so imposes an undue hardship on the business Is Administered by the EEOC

What are th Five Sets of Voluntary Organizational Activities at the Heart of the Typical Company-Wide Diversity Management Program

Provide strong leadership Assess the situation Provide diversity training and education Change culture and management systems Evaluate the diversity management program

Civil Rights Act of 1991

Provides for jury trials and punitive damages in cases of intentional discrimination

The Equal Protection Clause

Provides that no state shall deny to any person within its jurisdiction the equal protection of the laws

What is the Defense for Disparate Impact Claims?

Proving that there was a business necessity for the practice

How Can an Employee Prove Sexual harassment

Quid pro quo Hostile environment created by supervisors Hostile environment created by coworkers or nonemployees

Other Types of Harassment

Racial Religious Ethnic Disability Other concerns?

Illustrative Discriminatory Employment Practices

Recruitment Selection standards Promotion, transfer and layoff procedures

Disparate Treatment

Refers to intentional discrimination Discrimination is obvious

Adverse Impact

Refers to the total employment process that results in a significantly higher percentage of a protected group in the candidate population being rejected for employment, placement, or promotion

Disparate Impact

Refers to unintentional discrimination

Federal Executive Orders

Require federal contractors to engage in affirmative action

Immigration Reform and Control Act of 1986

Requires I-9s but prohibits discrimination

Executive Order 11246

Requires federal contractors to take affirmative action to improve employment opportunities for women and racial minorities

Business Necessity Defense

Requires showing that there is an overriding business purpose for the discriminatory practice and that the practice is therefore acceptable Means an irresistible demand and that to be be retained the practice must not only directly foster safety and efficiency but be essential to these goals When the test has validity the cours support the use of the test

Family and Medical Leave Act of 1993

Requires up to 12 weeks unpaid leave per year to care for self or immediate family members

Uniform Guidelines on Employee Selection Prodedures

Set forth highly recommended guidelines regarding matters such as record keeping, preemployment inquires and affirmative action

Diversity Disadvantages

Stereotyping Discrimination Tokenism Ethnocentrism Gender-role stereotypes

Equal Employment Opportunity Act of 1972

Strengthens EEOC's enforcement powers and extends coverage of Title VII

Situations that Constitute Sexual Harassment

Submission is explicitly or implicitly a term or condition of an individual's employment Submission to or rejection of such conduct is the basis for employment decisions Such conduct has the purpose or effect of unreasonably interfering with an individual's owrk performance or creating an intimidating, hostile, or offensive work environment

Steps in an Affirmative Action Program Cont.

Survey current minority and female employment by department and job classification to determine where affirmative action programs are especialy desirable Carefully analyze employer human resources practices to identify and eliminate hidden barriers Review, develop, and implement specific HR programs to improve female and minority utilization Use focused recruitment to find qualified applicants from the target group(s) Establish an internal audit and reporting system to monitor and evaluate progress Develop support for the affirmative action program, inside the company and in the community

Appearance

Tattoos and body piercings are an issue at work

U.S. Supreme Court Rulings Due to the McDonnell-Douglas Test

That the person belongs to a protected class That he or she applied and she was qualified for a job for which the employer was seeking applicants That, despite this qualification, he or she was rejected That, after his or her ejection, the position remained open and the employer continued seeking applications from persons with the complaint's qualifications

How can an Individual Show that the Selection Procedures Resulted in a Substantial Adverse Impact on His or Her Minority Group?

The 4/5ths rule McDonnell-Douglas test

Voluntary Mediation

The EEOC refers about 10% of its charges to a voluntary mediation mechanism If the planitiff agrees to mediation, the employer is asked to participate If no agreeement is reached or one of the parties rejects participation, the charge is then processed through the EEOC's usuals mechanisms

Who Established Executive Orders 11246 and 11375

The Office of Federal Contract Compliance Programs (OFCCP) within the Labor Department

McDonnell-Douglas Test

The applicant was qualified but the employer rejected the person and continued seeking applicants

Major Laws and Regulations

The constitution Federal legislation

Alternative Dispute Resolution (ADR) Programs

These programs require employees to pursue mediation prior to pressing a claim

Top-Down Programs

This starts at the job The employer institutes a diversity management program One aim here is to make employees more sensitive to an better able to adapt to individual cultural differences

The Title VII of the Civil Rights Act of 1964 State that it Shall be an Unlawful Employment Practice for an Employer

To fail or refuse to hire or to discharge an individual or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin To limit, segregate, or classify his or her 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 or her status as an employee, because of such individual's race, color, religion, sex, or national origin

Why are Workforce Analysis Used?

To obtain and to analyze the data regarding the firm's use of protected versus non-protected employees in various job classifications

What is the Purpose of Federal Agency Guidelines

To specify the procedures these agencies recommended employers follow in complying with the equal opportunity laws

Diversity Management and Affirmative Action Program

Today, white males no longer dominate the labor force Woman and minorities will acount for most labor force growth over the near future

Health Questions

Under the ADA, employers generally cannot ask questions about applicants' medical history or require preemployment physical examinations They can however, once a formal job offer is made (to ensure the person can do the job)

File Claim

Under the Civil Rights Act of 1991, the discrimination claim must be filed within 300 days (when there is a similar state law) or 180 days (where there is no similar state law) after the alleged incident took place (2 years for the Equal Pay Act) After a charge is filed the EEOC has 10 days to serve notice of the charge on the employer The EEOC then investigates the charge to determine whether there is reasonable cause to believe it is true It is supposed to make this determination within 120 days

EEOC Expanding its Mediation Program

Under this program, the EEOC refers all eligible discrimination charges filed against these employers to the commission's mediation unit, rather than to the usual charge processing system

Disparate Treatment Example

We don't hire asians

When does the EEOC Enforcement Process Begin?

With someone filling a claim

Recruitment

Word of mouth Misleading information Help wanted ads

Arrest Records

You cannot ask about or use a person's arrest record to disqualify him or her for a position because there is always a presumption of innocence until proof of guilt In addition, arrest records in general have not been valid for predicting job performance and a higher percentage of minorities than nonminorities have arrest records

Preference to Relatives

You cannot give preference to relatives of your current employees with respect to employment opportunities if your current employees are substantially nonminority

Word of Mouth

You cannot rely on word-of-mouth dissemination of information about job opportunities when your workforce is substantially all white or all members of some other classs such as female or all Hispanic Doing so might reduce the likelihood that others will become aware of the jobs

The 4/5ths Rule

is by showing that 80% or 4/5ths of the nonminority applicants passed the test, but only 20% or less of the minority applicants passed If this is the case, a minority applicant has a prima facie case proving adverse impact Then, it becomes the employer's burden to prove that its test, application bank, interview, or the like is a valid predictor of performance on the job and that it was applied fairly and equitably to both minorities and nonminorities

What are Steps an Employe can Take to File a Sexual Harassment Report? Cont.

the accuser should turn to 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 inflection of emotional distress, injunctive relief and to recover compensatory and punitive damages