Equal Employment Opportunity Prof. John Kammeyer-Mueller MGT

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Equal Employment Opportunity Prof. John Kammeyer-Mueller MGT

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Title: Equal Employment Opportunity Prof. John Kammeyer-Mueller MGT


1
Equal Employment Opportunity
  • Prof. John Kammeyer-Mueller
  • MGT 6366

2
Equal Employment Opportunity Outline
  • How does staffing involve the law?
  • Critical terms in EEO
  • Major statutes/protected classes
  • How are discrimination claims processed?
  • Calculating EEO statistics

3
How does staffing involve the law?
  • Efficiency and ideology
  • Evidence for different labor market outcomes
  • Representative outcomes from employment
    discrimination cases

4
Does fortune favor the beautiful?
5
Attractiveness Bias Against Your Own Interest
  • Economist V. Bhaskar analysed 69 episodes of
    Shafted, which aired on Dutch TV in 2002, in
    which the highest-scoring player picks a
    contestant to eliminate at the end of each round.
    It is to your advantage to pick a high scoring
    partner.
  • Although the least attractive players scored no
    worse in the show than others, they were twice as
    likely to be eliminated in the first round.
  • In the final round of Shafted, the last two
    players vie for an accumulated pot of money. Each
    player must opt to share the prize or attempt to
    grab it all for themselves. If one player opts to
    grab while one opts to share, the grabber takes
    the lot. If both try to grab, they both leave
    empty-handed, so game theory dictates that the
    leading contestant should pick a fellow finalist
    who is likely to cooperate. Even though
    attractiveness was found to have no bearing on
    cooperativeness, the leader often elected to play
    the final round with the most attractive of their
    remaining rivals.
  • In 13 shows, these looks-based decisions even
    overrode a simple imperative to choose their
    highest-scoring rival, which would have led to
    increases in the ultimate prize fund. In these
    cases, the prize was 350 lower than it could
    have been, on average.
  • Source New Scientist, August 2008

6
An odd case of discrimination Does fortune favor
the beautiful?
  • Critical question
  • Should employers be able to discriminate against
    people because they are attractive or
    unattractive?
  • Get together in groups and come up with three
    reasons why this discrimination should be
    permitted, and three reasons why it should be
    forbidden by law
  • Purpose of this question?
  • To illustrate why discrimination is regulated in
    the first place
  • To illustrate what a tricky issue regulating
    discrimination is

7
A Great Debate How Much Regulation is Needed?
  • Pro-regulation
  • People are prone to stereotypes
  • Historical evidence of discrimination
  • Income and race statistics
  • Representation in executive positions
  • Anti-regulation
  • This discrimination is inefficient, so someone
    irrational enough to do it will go out of
    business
  • Government shouldnt interfere too much
  • Differences in education, workforce attachment,
    etc. should be acknowledged

8
The Three Big Laws
  • Civil Rights Act of 1964
  • Barred discrimination on the basis of race,
    gender, religion, and national origin
  • Age Discrimination in Employment Act of 1967
  • Protects individuals over the age of 40 from
    discrimination
  • Americans with Disabilities Act of 1990
  • Protects individuals with either physical or
    mental disabilities from being discriminated
    against

9
Diversity and Equal Employment Opportunity
  • Why do people discriminate?
  • Similarity attraction hypothesis (Byrne)
  • We like those who are like ourselves based on
    comfort, mere exposure, and the like
  • Implications?
  • Social identity/self categorization (Tajfel,
    Turner)
  • Social categories are important cognitive
    concepts for understanding our world
  • We have multiple group memberships, and our
    identities are cued based on situational factors
  • Implications?
  • Relational demography typically fuses these ideas
    together (major authors include Tsui, Pfeffer,
    Kanter, OReilly)

10
Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate
  • Change in the nature of racism
  • Decline in overt racist attitudes
  • Change to physiological/response latency measures
    because they are less susceptible to
    self-presentation
  • How to measure discrimination objectively?
  • Use of laboratory stimuli to control for any
    contaminants
  • Major predictors in this study
  • Overt racist attitudes
  • Response latency measures of attitudes
  • Organizational climate for discrimination

11
Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate
  • Important feature to note implicit attitudes
  • There is a growing body of research (e.g., Fazio,
    Devine) showing that implicit and explicit
    attitudes dont match up
  • There is a very strong social press against
    racial discrimination
  • Implicit attitudes are better predictors of eye
    contact, helping, and perceived friendliness than
    are explicit attitudes

12
Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate
  • Procedures
  • Participants were provided with dossiers of eight
    applicants
  • Six of the eight applicants had outstanding
    qualifications
  • Race of applicants was randomly assigned
  • Manipulation of organizational climate
  • Given that the vast majority of our workforce is
    White, it is essential we put a White person in
    the VP position
  • Measure of how motivated individuals were to
    control prejudice based on social desirability

13
Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate
  • Respondents were asked to sort names into
    categories of pleasant, unpleasant, black, white,
    and mixed categories
  • Implicit racism is inferred if they are slower to
    combine black and pleasant than they are to
    combine white and pleasant, and so on

14
Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate
  • Evidence showed that there was in fact more
    discrimination by more racist individuals when
    the climate seemed to permit inequality
  • Also very important to realize that explicit and
    implicit measures capture completely different
    things

15
Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate
  • On a practical level, what are the implications?
  • We might have no idea how prejudiced we really
    are
  • An environment that fosters discrimination can
    activate their implicit attitudes that might
    otherwise not manifest themselves in behavior
  • Further research
  • Is it possible to change implicit attitudes in
    some way?
  • Are there techniques that might make people more
    aware of their implicit attitudes?
  • What are some of the other consequences of
    implicit attitudes besides mere preference?

16
Critical Concepts in Employment Discrimination
  • Social efficiency reasons
  • Widespread discrimination means a waste of
    productive ability
  • Justice/fairness
  • Dimensions of justice are in conflict
  • Equity vs. equality vs. need
  • The question of intention
  • Did a person deliberately do something to inflict
    harm or discriminate? Does this make a difference?

17
So what is unfair?
  • Disparate treatment
  • The test predicts group A employees will perform
    worse than they actually do
  • Just about everyone agrees this is wrong since it
    isnt equitable or equal

Performance
Group A
yA
Group B
yB
Test scores
18
So what is unfair?
  • Disparate impact
  • The test predicts just as well for both groups,
    but one group gets consistently lower scores
  • This passes the equity standard, but not equality
  • The problem is that there is no factual or
    logically rigorous reason to say this is okay or
    not
  • It all depends on whether the test is job relevant

Performance
Group B
Group A
Test scores
19
Median Weekly Incomes by Race/Ethnicity (men)
20
Median Weekly Incomes by Race/Ethnicity (women)
21
Median Weekly Incomes by Gender
22
Representation in Management
  • BLS data from 2007 show that of employed adults
  • White males45
  • White females 37
  • African American males5
  • African American females6
  • Asian men2.5
  • Asian women2
  • Hispanic men8.5
  • Hispanic women5.5
  • Hispanic is not a racial group (½ of American
    Hispanics self-identify as White)
  • Data on the left is Chief Executives from the
    2007 Fortune 1000

23
(No Transcript)
24
Education Rates By Demographic Group
25
The Racial Wage Gap
  • Trends generally point to lower racial
    differences in income since passage of the Civil
    Rights Act
  • Note that other studies suggest that nearly all
    of this shift is a result of changes in human
    capital levels among African Americans, not
    necessarily having much to do with changes in the
    level of discrimination in employment
  • From Welch, AER, 2003

26
Skin Color and Income Is There a Relationship?
  • Race is subjective and self-identified
  • Different people may differentially consider
    themselves part of racial groups
  • Hispanic is a difficult term to define and
    includes those whose families are completely from
    Spain and wealthy white individuals from a
    variety of Central and South American countries
  • Research suggests that very few African Americans
    are 100 of African descent, and many Whites,
    Asians, and Native Americans also have a more
    varied ethnic background than they might believe
  • Perhaps skin color can assess whether
    discrimination exists?
  • There are studies where observers rate
    interviewee skin color
  • Anecdotal and historical evidence of differential
    discrimination against African Americans on the
    basis of skin color

27
Skin Color and Income Is There a Relationship?
  • Darker skinned African Americans earn less money
  • Could employers be discriminating?
  • Are there some other characteristics that differ
    based on skin color, possibly reflecting region
    of the country (for example, New York has higher
    wages than Georgia, and less sunshine)?
  • It is difficult to directly assess the first
    hypothesis, but there is still a significant
    negative relationship between income and skin
    color even after holding constant a variety of
    educational and regional characteristics
  • Goldsmith, Hamilton, and Darity, Shades of
    Discrimination Skin Tone and Wages, American
    Economic Review, 2007

28
Skin Color and Income Is There a Relationship?
  • Darker skinned immigrants earn less money
  • Could employers be discriminating?
  • Are darker skinned immigrants less skilled
    (longer migrations, like from Europe or Asia,
    tend to be much more common for skilled workers)?
  • Do people who work outside become more dark
    skinned compared to managerial and professional
    workers?
  • It is difficult to directly assess the first
    hypothesis, but there is still a significant
    negative relationship between income and skin
    color even after holding constant a variety of
    educational, English language skills, and
    occupation-related characteristics
  • Joni Hersch, Profiling the New Immigrant Worker
    The Effects of Skin Color and Height, Journal of
    Labor Economics, 2008

29
The Gender Wage Gap
  • Data are from Mooney Fan (AmSocRev, 1997)
  • Show women make considerably less than men at
    career entry
  • Variables like human capital and family structure
    explain part of the difference
  • Aspirations explain more of the difference
  • Occupation and industry contribute to the
    difference, but note that there is still a
    significant difference

30
Gender Wage Gaps and Housework
  • The more housework women do, the less they are
    paid
  • Women who do typically female housework bear the
    brunt of this wage penalty, but there is no
    effect for men, and doing typically male
    housework actually is (not significantly)
    positively related to wages
  • The effects are far greater for married than for
    unmarried women, but thats apparently because
    unmarried women do more typically male housework
  • From Hersch Stratton, J Human Resources, 2002

31
HR in the News Sex Discrimination at Morgan
Stanley
  • 54 million consent decree from Morgan Stanley
    (MWD) for 340 female employees
  • Alleged campaign to intimidate Ms. Schiefflin
    after she complained of discrimination
  • Set aside 2 million to pay for diversity
    training and anti-discrimination programs
  • Shares of MWD rose sharply when the settlement
    was announced
  • AP, July 12, 2004

32
Other individual case results
  • The costs of settled cases is often even higher
    than for jury verdicts
  • Texaco
  • 176m for racial discrimination
  • Coca-Cola
  • 192m for racial and ethnic discrimination
  • ATT Technologies
  • 66m for pregnant women required to leave the
    company
  • Monsanto Company
  • 18m to salespeople replaced by younger recruits
  • These do not include the costs of recruitment,
    training, and other personnel practices often
    stipulated in the settlements

33
But beware the availability heuristic
  • What types of cases are most likely to end up in
    the press?
  • Very large cases
  • Dramatic incidents
  • Cases that have an outcome (plaintiff loses for
    lack of evidence is not especially exciting news)
  • How different are results?
  • One study found that newspaper reports reflected
    an 85 win rate for plaintiffs with average
    recoveries of 1.1 million, when the docket
    entries showed a 32 win rate, and a recovery
    average of 150,000
  • Source Nielson, L.B., Beim, A. (2004). Media
    Misrepresentation Title VII, Print Media, and
    Public Perceptions of Discrimination Litigation,
    15 STAN. L. POLY REV. 237, 251-253.

34
How does staffing involve the law?
  • Efficiency and ideology
  • Evidence for different labor market outcomes
  • Representative outcomes from employment
    discrimination cases

35
Major statutes/protected classes
  • Civil Rights Act of 1964
  • Age Discrimination in Employment Act of 1967
  • Americans with Disabilities Act of 1990
  • Emerging issues

36
Civil Rights Act of 1964Title VII (covers
employment)
  • Bedrock of all civil rights law (even outside US)
  • Three major backer groups
  • African-Americans
  • Religious/political groups
  • Southern business owners
  • Four protected classes
  • Race or color
  • Religion
  • National origin
  • Gender
  • originally added to keep bill from passing

37
Despite the CRA of 1964, Employers Can Still
  • Apply different standards of compensation, or
    different terms, conditions, or privileges of
    employment pursuant to a bona fide seniority or
    merit system.
  • To give and to act upon the results of any
    professionally developed ability test.
  • A MAJOR EXEMPTION FOR EMPLOYERS
  • Nothing contained in this title shall be
    interpreted to require any employerto grant
    preferential treatment to any individual or to
    any group because of the race, color, religion,
    sex, or national origin of such individual or
    group.

38
Race, Religion, and National Origin
  • Race and national origin
  • Still the number one source of claims
  • Actions range across many categories
  • Glass ceiling effects and insular networks
  • Overt policies in hiring and promotions
  • Religious discrimination claims escalated in the
    early 1990s
  • Differences in holidays allowed (resultflextime)
  • Requirement for violation of religious principles
  • Grooming requirements (shaving, haircuts)
  • Dress requirements (hijab/headscarf)

39
Economic Backlash Against Muslims
  • Robert Kaestner studied 4,300 Arab and Muslim men
    ages 21 to 54
  • As a group, the men in the study were earning
    about 20 an hour prior to Sept. 11 after Sept.
    11 that decreased about 2 per hour
  • They found that after Sept. 11, 2001, the impact
    on pay was less in states with lower rates of
    hate crime and presumably less prejudice.
  • In relatively intolerant states, Sept. 11 is
    associated with an 11 percent decrease in the
    wages of Arab and Muslim men, whereas in
    relatively tolerant states, Sept. 11 is
    associated with only a 6 to 7 percent decline,
    they write.

40
Sex Discrimination Two Critical Cases
  • Employment conditions (Meritor v. Vinson)
  • Vinson received sexual advances she believed
    would lead to consequences, but suffered no
    adverse economic results
  • She actually had sex with her supervisor
  • Court still said she was supported in her claim
  • Sex roles (Price Waterhouse v. Hopkins)
  • Hopkins' secured a 25 million contract, which
    she carried out "virtually at the partner level.
    Despite this performance she was not promoted due
    to poor interpersonal skills and being overly
    aggressive
  • One partner described her as "macho" one advised
    her to "walk more femininely, talk more
    femininely, dress more femininely, wear make-up,
    have her hair styled, and wear jewelry."
  • The court determined that the presence of these
    stereotypes may have undermined Hopkins ability
    to get a promotion
  • While neither of these cases specifically
    involved external staffing, the results are
    applicable to the case of hiring decisions and
    interviewing

41
Sex Harassment Against Men?
  • Oncale v. Sundowner, a landmark case
  • Lead to increases in men claiming
  • Sexual harassment claims filed by men with the
    EEOC have grown from 9 of all charges in 1992 to
    15 in 2003
  • 17 of men said they had experienced sexual
    harassment, vs. 35 of women, in a study by
    lawyers.com and Glamour magazine
  • Claims usually are male-on-male harassment of
    men by women is rarer.
  • "It's often the men who are not gay who pick on
    someone. They pick on men who seem effeminate or
    not aggressive enough." says Caroline Wheeler,
    assistant general counsel with the EEOC.

42
Age Discrimination in Employment Act of 1967
  • Prohibits discrimination against employees over
    the age of 40.
  • Does not prohibit discrimination against the
    young
  • Gets rid of most (but not all) mandatory
    retirement
  • More lenient than Title VII since it allows an
    employer to rebut a prima facie case with
    anything other than age as an explanation
  • Also different because it provides no protection
    from reverse discrimination

43
Age Discrimination in Employment Act of 1967
  • Specific reasons congress passed the law
  • In the face of rising productivity and affluence,
    older workers find themselves disadvantaged in
    their efforts to retain employment, and
    especially to regain employment when displaced
    from jobs.
  • The setting of arbitrary age limits regardless of
    potential for job performance has become a common
    practice.
  • Long-term unemployment with resultant
    deterioration of skill, morale, and employer
    acceptability is, relative to the younger ages,
    high among older workers.
  • The existenceof arbitrary discrimination in
    employment because of age, burdens commerce and
    the free flow of goods in commerce.
  • IMPORTANTLY
  • The prohibitions in this chapter shall be limited
    to individuals who are at least 40 years of age.

44
Age Discrimination in Employment Act of 1967
  • Economic rationale
  • Older workers tend to be at the top of the pay
    scale (implicit contract)
  • Older workers could be fired close to pension
    receipt
  • Older workers may have a hard time finding
    long-term employment because they are,
    economically, a bad investment (Becker model)

45
Despite the ADEA, Employers Can Still
  • Take any action where age is a bona fide
    occupational qualification reasonably necessary
    to the normal operation of the particular
    business.
  • Observe the terms of a bona fide seniority
    systemexcept that no such seniority system shall
    require or permit the involuntary retirement.
  • Engage in voluntary early retirement incentive
    plan consistent with the relevant purpose or
    purposes of this chapter.
  • Discharge or otherwise discipline an individual
    for good cause.

46
Mandatory Retirement Retired in Japan (well, not
exactly)
  • Japan has recently (April 2006) passed a law that
    encourages longer years of work because
    government pension benefits eligibility age has
    increased
  • Mandatory retirement age now cannot be lower than
    62
  • Some corporate responses
  • McDonalds Japan is abolishing forced retirement
    ages
  • Mitsubishi UFJ financial group has employees
    resign at 60 and then sign annual re-employment
    contracts until they are 65

47
Americans with Disabilities Act of 1990
  • What is the ADA?
  • Protects people with a disability from being
    discriminated against along 3 lines
  • Intentional discrimination for reasons of social
    bias
  • Neutral standards with disparate impact on the
    disabled
  • Results of barriers to job performance that could
    be overcome with an accommodation
  • Precedent
  • In 1973 Congress passed the Vocational
    Rehabilitation Act that protected disabled
    workers in federal government jobs

48
Americans with Disabilities Act of 1990
  • Some 43,000,000 Americans have one or more
    physical or mental disabilities, and this number
    is increasing as the population as a whole is
    growing older
  • Studies have documented that people with
    disabilities, as a group, occupy an inferior
    status in our society, and are severely
    disadvantaged socially, vocationally,
    economically, and educationally
  • Individuals with disabilitieshave been faced
    with restrictions and limitations, subjected to a
    history of purposeful unequal treatment, and
    relegated to a position of political
    powerlessness in our society, based on
    characteristics that are beyond the control of
    such individuals and resulting from stereotypic
    assumptions not truly indicative of the
    individual ability of such individuals.
  • The continuing existence of unfair and
    unnecessary discrimination and prejudice denies
    people with disabilities the opportunity to
    compete on an equal basisand costs the United
    States billions of dollars in unnecessary
    expenses resulting from dependency and
    non-productivity.

49
Disability Employment Outcomes
  • Evidence shows
  • Disabled individuals are much less likely to be
    employed
  • Among those with jobs, disabled individuals make
    less per hour and work fewer hours
  • From DeLeire, J Human Resources, 2000

50
Americans with Disabilities Act of 1990
  • Physical disabilities
  • Mobility/physiological
  • Wheelchairs
  • Cerebral palsy
  • Diabetes
  • Sensory
  • Blindness/nearsighted
  • Hearing impairment
  • Appearance
  • Physical deformity
  • Odor
  • Mental disabilities
  • Learning disorders
  • Dyslexia
  • Autism
  • Psychiatric diagnoses
  • Depression
  • Schizophrenia
  • Addictions
  • Alcoholism
  • Drug use

51
What Are the Most Commonly Claimed Disabilities?
52
Americans with Disabilities Act of 1990
  • Important minimal standard
  • It must be sufficient to be chronic
  • It must substantially limit major life
    activities
  • The role of medical professions
  • A disability is still a disability even if
    medications make it less apparent
  • Bipolar individuals on lithium and diabetics with
    insulin are specifically mentioned in Taylor v.
    Phoenixville School Districts (3rd Cir.)
  • Often, specific medical diagnoses are invoked

53
Medical Exams and the ADA
  • One of the biggest issues with the ADA is when
    medical exams or inquiries can be made or job
    offers limited
  • Prior to an offer, the organization may not make
    medical inquiries or require medical exams of an
    applicant.
  • A job offer may be conditional, pending the
    results of a medical exam.
  • The organization must examine all applicants, and
    cannot limit exams to individuals with a known or
    suspected disability.
  • The reasons for rejecting an applicant on the
    basis of the exam must be job related.

54
SHRM Recommendations for Asking Applicants
Questions
55
Americans with Disabilities Act of 1990
  • More specific decisions
  • Ifa condition is disabling when untreated, but
    really is fully corrected by mitigating measures,
    then it is very unlikely that employers will need
    to make much in the way of accommodations.
  • Taylor v. Phoenixville School district
  • A disability exists only where an impairment
    substantially limits a major life activity, not
    where it might, could, or would be
    substantially limiting if corrective measures
    were not taken
  • Sutton v. United Air Lines

56
Americans with Disabilities Act of 1990
  • Employers required to make reasonable
    accommodation
  • Modifying facilities to make them accessible
  • Changing work schedules
  • Adjusting training materials
  • What makes an accommodation reasonable?
  • Its not economically prohibitive
  • It doesnt interfere with core job tasks
  • It doesnt put the public at risk
  • No blind pilots or bus drivers no sociopaths in
    security jobs
  • Remember drinking on the job is still something
    you can fire someone for!

57
A Direct Threat Justification for Employment
Exclusion
  • Significant risk
  • An employees yelling I'm going to get that
    supervisor may not qualify as a significant risk
    if the remark was made in passing during a time
    of particular frustration and there is no
    previous pattern of violent behavior from the
    employee.
  • Substantial harm
  • The prospect of small damage would not seem to
    qualify as substantial harm.
  • Health or safety
  • The direct threat provisions apply not just to
    safety, but also to health. If an employee
    carelessly handles toxic substances in ways that
    carry a significant risk of substantial harm, the
    employee might be considered as presenting a
    direct threat.
  • Individual or others
  • A worker who presents a significant risk of
    substantial harm to himself or herself but poses
    little danger of harming others can still be
    considered as constituting a direct threat.
  • Cannot be eliminated or reduced by reasonable
    accommodation
  • The employer could be required to collaborate
    with the employee in seeking ways to reduce the
    chances of the employee committing harm.

58
Reasonable Accommodation Case Cassidy v. Detroit
Edison
  • From 1988 to October 1994, Cassidy experienced
    numerous allergic reactions from exposure in her
    work environment to cleaning chemicals, diesel
    fumes, food odors, paint fumes, and smoke.
  • Detroit Edison scheduled her for straight day
    shifts, allowed her to leave when a known
    allergen would be present, tested the area to
    comply with environmental air standards, etc.
  • When this did not alleviate her allergies, she
    was discharged because no job could be found that
    was acceptable for her
  • The court found that this discharge was
    reasonable since the company had made consistent
    efforts to accommodate Cassidy

59
Reasonable Accommodation Case Doe v. Kohn Nast
Graf
  • Plaintiff, Doe was discharged because he had
    contracted HIV, which substantially limited his
    ability to pursue a normal sex life or have
    children
  • Defendant says this is not an ADA claim because
    HIV does not affect the plaintiffs ability to
    work as a lawyer
  • However, because HIV also caused lymphatic
    swelling, skin rashes, and dramatic physical
    changes in weight
  • Finally, the law does not specifically say that
    the disability needs to affect major work
    activities, but rather, that it needs to affect
    major life activities, so even non-work factors
    would qualify

60
A Broad Statement of What is NOT Covered
  • No matter how medieval a firms practices, no
    matter how high-handed its decisional process, no
    matter how matter how mistaken the firms
    managers, if the discrimination is not because
    of race, religion, sex, national origin,
    citizenship, age, or disability, the law does not
    interfere
  • Pollard v. Rea Magnet Wire Co. (7th Cir., 1987)

61
Dont Take this the Wrong WayLimitations on the
ADA
  • The ADA protects those who are able to do the
    job.
  • Christopher Bell, attorney (who is blind) who
    helped with drafts of the ADA
  • If someone is dangerous or acts out in the
    workplace, employers can discharge that person.
    Mental illness is not a defense. Its just like
    drinking on the job,
  • Robert Dinerstein, professor of law, Washington
    College of Law at American University
  • Source Workforce, December 2000, Vol. 79, No.
    12, pp. 40-46

62
Reasonable Accommodations are Usually Quite
Reasonable
  • The Job Accommodation Network reports that 80
    percent of the accommodations it suggests cost
    less than 500.
  • It isnt the cost of accommodations, its the
    cost of litigation that hurts small firms.
    Remodeling a bathroom for wheelchair access can
    cost between 300 and 3,000, and adding a
    concrete ramp in lieu of stairs costs about
    1,000 per step.
  • Mary Leon, spokesperson for the National
    Federation of Independent Businesses.
  • Source Workforce, December 2000, Vol. 79, No.
    12, pp. 40-46

63
Emerging Issues in What Constitutes a Protected
Class
  • Sexual orientation
  • Major legal issues
  • Employment non-discrimination act (ENDA)
  • Domestic partner benefits
  • Extreme controversy
  • Cracker Barrels termination policy
  • Disneys domestic partner policy and the ensuing
    boycott
  • Executive branch employment (Clinton executive
    order)
  • Proof for Beckers theory?
  • American Express and competitive advantage
  • 100 Best Companies to work for and HRC HRC quotes

64
State Variation in Legal Coverage for Sexual
Orientation
Dark green-sexual orientation gender identity
covered Pale green-sexual orientation covered
65
Spotlight on Floridas ENDA Regulations
  • Current coverage
  • Pensacola
  • Gainesville
  • Orlando
  • Tampa/St. Pete
  • Sarasota
  • Palm Beach
  • Broward county
  • Miami-Dade county
  • Not covered
  • Jacksonville
  • Tallahassee
  • Ft. Meyers

66
Emerging Issues in What Constitutes a Protected
Class
  • Weight discrimination
  • Discriminatory attitudes found in empirical
    research
  • Believed to be lacking self-discipline or lazy
  • This does not appear to differ by gender
  • Studies show they are less preferred in job
    interviews
  • Weight is trumped by qualifications
  • Weight is more linked to discrimination for sales
    jobs
  • Facilities may be difficult to access for the
    obese
  • Is this a disability?
  • Physical impairments must substantially limit
    major life activities to qualify for the ADA
  • The courts have generally had a threshold of 100
    or more overweight to count as a disability

67
Critical Concepts in Employment Discrimination
  • Discrimination
  • Employment decisions or working conditions that
    benefit members of one group compared to members
    of another
  • Is there such a thing as good discrimination?
  • Tort
  • A claim involving civil, monetary outcomes
  • Employment laws usually are torts and not crimes
  • Because of this, economic damages are easier to
    deal with

68
Critical Concepts in Employment Discrimination
  • Class action
  • A single person or group represents the legal
    interests of a larger group
  • Frequent when a large class of employees have
    been affected by the same employment decision
  • Extremely high costs to employers if they lose
  • Attractive to trial lawyers

69
HR in the News Class Action
  • On June 22, 2004, a federal judge ruled that a
    class action could be formed including all 1.5
    million female WalMart employees from
    front-door greeters to executives
  • Decision was upheld in 2007,
  • Heading to the supreme court in 2011
  • In 1997, Home Depot settled a bias case with
    25,000 women for 104 million 4,160 a person.

70
Critical Concepts in Employment Discrimination
  • Respondeat superior/vicarious liability
  • Employers are responsible for the actions of
    their agents even if unaware of agents actions
  • In particular, discrimination is often a
    supervisor exercising or abusing his or her
    official position, so it is seen as acting in the
    stead of the organization
  • A company is responsible for employees who
    discriminate even if it violates company policy
  • What does it mean?
  • Just having a policy is not sufficient
  • Companies have an obligation to continually
    monitor employee behavior and provide consequences

71
Employer responsibility decided in two 1998 cases
  • Faragher v. Boca Raton
  • Basic story
  • Beth Ann Faragher was supervised by Billy Terry,
    David Silverman, and Robert Gordon
  • She and other lifeguards claimed these
    individuals engaged in uninvited and offensive
    touching, lewd remarks, and speaking of women in
    offensive terms
  • Eventually, Faragher quit but never brought a
    formal complaint
  • After quitting, Faragher sued the city for
    discrimination/harassment
  • City had a sexual harassment policy that they
    addressed to all employees, but they did not
    disseminate the policy to all divisions under the
    Citys jurisdiction
  • Importantly there was no way to bypass reporting
    to the supervisor provided in the harassment
    complaint policy
  • Employer must exercise reasonable care

72
Employer responsibility decided in two 1998 cases
  • Burlington Industries v. Ellerth
  • Employer is liable if they knew or should have
    known
  • Slowik was a mid-level manager
  • Repeated boorish and offensive remarks and
    gestures
  • Ellerth refused all of Slowiks advances, yet
    suffered no tangible retaliation
  • She never informed anyone in authority about
    Slowiks conduct, despite knowing Burlington had
    a policy against sexual harassment.
  • The supreme court didnt decide the case, but
    just noted that the employer did have an
    affirmative defense because they did have a
    potentially effective policy in place

73
Critical Concepts in Employment Discrimination
  • Basic language (adapted from Title VII)
  • It is unlawful for an employer to hire or
    discharge an individual with respect to
    compensation, terms, conditions, or privileges of
    employment because of protected class status
  • It is also unlawful to limit, segregate, or
    classify employees or applicants for employment
    in any way which would tend to deprive an
    individual of employment opportunities because of
    protected class status
  • Important point use of protected class rather
    than protected group status

74
Breaking Down Protected Classes and Groups
Protected Class Race
Protected Class Gender
Group Native Amer.
Group Asian
Group Females
Group Males
Group African
Group European
Group Pacific island
Group Etc., etc.
75
Protected Groups McDonald v. Santa Fe Trail
  • Three employees (McDonald, Laird, and Jackson)
    were misappropriating 60 gallon cans of
    antifreeze. McDonald and Laird, who were White,
    were fired, while Jackson, who was
    African-American, was not.
  • The unequal discipline based on race was found by
    the court was deemed discriminatory
  • The congressional record around the passage of
    civil rights legislation clearly states that the
    law covers, white men and white women and all
    Americans, and create an obligation, not to
    discriminate against whites.

76
Implications
  • Because there are generally no protected groups
    (with one important exception which well review
    later!), there is no such thing as reverse
    discrimination
  • Case examples
  • Ford settled out of course for 10.5 million for
    discriminating against white male employees
  • Men file about 14.7 of all harassment claims
  • While it is worth noting that white men can sue,
    it is also worth noting that there are relatively
    few cases brought by them

77
Recent Legal Landmarks
  • Ricci v. DeStefano, United States Supreme Court,
    2009
  • Ricci and his co-workers took a firefighter
    promotion test that was rationally designed but
    not empirically validated.
  • Result showed that no African-Americans passed
    the test despite being a major proportion of the
    candidates.
  • The city of New Haven threw out the results of
    the promotion test because they felt the test was
    biased and potentially opened them up to a
    lawsuit from African American firefighters.
  • The SCOTUS determined (in a 5-4 verdict) that
    this was unfair discrimination against the white
    firefighters because the test wouldnt have been
    thrown out if fewer whites had passed.

78
Recent Legal Landmarks
  • Webb v. City of Philadelphia U.S. District Court,
    Eastern Pennsylvania Case No. 05-5238 (June 12,
    2007)
  • The Philadelphia Police Department denied a
    Muslim officer's request for permission to wear a
    traditional headpiece, or "khimar," while on
    duty.
  • Summarily dismissing Kimberlie Webb's religious
    bias claims, U.S. District Judge Harvey Battle
    accepted the city's "undue hardship" defense.
  • The uniform policy "has a compelling public
    purpose.
  • Employment cases involving "garb-specific
    religious requests" are cropping up more
    frequently, particularly in the public sector.

79
Retaliation is Prohibited
  • Civil rights laws prohibits companies from acting
    against employees who have filed suit or
    complained about discrimination
  • Many employees feel stigmatized after losing a
    lawsuit and may file retaliation claims
  • Burlington Northern Santa Fe Railroad v. White
    (2006) increased the scope for employees to claim
    retaliation to include several of the following
    types of activities
  • Bringing an employee in for questioning after
    making a claim of discrimination
  • Denial of promotions
  • Changing job duties
  • Denying a pay increase
  • Co-worker retaliation or hostility (if condoned
    by the employer)
  • Increased monitoring of an employees performance
    or activities

80
Employment Discrimination and Retaliation
  • Sheila White was the only woman in her department
    of forklift operators at Burlington Northern's
    Memphis train yard.
  • After only a few months on the job, White
    complained of sexual harassment by her boss she
    was suspended
  • A few days after her suspension, the company told
    White she was getting transferred to track
    laborer duties, because other employees
    complained that White was given the forklift job
    over more experienced male employees
  • White responded to the re-assignment by filing
    complaints with the EEOC for sexual
    discrimination and retaliation
  • Approximately six months after White was moved to
    track laborer she was suspended for alleged
    insubordination

81
Employment Discrimination and Retaliation
  • On Dec. 5, 2005, the U.S. Supreme Court accepted
    review in the case
  • "Not every trifling event in the workplace should
    give rise to events of retaliation," said Carter
    Phillips, counsel for Burlington Northern, "If
    you are just transferred from one set of
    responsibilities to another, there are no adverse
    affects."
  • Approximately two times as many claims of
    retaliatory discrimination were filed in the last
    few years than were filed a decade ago, according
    to the EEAC. For this reason, the EEAC says it
    seeks from the Court a set of uniform guidelines
    determining what constitutes retaliatory
    behavior.
  • On June 22, 2006, the Court held 9-0 for White
  • Justice Steven Bryer wrote We conclude that the
    anti-retaliation provision does not confine the
    actions and harms it forbids to those that are
    related to employment or occur at the workplace.
    We also conclude that the provision covers those
    (and only those) employer actions that would have
    been materially adverse to a reasonable employee
    or job applicant

82
Employment Discrimination and Retaliation
  • Gomez-Perez v. Potter (decided in 2008)
  • Myrna Gomez-Perez worked full-time for the United
    States Postal Service (USPS) in Dorado, Puerto
    Rico. She transferred to another office, then
    requested to return to her past position in
    Dorado. After her request was denied, she filed a
    complaint with the USPS alleging age
    discrimination. Gomez-Perez claims that after she
    filed the complaint, her supervisors retaliated
    by reducing her work hours and lodging false
    complaints against her.
  • Without ruling on the specific case itself, the
    court ruled that summary judgment against her was
    not warranted and that Federal employees did have
    the right to file retaliation claims

83
Employment Discrimination and Retaliation
  • CBOCS West, Inc. v. Humphries (decided in 2008)
  • Herndrick Humphries, an African American, worked
    as an associate manager in a Cracker Barrel
    restaurant for three years, until Cracker Barrel
    terminated his employment on December 5, 2001 for
    violation of company policy. In August and
    October 2001, Humphries complained to his
    district manager about his general managers
    disciplinary reports, racially offensive remarks,
    and the termination of fellow employee, Venis
    Green. Humphries believes his general mangers
    disciplinary reports and the termination of Green
    were racially motivated and groundless.
  • Again, the court was deciding whether he could
    use 42 U.S.C. 1981 to file a discrimination
    claim. Section 1981 protects parties from
    discriminatory treatment both at the time when
    contracts are formed, and in post-formation
    conduct. Using Section 1981 gives employees
    greater flexibility in filing claims of
    retaliation, because they will not be subject to
    the filing deadlines and limits on damages found
    in Title VII of the Civil Rights Act of 1964.

84
Critical Concepts in Employment Discrimination
  • Accommodation
  • Any modification or adjustment to a job or the
    work environment that will enable a qualified
    applicant or employee to participate in the
    application process or to perform essential job
    functions.
  • Also includes adjustments to assure that a
    qualified individual has rights and privileges in
    employment equal to other employees.
  • Although typically considered in terms of
    disability status, this applies to all protected
    classes (e.g., religion can require scheduling
    differences or adjustments to uniforms)

85
Reasonable Accommodations
  • Employers required to make reasonable
    accommodation
  • Modifying facilities to make them accessible
  • Changing work schedules
  • Adjusting training materials
  • Think of examples of three reasonable
    accommodations and three unreasonable
    accommodations.

86
Reasonable Accommodations
  • The ADA defines reasonable accommodation as
  • (A) making existing facilities used by employees
    readily accessible to and usable by individuals
    with disabilities and
  • (B) job restructuring, part-time or modified work
    schedules, reassignment to a vacant position,
    acquisition or modification of equipment or
    devices, appropriate adjustment or modifications
    of examinations, training materials or policies,
    the provision of qualified readers or
    interpreters, and other similar accommodations
    for individuals with disabilities.
  • Undue hardship is "an action requiring
    significant difficulty or expense, when
    considered in light of"
  • the nature and cost of the accommodation
  • the overall size and financial resources of the
    facility involved

87
The Limits of Religion Cases of Undue Hardship
  • Goldman v. Weinberger
  • An ordained rabbi while working as a clinical
    psychologist was required to not wear a yarmulke
    while in uniform
  • Because military regulations require specific
    dress (no headgear), the court found that Goldman
    had to comply
  • It is also noted that the military is a special
    case because of the strict need for discipline.
  • Williams v. Southern Union Gas
  • Williams joined a church which forbade work on
    the Sabbath
  • He work at Southern Union required him to work on
    call
  • The company had to prove that accommodating this
    request was an extreme hardship if they made a
    reasonable effort to accommodate him, they were
    within their rights to discharge him.

88
How are discrimination claims processed?
  • The EEOC
  • Disparate treatment vs. disparate impact
  • Evidencedefenses for disparate treatment
  • Evidencedefenses for disparate impact

89
How do discrimination claims work?
  • The Equal Employment Opportunity Commission is a
    regulatory body that oversees the enforcement of
    civil rights laws.
  • Conduct initial investigation
  • Issues fact finding letters
  • Many cases go to arbitration these days
  • Third party makes a binding decision that stays
    out of court (and out of the headlines)

90
Precipitating action
File claim with EEOC within 180 days (300 if
there is a relevant state law)
EEOC investigation
Decide case doesnt have merit (2/3 of all cases
are found to be without merit)
Attempt to enter consent decree with org.
Does org. redresses discrimination?
If not redressed, send letter to the courts
Settlement/arbitration These are cheaper to
administer and faster to complete. Some orgs.
urge such methods formally in policy manuals.
Employee files suit
Disparate treatment
Disparate impact
Defendant practices are discouraged and/or have
no consequence
Defendant practice is job-related business
necessity
Plaintiff practices are not actually job related
Plaintiff responds that the reason is a pretext
for discriminating
Ruling from the court
Appeal Usually reduces claim amount
91
Recent Legal Landmarks
  • Ledbetter v. Goodyear Tire Rubber Co. U.S.
    Supreme Court 127 S.Ct. 2162 (May 29, 2007)
  • A 5-4 majority of the Supreme Court held that
    employees claiming Title VII pay discrimination
    must file an EEOC complaint within 180 days of an
    adverse pay-setting decision even if subsequent
    paychecks are "infected" by discriminatory
    conduct.
  • In July 2007, the House of Representatives passed
    legislation to overturn Ledbetter by restarting
    the 180-day deadline with each payment of a
    discriminatory wage. President Bush has
    threatened to veto the measure.

92
Alternative Dispute Resolution Processes
  • An increasing percentage of EEO claims never
    involve a lawyer or a courtroom about 70 of EEO
    claims are settled out of court
  • Employers often require employees to sign an
    agreement that disputes will be settled through
    alternative dispute resolution processes
  • Is this a good idea?
  • Media coverage?
  • Cost?
  • Timeliness?
  • Repeat player advantages?

93
The EEOC Position on Mediation
  • Successful mediation avoids a time consuming
    investigation and achieves a prompt resolution of
    the charge.
  • The majority of mediations are completed in one
    session, which usually lasts for one to five
    hours.
  • Mediators are neutral third parties who have no
    interest in the outcome. Their role is to help
    the parties resolve the charge.
  • Settlement agreements secured during mediation
    are confidential and do not constitute an
    admission by the employer of any violation of
    laws enforced by the EEOC.
  • Note that this refers to using the EEOC as a
    mediator, which is an alternative to other forms
    of ADR that are entirely in-house.

94
EEOC Research on Mediation
  • The average time to complete mediation was 67
    days from the filing of a charge, and that the
    mediation sessions averaged 3.7 hours.
  • Fifty-two percent of the mediations concluded
    with settlements and over half of these
    settlements provided for financial payments to
    the charging party.
  • Most of the participants were satisfied with the
    mediation process 66 of the charging parties
    and 72 of respondents expressed satisfaction
    with the process 91 of the charging parties and
    93 of the respondents rated the process as fair.
  • Eighty-four percent of the charging parties and
    83 of the respondents indicated that they would
    use the mediation process again, if they had a
    similar problem.

95
Alternative Dispute Resolution Processes
  • Binding arbitration
  • Agree to meet with a mutually agreed upon third
    party who has full contractual decision making
    power
  • The arbitrator will outline the issues for both
    sides and find a reasonable compromise
  • Mediation
  • Agree to meet with a mutually agreed upon third
    party who has no decision making power
  • This mediator will attempt to outline the issues
    for both sides and encourage structured bargaining

96
So Youre Going To CourtSome Important Issues
  • Prima facie case
  • Means on the face of it
  • Minimum standard for a plaintiff
  • Burden of Proof
  • Q Do you want the burden of proof?
  • A NO!
  • The party with the burden is assumed to be wrong
  • Example
  • A professor accuses a student of plagiarism the
    professor has the burden of proof to demonstrate
    there is a problem
  • The professor presents an exact copy of the paper
    turned in by another student in another section
    of the class
  • The student then has the burden to prove that the
    other paper was actually a fraudulent copy of
    their work

97
Two main types of discrimination involving
personnel decisions
  • Disparate treatment
  • Prima facie case
  • Protected class issue
  • person was qualified
  • was turned down (or fired, or demoted)
  • job remained open (or others not in the protected
    class were treated more favorably)
  • Burden of proof
  • Must show intention
  • Payout
  • Back pay and punitive
  • Adverse impact
  • Prima facie case
  • Disparity in outcomes from a facially neutral
    employment practice
  • 4/5ths rule
  • Test of statistical significance for employment
    outcomes
  • Burden of proof
  • Simple demonstration of differential outcomes
  • Payout
  • Back pay

98
Two standard defenses for disparate treatment
  • Stray remarks
  • Discriminatory words or phrases that do not
    result in actual discrimination in employment
  • Examples include locker room talk or generic
    ethnic/gender slurs that are not pervasive
  • Bona fide occupational qualifications (BFOQ)
  • Legitimate criteria on which to discriminate on
    the basis of protected class status
  • Only apply to qualifications that affect an
    employees ability to do the essential elements
    of the job

99
What is a BFOQ and What Is Not
  • Authenticity usually protected.
  • It is possible to announce gender or age
    preferences for models, actors, clergy and
    (str
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