Implementing Equal Employment Opportunity

Transcription

1 4 Chapter Implementing Equal Employment Opportunity Learning objectives After studying this chapter, you should be able to: 1. Explain the role of the Employer Information Report, EEO Define employment parity, occupational parity, systemic discrimination, underutilization, and concentration. 3. Describe an affirmative action plan. 4. Define bona fide occupational qualification (BFOQ). 5. Explain what is meant by business necessity. 6. Define sexual harassment. 7. Describe the comparable worth theory.

2 Chapter outline EEOC Compliance Legal Powers of the EEOC EEOC Posting Requirements Records and Reports Compliance Process Preemployment Inquiry Guide Affirmative Action Plans Bona Fide Occupational Qualification (BFOQ) Business Necessity Sexual Harassment Comparable Worth and Equal Pay Issues Other Areas of Employment Discrimination Religion Native Americans (Indians) HIV-Positive Sexual Orientation Summary of Learning Objectives Review Questions Discussion Questions Incident 4-1: Promotions for Lovers Incident 4-2: Religion and Real Estate Exercise: Affirmative Action Debate Exercise: The Layoff Notes and Additional Readings On the Job: Preemployment Inquiry Guide Video Case: Southwest Airlines Web site: United States Equal Employment Opportunity Commission As the previous chapter indicated, the legal requirements of equal employment opportunity are quite complex. Nevertheless, each organization must develop its own approach to equal employment within the legal guidelines. Thus, this chapter provides specific information and guidelines for implementing equal employment opportunity. EEOC Compliance The Equal Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), both described in the previous chapter, are the two primary enforcement agencies for equal employment opportunity. All organizations with 20 or more employees must keep records that can be requested by either the EEOC or OFCCP. Legal Powers of the EEOC Web site: National Employment Lawyers Association Section 713 of Title VII (Civil Rights Act of 1964), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, the Americans with Disabilities Act (ADA) of 1990, and the Civil Rights Act of 1991 authorize the EEOC to develop and publish procedural regulations regarding the enforcement of these acts. As a result, the EEOC has issued substantive regulations (or guidelines, as they are more frequently called) interpreting Title VII, the ADEA, the Equal Pay Act, the ADA, and the Civil Rights Act of Since 1972, the EEOC has also had enforcement authority to initiate litigation and to intervene in private litigation.

3 Chapter 4 Implementing Equal 65 EEOC Posting Requirements Website: United States National Labor Relations Board Records and Reports Employer Information Report (Standard Form 100) Form that all employers with 100 or more employees are required to file with the EEOC; requires a breakdown of the employer s work force in specified job categories by race, sex, and national origin. employment parity Situation in which the proportion of minorities and women employed by an organization equals the proportion in the organization s relevant labor market. Compliance Process occupational parity Situation in which the proportion of minorities and women employed in various occupations within an organization is equal to their proportion in the organization s relevant labor market. systemic discrimination Occurs when there are large differences in either occupational or employment parity. relevant labor market The geographical area in which a company recruits its employees. underutilization Practice of having fewer minorities or females in a particular job category than would reasonably be expected when compared to their presence in the relevant labor market. Title VII requires employers, employment agencies, and labor organizations covered by the act to post EEOC-prepared notices summarizing the requirements of Title VII, the ADEA, the Equal Pay Act, the ADA, and the Civil Rights Act of The EEOC has prepared such a poster, and a willful failure to display it is punishable by a fine of not more than $100 for each offense. Organizations subject to notice requirements by Executive Order and Title VII can display a poster meeting the requirements of both the EEOC and the OFCCP. Employers with 100 or more employees must annually file Standard Form 100, known as the Employer Information Report, EEO 1. Figure 4.1 shows the form. The EEO 1 report requires a breakdown of the employer s work force in specified job categories by race, sex, and national origin. Other, similar types of forms are required of unions, political jurisdictions, educational institutions, school districts, and joint labor-management committees that control apprenticeship programs. Persons willfully making false statements on EEOC reports may be punished by fine or imprisonment. In addition to EEO 1, Title VII requires the covered organizations to make and keep certain records that may be used to determine whether unlawful employment practices have been or are being committed. Thus, it is a good practice for covered organizations to maintain records relating to job applicants, payroll records, transfers, recalls, and discharges. The length of time required for the retention of these records varies, but a good time frame for retaining such records is three years. Since the EEOC and OFCCP are interested in the recruitment and selection of protected groups and because the collection of certain data about the protected groups is not permitted on an organization s application form, the EEOC allows organizations to use a separate form, often called an applicant diversity chart, for collecting certain data. An example of such a form is shown in Figure 4.2. The data on this form must be maintained separately from all employment information. An individual may file a discrimination charge at any EEOC office or with any representative of the EEOC. If the charging party and respondent are in different geographic areas, the office where the charging party resides forwards the charge to the office where the respondent is located. Class action charges or charges requiring extensive investigations are processed in the EEOC s Office of Systemic Programs. The EEOC uses two methods to determine whether discrimination against groups protected by the law has occurred: employment parity and occupational parity. When employment parity exists, the proportion of minorities and women employed by the organization equals the proportion in the organization s relevant labor market. Occupational parity exists when the proportion of minorities and women employed in various occupations within the organization is equal to their proportion in the organization s relevant labor market. Large differences in either occupational or employment parity are called systemic discrimination. Relevant labor market generally refers to the geographical area in which a company recruits its employees. For example, a small company may recruit its employees only within the standard metropolitan statistical area (SMSA) within which it falls; thus, its relevant labor market would be the SMSA. On the other hand, a large company that recruits nationally may have the whole nation as its relevant labor market. Furthermore, companies can have different relevant labor markets for different occupations. For example, the relevant labor market for a company s clerical employees might be the SMSA, while the relevant labor market for its engineers might be nationwide. The EEOC can also examine the underutilization or concentration of minorities and/or females in certain jobs. Underutilization refers to the practice of having fewer minorities or females in a particular job category than would reasonably be expected when compared to their presence in the relevant labor market. Concentration refers to the practice of having more minorities or women in a job category than would reasonably be expected when compared to their presence in the relevant labor market. Table 4.1 summarizes the steps involved in processing a discrimination charge. These are general in nature, and many variations are possible. If the EEOC does not decide to file a

4 66 Part One Introduction and Equal FIGURE 4.1 Standard Form 100 Joint Reporting Committee Equal Employment Opportunity Commission Office of Federal Contract Compliance Programs (Labor) EQUAL EMPLOYMENT OPPORTUNITY EMPLOYER INFORMATION REPORT EEO 1 Standard Form 100 (Rev, 3/97) O.M.B. No EXPIRES 10/31/ Section A TYPE OF REPORT Refer to instructions for number and types of reports to be filed. 1. Indicate by marking in the appropriate box the type of reporting unit for which this copy of the form is submitted (MARK ONLY ONE BOX). Multi-establishment Employer: (1) Single-establishment Employer Report (2) (3) (4) (1) Consolidated Report (Required) Headquarters Unit Report (Required) Individual Establishment Report (submit one for each establishment with 50 or more employees) Special Report 2. Total number of reprots being files by this Company (Answer on Consolidated Report only) Section B COMPANY IDENTIFICATION (to be answered by all employers) 1. Parent Company a. Name of parent company (owns or controls establishment in item 2) omit if same as label Address (Number and street) City or town State ZIP code OFFICE USE ONLY a. b. c. 2. Establishment for which this report is filed. (Omit if same as label) a. Name of establishment Address (Number and street) City or Town County State ZIP code d. e. b. Employer Identification No. (IRS 9-DIGIT TAX NUMBER) f. c. Was an EEO 1 report filed for this establishment last year? Yes No Section C EMPLOYERS WHO ARE REQUIRED TO FILE (To be answered by all employers) Yes No 1. Does the entire company have at least 100 employees in the payroll period for which you are reporting? Yes No 2. Is your company affiliated through common ownership and/or centralized management with other entitles in an enterprise with a total employment of 100 or more? Yes No 3. Does the company or any of its establishments (a) have 50 or more employees AND (b) is not exempt as provided by 41 CFR , AND either (1) is a prime government contractor or forst-tier subcontractor, and has a contract, subcontractor, or purchase order amounting to $50,000 or more, or (2) serves as a depository of Government funds in any amount or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes? If the response to question C 3 is yes, please enter your Dun and Bradstreet identification number (if you have one ): NOTE: If the answer is yes to questions 1, 2, or 3, complete the entire form, otherwise skip to Section G.

5 Chapter 4 Implementing Equal 67 FIGURE 4.1 Standard Form 100 (Concluded) SF 100 Page 2 Section D EMPLOYMENT DATA Employment at this establishment Report all permanent full-time and part-time employees including apprentices and on-thejob trainees unless specifically excluded as set forth in the instructions. Enter the appropriate figures on all lines and in all columns. Blank spaces will be considered as zeros. NUMBER OF EMPLOYEES MALE FEMALE OVERALL JOB TOTALS WHITE BLACK HISPANIC ASIAN OR AMERICAN WHITE BLACK HISPANIC ASIAN OR CATEGORIES (SUM OF (NOT OF (NOT OF PACIFIC INDIAN OR (NOT OF (NOT OF PACIFIC COL. B Officials and Managers 1 Professionals Technicians Sales Workers 4 Office and Clerical 5 Craft Workers (Skilled) 6 Operatives (Semi-Skilled) 7 Laborers (Unskilled) 8 Service Workers 9 TOTAL 10 Total employment reported in previous EEO 1 report THRU K) A HISPANIC ORIGIN) B HISPANIC ORIGIN) B ISLANDER E ALASKAN NATIVE HISPANIC ORIGIN) NOTE: Omit questions 1 and 2 on the Consolidated Report. 1. Date(s) of payroll period used: 2. Does this establishment employ apprentices? 1 Yes 2 No Section E ESTABLISHMENT INFORMATION (Omit on the Consolidated Report) 1. What is the major activity of this establishment? (Be specific, i.e., manufacturing steel castings, retail grocer, wholesale plumbing supplies, title insurance, etc. Include the specific type of product or type of service provided, as well as the principal business or industrial activity.) D F HISPANIC ORIGIN) G H I ISLANDER J AMERICAN INDIAN OR ALASKAN NATIVE K OFFICE USE ONLY g. Section F REMARKS Use this item to give any identification data appearing on last report which differs from that given above, explain major changes in composition of reporting units and other pertinent information. Section G CERTIFICATION (See instructions G) Check one 1 2 All reports are accurate and were prepared in accordance with the instructions (check on consolidated only) This report is accurate and was prepared in accordance with the instructions. Name of Certifying Official Title Signature Date Name of person to contact regarding this report (Type or print) Address (Number and Street) Title City and State ZIP Code Telephone Number (including Area Code) Extension All reports and information obtained from individual reports will be kept confidential as required by Section 709(e) of Title VII. WILLFULLY FALSE STATEMENTS ON THIS REPORT ARE PUNISHABLE BY LAW, U.S. CODE, TITLE 18, SECTION 1001.

6 68 Part One Introduction and Equal FIGURE 4.2 Applicant Diversity Chart

7 Chapter 4 Implementing Equal 69 TABLE 4.1 Steps in Processing a Discrimination Charge concentration Practice of having more minorities or women in a job category than would reasonably be expected when compared to their presence in the relevant labor market. Step Number Procedure Charge is filed with the EEOC. The EEOC evaluates charge and determines whether or not to proceed with it. If it decides to proceed with the charge, the EEOC serves respondents with a copy of the actual charge. A face-to-face, fact-finding mediation program may be offered to the charging party and the respondent. If the charge is not resolved in step 4, the EEOC conducts an investigation of the charges. In cases where the EEOC finds reasonable cause that discrimination has occurred, a proposed conciliation agreement is sent to the respondents. The proposal normally includes a suggested remedy to eliminate the unlawful practices and to take appropriate corrective and affirmative action. If the respondents do not agree to the conciliation agreement, the EEOC makes a determination on whether the charge is litigation worthy. As a practical matter, litigation worthy means that the evidence gathered during the investigation will support a lawsuit. If the charge is deemed litigation worthy, the EEOC then files a lawsuit in the appropriate state or federal court. Decisions of these lower courts are often appealed to the Supreme Court. right-to-sue letter Statutory notice by the EEOC to the charging party if the EEOC does not decide to file a lawsuit on behalf of the charging party. Preemployment Inquiry Guide lawsuit on behalf of the charging party, the individual still has the right to bring suit against the respondent. In this situation, the EEOC issues the charging party the statutory notice of a right-to-sue letter. The charging party must then file a civil action suit in the appropriate court within 90 days of receipt of the statutory notice of right to sue. HRM in Action 4.1 describes Home Depot s struggle with discrimination issues. The On the Job example at the end of this chapter provides a guide to what can and cannot be asked of a job applicant in order to comply with equal employment opportunity legislation and court interpretations of that legislation. It is illustrative and attempts to answer the questions most frequently asked about equal employment opportunity law. Affirmative Action Plans affirmative action plan Written document outlining specific goals and timetables for remedying past discriminatory actions. An affirmative action plan is a written document outlining specific goals and timetables for remedying past discriminatory actions. All federal contractors and subcontractors with contracts over $50,000 and 50 or more employees are required to develop and implement written affirmative action plans, which are monitored by the OFCCP. In addition, all U.S. government agencies must prepare affirmative action plans. While Title VII and the EEOC do not require any specific type of written affirmative action plan, court rulings have often required affirmative action when discrimination is found. A number of basic steps are involved in the development of an effective affirmative action plan. The EEOC has suggested the following eight steps The chief executive officer of the organization should issue a written statement describing his or her personal commitment to the plan, legal obligations, and the importance of equal employment opportunity as an organizational goal. 2. A top official of the organization should be given the authority and responsibility for directing and implementing the program. In addition, all managers and supervisors within the organization should clearly understand their own responsibilities for carrying out equal employment opportunity. 3. The organization s policy and commitment to that policy should be publicized both internally and externally.

8 70 Part One Introduction and Equal HRM in Action 4.1 HOME DEPOT S STRUGGLE TO BUILD DIVERSITY IN ITS WORKFORCE Atlanta-based Home Depot has been steadily building its presence in North America the past few years. The company currently has nearly 1,500 U.S. stores, as well as 84 in Canada, 7 in Puerto Rico, and 9 in Mexico. In spite of its success, the company has had trouble building diversity in its workforce. In 1998, Home Depot settled a class action lawsuit that alleged gender discrimination in its hiring and promotion practices for more than 20,000 former employees and 250,000 job applicants. The suit alleged that Home Depot channeled females into lower-paying cashier jobs, reserving other higher-paying positions, such as those in the lumber department, for males. Home Depot disputed the claims, maintaining its practices were based on applicant and employee skills and experience. In the final analysis, the company paid more than $80 million to settle the suit. Since then, Home Depot has had other claims related to racial discrimination brought against it by the Equal Employment Opportunity Commission. The company is attempting to mend its ways, however. It recently reversed a long-standing ban on filling federal government orders, which some alleged it did to avoid compliance with affirmative action requirements for the government s major contractors. Home Depot denied that its motive was related to affirmative action, saying instead that it was attempting to avoid reams of government paperwork. Company CEO Bob Nardelli said about the company s policy reversal, Home Depot has always listened to its associates and customers and responded accordingly. This time is no different. It is the right thing to do for our company. Sources: Glenn Burkins, Home Depot Shows It Knows about Fixing, The Charlotte Observer, June 30, 2002, Peter Dujardin, Newport News Home Depot Faces EEOC Bias Suit, Daily Press, October 2, 2002, Nicole Harris, A Woman s Place Is at the Cash Register? Business Week, June 30, 1997, bona fide occupational qualification (BFOQ) Permits employer to use religion, age, sex, or national origin as a factor in its employment practices when reasonably necessary to the normal operation of that particular business. 4. Present employment should be surveyed to identify areas of concentration and underutilization and determine the extent of underutilization. 5. Goals and timetables for achieving the goals should be developed to improve utilization of minorities and females in each area where underutilization has been identified. 6. The entire employment system should be reviewed to identify and eliminate barriers to equal employment. Areas for review include recruitment, selection, promotion systems, training programs, wage and salary structure, benefits and conditions of employment, layoffs, discharges, disciplinary actions, and union contract provisions affecting these areas. 7. An internal audit and reporting system should be established to monitor and evaluate progress in all aspects of the program. 8. Company and community programs supportive of equal opportunity should be developed. Programs might include training of supervisors in their legal responsibilities and the organization s commitment to equal employment, and job and career counseling programs. Several Supreme Court decisions discussed in Chapter 3 (City of Richmond v. J. A. Crosan Company and Adarand Contractors v. Peña) have removed the pressure for such plans except in cases of specific and probable acts of discrimination. Hopwood v. State of Texas and Proposition 209, which were also discussed in Chapter 3, may also have a significant impact on affirmative action programs. In addition, much discussion has been generated in both the House of Representatives and the Senate about eliminating all federal affirmative action programs. As of the writing of this text, no specific federal laws have been approved for the elimination of affirmative action programs. Bona Fide Occupational Qualification (BFOQ) The bona fide occupational qualification (BFOQ) permits employers to use religion, age, sex, or national origin as a factor in their employment practices when it is reasonably necessary to the normal operation of that particular business. Section 703(e) of Title VII provides: Notwithstanding any other provision of this [title], (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify

9 Chapter 4 Implementing Equal 71 or refer for employment any individual, or for an employer, labor organization, or joint labor management committee controlling apprenticeship or other training programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. For example, to be able to use sex as a BFOQ in a job that requires lifting 100 pounds, the employer would be required to show that all or substantially all women cannot lift 100 pounds. In fact, most employers most frequently raise the BFOQ exception because of sex. Section (a) of the EEOC s Guidelines on Discrimination because of Sex states: The Commission believes that the bona fide occupational qualification exception as to sex should be interpreted narrowly. Labels men s jobs and women s jobs tend to deny employment opportunities unnecessarily to one sex or the other. (1) The Commission will find that the following situations do not warrant the application of the bona fide occupational qualification exception: (i) The refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men. (ii) The refusal to hire an individual based on stereotyped characterizations of the sexes. Such stereotypes include, for example, that men are less capable of assembling intricate equipment: that women are less capable of aggressive salesmanship. The principle of non-discrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. (iii) The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers except as covered specifically in subparagraph (2) of this paragraph. (2) Where it is necessary for the purpose of authenticity or genuineness, the Commission will consider sex to be a bona fide occupational qualification, e.g., an actor or actress. The situations in which employers raise the BFOQ exception normally fall within three general categories: 1. Ability to perform (e.g., physical ability to perform jobs that involve strenuous manual labor). 2. Same-sex BFOQ that relates to accommodating the personal privacy of clients and customers. 3. Customer preference BFOQ where the customer states a desire to be served only by a person of a given sex. However, the courts have very narrowly interpreted the sex discrimination defenses based on the BFOQ exception. For example, the courts permitted a same-sex BFOQ in a job that involved a potential invasion of another person s privacy in City of Philadelphia v. Pennsylvania Human Relations Commission. 2 The city, in operating youth study centers, restricted the employment of youth supervisors to persons of the same sex as those being supervised. On the other hand, in Ludtke v. Kulm, 3 the courts ruled that female reporters could not be excluded from a baseball team s postgame locker room since an interview area could be set up providing equal access for all reporters while protecting the privacy interests of the male ballplayers. In the area of ability to perform the job, the courts have generally rejected the BFOQ defense and have usually held that each individual job applicant should be permitted an opportunity to demonstrate the ability to perform. The courts have also generally rejected customer preference as a BFOQ defense. Age may be used as a BFOQ in certain limited situations. For example, age may be a BFOQ when public safety is involved, such as with airline pilots or interstate bus drivers.

10 72 Part One Introduction and Equal Business Necessity business necessity Condition that comes into play when an employer has a job criterion that is neutral but excludes members of one sex at a higher rate than members of the opposite sex. The focus in business necessity is on the validity of stated job qualifications and their relationship to the work performed. Sexual Harassment Business necessity comes into play when an employer has a job specification that is neutral but excludes members of one sex at a higher rate than members of the other. The focus in business necessity is on the validity of various stated job specifications and their relationship to the work performed. For example, in using a business necessity defense, an employer would be required to prove that the ability to lift 100 pounds is necessary in performing a warehouse job. When a BFOQ is established, an employer can refuse to consider all persons of the protected group. When business necessity is established, an employer can exclude all persons who do not meet specifications regardless of whether the specifications have an adverse impact on a protected group. sexual harassment Unwelcome sexual conduct that has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile, or offensive work environment. comparable worth theory The idea that every job has a worth to the employer and society that can be measured and assigned a value. One of the more current issues in equal employment opportunity is sexual harassment. The EEOC Guidelines on Discrimination Because of Sex define as unlawful any unwelcome sexual conduct that has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile, or offensive work environment. Section of the Guidelines is reproduced in Table 4.2. The very nature of sexual harassment sometimes makes it difficult to prove. The fact that such conduct normally occurs secretly and outside the employer s wishes and can grow out of or be alleged to grow out of consensual relationships makes the investigation of complaints most difficult. However, when deciding to impose liability on an employer for a supervisor s sexual harassment, the courts have considered an employer s failure to investigate complaints of sexual harassment as significant. 4 Furthermore, the difficulty employees face in proving that an adverse decision was due to their sex and their failure to submit to sexual advances has been relaxed somewhat in favor of plaintiffs. In Bundy v. Jackson, 5 the District of Columbia Circuit Court established the allocation of the burden of proof in a sexual harassment case: 1. First, the employee must establish a prima facie case by proving he or she was (a) subjected to sexual harassment and (b) denied a benefit for which he or she was eligible and of which he or she had a reasonable expectation. 2. The burden then shifts to the employer to prove, by clear and convincing evidence, that its decision was based on legitimate, nondiscriminatory grounds. 3. If the employer succeeds in meeting that stringent burden, the employee may then attempt to prove that the employer s stated reasons are pretextual. Many employers have implemented measures designed to avoid sexual harassment. Developing policies prohibiting sexual harassment and promptly investigating and responding to complaints of sexual harassment are essential to its prohibition. At a minimum, an organization s policy on sexual harassment should (1) define and prohibit sexual harassment and (2) encourage any employee who believes that he or she has been a victim of sexual harassment to come forward to express those complaints to management. HRM in Action 4.2 provides a true-false test to determine how much an individual knows about sexual harassment. It is important to note that acts of sexual harassment can be committed, not only by men against women, but also by men against men, by women against women, and by women against men. Comparable Worth and Equal Pay Issues A controversial issue in equal employment opportunity is the comparable worth theory. This theory holds that every job by its very nature has a worth to the employer and society that can be measured and assigned a value. Each job should be compensated on the basis of its value

11 Chapter 4 Implementing Equal 73 TABLE 4.2 EEOC s Sex Discrimination Guidelines (a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile, or offensive working environment. (b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis. (c) Applying general Title VII principles, an employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as employer ) is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity. (d) With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. (e) An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees. (f) Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned. (g) Other related practices: Where employment opportunities or benefits are granted because of an individual s submission to the employer s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit. and paid the same as other jobs with the same value. Under this theory, market factors such as availability of qualified workers and wage rates paid by other employers would be disregarded. This theory further holds that entire classes of jobs are traditionally undervalued and underpaid because they are held by women and that this inequality amounts to sex discrimination in violation of Title VII of the Civil Rights Act. Proponents of this theory argue that the Equal Pay Act offers little protection to female workers because the act applies only to those job classifications in which men and women are employed. Further, the most serious form of wage discrimination occurs when women arrive at the workplace with education, training, and ability equivalent to that of men and are assigned lower-paying jobs that are held primarily by women. In the 1981 case County of Washington v. Gunther, 6 the Supreme Court considered a claim of sex-based wage discrimination between prison matrons and prison guards. Prison matrons were being paid approximately 70 percent of what the guards were being paid. In its decision, the Court ruled that sex-based wage discrimination violates Title VII of the Civil Rights Act and that the plaintiffs could file suit under the law, even if the jobs were not equal.

12 74 Part One Introduction and Equal HRM in Action 4.2 HOW MUCH DO YOU KNOW ABOUT SEXUAL HARASSMENT? A True or False Test for Employees T F 1. If I just ignore unwanted sexual attention, it will usually stop. 2. If I don t mean to sexually harass another employee, there s no way my behavior can be perceived by him or her as sexually harassing. 3. Some employees don t complain about unwanted sexual attention from another worker because they don t want to get that person in trouble. 4. If I make sexual comments to someone and that person doesn t ask me to stop, then I guess my behavior is welcome. 5. To avoid sexually harassing a woman who comes to work in a traditionally male workplace, the men simply should not haze her. 6. A sexual harasser may be told by a court to pay part of a judgment to the employee he or she harassed. 7. A sexually harassed man does not have the same legal rights as a woman who is sexually harassed. 8. About 90 percent of all sexual harassment in today s workplace is done by males to females. 9. Sexually suggestive pictures or objects in a workplace don t create a liability unless someone complains. 10. Telling someone to stop his or her unwanted sexual behavior usually doesn t do any good. Answers: (1) False. (2) False. (3) True. (4) False. (5) False. (6) True. (7) False. (8) True. (9) False. (10) False. A Test for Management Personnel 1. An employer is not liable for the sexual harassment of one of its employees unless that employee loses specific job benefits or is fired. A Test for Management Personnel T F 2. A court can require a sexual harasser to pay part of the judgment to the employee he or she has sexually harassed. 3. A supervisor can be liable for sexual harassment committed by one of his or her employees against another. 4. An employer can be liable for the sexually harassing behavior of management personnel even if it is unaware of that behavior and has a policy forbidding it. 5. It is appropriate for a supervisor, when initially receiving a sexual-harassment complaint, to determine if the alleged recipient overreacted or misunderstood the alleged harasser. 6. When a supervisor is talking with an employee about an allegation of sexual harassment against him or her, it is best to ease into the allegation instead of being direct. 7. Sexually suggestive visuals or objects in a workplace don t create a liability unless an employee complains about them and management allows them to remain. 8. The lack of sexual-harassment complaints is a good indication that sexual harassment is not occurring. 9. It is appropriate for a supervisor to tell an employee to handle unwelcome sexual behavior if he or she thinks that the employee is misunderstanding the behavior. 10. The intent behind employee A s sexual behavior is more important than the impact of that behavior on employee B when determining if sexual harassment has occurred.u Answers: (1) False. (2) True. (3) True. (4) True. (5) False. (6) False. (7) False. (8) False. (9) False. (10) False. Source: Adopted from Brian S. Moskal, Sexual Harassment: An Update, Industry Week, November 18, 1991, p. 40. However, the Court s decision specifically stated that it was not ruling on the comparable worth issue. In early 1985, the EEOC issued its first policy statement on comparable worth, stating that unequal pay for work of a similar value wasn t by itself proof of discrimination. The agency stated that it would not pursue pure comparable worth cases but would act in cases where it could be shown that employers intentionally paid different wages to women and men in comparable jobs. The exact meaning of this policy statement can, of course, be determined by the types of cases subsequently pursued by the EEOC. In AFSCME v. State of Washington, 7 the employer had conducted a comparison of jobs but had not adjusted the wage rates in the female-dominated jobs to eliminate the wage differen-

13 Chapter 4 Implementing Equal 75 tial between males and females. A district court had ordered the employer to make the adjustment partially on the basis of the comparable worth theory. However, this decision was overturned by the Ninth Circuit Court of Appeals. 8 The circuit court ruled that the value of a particular job to an employer is but one factor influencing the rate of compensation for that job. Other considerations may include the availability of workers willing to do the job and the effectiveness of collective bargaining in a particular industry. The court went further and said that a state could enact a comparable worth plan if it so chooses. The parties to the AFSCME v. State of Washington suit reached an agreement in 1986 that settled the dispute. Under the agreement, 35,000 employees in female-dominated jobs reached pay equity with males in The estimated cost of the settlement to the state was $482 million. Regardless of the court and EEOC decisions, however, organizations can take certain preventive steps to guard against pay inequities: 1. Employers should attempt to avoid overconcentrations of men or women (or members of various minority groups) in particular jobs. 2. Employers should evaluate whether there is any direct evidence of bias in setting wage rates, such as discriminatory statements or admission. If so and if there are also overconcentrations of females in particular jobs, the employer should formulate a new compensation plan to correct the disparity in the future. The outline of any plan, of course, will depend on each employer s particular situation. 3. Employers should resist, as much as possible, the temptation to deviate from an internal job evaluation survey or a market survey because of difficulties encountered in hiring or retaining employees at the rates established by such surveys. 4. An employer that utilizes a certain type of job evaluation system companywide and then deviates from it obviously runs a severe risk. Job evaluation is a procedure used to determine the relative worth of different jobs, and is discussed in depth in Chapter If an employer uses a job evaluation system or systems, it should constantly monitor the system to determine the average wages being paid to men and women for comparable jobs. Any disparities should be examined to see if they are defensible. If not, corrections should be made. Other Areas of Employment Discrimination Numerous other issues have arisen in the areas of employment discrimination. This section briefly covers some of these additional issues. HRM in Action 4.3 describes a situation involving an overweight person. Religion Title VII, as originally enacted, prohibited discrimination based on religion but did not define the term. The 1972 amendments to Title VII added 701(j): The term religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee s or prospective employee s religious observance or practice without undue hardship on the conduct of the employer s business. The most frequent accommodation issue under Title VII s religious discrimination provisions arises from the conflict between religious practices and work schedules. The conflict normally occurs for people who observe their Sabbath from sundown on Friday to sundown on Saturday. The EEOC s 1980 Guidelines on Religious Discrimination proposes the following: 1. Arranging the voluntary substitutes with similar qualifications; promoting an atmosphere where such swaps are regarded favorably; and providing a central file, bulletin board, or other means of facilitating the matching of voluntary substitutes.

14 76 Part One Introduction and Equal HRM in Action 4.3 AIRLINE PASSENGER WEIGHT DISCRIMINATION CASE Cynthia Luther, who describes herself as weighing more than the average woman, was forced to buy a second ticket on a Southwest Airlines flight to Burbank. Ms. Luther claimed that she had no problem on the flight from Burbank to Reno. However, on her return flight from Reno to Burbank the day after Christmas, Ms. Luther alleged that an airline employee insisted she was so fat that she required two seats and forced her to buy a second plane ticket. Ms. Luther filed a lawsuit against Southwest Airlines claiming that the airline discriminated against her because of her weight. In December 2000, Los Angeles County Superior Court Judge Marilyn Hoffman threw out the lawsuit. Ed Stewart, a spokesperson for Southwest Airlines, said that Southwest was not surprised with the decision because definitely no discrimination was involved. Stewart also said, She was on a plane where every seat was sold. We d have to displace another person to accommodate her. Stewart also said that Southwest s policy is to accommodate a large person whenever there is extra space. But if the flight is full and another passenger must be kicked off to comfortably seat an overweight person, then the person requiring two seats must pay for the extra space. Source: Adapted from Liu Caitlin, Airline Passenger Loses Suit over Weight Discrimination, Los Angeles Times, December 14, 2000, Part B, Page Flexible scheduling of arrival and departure times; floating or optional holidays; flexible work breaks; and using lunch time and other time to make up hours lost due to the observation of religious practices. 3. Lateral transfers or changes in job assignments. One significant case concerning religious discrimination is TWA v. Hardison. 9 Larry G. Hardison, a TWA employee whose religion required him to observe his Sabbath on Saturday, was discharged when he refused to work on Saturdays. Hardison had previously held a job with TWA that allowed him to avoid Saturday work because of his seniority. However, he voluntarily transferred to another job in which he was near the bottom of the seniority list. Due to his low seniority, he was required to work on Saturdays. TWA refused to violate the seniority provisions of the union contract and also refused to allow him to work a four-day workweek. TWA did agree, however, to permit the union to seek a change of work assignments for Hardison, but the union also refused to violate the seniority provisions of the contract. The Supreme Court upheld the discharge on the grounds that (1) the employer had made reasonable efforts to accommodate the religious needs of the employee, (2) the employer was not required to violate the seniority provisions of the contract, and (3) the alternative plans of allowing the employee to work a four-day workweek would have constituted an undue hardship for the employer. 10 The Supreme Court s ruling in this case was that an employer must reasonably accommodate religious preferences unless it creates an undue hardship for the employer. Undue hardship was defined as more than a de minimus cost; that is, the employer can prove it has reasonably accommodated a religious preference if it can show that the employee s request would result in more than a small (i.e., de minimus) cost to the employer. Native Americans (Indians) HIV-Positive Courts have found Native Americans to be protected by Title VII. In addition, Section 703(i) of Title VII benefits Native Americans by exempting them from coverage by the act, in that preferential treatment can be given to Native Americans in certain employment: Nothing contained in this title shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation. In addition, individuals who are diagnosed as HIV-positive, even if they haven t developed symptoms, are considered to be disabled and entitled to the protection of the Americans with Disabilities Act (ADA). In 1998, the U.S. Supreme Court (Bragdon v. Abbott) ruled that HIV

15 Chapter 4 Implementing Equal 77 is so immediately physically devastating that it s an impairment from the moment of infection. In this case, Sidney Abbott revealed her positive status to her dentist, Randon Bragdon, and he refused to fill her tooth cavity in his office but suggested that he do the procedure at a hospital with Abbott incurring the additional expense. Abbott refused and sued Bragdon under the ADA and state law. The Supreme Court ruled in Abbott s favor and held that HIV status is a disability under the ADA. Sexual Orientation Summary of Learning Objectives The EEOC and the courts have uniformly held that Title VII does not prohibit employment discrimination against effeminate males or against homosexuals. 11 Courts have also held uniformly that adverse action against individuals who undergo or announce an intention to undergo sex-change surgery does not violate Title VII. 12 Therefore, people who fall in those groups are protected only when a local or state statute is enacted to protect them. More court cases, however, must be decided before a clear picture can be gained concerning discrimination against people in these groups. 1. Explain the role of the Employer Information Report, EEO 1. This report, also known as Standard Form 100, must be completed by employers with 100 or more employees. It requires a breakdown of the employer s work force in specific job categories by race, sex, and national origin. 2. Define employment parity, occupational parity, systemic discrimination, underutilization, and concentration. When employment parity exists, the proportion of minorities and women employed by an organization equals the proportion in the organization s relevant labor market. Occupational parity exists when the proportion of minorities and women employed in various occupations within an organization is equal to their proportion in the organization s relevant labor market. Large differences in either occupational or employment parity are called systemic discrimination. Underutilization refers to the practice of having fewer minorities or females in a particular job category than would reasonably be expected when compared to their presence in the relevant labor market. Concentration means having more minorities and women in a job category or department than would reasonably be expected when compared to their presence in the relevant labor market. 3. Describe an affirmative action plan. An AAP is a written document outlining specific goals and timetables for remedying past discriminatory actions. 4. Define bona fide occupational qualification (BFOQ). BFOQ permits employers to use religion, age, sex, or national origin as a factor in their employment practices when doing so is reasonably necessary to the normal operation of that particular business. 5. Explain what is meant by business necessity. Business necessity comes into play when an employer has a job requirement that is neutral but excludes members of one sex at a higher rate than members of the other. 6. Define sexual harassment. Sexual harassment is any unwelcome sexual conduct that has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile, or offensive work environment. 7. Describe the comparable worth theory. This theory holds that every job by its very nature has a worth to the employer and society and that this worth can be measured and assigned a value. Review Questions 1. What legal powers does the EEOC have? 2. Explain the purpose of the Employer Information Report, EEO What is an applicant diversity chart?