mondy hrm13 inppt03.ppt

Human Resource Management

13th Edition

Chapter 3 Workplace Diversity, Equal

Employment Opportunity, and Affirmative Action

3-1 Copyright © [2014] Pearson Education

Learning Objectives• Discuss lesbian, gay, bisexual, and transgender

employees as a protected class.• Describe diversity and diversity management and

explain the various components of the diverse workforce.

• Identify the major laws affecting equal employment opportunity.

• Describe the recent trend against employee retaliation.

• Identify some of the major Supreme Court decisions that have had an impact on equal employment opportunity and affirmative action.


Learning Objectives (Cont.)• Describe the Equal Employment Opportunity

Commission and explain the purpose of the Uniform Guidelines on Employee Selection Procedures.

• Describe disparate treatment and adverse impact and explain the Uniform Guidelines related to sexual harassment, national origin, religion, and caregiver (family responsibility) discrimination.

• Explain affirmative action as required by presidential Executive Orders 11246 and 11375 and describe affirmative action programs.

• Describe sexual harassment in the global environment.


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HRM in Action: Lesbian, Gay, Bisexual, and Transgender Employees as a Protected

Class?

•Increased focus in political and workforce arena

•Public tends to support equal rights for gay people — with exception of right to marry

•Many companies have policies in support of LGBT employees


Diversity

• Any perceived difference among people

• More than equal employment and affirmative action

• Creates workforces that mirror populations and customers


Diversity Management

Ensuring that factors are in place to:• Provide for and encourage the

continued development of a diverse workforce

• Meld actual and perceived differences among workers


Components of the Diverse Workforce

• Single parents and working mothers

• Women in business• Mothers returning to

the workforce• Dual-career families• Workers of color• Older workers

• People with disabilities

• Immigrants• Foreign workers• Young persons, some

with limited education or skills

• Baby Boomers, Gen X, Gen Y, and Gen Z


Single Parents and Working Mothers

• Number is growing– 50% of marriages end in divorce– Widows and widowers who have children

• 72% of mothers with children under 18 are in workforce

• Being a mother does not significantly change young women's career ambitions


Women in Business

• Prominent rise in number of women in labor force

• Entering labor force in high-paying, professional jobs and women dominating health-care sector

• Women make up majority of American workforce

• Many opt out of corporate life


Mothers Returning to the Workforce

• More new mothers are leaving the labor force only to return later

• Some firms are trying to recruit them to return to labor force

• Some employers have programs that help their employees leave and later return


Dual-Career Families

• Both husband and wife have jobs and family responsibilities

• Children often have both parents working outside home

• Often turn down relocations

• Want more workplace flexibility


Workers of Color

• By 2016, 43% of new job applicants will be people of color

• Often experience stereotyping

• Often encounter misunderstandings and expectations

• Bicultural stress

• Culture of origin can lead to misunderstandings in workplace


Older Workers

• Many Boomers deferred retirement• United States faces rapid departure of

Boomers • Many companies try to keep the over-55

worker


Persons with Disabilities

• Disabled workers do as well as unimpaired workers in terms of:– Productivity – Attendance– Average tenure

• Costs for accommodations differ very little from those for general population


Immigrants

• Large numbers of immigrants have settled in United States

• Require time to adapt

• Managers must work to understand different cultures and languages


Foreign Workers

• The H-1B employment visa brings in upwards of 115,000 skilled foreign workers annually

• 85,000 are distributed to employers through a lottery system

• Exact number of H-1B visa holders is difficult to determine


Young Persons, Some with Limited Education or Skills

• Lower labor force participation rate for young people

• Recent recession was especially harsh for 16-to-19-year-olds

• Often have poor work habits

• Can do many jobs well

• Jobs can be de-skilled


Baby Boomers

• Born just after World War II through the mid-1960s

• Employers seek out boomers because they bring a wealth of skills and experience to the workplace

• Recognized as having a great work ethic and a solid attendance record


Generation X

• 41 million American workers born between the mid-1960s and late 1970s

• Possess lots of energy and promise

• Job instability and the breakdown of the traditional employer-employee relationship

• Think more as free agents and expect to build career security, not job security


Generation Y

• People born between the late 1970s and late 1990s

• Promises to be the richest, smartest, and savviest ever

• Strong sense of morality and civic-mindedness

• Childhoods have been short-lived


Generation Z or Digital Natives

• Born between 1995 and 2009

• More worldly, high-tech and confident

• Tend to have short attention spans

• Desire speed over accuracy

• Enjoy media that provides live social interaction


Multigenerational Diversity

• Four generations are now in the workforce

• Each has different defining characteristics and nicknames

• Managers need to be aware of and skilled in dealing with the different generations


Equal Employment Opportunity: An Overview

• EEO modified since passage of:– Equal Pay Act of 1963– Civil Rights Act of 1964– Age Discrimination in Employment Act of

1967

• Other congressional legislation

• Major Supreme Court decisions

• Executive orders signed into law


Laws Affecting Equal Employment Opportunity


Civil Rights Act of 1866• Oldest federal legislation affecting

staffing• Based on Thirteenth Amendment• No statute of limitations• Employment is a contractual

arrangement• Extended to cover private parties in

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Equal Pay Act of 1963,Amended in 1972

• Cannot pay employee of one gender less money than employee of opposite gender if both employees do work that is substantially the same

• Work must: – Require equal skill– Require equal effort– Involve equal responsibility

– Be performed under similar working conditions


Lilly Ledbetter Fair Pay Act of 2009

• Claimed pay discrimination

• Court said that discrimination charges must be filed within 180 days

• Creates a rolling or open time frame for filing wage discrimination claims


Comparable Worth

• Requires determination of the values of dissimilar jobs by using job evaluation

• Pay rates determined by jobs’ evaluated worth

• Supreme Court has ruled the Equal Pay Act does not require comparable worth


Title VII of Civil Rights Act of 1964, Amended in 1972

• Greatest impact on HR management

• Illegal for employer to discriminate

• Applies to firms with 15 or more employees

• Created the Equal Employment Opportunity Commission (EEOC) to enforce Title VII


Pregnancy Discrimination Act of 1978

• Amendment to Title VII of Civil Rights Act

• Pregnancy, childbirth, or related medical condition

• Prohibits questions about family plans, birth control techniques, etc.

• Benefits area also covered


Civil Rights Act of 1991• Provided appropriate remedies for intentional

discrimination and unlawful harassment

• Codified “business necessity” and “job-relatedness”

• Confirmed authority and guidelines for finding disparate

impacts under Title VII

• Disparate impact: When certain actions in employment

process work to disadvantage of members of protected

groups. Discussed under topic of adverse impact


Age Discrimination in Employment Act of 1967, Amended in 1986

• Illegal to discriminate against anyone 40 years or older (previously 40-65 & 40-70)

• Administered by EEOC

• Pertains to employers who have 20 or more employees

• Provides for trial by jury

• Possible criminal penalty

• Class action suits are possible3-32 Copyright © [2014] Pearson Education

Age Can Be Bona Fide Occupational Qualification

• Federal Aviation Administration can force commercial pilots to retire at age 65

• Greyhound did not violate ADEA when it refused to hire persons 35 years or older as intercity bus drivers

• Likelihood of risk or harm to passengers was involved with both cases


Rehabilitation Act of 1973

• Prohibits discrimination against disabled workers working for government contractors and organizations

• Contracts exceeding $2,500: Employer required to post affirmative action notices

• Contracts exceeding $50,000, or if contractor has 50 or more employees: Employer must prepare written affirmative action plan

• Administered by Office of Federal Contract Compliance Programs (OFCCP)


Americans with Disabilities Actof 1990 (ADA)

• Prohibits discrimination against qualified individuals with disabilities

• Disabled individual: Person who has, or is regarded as having, a physical or mental impairment that substantially limits one or more major life activities, and has a record of such an impairment


Americans with Disabilities Act: Amendments Act of 2008

• Expanded the definition of “disability”

• More applicants and employees eligible for reasonable accommodations

• Broadened ADA's definition of disability by expanding term “major life activities”

• Did away with “substantially limited” requirement


Immigration Reform and Control Act (IRCA) of 1986

• Granted amnesty to approximately 1.7 million long-term unauthorized workers

• Established criminal and civil sanctions against employers who knowingly hire unauthorized aliens

• Reduced threshold coverage to 4 employees

• Toughened criminal sanctions for employers who hire illegal aliens


Illegal Immigration Reform and Immigrant Responsibility Act of 1996

• Passed partly because at least one of the terrorists who blew up World Trade Center had legally entered on student visa

• Places severe limitations on persons who:

– Come to U.S. and remain in country longer than permitted by their visas

– Violate their nonimmigrant status• Penalties range from 3- to 10-year ban from

entering the U.S.

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Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994

• Protections for Reservists and National Guard called to active duty

• Workers entitled to return to civilian employment after military service

• Intended to eliminate or minimize employment disadvantages to civilian careers

• Escalator principle: Can return to job he/she would have attained


Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as Amended

• Originally referred to Vietnam era veterans • Served in a campaign or expedition for which

a medal was issued• Includes Desert Storm and the current

engagements in the Middle East

• Prohibits federal contractors from discriminating against specified categories of veterans


Trends & Innovations: Employee Retaliation

• Significant increase in number of employee retaliation charges

• Burlington Northern & Santa Fe Railway Co. v White—Lowered standard of proof

• Thompson v North American Stainless L.P.U.S.—Expanded scope of who might bring a retaliation charge


State and Local Laws

• State and local laws affect EEO.

• When EEOC regulations conflict with state or local civil rights regulations, legislation more favorable to women and minorities applies.

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Supreme Court Decisions Affecting EEO

• Court interpretations continuously change, even though the law may not have been amended

• Significant U.S. Supreme Court decisions affecting EEO


Griggs v Duke Power Company

• Continues to be the benchmark case and example of disparate impact in employment law

• Prima facie evidence

• Questions that should be avoided if not job-related include credit record, conviction record, garnishment record, and education


Albemarle Paper Company v Moody

• Reaffirmed idea that any test used in selection process or in promotion decisions must be validated if it has adverse impact on women and minorities

• Employer has burden of proof for showing that test is valid


Phillips v Martin Marietta Corporation

• Firm cannot impose standards for employment only on women

• Examples of questions that should be avoided are: – “Do you wish to be addressed as Ms., Miss, or Mrs.?

– “Are you married?” – “Do you have children?” – “Do you plan on having any more children?” – “Where does your husband work?”


Dothard v Rawlingson

• Company believed that minimum height and weight requirements for position of correctional counselor were job-related

• Court stated that this argument does not rebut prima facie evidence showing these requirements have a discriminatory impact on women


American Tobacco Company v Patterson

• Supreme Court allowed seniority and promotion systems established since Title VII to stand, although they unintentionally hurt minority workers

• Seniority system would fall under the Griggs rationale if it were not for Section 703(h) of the Civil Rights Act


O’Connor v Consolidated Coin Caterers Corp.

• Ruled that an employee does not have to show that he or she was replaced by someone younger than 40 to bring suit under the ADEA

• Discrimination is illegal even when all the employees are members of the protected age group


Supreme Court Decisions Affecting Affirmative Action


University of California Regents v Bakke

• University of California had reserved 16 places in each beginning medical school class for minorities

• Bakke, a white man, was denied admission even though he scored higher

• University admitted Bakke after court ruled in his favor

• Court reaffirmed that race may be taken into account in admission decisions


Grutter v Bollinger

• Appeared to support the Bakke decision

• Schools may favor black, Hispanic, and other minority students in admissions

• Must take the time to assess each applicant’s background and potential


Gratz v Bollinger

• Cannot use point systems that blindly give extra credit to minority applicants

• Giving an automatic 20 points to minority applicants, was not the proper way to achieve racial diversity


Ricci v DeStefano

• Held that the City discriminated against white and Hispanic firefighters

• City had to show a “strong basis in evidence” that the tests were not job-related or that another, less discriminatory test existed


Equal Employment Opportunity Commission

• Title VII of the Civil Rights Act, as amended, created the Equal Employment Opportunity Commission

• Filing a discrimination charge initiates EEOC action


Steps in Handling a Discrimination Case


Factors that Determine whether EEOC will Pursue Litigation

– Number of people affected by alleged practice

– Amount of money involved in charge

– Other charges against employer

– Type of charge


Uniform Guidelines on Employee Selection Procedures

• Single set of principles • Designed to assist employers, labor

organizations, employment agencies, and licensing and certification boards

• Comply with federal prohibitions against employment practices that discriminate

• Based on race, color, religion, gender, and national origin


Concept of Disparate Treatment

• Employer treats some people less favorably than others because of: race, religion, sex, national origin, and age.

• Most easily understood form of discrimination

• McDonald v. Santa Fe Trail Transportation Company (1977) offers an example of disparate treatment


Concept of Adverse Impact

• Defined in terms of selection rates

• Established by Uniform Guidelines

• Occurs if women and minorities are not hired at rate of at least 80% of best-achieving group

• Also called the four-fifths rule


Adverse Impact Example

• During 2013, 300 blacks and 300 whites were hired– 1,500 qualified black applicants – 1,000 qualified white applicants– Using the adverse impact formula, you have:

300/1500 = 0.2

300/1000 = 0.3 = 66.67%

Thus, adverse impact exists.


Additional Guidelines

• Guidelines on Sexual Harassment

• Guidelines on Discrimination Because of National Origin

• Guidelines on Discrimination Because of Religion

• Guidelines on Caregiver (Family Responsibility) Discrimination


Guidelines on Sexual Harassment

• Title VII generally prohibits gender

discrimination in employment

• EEOC issued interpretative guidelines

• Two types of sexual harassment:

– Hostile work environment

– A quid pro quo situation


Sexual Harassment (Cont.)

• Employers are liable for acts of supervisors, regardless of whether employer is aware of the sexual harassment

• Employer is responsible for acts of co-workers if employer knew, or should have known, about the acts

• Employer may be liable for acts committed by nonemployees in workplace

• Employer may not be liable if it takes immediate and appropriate action


Guidelines on Discrimination Because of National Origin

Discrimination on basis of national origin is denial of equal employment opportunity due to:

– Individual’s ancestors or place of birth– Individual’s physical, cultural, or linguistic

characteristics


English-Only Rule

• Courts generally ruled in employer’s favor if rule would:– Promote safety and product quality – Stop harassment

• Must be justified by a compelling business necessity


Guidelines on Discrimination Because of Religion

• Obligation to accommodate religious practices unless employer can demonstrate a resulting hardship


Methods for Accommodating Religious Practices

• Voluntary substitutes

• Flexible scheduling

• Lateral transfers

• Change in job assignments

• Unions can permit donations


Guidelines on Caregiver (Family Responsibility) Discrimination

• Discrimination based on employee obligations to care for family members

• EEOC’s guideline: “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities”

• Not binding

• Offers “best practices” measures


Avoiding EEO Litigation

• Suits are still being brought and won because of mistakes in adherence to standards

• Need a strong EEO policy against discrimination

• May still be breakdowns

• Provided an opportunity to train employers how to handle a problem the next time


Executive Order

• Directive issued by the President of the U.S.

• Has the force and effect of a law enacted by Congress

• Applies to federal agencies and federal contractors


Affirmative Action• President Harry S. Truman officially ended

racial segregation in all branches of the military by issuing Executive Order 9981 in 1948

• Officially, affirmative action began in 1965 when President Lyndon B. Johnson signed EO 11246

• Prohibits discrimination in employment because of race, creed, color, or national origin


Executive Order 11246

• Providing equal opportunity in federal employment

• Prohibits discrimination in employment because of race, creed, color, or national origin

• Positive, continuing program in each executive department and agency


Executive Order 11375

In 1968, changed word “creed” to “religion” and added sex discrimination


Affirmative Action Programs

Approach developed by organizations with government contracts to demonstrate that workers are employed in proportion to their representation in firm's relevant labor market


Degree of Control OFCCP Will Impose

• Contractors with $10,000–$50,000 contracts are governed by equal opportunity clause.

• If contractor (1) has 50 or more employees, or (2) has contracts of $50,000 or more, it must develop written affirmative action program and file annual EEO-1 report.

• When contracts exceed $1 million: – All previously stated requirements must be met. – OFCCP is authorized to conduct pre-award

compliance reviews.


What Is Included in an AAP?

• Develop a policy statement• Analyze deficiencies in utilization of minority

groups and women • Conduct a utilization analysis • Analyze of all major job groups • Underutilization: Having fewer minorities or

women in particular job group than would reasonably be expected by their availability


Underutilization Example

• If utilization analysis shows availability of blacks for certain job group is 30%, organization should have at least 30% black employment in that group

• If actual employment is less than 30%, underutilization exists, and firm should set a goal of 30% black employment for that job group


Primary Focus

• Goals and timetables

• Annual and ultimate

• Annual goal: Move toward elimination of underutilization

• Ultimate goal: Correct all underutilization

• Should not establish inflexible quotas that must be met


HR Laws and Executive Orders Affecting Small Businesses

• Small business managers usually do not have HR resources available that large organizations do

• All but very small businesses fall under coverage of federal and local laws and presidential executive orders


A Global Prospectus: Global Sexual Harassment

• Behaviors that violate U.S. cultural norms may not be perceived as a problem in another culture

• Level of enforcement varies considerably from country to country


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