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