HRM Chapter 4- Book

Current issues in equal employment

As employment law evolves to respond to the dynamic environment of HRM, legal issues arise as employees seek to clarify and assert their rights. Let's look at several evolving employment issues including comparable worth, English‐only laws, sexual orientation discrimination, and current trends in state and local laws.

Johnson vs Santa Clara County Transportation

the Supreme Court did permit affirmative action goals to correct worker imbalances if the rights of nonminorities were protected. This ruling had an effect of potentially reducing reverse discrimination claims.

Equal Employment Opportunity Act

Granted enforcement powers to the Equal Employment Opportunity Commission. The Civil Rights Act left much to interpretation, so Congress passed an amendment to the act called the Equal Employment Opportunity Act (EEOA) in 1972. This act provided a series of amendments to Title VII, including granting enforcement powers to the Equal Employment Opportunity Commission (EEOC). This addition allowed the EEOC to force employers to comply with the law. In addition, the EEOA also expanded Title VII coverage to include employees of state and local governments, employees of educational institutions, and employees of labor organizations with 15 or more employees or members.

Family and Medical Leave Act of 1993

Federal legislation that provides employees with up to 12 weeks of unpaid leave each year to care for family members or for their own medical reasons. The FMLA allows up to 12 weeks of unpaid leave for the employee's own illness or specific family‐related reasons such as childbirth, adoption, or to care for a sick family member, with a guarantee of retaining an employee's job when he or she returns from leave. The FMLA benefits were extended in 2008 to include family members of military personnel who are on active duty. Employees who require a leave of absence from work to care for a wounded service member are also included. Several states already had laws in place similar to the new FMLA rules.

Uniform Guidelines on Employee Selection Procedures

In 1979, several government agencies with responsibilities for enforcing equal employment laws issued a document called Uniform Guidelines on Employee Selection Procedures. This document makes it clear that HR hiring policies and employee selection procedures must be tied to specific job‐related factors and cannot be discriminatory. It also outlines the requirements necessary for employers to prove that hiring and employee selection practices observe equal employment laws. In addition, it addresses standards for employment testing that are not biased against or in favor of any particular group and provides ways to determine if an employment test or qualification is valid. The Uniform Guidelines are not law, but are referenced by courts in cases of employment discrimination

Exceptions to Discrimination Bona fide occupational qualifications

Job requirements that are "reasonably necessary to meet the normal operations of that business or enterprise." Under Title VII, a bona fide occupational qualification (BFOQ)is permitted where such requirements are "reasonably necessary to meet the normal operation of that business or enterprise." BFOQ coverage is extended to age, sex, religion, or national origin. BFOQs cannot include race or color. Although BFOQs are permissible exceptions to Title VII, they are narrowly defined. Let's look at some examples.

Geographical Comparisons

It's possible that the local labor pool for a position has limited diversity. In this case, the characteristics of the potential qualified pool of applicants in an organization's hiring market considered and compared to the characteristics of its employees. If the organization has a proper mix of individuals at all levels in the organization that reflects its recruiting market, then the company is in compliance. Additionally, that compliance may assist in fostering diversity in the organization. The key factor here is that the qualified pool varies according to geographic areas.

Protecting Employees from Sexual Harassment 1) Issue a sexual harassment policy

describing what constitutes harassment and what inappropriate behavior is. Just stating that harassment is unacceptable at your organization is not enough. This policy must identify specific unacceptable behaviors. The more explicit these identifications, the less chance of misinterpretation later.

Bakke vs The Regents of the University of California at Davis Medical School

Allen Bakke applied to the Davis Medical School for one of 100 enrollment openings for first year students. At that time, U.C. Davis had a self‐imposed quota system to promote its affirmative action plan: Of the 100 openings, 16 were set aside for minority applicants. Bakke's charge stemmed from those 16 reserved enrollments. His credentials were not as good as those gaining access to the first 84 enrollments, but were better than those of minorities targeted for the reserved enrollments. The issue that finally reached the Supreme Court was: Could an institution impose its own quota to correct past imbalances between whites and minorities? The Supreme Court ruled that the school could not set aside those enrollments, and doing so resulted in "favoring one race over another." Consequently, Bakke was permitted to enter Davis Medical School.

Race and color discrimination

Although equal employment has been U.S. law for decades, racial discrimination is one of the most common discrimination complaints filed with the EEOC. Racial and color discrimination involves treating an employee or applicant differently because of a personal characteristic that is related to race such as hair texture, skin color, or facial features. It may also arise from cultural characteristics such as a person's name, attire, or accent. Employees do not necessarily need to belong to a racial minority group to be protected. Employees who are subject to discrimination because they are married to a minority or Caucasians working in a minority‐owned organization may be protected as well.3 Employees are even protected from discrimination if the employee and employer are of the same race or color. For example, people of the same racial or ethnic group may discriminate against each other because of lighter or darker skin tone, accent, or speech pattern.

Qualified Individual

must meet the basic skill, training, licensure, experience, education, or other job‐related requirements for the position. For instance, an accountant applying for a position as a CPA must have passed the CPA exam.

Firefighters Local 1784 vs Stotts

that when facing a layoff situation, affirmative action may not take precedence over a seniority system. In other words, newest employees may be the first to be laid off, even if the newer employee group has a higher percentage of minorities. This decision was further reinforced in Wygant v. Jackson Board of Education (1986),

Protecting Employees from Sexual Harassment 8) Periodically review turnover records to determine if a potential problem may be arising

(This may be EEO audits, exit interviews, and the like.) A wealth of information at your disposal may offer indications of problems. For example, if only minorities are resigning in a particular department, it may indicate that a serious problem exists. Pay attention to your regular reports and search for trends that may be indicated.

McDonnell-Douglas test

1) The individual is a member of a protected group. 2) The individual applied for a job for which he or she was qualified. 3) The individual was rejected. 4) The employer, after rejecting this applicant, continued to seek other applicants with similar qualifications. If these four conditions are met, the employee filing the complaint has established a prima facie (Latin for "at first sight") case of discrimination. At this point, the burden of proof shifts to the employer to prove that there was a legitimate reason for rejecting the applicant that was not discriminatory.

Reverse Discrimination

A claim made by white males that minority candidates are given preferential treatment in employment decisions. Affirmative action programs are necessary to ensure continued employment possibilities for minorities and women, and programs to foster the careers of these two groups have grown over the decades. But while this voluntary action may have been needed to correct past abuses, some white males have found that affirmative action plans work against them, leading to charges of reverse discrimination.

Affirmative Action Plans

A practice in organizations that goes beyond discontinuance of discriminatory practices to include actively seeking, hiring, and promoting minority group members and women. Affirmative actionprograms were established to encourage those employers to actively seek a more diverse workforce. Many employers have voluntarily established their own programs. Executive order 11246 requires employers with contracts for $50,000 or more with the federal government to have an affirmative action plan for women and minorities. Other laws require plans to hire qualified veterans and individuals with disabilities.41 To comply, an employer must analyze the demographics of the current workforce. Those demographics are compared to the composition of the community from which it recruits as in the geographical comparison explained previously. If the workforce resembles the community for all job classifications, then the organization may be demonstrating that its affirmative action program is working. If, however, there are differences, the organization should establish goals and timetables for correcting the imbalance and have specific plans for recruiting and retaining protected group members. If it does not, it can lose the right to contract with the government for goods and services.

Religious Discrimination

A religiously diverse workforce requires employers to understand how work practices may be discriminatory, establish policies that respect an employee's religion, and protect employer and employee rights. Religious discrimination includes treatment of applicants or employees differently because of religious beliefs and how they are practiced. Pretty much any religious belief (or lack of belief) is protected, whether it is mainstream or obscure. As long as the beliefs the employee holds and the practices he or she adheres to are "sincerely held," and his or her employer is informed of those beliefs, that employee cannot be discriminated against for religious reasons. Employers are required to make reasonable accommodations in the workplace for employees unless doing so creates a burden on the operations of the business. This may include allowing religious head coverings for men and women, facial hair for men, or religious requirements to wear or not to wear certain articles of clothing. Employers do not need to make accommodations if safety is an issue. For example, employers in the manufacturing industry may require safety apparel or restrict flowing garments if they are related to the employee's safety. Tattoos may even be protected if required by religious belief.6 Scheduling accommodations can be made for employees whose religion requires that they do not work after sundown on Friday, on Saturday, or on Sunday, as long as it does not create an undue hardship on the employer. Employees may also request time and space for prayers during the work day. Employees may be required to take vacation or paid time off (PTO) if extended time off is required during holidays when the business is open,

Restricted Policy

A restricted policy occurs whenever HRM activities exclude a class of individuals. For instance, assume a company is restructuring and laying off an excessive number of employees over age 40. At the same time, the company is recruiting for selected positions on college campuses only. Because of economic difficulties, this company wants to keep salaries low by hiring people just entering the workforce. Those over age 39 who were making higher salaries are not given the opportunity to even apply for these new jobs. These actions may indicate a restricted policy. That means that a hiring practice has excluded a class of individuals (in this case, those protected by age discrimination legislation) from consideration. The practice does not need to be intentional.

4/5ths rule

A rough indicator of discrimination, this rule requires that the number of minority members a company hires must equal at least 80 percent of the majority members in the population hired. One of the first measures of determining potentially discriminatory practices is called the 4/5ths rule. Issued by the EEOC in its Uniform Guidelines on Employee Selection Procedures, the 4/5ths rule helps assess whether an adverse impact has occurred. The 4/5ths rule is not a definition of discrimination, but it is one way to help assess HR practices in an organization. Also, the Supreme Court ruled in Connecticut v. Teal (1984) that decisions in each step of the selection process must conform to the 4/5ths rule.

Sexual Harassment

Anything of a sexual nature that creates a condition of employment, an employment consequence, or a hostile or offensive environment. Sexual harassment can be regarded as any unwanted activity of a sexual nature that affects an individual's employment. Verbal or physical conduct toward an individual is sexual harassment if it: 1) creates an intimidating, offensive, or hostile environment; 2) unreasonably interferes with an individual's work; or 3) adversely affects an employee's employment opportunities.

HRM in a global environment Australia

Australia's discrimination laws were not enacted until the 1980s. The laws that exist, however, generally apply to discrimination and affirmative action for women. Gender opportunities for women in Australia appear to lag behind those in the United States. In Australia, a significant proportion of the workforce is unionized. The higher percentage of unionized workers has placed increased importance on industrial relations specialists in Australia and reduced the control of line managers over workplace labor issues. In 1997, Australia overhauled its industrial labor relations laws with the objective of increasing productivity and reducing union power. The Workplace Relations Bill gives employers greater flexibility to negotiate directly with employees on pay, hours, and benefits. It also simplifies regulation of labor-management relations.

Employees may use FMLA leave for one or more of the following reasons:

Birth or adoption of a child or placement of foster child Care for a spouse, son, daughter, or parent with a serious health condition Serious health condition of the employee Situations that arise because the employee's spouse, son, daughter, or parent is on active military duty such as deployment, welcome home ceremonies, counseling, or time to make necessary financial or legal arrangements because of deployment Caring for a spouse, son, daughter, parent, or next of kin who is a member of the armed forces with a serious injury or illness for up to 26 weeks.

English-only laws and policies

Can an organization require employees to speak only English on the job? The answer is a definite "maybe." Title VII protects employees from national origin discrimination, so employers must allow employees to converse in their native languages. On the other hand, employers may have the need to have a common language spoken at the work site during business hours.63 Employers must be able to communicate effectively with all employees, especially when safety or productive efficiency matters are at stake. This, they claim, is a business necessity. English‐only rules may be permitted if they are a valid job requirement. For example, an employer may be concerned that some workers may use bilingual capabilities to harass and insult other workers in a language they cannot understand. English‐only rules serve as one means of reasonable care to protect workers from hostile environment harassment. Employers need to balance respect for diversity, inclusion, employees desire to speak their language, communicate effectively with their peers, and maintain their cultural heritage. To them, English‐only rules are discriminatory in terms of national origin in that they create an adverse impact for non-English‐speaking individuals.

HRM in a global environment Canada

Canadian laws pertaining to HRM practices closely parallel those in the United States. The Canadian Human Rights Act provides federal legislation that prohibits discrimination on the basis of race, religion, age, marital status, sex, physical or mental disability, or national origin. This act governs practices throughout the country. Canada's HRM environment, however, differs somewhat from that in the United States in that more lawmaking is done at the provincial level in Canada. For example, discrimination on the basis of language is only prohibited in Quebec.

Reasonable Accommodations

Changes to the workplace that allow qualified workers with disabilities to perform their jobs.

Uniformed Services Employment and Reemployment Rights Act of 1994

Clarifies and strengthens the rights of veterans to return to their jobs in the private sector when they return from military service. Veterans deployed less than 180 days must notify employers within 2 weeks of their return from the service that they intend to resume work. Those deployed over 181 days must notify employers within 90 days. In most situations, employers must reemploy the veteran within an additional 2 weeks.29 The USERRA also prohibits employers from discriminating or retaliating against a job applicant or employee based on prior military service. The process for filing a complaint against employers who do not comply with the act is also spelled out. In 2004, the VBIA clarified the health insurance rights of veterans and required that employers display the USERRA poster along with other information notifying employees of their rights.30

What initiation can employers take to avoid retaliation?

Create a comprehensive antiretaliation policy that provides specific examples for supervisors of what to do and what not to do. Provide regular training for all management. Establish a process for employees to report problems. Provide disciplinary consequences for managers who retaliate against employees. Foster a culture of respect and civility.

Seniority Systems

Decisions such as promotions, pay, and layoffs are made based on an employee's seniority or length of service. Finally, the organization's bona fide seniority system can serve as a defense against discrimination charges. Seniority systems base employment decisions such as pay, promotions, and layoffs on the length of employment. Employees who have worked the longest usually receive higher pay and are the last to be laid off. If employment decisions such as layoffs stem from a well‐established and consistently applied seniority system, decisions that may adversely affect protected group members may be permissible. For example, if most women or minorities are more recently hired than nonminorities, laying them off first would be permissible. Organizations using seniority as a defense must be able to demonstrate the appropriateness of its system. BFOQ and seniority defenses are often subject to great scrutiny and, at times, are limited in their use.

Protecting Employees from Sexual Harassment 6) Take corrective action as necessary

Discipline the harassers and "make whole" the harassed individual. If the charge can be substantiated, you must take corrective action, up to dismissing the harasser. If termination is too harsh for the situation, a written warning should explain the situation and clearly indicate further inappropriate behavior will result in termination. The harassed individual should also be given whatever was taken away. For example, if the sexual behavior led to an individual's resignation, making the person whole would mean reinstatement, with full back pay and benefits.

Protecting Employees from Sexual Harassment 3) Inform all employees of sexual harassment policy

Educate employees (via training) about the policy and how it will be enforced. Don't assume that the policy will convey the information simply because it is a policy. It must be effectively communicated to all employees. Some training may be required to help in this understanding.

the civil rights act of 1991

Employment discrimination law that nullified selected Supreme Court decisions. It reinstated burden of proof by the employer and allowed for punitive and compensatory damage through jury trials. The Civil Rights Act of 1991 was passed to restore rights of employees who sued employers for discrimination after a series of Supreme Court decisions limited those rights. Many other employment‐discrimination‐related issues were addressed, including prohibiting discrimination based on race and racial harassment on the job. The act also returned the burden of proof that discrimination did not occur back to the employer and reinforced that it is illegal to make hiring, firing, or promoting decisions based on race, ethnicity, sex, or religion. Possibly the most drastic change was to allow discrimination victims who have been intentionally discriminated against under Title VII or the ADA to seek compensatory and punitive damages in a jury trial.

Adverse Impact

Employment practice that results in a greater rejection rate for a minority group than for the majority group in the occupation. The concept of adverse impact refers to employment practices such as a test or requirement that seems neutral, but has the effect of discriminating against a protected group. As an example of an adverse impact, many years ago, police departments had a height requirement that required applicants to be 5′ 10″ or taller. The requirement eliminated women and men of some ethnic groups at higher rates than Caucasian men, significantly reducing job opportunities for them. The courts found no evidence of tall officers being more effective at law enforcement than shorter colleagues. Some requirements such as strength or aptitude tests may result in a disproportionate number of applicants from protected groups being disqualified from consideration unintentionally. This puts greater responsibility on the employer to prove that the requirement is necessary.

HRM in a global environment China

Equal Employment Laws in China resemble those in the United States in the 1950s. Applicants are commonly asked questions about age, height, weight, and parents' employment. In some cases, applicants are even asked their blood type, based on theories that it indicates personal characteristics, similar to the way people believe astrological signs indicate personality. The China Employment Promotion Law allowing workers to file discrimination lawsuits against employers was passed in 2008, but progress has been slow. Although China's first law against sexual harassment of women in the workplace was passed in 2007, at least 20 percent of women workers in China say that they have been victims of sexual harassment. Less than half of those women report the abuse for fear of losing their jobs and women who report harassment to authorities have a less than 30 percent chance of having the complaint ruled in their favor

Comparable Worth

Equal pay for jobs similar in skills, responsibility, working conditions, and effort. Comparable worth addresses the issues of pay discrepancies of jobs and careers traditionally held by women as compared to those traditionally held by men. For instance, a nurse may be judged to have a comparable job to that of a police officer. Both must be trained, both are licensed to practice, both work under stressful conditions, and both must exhibit high levels of effort. But they are not typically paid the same; male‐dominated jobs have traditionally been more highly paid than female‐oriented jobs.

Protecting Employees from Sexual Harassment 5) Investigate all harassment charges immediately

Even those that you suspect are invalid. You must give each charge of harassment your attention and investigate it by searching for clues, witnesses, and so on. Investigating the charge is also consistent with our societal view of justice. Remember, the alleged harasser also has rights. These, too, must be protected by giving the individual the opportunity to respond. You may also have an objective party review the data before implementing your decision.

Relevant Executive Orders

Executive Orders are issued by the president of the United States to provide guidance to government agencies on specific topics, and often extend employment legislation to cover government employees. Executive Order 11246 prohibits federal agencies, contractors, and subcontractors who work under federal contracts from discriminating based on race, religion, color, or national origin. Executive Order 11375 added sex‐based discrimination to the above criteria. Executive Order 11478 superseded part of Executive Order 11246 and states that employment practices in the federal government must be based on merit and must prohibit discrimination based on race, color, religion, sex, national origin, political affiliation, marital status, or physical disability. These orders cover all organizations that have contracts of $10,000 or more with the federal government. Additionally, organizations with 50 or more employees and/or $50,000 in federal grants must have an active affirmative action program. The Office of Federal Contract Compliance Program (OFCCP) administers the order's provisions and provides technical assistance.

5 step discrimination filing process Step 3

If there is justification to the charge, the EEOC will attempt to correct the problem through informal meetings with the employer. Again, the company, recognizing that discrimination may have occurred, may settle the case at this point.

5 step discrimination filing process Step 4

If the informal process is unsuccessful, the EEOC will begin a formal settlement meeting between the individual and the organization (called a mediation meeting). The emphasis here is to reach a voluntary agreement between the parties.

Retaliation 3) A casual connection exists between the protected activity and the adverse action

In other words, the adverse action happened because the employee engaged in the protected activity. If an employee receives a warning or dismissal because of a well‐documented performance deficiency, that probably isn't a causal connection, but it better be well documented.

United Steelworkers of America vs Weber

Kaiser Aluminum and the United Steelworkers Union set up a temporary training program for higher paying skilled trade jobs, such as electrician and repairer, at a Kaiser plant in Louisiana. Brian Weber, a white employee at the plant who was not selected for the training program, sued on the grounds that he had been illegally discriminated against. He argued that African Americans with less seniority were selected over him to attend the training due solely to their race. The question facing the Court was whether it is fair to discriminate against whites to help African Americans who have been longtime victims of discrimination. The justices said that Kaiser could choose to give special job preferences to African Americans without fear of being harassed by reverse discrimination suits brought by other employees. The ruling was an endorsement of voluntary affirmative action efforts—goals and timetables for bringing an organization's minority and female workforce up to the percentages they represent in the available labor pool.

Griggs vs Duke Power Company

Landmark Supreme Court decision stating that tests must fairly measure the knowledge or skills required for a job. The Griggs decision called into question most intelligence and conceptual tests used in hiring without direct proof that the tests accurately predicted ability to do the job. This placed the burden of proof on the employer to prove that any job requirement is job related. The decision did not prohibit the use of testing or measuring procedures.

Pregnancy Discrimination Act of 1978

Law prohibiting discrimination based on pregnancy. Unbelievable as it sounds, it used to be common to ask women in job interviews or on applications if they were pregnant.21 Employers were motivated by the desire to reduce work disruptions due to women who took time off for pregnancy complications, childbirth, or care of a newborn. In 1978, the Pregnancy Discrimination Act amended Title VII of the Civil Rights Act to prohibit sex discrimination on the basis of pregnancy. As a result, employers may not refuse to hire a pregnant woman because of the pregnancy or the perceptions of coworkers, clients, or customers who may be uncomfortable working with a pregnant woman. Pregnancy must be treated the same as any other health issue. It may not be excluded from health plans or disability leaves, and women must be allowed to work if they are able to perform their jobs. When returning to work from leave, women may return to the same job. If the exact job she left is unavailable, a similar one must be provided. It is interesting to note that this law is highly contingent on other benefits the company offers. If the organization does not offer health‐ or disability‐related benefits such as sick leave to its employees, it is exempt from this part of the law. However, if any type of health or disability insurance offered, no matter how much or how little, it must be offered. For instance, if a company offers a benefit covering 40 percent of the costs associated with any short‐term disability, then it must include pregnancy in that coverage.

McDonnell-Douglas Corp vs Green

Named for the McDonnell‐Douglas Corp. v. Green 1973 Supreme Court case,39 this test provides a guideline for the employee to establish a strong case of discrimination.

National Origin Discrimination

National origin discrimination involves issues of citizenship and permanent residence status and is often related to race or color discrimination. One example is when employers discriminate against employees because of their name, dress, or accent. Foreign accents should not be used in employment decisions unless it seriously interferes with job performance. For example, an employee who was fired after 9 years of employment for failing to present a "positive, friendly, and enthusiastic image" to customers filed a complaint that she had been ridiculed for her accented English, instructed not to speak Spanish to anyone, even customers, unless the customer initiated the conversation in Spanish. A jury awarded her $500,000 because the discrimination was based on her national origin. Employers may only require English fluency if English is required to perform the essential job functions or for safe and efficient operation of the business.

HRM in a global environment India

Only 27 percent of women in India are in the workforce and they are mostly employed in agriculture, education, and handicraft manufacturing. Over 26 percent of women workers in India report that they have been victims of sexual harassment. India's Supreme Court recently declared sexual harassment to be illegal under a constitutional guarantee of the right to gender equity and requires all employers with more than 50 employees to have a sexual harassment prevention policy, only an estimated 20 percent of employers comply with the law. These protections do not seem to be a match for a culture that doesn't take it seriously. Caste‐based discrimination remains a barrier to equal employment despite legal and constitutional protection, reaffirming that ancient cultures are slow to change.

Hostile Environment Harassment

Offensive and unreasonable situations in the workplace that interfere with the ability to work. is when a working environment is so offensive that it unreasonably interferes with an employee's ability to work. Examples include sexually explicit language or inappropriate comments in the workplace, e‐mail, or social media; unwelcome and inappropriate comments on an employee's appearance; continually making negative comments on gender's inferiority or continually asking for dates from someone who clearly is not interested. If the situation makes the workplace so uncomfortable that the employee finds it difficult to work, it's harassment.

Protecting Employees from Sexual Harassment 7) Continue to follow up on the matter

One concern individuals have in coming forward with sexual harassment charges is the possibility of retaliation against them especially if the harasser has been disciplined. Make sure that actions taken such as transfers or reassignments to new jobs or different shifts are not seen as retaliation by the victim. Continue to observe what affects these individuals through follow‐up conversations with them.

Civil Rights Act of 1964

Outlawed racial segregation and discrimination in employment, public facilities, and education. Illegal discrimination is the process of making employment decisions such as hiring, firing, discipline, pay, promotions, leaves, or layoffs based on criteria such as race, religion, gender, national origin, skin color, or any other criterion that has been identified as a protected category by equal employment laws or regulations. No single piece of legislation has had a greater effect on reducing employment discrimination than the Civil Rights Act of 1964.

Protecting Employees from Sexual Harassment 4) Train management personnel in how to deal with harassment charges and what responsibility they have to the individual and the organization

Poor supervisory practices in this area can expose the company to tremendous liability. Managers must be trained in how to recognize signs of harassment and where to go to help the victim. Supervisors should know that even if an employee asks them not to tell anyone because the employee is afraid of retaliation, the supervisor needs to take action.

Genetic Information Nondiscrimination Act of 2008

Prohibits employers from making employment decisions based on information about an employee's genetic information. The Genetic Information Nondiscrimination Act (GINA) was passed in 2008. GINA prohibits employers with 15 or more employees from discrimination based on genetic information when making any employment‐related decisions, including insurance covered participation in wellness programs. Voluntary participation in health screenings is not covered. Fortunately, the law makes an exception for employers who accidentally learn of relevant genetic information, but employers should be careful about discussing the health of employees and their family members. Since the law is relatively new and genetic research is evolving rapidly, HR managers should stay tuned for further developments and court cases.

Adverse (disparate) treatment

Protected group members receive treatment different from other employees in matters such as performance evaluations and promotions. Adverse treatment occurs when an employer intentionally treats an applicant or employee differently because of a characteristic protected by law. For example, if employees who request time off to attend religious services have their work scrutinized more carefully than other employees or women applicants are required to pass a strength or agility test not required of male applicants, adverse treatmenthas occurred.

Sexual Orientation

Protection against discrimination because of an employee's sexual orientation or gender identity is not provided by federal law like other sex‐based discrimination protected by Title VII. Federal employees are protected from sexual orientation discrimination by Executive Order 13087 as are employees in 21 states and the District of Columbia. Several states also provide limited protection, and many cities and municipalities provide protection as well. Corporate America is increasingly implementing policies that prohibit discrimination based on sexual orientation for lesbian, gay, bisexual, and transgendered (LGBT) employees. Over 90 percent of Fortune 500 companies prohibit discrimination based on sexual orientation, 61 percent prohibit discrimination based on gender identity, and 62 percent provide domestic partner health insurance benefits to their employees.

Retaliation

Retaliation charges filed by employees have surpassed race discrimination as the most frequently filed EEOC complaint and now is nearly 43 percent of the claims filed with the EEOC. Although all claims are investigated, nearly 20 percent are dismissed because they are found to be without merit, duplicate claims, or withdrawn. The remaining 80 percent are settled, which may involve the employee who made the claim receiving back pay, promotion, and reinstatement of seniority or a job. What's an employer to do?

Albermarle Paper Company vs Moody

Supreme Court case that clarified the methodological requirements for using and validating tests in selection. In 1975, the Supreme Court decision in the case of Albemarle Paper Company v. Moody spelled out the validation process necessary to prove employment tests actually measure job requirement.33 In the case, four African American employees claimed that the tests used by their employer were discriminatory. The Court ruled that the validation process was flawed because it wasn't used consistently, subjective rankings were used, tests were validated against senior jobs and not entry‐level positions, and the validation study used only experienced white employees. New applicants were mostly nonwhite

5 step discrimination filing process Step 5

Should Step 4 fail, the EEOC may file charges in court

Quid Pro Quo Harassment

Some type of sexual behavior is expected as a condition of employment. is when some type of sexual behavior is expected as a condition of employment. Examples would include being told a job or receiving a raise or promotion depends on submitting to sexual advances or granting sexual favors. That's sexual harassment, pure and simple. Also, if an employee gains job advantages in exchange for sex, it's considered discrimination against other employees, and that's illegal conduct as well.

Protecting Employees from Sexual Harassment 2) Institue a procedure to investigate harassment charges

Tell all employees whom to contact with harassment complaints and provide multiple ways to complain. Supervisors shouldn't be the only person an employee can notify. The supervisor may be the harasser. Communicate the information clearly and often.

Retaliation 1) The employee was engaged in protected activity

That means the employee complained about workplace wrongdoing such as discrimination, harassment, or reporting EEO violations like failing to act on a request for accommodation under the Americans with Disabilities Act or FMLA.

5 step discrimination filing process Step 2

The EEOC will notify the organization in writing of its findings within 120 days. If the charge is unfounded, the EEOC's process stops, the individual is notified of the outcome, and the EEOC informs the individual that he or she may still file charges against the company in civil court (called a right‐to‐sue notice). The individual has 90 days on receipt of the right‐to‐sue notice to file his or her suit.

5 step discrimination filing process Step 1

The EEOC will notify the organization of the charge within 10 days of its filing and then begin to investigate the charge to determine if the complaint is valid. The company may simply settle the case here, and the process stops.

Equal Pay Act

The Equal Pay Act was enacted in 1963 with the intent of eliminating the practice of paying women lower wages for the same or similar jobs held by men. It was common practice to alter jobs slightly to justify higher pay for men because they had a family to support. The Equal Pay Act requires that as long as the jobs are substantially equal, the pay must also be equal. The job descriptions do not need to be identical if the jobs require "equal skill, effort, and responsibility, and ... are performed under similar working conditions within the same establishment."

HRM in a global environment Germany

The General Equal Treatment Act was passed in 2006 to fulfill European Union guidelines. The act made it easier to prosecute employers for discrimination against women in the workplace. German women make 77 percent less than men, and even under the new law, it's still difficult to take an employer to court because of a high burden of proof on the plaintiff. The wage gap hasn't changed much since the law was implemented, and the ratio of women to men in senior management positions remains low.

Office of Federal Contract Compliance Program

The OFCCP enforces the provisions of Executive Order 11246, Section 503 of the Vocational Rehabilitation Act of 1973 and the Vietnam Veterans Readjustment Act of 1974.50 Provisions of the OFCCP apply to any organizations including universities that have a federal contract or act as a subcontractor on a federal project. The OFCCP operates within the U.S. Department of Labor. Like the EEOC, the OFCCP investigates allegations of discriminatory practices and follows a similar process in determining and rectifying wrongful actions. One notable difference is that the OFCCP has the power to cancel an enterprise's contract with the federal government if the organization fails to comply with EEO laws

Equal Employment Opportunity Commission

The arm of the federal government empowered to handle discrimination in employment cases. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against applicants and employees based on race, religion, color, sex, national origin, age, disability, or genetic information. The top investigation priority for the EEOC is systemic discrimination, which means that the employer or industry has a pattern or practice that broadly discriminates against a protected group. This would include barriers to recruitment, hiring, or training that effectively limit the opportunities of a specific group. Examples include employers who rarely offer advancement or training to women beyond a certain level in an organization, layoffs that consistently reduce the number of minorities or people over 40, and application procedures that make inquiries about characteristics that may be used to discriminate such as marital status or religion. If an investigation by the EEOC finds that an employer is engaging in a discriminatory practice, it may file a civil suit against the organization if unable to resolve discrimination charges within 120 days. Individuals may also file suit themselves if the EEOC declines to sue. In addition to investigating charges of discrimination, the EEOC works to prevent discrimination through outreach and education programs for employers, providing guidance to federal agencies to assure compliance with EEOC regulations and assistance with affirmative action employment programs.

Glass Ceiling

The invisible barrier that blocks women and minorities from ascending into upper levels of an organization. The glass ceiling is an analogy explaining why women and minorities aren't more widely represented at the top of today's organizations. The expression depicts an image of a woman, minority, or other protected group, who can see the next step on the climb up the corporate ladder, but is unable to reach it because there is a glass ceiling in the way. According to the Glass Ceiling Commission, it indicates "institutional and psychological practices, and the limited advancement and mobility of men and women of diverse racial and ethnic backgrounds." It appears that despite significant gains by minorities and women in entry to organizations, women hold only 20 percent of board positions in Fortune 500 companies in the United States.

Title VII

The most prominent piece of legislation regarding HRM, it states the illegality of discriminating against individuals based on race, religion, color, sex, or national origin. Title VII prohibits discrimination in hiring, promotion, dismissal, benefits, compensation, or any other terms, conditions, or privileges of employment based on race, religion, color, gender, or national origin. Title VII also prohibits employers from retaliation against an individual who files a charge of discrimination, participates in an investigation, or opposes any unlawful practice. Most organizations with 15 or more employees are bound by the law. This minimum number of employees is meant to exempt small, family‐owned businesses, although some states require smaller employers to comply with the law

Preventing Discriminatory Practices

The number of laws and regulations makes it critical for HRM to stay informed on the best way to prevent discriminatory practices in the workplace and train managers and supervisors in the latest laws. The best prevention is an organizational culture that encourages equal employment opportunity, tolerance, acceptance, and good communication.

Appearance and Weight Discrimination

The statistics on pay differences leave little doubt that employers discriminate against people who are heavier than average. Heavy workers are paid an average of $1.25 an hour less than their average‐size counterparts. Women who are slightly heavier than average‐weight women earn 6 percent less, and very heavy women make 24 percent less. One study found that obese workers are perceived as less intelligent, so their ideas may not carry the same influence as average‐size workers, affecting hiring, pay, and promotion decisions. Discrimination based on weight and appearance isn't likely to end soon. Federal equal employment laws don't protect weight or appearance, and Michigan is the only state that has a law protecting workers from weight‐related discrimination. As mentioned in our discussion of adverse impact, weight and height requirements must be related to job performance, and employers may be concerned that excess weight may limit an applicant's ability to do the job. Workers with other appearance issues such as piercings and tattoos are having a little better luck, but very little. Piercings and tattoos are only protected if they are worn for religious reasons, therefore protected by Title VII.

Americans with Disabilities Act of 1990

This act extends employment protection to most forms of disability status. The Americans with Disabilities Act of 1990 act and its accompanying amendment prohibit employment discrimination based on disability for private employers, state and local governments, and labor organizations with fifteen or more employees. To be protected by the ADA, an individual with a disability must be qualified and able to perform the essential functions of the job with or without reasonable accommodations. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activity, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment.

Age Discrimination in Employment Act

This act prohibits arbitrary age discrimination, particularly among those over age 40. The Age Discrimination in Employment Act (ADEA) of 1967 protects people over the age of 40 from employment discrimination. People under age 40 are not protected by the act, but some states have laws protecting younger workers from age discrimination. Organizations with 20 or more employees, state and local governments, employment agencies, and labor organizations are covered by the ADEA.

Retaliation 2) An adverse action was taken by management against the employee

This could include a wide range of actions including disciplinary actions, demotions, threats, undesirable job assignments, firing, or even terminating a business relationship with the employee's spouse.

Sex-based Discrimination

Treating someone unfavorably in the workplace because of their gender is discrimination. EEOC reports that sex‐based discrimination accounts for approximately 30 percent of discrimination claims every year.7 Sex or gender discrimination takes many forms. Any job requirement that holds one sex to a different procedure, standard, or qualification than the other may be discriminatory. Possible discriminatory practices include differences in policies regarding leaves of absence, benefits, unique job categories and promotions, dress codes, training opportunities, and pay. Sex‐based discrimination has been extended to include people who are transgender or connected with groups that are associated with a certain gender. Sexual orientation is not protected by Title VII or federal law. State laws may provide protection, and in some circumstances, lesbian, gay, or bisexual individuals are covered if they are discriminated against because they do not conform to traditional sex stereotypes.8 Employers should consider a variety of measures to prevent sex‐based discrimination for transgender employees9: Dress codes should address organizational goals for professionalism or safety without specific requirements for men and women. Transgendered people should be able to dress according to their expressed gender. Restrooms and changing rooms should be available according to the employee's full‐time gender identity. Unisex facilities may be provided. Employee records may need to be modified to reflect gender transition including name changes. Appropriate pronouns should be used. It may be necessary to privately ask the employee's preference and discuss a plan for notifying coworkers and customers of pronoun or name changes. The wage gap between men and women in the United States shows that despite decades of attempts to create equity in pay, women still earn 74 cents for every dollar men earn according to a recent survey by Payscale.com. There are many possible reasons for the pay gap, including differences in education, experience, time in the workforce, and larger numbers of women in sales, clerical, and service jobs that traditionally pay less.10 But when the earnings of women who work full time in salaried jobs were compared to the earnings of men in similar positions, women earned closer to 98 cents for every dollar that the men earned.11 Time spent out of the workforce as a family caregiver and working in lower paying jobs may explain part of the wage gap, but women in the workforce still find that opportunities are not quite equal, and, therefore, pay isn't equal either.12

Protecting Employees from Sexual Harassment 9) Don't forget to privately recognize individuals who bring these matters forward

Without their courageous effort, the organization might have faced with tremendous liability. These individuals took a risk in coming forward. You should show your appreciation for that risk. Besides, if others know that such risk is worthwhile, they may feel more comfortable in coming to you when any type of problem exists.

Exceptions to Discrimination Business Necessity

Work‐related skills or education that are vital to the safe or efficient operation of a business are an accepted reason that an employer may have a requirement that appears to be discriminatory. Examples of business necessity would include hearing requirements for certain positions in law enforcement or requiring a college degree for a position that requires specialized skills such as teaching or computer programming. Job‐relatedness criteria are substantiated through the validation process.

Essential job functions

are required for the successful performance of the job. These need to be specified in job descriptions so applicants know what is required and employers can prove that they are necessary to the job and not arbitrarily applied.

Reasonable accommodations

include activities or modifications to the work environment that allow the qualified individual to perform the work. They may be relevant to the size and financial position of the organization. For example, a small business may not be required to make expensive structural modifications such as installing an elevator, yet it may be required of a large business. Examples of modifications may include installation of equipment such as lifts or ramps, modified work schedules, reassignment to a vacant position, modifications to training and testing procedures, leaves of absence, hiring readers or interpreters, widening door frames, and installing hand rails. Generally, these accommodations must be requested by the employee.

Major Life Activities

include, but are not limited to, caring for oneself (showering, using the toilet), seeing, hearing, eating, walking, standing, lifting, bending, learning, speaking, breathing, concentrating, communicating, and working.

Ricci vs DeStefano

involved a group of firefighters in New Haven, CT, who won a ruling from the U.S. Supreme Court in 2009 declaring that they were victims of reverse discrimination. In that case, a group of firefighters took an exam required for promotion and although care was taken to make sure the exam was fair and nondiscriminatory, no African American firefighters passed the exam. They threatened to sue the city, claiming disparate impact. In an effort to prevent a lawsuit, the city threw out the exam and didn't certify any firefighters for promotion. The white firefighters and two Hispanic firefighters who passed the test filed a complaint that they suffered reverse discrimination due to their race. The Supreme Court ruled that the city had indeed violated Title VII and that throwing out the results of the exam was discriminatory.

Wygant vs Jackson Board of Education

when the Supreme Court ruled that a collective bargaining agreement giving preferential treatment to preserve minority jobs in the event of a layoff was illegal. On the contrary, in Johnson v. Santa Clara County Transportation (1987),