HR Chapter 3: Employment Law and Practices PDF

SECTION 1 SECTION 2 SECTION 3 SECTION 4 SECTION 5 The Environment Jobs and...

SECTION 1 SECTION 2 SECTION 3 SECTION 4 SECTION 5 The Environment Jobs and Talent Compensation 371 Employee of Human Resource Labor 109 Development 259 Relations and Management 1 Global HRM 451 Equal Employment C H A P T E R 3 Opportunity Learning Objectives After you have read this chapter, you should be WHAT’S TRENDING IN able to: EQUAL EMPLOYMENT OPPORTUNITY LO1 Identify the major Equal opportunity employment (EEO) is an important area of HR management that government business professionals should understand. Managers should be educated about agencies that important EEO concepts and employment laws so that they can develop policies enforce employment that ensure a fair work environment for all individuals. Through proper training, discrimination laws. employees can also be taught to appreciate a diverse workplace that values unique LO2 Outline key provisions individual characteristics. Here’s what’s currently trending in the area of EEO: in the Civil Rights Acts of 1964 and 1. Unlawful workplace discrimination is a significant challenge for companies. 1991 and compare HR professionals and managers should recognize the situations that can lead the two theories of to discrimination. They should also implement policies that decrease disparate unlawful employment treatment and impact. discrimination. 2. Women face a number of difficult challenges in the workplace, including LO3 Show how women pregnancy issues, pay disparities, and the glass ceiling. Gender stereotypes and are affected by pay, gender-based preferences can make these challenges more prevalent. job assignments, and 3. Once again, sexual harassment is a serious problem in organizations. Many career issues. incidences of sexual misconduct involving celebrities and high-ranking business LO4 Distinguish between professionals have been covered in the media, thus raising public concern the two types of about this issue. Companies should create antiharassment policies that instruct sexual harassment and explain how employees about inappropriate work conduct. employers can 4. Providing work opportunities and reasonable accommodations for disabled prevent such employees is a key issue for employers. HR professionals should teach managers misconduct. to recognize the challenges these individuals face and work with them to provide LO5 List key elements reasonable accommodations. of disability 5. Diversity helps organizations benefit from employees’ unique capabilities, but it discrimination laws. can also challenge firms. Companies should develop diversity training and other LO6 Discuss the legal programs that help different employees to work together effectively. protections to prevent bias and discrimination based on age, religion, national origin, and other factors. 70 Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.  HR HR HEADLINE Dupont Helps Employees Dupont Helps Employees HEADLINE Challenged by Mental Challenged by Mental Illnesses Illnesses 71 M ental illness impacts many individuals living in the United HR COMPETENCIES & APPLICATIONS States. It is estimated that tens of millions of people, nearly What to Do 20 percent of the total population, have to deal with various When the types of psychiatric disorders, with depression being one of the most EEOC Comes noteworthy problems experienced. Many entertainers, including actor/ Knocking 77 comedian Robin Williams (who tragically committed suicide several Practices That years ago), have commented on their battles with mental illness. Help Reduce What is particularly troubling to organizations are the expenses the!Gender Pay related to untreated mental disorders, which are thought to reach Gap 82 $100 billion. HR leaders are therefore concerned about mental illness Develop Effective because they have to figure how to minimize costs, help employees Harassment cope, and offer accommodations. Detecting problems early and provid- Training for Your ing assistance can go a long way in reducing expenses. The creation Employees 89 of policies that address mental illness can also help workers deal with HR HIGHLIGHT their challenges. But a real problem is getting employees to seek assis- Gender Bias tance so that disorders can be addressed. Negatively Dupont has taken many steps to support employees who suffer Impacts Men from mental illnesses through a policy called “ICU” (or “I See You”), Too 85 which is comprised of the themes “Identifying,” “Connecting,” and “Understanding.” The company created a training session based on a five-minute video that instructs individuals how to identify when their coworkers are experiencing problems. The goal is not to diagnose in- dividuals but to identify when colleagues are in distress and provide assistance. Dupont rolled the program out in Europe, and based on its success, the company introduced it to American workers a year later. The training is also offered in many different languages and is provided to a majority of Dupont’s global workforce, with the video often being shown in meetings. Finally, Dupont evaluates employees for depression to help minimize some of the risks related to mental illness. HR professionals should consider several issues when facing mental illness in the work- Pressmaster/Shutterstock.com place. Some of these include: Realize that individuals can recover from psychiatric disorders with the proper assistance. Get expert help from professionals who are trained to deal with mental disorders. 71 Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 72 S E C T I O N 1 The Environment of Human Resource Management Follow the legal requirements of the ADA, which specify that companies must make reasonable accommodations for workers who suffer from mental illness. Be respectful of employees who face these challenges by treating them fairly and showing consideration. By following these guidelines, as well as Dupont’s lead, organizations can effectively tap into the talent reserves of employees who suffer from mental illnesses.1 Basing employment decisions on factors other than worker qualifications is generally illegal in the United States. Since the enactment of Title VII of the 1964 Civil Rights Act, workers of all back- grounds are provided fairer treatment in terms of employment opportunities. While the Civil Rights Act stands as the foundation of equal employment laws, it is by no means the only regulation affect- ing the employer–employee relationship.!A number of additional laws and executive orders have been implemented to prohibit unlawful discrimination in the workplace. For instance, there are laws that regulate how issues such as individual age, disability, and pregnancy are addressed at work. The costs of litigation, penalties, and harm to corporate reputation can be substantial when vio- lations occur. Organizations have paid (and continue to pay) large fines for violating EEO laws. But employers can develop effective policies, such as those addressing diversity, to avoid lawsuits and enhance the workplace. This chapter provides an introduction to!nondiscrimination requirements and highlights some common best practices related to diversity management. To provide additional information, Appendix D lists the major federal laws governing workplace nondiscrimination. LO1 Identify the major government 3-1 The Nature of Equal Employment agencies that enforce employment Opportunity discrimination laws. Civil rights activists in the United States used nonviolent means to protest unequal treatment during the turbulent 1950s. This led to the passage of important nondiscrimination laws and guaranteed an equal opportunity for employment to all individuals.2 Equal opportunity for employment means that employment decisions must be made on the basis of job requirements and worker qualifications. Protected Unlawful discrimination occurs when those decisions are made based on protected characteristics, characteristics which are individual attributes such as race, age, sex, disability, or religion that are protected under Individual attributes that EEO laws and regulations. These factors are not work-related and should not be considered. Under are protected under EEO federal, state, and local laws, employers are prohibited from considering the following factors in laws and regulations making hiring and other employment decisions: Age Color Disability Genetic information Marital status (some states) Military status or experience National origin Pregnancy Race Religion Sexual orientation (some states and cities) Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.  C H A P T E R 3 Equal Employment Opportunity 73 These categories are considered protected characteristics under various employment laws and regulations. All workers are provided equal protection. In other words, the laws do not favor some groups over others. For example, both men and women can file charges on the basis of alleged sex discrimination. A lawsuit filed against Estee Lauder asserts that the company violated EEO legisla- tion when it did not allow one of its male stockers to fully use the company’s parental leave policy for “child-bonding.” A similar lawsuit was filed again J.P.!Morgan and Chase Company based on fathers allegedly not being given paid parental leave in the same manner as mothers.3 Individuals representing all religious backgrounds and faiths (e.g., Christians, Jews, Muslims, atheists) can claim that their religions rights have been violated based on biases that may exist in the workplace. Equal employment Equal employment opportunity (EEO) is employment that is not affected by illegal discrim- opportunity ination. It is a broad-reaching concept that essentially requires employers to make status-blind Employment that is employment decisions. Status-blind decisions are made without regard to individuals’ personal not affected by illegal characteristics (e.g., age, sex, and race). Most employers are required to comply with EEO laws. discrimination Alternatively, affirmative action involves taking proactive measures to increase the number of Status-blind women and minorities in the workplace in an effort to make up for past patterns of discrimination. Employment decisions This approach allows employers to consider various personal characteristics when making employ- that are made without ment decisions. regard to individuals’ personal characteristics 3-1a Sources of Regulation and Enforcement The employment relationship is governed by a wide variety of regulations, and all three branches of government have played a role in shaping these laws. Federal statutes enacted by Congress form the backbone of the regulatory environment, but state and city governments also enact laws governing activity within their regions. Various state laws add a degree of complexity to the interpretation and prevention of workplace discrimination. For instance, Washington passed a law that requires organizations to provide workers up to 12 weeks of paid leave for (1) their own or a family member’s significant health issue or (2) childbirth/adoption; additional time off can be taken by women for pregnancy-related health challenges.4 In addition to characteristics outlined in other EEO legisla- tion, the Elliott-Larsen Civil Rights Act passed in Michigan protects individuals from unlawful dis- crimination based on factors such as weight and height.5 Companies should be aware of legislation that may cover employees based on where they actually complete work tasks, where they live, and where the company conducts business.6 The courts interpret these laws and rule on cases, providing guidance about how companies should comply with EEO regulations. Case law helps employers understand how laws are applied and what they must do to comply. Executive orders are issued by the president of the United States to help government departments, agencies, and contractors man- age their operations. Government agencies responsible for enforcing laws issue guidelines and rules to provide details on how the law will be implemented. Employers then use these guidelines to meet their obli- gations in complying with the laws. For example, guidelines issued about sexual harassment help companies identify types of misconduct and enable them to more effectively handle work incidents. The two main enforcement bodies for EEO are the Equal Employment Opportunity Commis- sion (EEOC) and the U.S. Department of Labor (DOL) (in particular, the Office of Federal Con- tract Compliance Programs [OFCCP]). The EEOC enforces employment laws for employers in both private and public workplaces. For example, the EEOC provides insight into how companies should use job candidates’ criminal history to make hiring decisions, specifying that information should be used consistently across individual cases and be evaluated for job-related reasons.7 The DOL has broad enforcement power and oversees compliance with many employment-related laws. However, the DOL is expected to make cuts through reduced travel and personnel as a result of President Trump’s budget plan, possibly leading to less legislative enforcement.8 But the DOL is again issuing opinion letters about wage and hour issues (after cancelling them in 2010) to help businesses manage the workplace more effectively.9 The OFCCP enforces employment requirements set out by executive orders for federal contractors and subcontractors. Yet, there can be boundaries to such enforcement. A recent ruling by an administrative judge with the DOL Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 74 S E C T I O N 1 The Environment of Human Resource Management indicated that Google had a right to refuse an information request from the OFCCP that was considered to be a financial burden to the company.10 Many states have enforcement agencies to ensure compliance with state employment laws. Compliance can become complex for companies that operate in multiple states. Discrimination remains a concern as the U.S. workforce becomes more diverse. Charges filed with the EEOC continue to rise, as shown in Figure 3-1. Over the past several decades, the total number of charges has generally increased, but the totals have varied from year to year and over shorter time periods. The total number of charges for 2016 is higher than the total reported for 1997, and there were more charges reported in 2016 compared to the previous two years. While issues related to race and sex have historically represented the highest percentages of complaints, in recent years, charges of retaliation have become much more common and now represent the high- est number (and percentage) of complaints. The EEOC investigates charges levied at companies to determine whether employees have been treated unlawfully, which can lead to findings of no dis- crimination, withdrawn changes, settlements, and/or lawsuits. FIGURE 3-1 Charges Filed with EEOC, 1997 and 2016 Claims Filed, 1997 Claims Filed, 2016 Charge Basis (Number, Percentage) (Number, Percentage) Age 15,785 20,857 19.6% 22.8% Color 762 3,102 0.9% 3.4% Disability 18,108 28,073 22.4% 30.7% Equal Pay Act 1,134 1,075 1.4% 1.2% Genetic information Not in force 238 0.3% National origin 6,712 9,840 8.3% 10.8% Race 29,199 32,309 36.2% 35.3% Religion 1,709 3,825 2.1% 4.2% Retaliation 18,198 42,018 22.6% 45.9% Sex 24,728 26,934 30.7% 29.4% Total 80,680 91,503 Note: Totals exceed 100 percent because of multiple charges !led by individuals. Source: U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm. Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.  C H A P T E R 3 Equal Employment Opportunity 75 3-2 Theories of Unlawful Discrimination There are two types of unlawful employment discrimination, disparate treatment and disparate Disparate treatment impact. The first type, disparate treatment, occurs when individuals with particular characteristics Occurs when individuals that are not job-related are treated differently from others. This type of discrimination is typically with particular charac- overt and intentional, and it often follows a pattern or practice. For example, if female applicants are teristics that are not asked interview questions regarding child care plans while male applicants are not, then disparate job-related are treated treatment may be occurring. differently from others Disparate impact is the second type of illegal discrimination. It occurs when an employment Disparate impact practice that does not appear to be discriminatory adversely affects individuals with a particular Occurs when an employ- characteristic so that they are substantially underrepresented as a result of employment decisions ment practice that does that work to their disadvantage. This!type of discrimination is often unintentional because identical not appear to be discrim- criteria are used, but the results can differ for certain groups. For example, using a test for firefight- inatory adversely affects ers that requires candidates to carry a 100-pound sack down a ladder could result in more women individuals with a partic- being eliminated from selection. The same job-related test is used for all candidates, with markedly ular characteristic so that they are substantially different results on the basis of sex. A recent court ruling involving the Chicago Fire Department underrepresented as a found that a battery of physical skills tests used to hire paramedics did not reflect typical work activ- result of employment ities, thus causing disparate impact directed at women applicants.11 The EEOC also filed a lawsuit decisions that work to against CSX Transportation claiming that the organization’s use of physical ability tests caused dis- their disadvantage parate impact with women applicants.12 In a landmark case on disparate impact, Griggs v. Duke Power (1971),13 the U.S. Supreme Court ruled that lack of intent is not sufficient for an employer to prove that a practice is lawful. The court also stated that the employer has the burden to show that a selection practice is directly job-related as a business necessity. Considering the firefighter test that women failed at a higher rate, the test is a true reflection of a job-related duty—carrying a person out of a burning building. Therefore, the test would be lawful even though women would not pass at the same rate as men. A thorough job anal- ysis and a search for alternate selection practices are important steps when disparate impact occurs. The employer must demonstrate that there is no reasonable nondiscriminatory method available to use. Appendix E explains how disparate impact is defined under the federal government’s Uniform Guidelines on Employee Selection Procedures. Unlawful discrimination can occur in any number of employment-related decisions, includ- ing recommendations for advancement opportunities, assignments to training seminars, allocations of rewards, and selections for layoffs and terminations. Bias can take many forms (i.e., discredit- ing, criticizing, and excluding others), be subtle and unconscious, and harm recruiting efforts and employee well-being.14 Employers should analyze job requirements, keep good records, and review personnel actions to make sure that employment decisions are lawful and prevent claims of dispa- rate treatment and disparate impact. Managers can also be taught to recognize situations that can lead to discrimination. Training can enhance diversity awareness in organizations, efforts that are discussed later in this chapter. Using blind hiring processes, unbiased job ads and descriptions, con- sistent screening and selection approaches, data analytics, and leadership seminars can also help.15 3-2a Equal Employment Opportunity Concepts Court decisions and administrative rulings have helped define several basic EEO concepts. The four key concepts discussed next (see Figure 3-2) help clarify key EEO ideas that lead to fair treatment and nondiscriminatory employment decisions. Business necessity Business Necessity and Job-Relatedness A business necessity is a practice necessary A practice necessary for for safe and efficient organizational operations, such as restricting employees from wearing gar- safe and efficient organi- ments that might get caught in machinery although the!attire may be required by an employee’s zational operations religion. Business necessity has been the subject of numerous court cases. Educational requirements are often decided on the basis of business necessity. However, an employer that requires a minimum level of education, such as a high school diploma, must be able to defend the requirement as essential Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 76 S E C T I O N 1 The Environment of Human Resource Management FIGURE 3-2 EEO Concepts Business Necessity Job Relatedness Bona Fide Occupational Qualification (BFOQ) Nondiscriminatory Decisions Burden of Proof Nonretaliatory Practices to the performance of the job (or be job-related), which may be difficult. For instance, equating a high school diploma with the possession of math or reading abilities is considered questionable. Employers are expected to use job-related employment practices. For instance, the use of crim- inal background checks in the hiring process has come under fire because the practice can cause disparate impact directed at underrepresented groups. The EEOC has issued guidelines stating that the nature of the job sought by the applicant is a major determining factor in whether a criminal conviction is job-related. Consequently, employers must find a balance between their obligations to provide a safe working environment and their duty to ensure equal employment opportunity. “Ban-the-box” hiring policies are a recent trend in some states, counties, and municipalities, which prevent employers from asking job candidates’ about their criminal histories early in the application process (i.e., on application forms) and having them delay checks until after interviews have been conducted or offers have been tendered; of the states that have such laws, a majority of them only apply to hiring in the public sector.16 But many companies such as Koch Industries, Target, Facebook, and Home Depot are having success with ban-the-box policies, hiring employees who are highly productive at work.17 Companies should recognize that these policies can prompt unintentional discrimination when hiring officials rely on preconceived ideas about which racial groups are more likely to have criminal records.18 Even though federal and state laws prevent employers from making inquiries about the arrest records of job candidates, they can investigate current employees’ arrests and take appropriate action. While employment decisions cannot be based simply on arrest records, they can be made based on the behaviors that lead to arrests, including conduct that raises concerns about safety and/ or security. When disciplining employees who have been arrested, employers should also point out that the conduct is job-related and an issue of business necessity.19 Bona Fide Occupational Qualification Employers may discriminate on the basis of sex, religion, or national origin if the characteristic can be justified as a bona fide occupational qualifica- tion reasonably necessary to the normal operation of the particular business or enterprise. Thus, a Bona fide bona fide occupational qualification (BFOQ) provides a legitimate reason an employer can use to occupational exclude persons on otherwise illegal bases of consideration. The application of a BFOQ is very nar- qualification (BFOQ) rowly determined and an employer seeking to justify hiring on this basis is advised to obtain prior Characteristic providing a legitimate reason an authorization from the EEOC. employer can exclude What constitutes a BFOQ has been subject to different interpretations in various courts, so it is persons on otherwise important for firms to adequately justify why such decisions are made. Legal uses of BFOQs may occur illegal bases of when gender is used as a BFOQ when hiring women for certain jobs (e.g., a cocktail server at a gen- consideration tlemen’s club) or when religious organizations hire individuals who are members of particular faith. Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.  C H A P T E R 3 Equal Employment Opportunity 77 Burden of proof Burden of Proof When a legal issue regarding unlawful discrimination is raised, the burden of What individuals who file proof must be satisfied to file suit against an employer and establish that illegal discrimination has suit against employers occurred. The plaintiff charging discrimination must establish a prima facie case of discrimination must prove to establish through either factual or statistical evidence, meaning that sufficient evidence must be provided to that illegal discrimination the court to support the case and allow the plaintiff to continue with the claim. Once a case has been has occurred established, the burden then shifts to the employer, who must provide a legitimate nondiscriminatory reason for the decision, such as focusing on job-related factors and/or business necessity. The plaintiff then must show either that the employer’s motivation or rationale was a pretext for discrimination or that there is an alternative employment approach that would not result in discrimination. The plaintiff maintains the final burden of proof that unlawful discrimination underlies an employment decision. Nonretaliatory Practices Employers are prohibited from retaliating against individuals who Retaliation file discrimination charges. Retaliation occurs when employers take punitive actions against indi- Punitive actions taken viduals who exercise their legal rights. Several court rulings protect HR professionals from retalia- by employers against tion when they report discrimination in companies, and the adverse actions needed to show that individuals who exercise retaliation has occurred against an employee who reports discrimination may include rudeness and their legal rights impoliteness.20 HR What to Do When the EEOC Comes Knocking Having to respond to the EEOC when claims of company’s position on the charges should be COMPETENCIES & APPLICATIONS discrimination are levied at a company is a daunt- clearly presented, a summary of the business ing task for HR professionals. Such incidents are and its policies should be provided, and an over- becoming more common because there have view of the employee’s situation in relation to past been steady increases in charges of age, race, decisions should be provided. An organization and disability discrimination and workplace retalia- also needs to effectively respond to a request for tion. Consequently, HR and other operating man- information (RFI) by providing the EEOC with any agers must be prepared to effectively respond to materials that are needed. Mediation can some- the EEOC as quickly and succinctly as possible. times be an option if the claim is deemed eligi- But how should they do this? It is important ble and both parties are willing to participate in for companies to make a good first impression the process. Settlements can also be formulated by taking an allegation seriously. HR profession- between the parties at any point during the pro- als and managers should provide the EEOC with cess of an investigation. A final consideration is any information that is requested and make sure that organizations should do their best to respond that important files and documents are not dis- quickly to an EEOC investigation.21 carded. They need to protect confidentiality and HR professionals should know how to ensure that no retaliation occurs. It is important effectively manage EEOC investigations. If you to notify the company’s insurer about the inci- had to do this in a future job: dent. An internal investigation should also be 1. What kinds of issues would you consider conducted, preferably by individuals who have when developing policies related to EEOC some legal training. Finally, employee inter- investigations? Who would you include in views should be conducted, and all documenta- this development process, and what issues tion should be thoroughly reviewed. do you think are the most important? A position statement can then be developed 2. What other factors do you think companies that details important points about the compa- should consider when dealing with allega- ny’s response to the discrimination claim. The tions of discrimination? KEY COMPETENCIES: Consultation (Behavioral Competency) and People (Technical Competency) Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 78 S E C T I O N 1 The Environment of Human Resource Management As previously highlighted, retaliation claims now constitute many of the charges filed with the EEOC. This is because they can be added to all antidiscrimination charges, and a wide range of workplace decisions might be interpreted as retaliatory. An important aspect of retaliation charges is that the charging party may lose the case on the basis of discrimination but still win if the employer took punitive action against him or her. To prevent charges of retaliation, the following actions are recommended for employers:22 Create and disseminate an antiretaliation policy. Train supervisors on what retaliation is and what actions are not appropriate. Review all performance evaluation and discipline records to ensure consistency and accuracy. Conduct a thorough internal investigation of any claims and document the results. Take appropriate action when retaliation occurs. Even though HR professionals and operating managers may follow these actions, EEOC investigations sometimes occur when allegations of retaliation and other forms of unlawful discrimination are advanced. These professionals must develop a game plan that enables them to effectively respond to allegations and protect the interests of both the organization and its employees. The preceding “HR Competencies & Applications: What to Do When the EEOC Comes Knocking” feature explores important issues that should be considered when the EEOC conducts an investigation. Companies can also object to unreasonable information requests made by the EEOC while conducting investigations, but they need to facilitate the process as much as possible to avoid further action.23 LO2 Outline key 3-3 Broad-Based Discrimination Laws provisions in the Civil Rights Acts of 1964 and 1991 and compare Comprehensive equal employment laws provide broad-based protection for applicants and employ- the two theories of ees. This section provides an overview of the broad-based discrimination laws, and the various sub- unlawful employment sections give more specific details about the major laws and compliance requirements. discrimination. 3-3a Civil Rights Act of 1964, Title VII Although the very first civil rights act was passed in 1866, it was not until passage of the Civil Rights Act of 1964 that the keystone of antidiscrimination employment legislation was put into place. Title!VII, the employment section of the Civil Rights Act of 1964, details the legal protections pro- vided to applicants and employees, and it defines prohibited employment practices. Title VII is the foundation on which all other workplace nondiscrimination legislation is built. Title VII of the Civil Rights Act states that it is illegal for organizations to discriminate in any way based on a person’s sex, race, national origin, color, and/or religion. Coverage includes hir- ing decisions, terminations, promotions, demotions, compensation, working conditions, and many other personnel actions. Title VII Coverage Title VII, as amended by the Equal Employment Opportunity Act of 1972, covers most employers in the United States. Any organization meeting one of the following crite- ria must comply with rules and regulations that specific government agencies have established to enforce the act: All private employers of 15 or more employees All educational institutions, public and private State and local governments Public and private employment agencies Labor unions with 15 or more members Joint labor–management committees for apprenticeships and training Title VII has been the basis for several extensions of EEO law. For example, in 1980, the EEOC interpreted the law to include sexual harassment. Further, a number of concepts identified Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.  C H A P T E R 3 Equal Employment Opportunity 79 in Title VII are the foundation for court decisions, regulations, and other laws discussed elsewhere in this chapter. 3-3b Civil Rights Act of 1991 In response to several U.S. Supreme Court decisions during the 1980s, Congress amended the Civil Rights Act of 1964 to strengthen legal protection for employees, provide for jury trials, and allow for damages payable to successful plaintiffs in employment discrimination cases.24 A key provision of the 1991 act relates to how U.S. EEO laws are applied globally. The Civil Rights Act of 1991 requires that employers show that an employment practice is job-related for the position and consistent with business necessity. The act clarifies that plaintiffs bringing discrimination charges must identify the particular employer practice being challenged and must show only that protected status played some role in their treatment. For employers, this means that an individual’s race, color, religion, sex, or national origin must play no role in employ- ment decisions. The act allows people who have been targets of intentional discrimination based on sex, religion, or national origin to receive both compensatory and punitive damages. The penalties are scaled by the size of employer, as shown in Figure 3-3. 3-3c Executive Orders 11246, 11375, and 11478 Several important executive orders have been issued by the U.S. president that affect the employ- ment practices of federal contractors and subcontractors. The OFCCP in the U.S. Department of Labor is responsible for overseeing federal contractor operations and ensuring that unlawful dis- crimination does not occur. Executive Orders 11246, 11375, and 11478 require federal contractors Affirmative action to take affirmative action to compensate for historical discrimination against women, minorities, Proactive employment and individuals with disabilities. The DOL filed a lawsuit against Oracle, a company that earns mil- practices to compensate lions from the federal government as a contractor, for preferring Asians candidates when hiring for historical discrimi- employees and paying white males more than other employees.25 The OFCCP also filed a lawsuit nation against women, against Palo Alto-based Palatir Technologies, a company that assists the government with terrorism minorities, and individu- and human trafficking, for discriminating against Asian candidates during recruiting; Palatir moved als with disabilities forward with a 1.66 million dollar settlement.26 The concept of affirmative action is not without controversy, and some states have passed laws banning such programs. Supporters offer many reasons why affirmative action is important, while opponents argue firmly against it. Individuals can consider both sides in the debate and compare them with their personal views of affirmative action. Whether one supports or opposes affirmative action, it is important to understand why its supporters believe that it is needed and why its oppo- nents believe it should be discontinued. FIGURE 3-3 Penalties under the Civil Rights Act of 1991, by Employer Size $300,000 $300,000 $250,000 Maximum Penalty $200,000 $200,000 $150,000 $100,000 $100,000 $50,000 $50,000 $0 15–100 101–200 201–500 501+ Number of Employees Source: U.S. Equal Employment Opportunity Commission Enforcement Guidance, http://www.eeoc.gov/policy/docs/damages.html. Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 80 S E C T I O N 1 The Environment of Human Resource Management 3-3d Managing Affirmative Action Requirements Affirmative action Federal contractors are required to develop and maintain a written affirmative action program program (AAP) (AAP) that outlines proactive steps the organization will take to attract and hire members of under- A document that outlines represented groups. This data-driven program includes analysis of the composition of the compa- proactive steps the ny’s current workforce with a comparison to the availability of workers in the labor market. The organization will take to overall objective of the AAP is to have the company’s workforce demographics reflect as closely as attract and hire members possible the demographics in the labor market from which workers are recruited. of underrepresented groups The contents of an AAP and the policies flowing from it must be available for review by managers and supervisors within the organization. The AAP is reviewed by the OFCCP and is subject to periodic audits to ensure compliance. In addition to an extensive workforce analysis, the AAP includes goals, timetables, and documentation of good faith efforts to reduce and prevent employment discrimina- tion against historically disadvantaged groups. Organizations implement outreach programs, targeted recruiting, and training programs to recruit and advance women, minorities, and people with disabili- ties. Affirmative action plans vary in length; some are long and!require extensive staff time to prepare.27 3-3e Managing Racial and Ethnic Discrimination Issues The original purpose of the Civil Rights Act of 1964 was to address race discrimination in the United States. This concern continues to be important today. To take appropriate actions, employers should be aware of potential HR issues that are based on race, national origin, and citizenship. Charges of racial discrimination continue to make up many of the complaints filed with the EEOC. Employment discrimination can occur in numerous ways. This can include refusal to hire someone because of their race or ethnicity and questions found in a selection interview. For instance, Bass Pro Outdoor LLC paid a settlement of 10.5 million dollars in response to an EEOC lawsuit that claimed the company discriminated against black and Hispanic job candidates based on race and national origin and retaliated against employees who disapproved; the Secret Service also agreed to a settlement for allegedly discriminating against black agents.28 These cases highlight the reality that all employment inquiries and decisions should be based on job-related factors, not personal characteristics. See Appendix F for examples of legal and illegal pre-employment inquiries. Sometimes racial discrimination is very subtle. Some firms have tapped professional and social networking sites to fill open positions. However, networking sites may not be easily accessible to some people, resulting in disparate impact. The use of employee referral programs can lead to a more homogenous workforce because employees may be more likely to refer people who are similar to themselves. One solution is to make sure a hiring organization uses recruitment approaches that secure a diverse applicant pool. This can be done by avoiding procedures that make it difficult for some groups to learn about and apply for open positions. Another possible solution is to use anon- ymous application procedures in which names and other identifying characteristics of applicants are deleted from candidate documents. Decision makers in the hiring process are presented only with credentials and job-relevant information. This procedure, while controversial, may level the playing field and reduce the possibility of selection bias.29 Under federal law, discriminating against people because of skin color is just as illegal as discriminating because of race. For example, one might be guilty of color discrimination but not racial discrimination if one hired light-skinned African Americans over dark-skinned individuals. Racial and Ethnic Harassment Racial and ethnic harassment is such a concern that the EEOC has issued guidelines on it. It is recommended that employers adopt policies against harass- ment of any type, including ethnic jokes, vulgar epithets, racial slurs, and physical actions that could constitute harassment. The EEOC encourages companies to get leaders on board to reduce harass- ment, develop ongoing antiharassment programs, including training that educates all workers about harassment, and create processes for reporting and researching harassment.30 The consequences of not developing, implementing, and/or enforcing these policies are seen in a case involving a manager at a New York City-based street furniture cleaning and maintenance firm who did not respond to claims of racial harassment as swiftly and harshly as the circumstances suggested.31 In another case, an African-American police sergeant was allowed to pursue a discrimination case when he was transferred Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.  C H A P T E R 3 Equal Employment Opportunity 81 to a late night shift that reduced his work responsibilities compared to his colleagues.32 Companies should also understand that defending against claims of harassment with excuses like “it was only a joke,” “the conduct was not unlawful,” and/or “there was no bad intent” is not recommended.33 LO3 Show how 3-4 Sex and Gender Discrimination Laws women are affected by pay, job assignments, and!Regulations and career issues. The inclusion of sex as a basis for protected status in Title VII of the 1964 Civil Rights Act has led to additional areas of legal protection, and a number of laws and regulations now address discrimina- tion based on sex or gender. 3-4a Pregnancy Discrimination The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII to require that employers treat maternity leave the same as other personal or medical leaves. Closely related to the PDA is the Fam- ily and Medical Leave Act (FMLA) of 1993. The FMLA requires that qualified individuals be given up to 12 weeks of unpaid family leave and also requires that those taking family leave be allowed to return to their jobs (see Chapters 12 and 13 for details). The FMLA applies to both men and women. The Americans with Disabilities Act Amendments Act (ADAAA) also expanded the definition of a disability to include less permanent and serious physical and mental issues, which can be interpreted to cover pregnancies.34 Through the Americans with Disabilities Act and PDA, the EEOC encour- ages employers to provide reasonable accommodations to pregnant workers.35 There are also states including Texas, Louisiana, Hawaii, Maryland, Connecticut, and California and cities such as New York and Philadelphia that require companies to provide reasonable accommodations to pregnant workers.36 Discrimination may occur because of employer perceptions of the pregnancy affecting the employee’s job performance and attendance. Such discrimination might occur from questions related to pregnancy or child care plans asked during an employment interview. It may also occur because of negative views about pregnancy and/or taking maternity leave. Finally, illegal discrimina- tion can result when a pregnant applicant is not hired or is transferred or terminated. For instance, Brown & Brown, a Daytona-based brokerage company, had to pay an employee $100,000 after she was let go immediately after being hired because it was thought that she would not stay with the firm “long term.”37 Courts have generally ruled that the PDA requires employers to treat pregnant employees the same as those who are not pregnant—pregnant employees should decide for themselves whether or not they can perform assigned work—or companies risk lawsuits.38 Employers do have a right to maintain performance standards and expectations of pregnant employees. But they should be cautious to use the same standards for nonpregnant employees and employees with other medical conditions. Finally, untrained managers and supervisors who are misinformed about issues related to pregnancy discrimination and the associated laws can lead to claims. Companies should provide some training to reduce these concerns.39 3-4b Equal Pay and Pay Equity The Equal Pay Act of 1963 requires employers to pay similar wage rates for similar work without regard to gender. A common core of tasks must be similar to justify similar wages. Tasks performed only intermittently or infrequently do not make jobs different enough to justify different wages. Dif- ferences in pay between men and women in the same jobs are permitted because of: 1. Differences in seniority, 2. Differences in performance, 3. Differences in quality and/or quantity of production, and 4. Factors other than sex, such as skill, effort, and working conditions. Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 82 S E C T I O N 1 The Environment of Human Resource Management HR Practices That Help Reduce the Gender Pay Gap The pay disparities that are often identified be- Ignore individuals’ prior compensation: Do COMPETENCIES & APPLICATIONS tween men and women in the workplace can not base compensation on what employees lead to many different negative consequences were paid in their previous jobs. for organizations. One obvious outcome is the Allow exceptions to compensation practices: increased potential for lawsuits, but there are Pay ranges and schedules can and should be many others that sometimes get overlooked. developed, but exceptions to these pay com- For instance, the gender pay gap can cause poor pensation practices should be allowed when work attitudes among employees, leading them individuals do not fit the mold. to disengage from the workplace and decrease Be sure to spread opportunities around the their job performance. Pay inequity can also office fairly. Managers should delegate work motivate some of the most talented individu- and assign employees to work tasks in a als to look for employment elsewhere in other fair manner to promote equal opportunity companies. employment. Given these many challenges, what can Periodically assess performance reviews companies do to reduce the gender pay gap? and other practices. Check appraisals pro- The following considerations should help cesses and other HR/management prac- decrease these concerns: tices to determine if there are any inherent gender biases. Be careful with data that has been collected Educate leaders about bias. Train manag- to show pay disparities: It is a good idea ers to recognize unrecognized biases and to coordinate data collection efforts with a prejudice so that these barriers to positive company’s attorney to make sure that the decision making do not adversely affect the information is protected. workplace.40 Conduct a qualitative assessment of jobs: Once pay gaps are identified, jobs should be The ability to rid the workplace of the gen- evaluated qualitatively to determine if there der pay gap is an important ethics-based com- are legitimate reasons for the differences. petency that HR professions should cultivate. Think about succession plans: Have an If you were given the responsibility of reducing idea about how exiting employees will be the gender pay gap: replaced with current staff so that vacancies 1. How would you motivate HR leaders to de- can be filled quickly. velop strategies that ensure gender-based Encourage individual negotiations of pay: fairness at work? What issues do you think It should not be assumed that pay negotia- deserve the most attention? tions limit women’s ability to get good com- 2. What specific steps would you take to help pensation due to gender differences and companies reduce the gender pay gap? individual capabilities. KEY COMPETENCIES: Ethical Practice (Behavioral Competency) and People (Technical Competency) In response to a procedural issue in pursuit of a fair pay claim, Congress enacted the Lilly Led- better Fair Pay Act in 2009. This law eliminates the statute of limitations for employees who file pay discrimination claims under the Equal Pay Act. Each paycheck is essentially considered a new act of discrimination. Lawmakers recognized that because pay information is often secret, it might take Copyright 2020 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.  C H A P T E R 3 Equal Employment Opportunity 83 months or even years for an employee to discover the inequity. The successful plaintiff can recover up to two years of back pay. Pay equity Pay equity involves the idea that pay for jobs requiring comparable levels of knowledge, skill, The idea that pay for jobs and ability should be similar, even if actual duties differ significantly. This theory has also been requiring comparable called comparable worth in earlier cases. Some state laws mandate pay equity for public-sector levels of knowledge, skill, employees. However, the existence of pay differences in jobs held by women and men is not suffi- and ability should be sim- cient to prove that illegal discrimination has occurred, particularly when factors such as job tenure ilar, even if actual duties and work experience may justify such differences. differ significantly Ongoing interest in the notion of pay equity is due to the continuing gap between the earn- ings of women and men. Women have traditionally earned less than men in various occupations and professional fields. According to one report, the findings showed that women made about 79!cents compared to a dollar made by men and that their median compensation levels tracked across various education levels were lower than men’s earnings.41 In another report, women were found to make about 90 percent of what men earn at the age of 32, and at age 40, they were found to make about 82 percent of what men earn.42 Consequently, pay inequity is an ongoing concern for companies. Several factors can contribute to these pay differences. For instance, women may take more time off during their childbearing years. This makes it difficult to remain on par with their male counterparts, resulting in a pay gap.43 Persistent, widespread beliefs about how women should act and how they should be treated might also negatively impact women’s workplace experiences and pay.44 One study also found that women don’t always think they deserve higher compensation when their pay is lower, which fails to trigger any pay dissatisfaction.45 Despite some of the reasons for pay differences, organizations should focus on strategies that help eliminate gender disparities in compensation. Employers can take steps to reduce pay inequi- ties, including the following: For the most accurate overall picture, include all benefits and other items that are part of pay to calculate total compensation. Make sure people know how the organization’s pay practices work.