Copyright © 2010 Pearson Education, Inc. publishing as Prentice Hall 3-1 Human Resource Management...

Copyright © 2010 Pearson Education, Inc. publishing as Prentice Hall

3-1

Human Resource Management 11th EditionChapter 3

WORKPLACE DIVERSITY, EQUAL EMPLOYMENT OPPORTUNITY,

AND AFFIRMATIVE ACTION


3-2

HRM in Action: Paternity Leave for Dad

• Fathers can remain involved in raising children

• There is much to learn about making workplace more family friendly

• Companies providing paternity leave to working dads are taking a small step to a more compatible environment


3-3

Projected Future Diverse Workforce

• By 2010, civilian labor force is projected to increase by 17 million to 158 million.

• U.S. workforce will become more diverse.

• U.S. Department of Labor projects by 2013, available jobs will outnumber workers by 6.7 million and by 2030, available jobs will outnumber workers by 30 million.


3-4

Diversity

Diversity - Any perceived difference among people: age, race, religion, functional specialty, profession, sexual orientation, geographic origin, lifestyle, tenure with organization, or position, and any other perceived difference.

● Diversity is more than equal employment and affirmative action

● Aims to create workforces that mirror populations and customers that organizations serve


3-5

Diversity Management

• Ensuring factors are in place to provide for and encourage continued development of diverse workforce by melding actual and perceived differences among workers to achieve maximum productivity

• Pursuing an inclusive culture where new employees feel welcome, and everyone sees value of his or her job

• Creating a supportive culture where all employees can be effective


3-6

Managing Diverse Workforce:Various Components

• Single Parents & Working Mothers

• Women in Business• Dual Career

Families• Mothers Returning

to the Workforce • Workers of Color• Older Workers

• Persons with Disabilities

• Immigrants• Young Persons with

Limited Education/Skills


3-7

Single Parents and Working Mothers

• Number is growing• Many marriages end in divorce• Widows and widowers who have

children• Need alternative child-care

arrangements• 72% of mothers with children

under 18 are in work force


3-8

Women in Business

• Hold half of all management, professional, and related occupations

• Women-owned businesses are growing

• Increasing number of nontraditional households headed by single parents and those in which both partners work full-time


3-9

Mothers Returning to the Workforce

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

• To get them to return, many companies are going beyond federal law and giving mothers a year or more of maternity leave.

• Other businesses are specifically trying to recruit them.


3-10

Dual Career Families

• Both husband and wife have jobs and family responsibilities

• Majority of children growing up today have both parents working outside home

• Some have established long-distance jobs

• Want more workplace flexibility


3-11

Workers of Color

• Often experience stereotypes

• Often encounter misunderstandings and expectations

• Bicultural stress • Socialization in one’s

culture of origin can lead to misunderstandings in workplace


3-12

Older Workers

• Population is growing

• Long-term labor shortage is developing

• Many organizations actively courting older employees to remain on job longer

• Needs and interests may change

• May require retraining


3-13

Persons with Disabilities

• Limits amount or kind of work person can do or makes its achievement unusually difficult

• Perform as well as unimpaired persons in productivity, attendance and average tenure

• ADA prohibits discrimination against qualified individuals with disabilities

• Serious barrier is bias, or prejudice• Manager can set the tone


3-14

Immigrants

• Large numbers of immigrants from Asia and Latin America have settled in many parts of United States

• Newer immigrants require time to adapt

• Managers must work to understand different cultures and languages


3-15

Young Persons with Limited Education or Skills

• Many thousands of young, unskilled workers are hired

• Poor work habits

• Tardy or absent

• Can do many jobs well

• Jobs can be de-skilled


3-16

Equal Employment Opportunity and

Affirmative Action


3-17

Equal Employment Opportunity: An Overview

• EEO modified since passage of Equal Pay Act of 1963, Civil Rights Act of 1964, and Age Discrimination in Employment Act of 1967

• Congress has passed other legislation

• Major Supreme Court decisions interpreting provisions handed down

• Executive orders signed into law


3-18

Laws Affecting Equal Employment Opportunity


3-19

Civil Rights Act of 1866

• Oldest federal legislation affecting staffing

• Based on Thirteenth Amendment

• No statute of limitations

• Employment is a contractual arrangement


3-20

CBOCS West Inc. v Humphries

• Ruled that there is implied right to sue on a retaliation basis under Civil Rights Act of 1866 even though that law does not explicitly include a cause of action for retaliation

• 2008 Supreme Court case

• Ruled 7-2


3-21

Equal Pay Act of 1963

• Prohibits employer from paying employee of one gender less money than employee of opposite gender, if both employees do work that is substantially the same

• Jobs considered substantially the same when they require equal skill, effort, and responsibility and they are performed under similar working conditions


3-22

Ledbetter v Goodyear Tire & Rubber Co., Inc.

• 2007 Supreme Court case • Court said that discrimination charges must be

filed within 180 days of allegedly discriminatory pay decision

• Case was unlike Court decision of CBOCS West Inc. v Humphries because it was based on Equal Pay Act and the ceiling of 180 days is specified in the Equal Pay Act

• Proposed Ledbetter Fair Pay Act would hold employers accountable for most recent discriminatory paycheck, not just first one


3-23

Title VII of Civil Rights Act of 1964 -- Amended 1972

• Greatest impact on HR management

• Illegal for employer to discriminate

• Fifteen or more employees

• Exceptions to Title VII

• Persons not covered by Title VII

• Created the Equal Employment Opportunity Commission (EEOC)


3-24

Illegal for Employer to Discriminate

• Race

• Color

• Sex

• Religion

• National origin


3-25

Exceptions to Title VII

• Bona fide occupational qualifications (BFOQs)

• Seniority and merit systems

• Testing and educational requirements


3-26

Persons Not Covered by Title VII

• Aliens not authorized to work in United States

• Members of Communist party

• Homosexuals


3-27

Act Has Teeth

• Lockheed Martin agreed to pay $2.5 million to end a suit

• Henredon Furniture agreed to pay $465,000 and take remedial action to settle a racial harassment lawsuit

• Ford Motor Co. and the EEOC agreed to settle allegations that Ford discriminated against black employees in its apprenticeship program

• Abercrombie & Fitch Stores, Inc. settled for $50 million in three lawsuits alleging race and sex discrimination


3-28

Age Discrimination in Employment Act of 1967 - Amended in 1978 & 1986

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

• Administered by EEOC

• Pertains to employers who have 20 or more employees

• Provides for trial by jury

• Possible criminal penalty

• Class action suits are possible


3-29

Smith v City of Jackson

• Before ruling, in order to bring claim to court, plaintiffs had to show that company’s policies were deliberately biased

• Ruled if company has policy or practice that adversely affects a disproportionate number of workers age 40 or older, even if it is not intentional, organization becomes vulnerable to accusations of age discrimination


3-30

Age Can Be Bona Fide Occupational Qualification

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

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

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


3-31

Rehabilitation Act of 1973

• Prohibits discrimination against disabled workers

• Government contractors, subcontractors, and organizations

• Two primary levels • $2,500 required to post notices they

agree to take affirmative action to recruit, employ, and promote qualified disabled individuals


3-32

Rehabilitation Act of 1973 (Cont.)

• If contract or subcontract exceeds $50,000, or if contractor has 50 or more employees, employer must prepare written affirmative action plan

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


3-33

Pregnancy Discrimination Act of 1978

• Amendment to Title VII of Civil Rights Act

• Pregnancy, childbirth, or related medical condition

• Questions about family plans, birth control techniques, and such may be discriminatory because they are not asked of men

• Benefits area also covered


3-34

American Telephone & Telegraph Company (AT&T) Versus EEOC

• Agreed to settle a pregnancy discrimination suit with EEOC for $66 million

• Suit charged that Western Electric required pregnant workers to leave their jobs at the end of sixth month of pregnancy, denied them seniority credit, and refused to guarantee them job when they returned


3-35

Immigration Reform and Control Act (IRCA) of 1986

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

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

• Reduced threshold coverage to 4 employees

• Toughened criminal sanctions for employers who hire illegal aliens


3-36

Immigration Reform and Control Act (IRCA) of 1986 (Cont.)

• Denied illegal aliens federally funded welfare benefits

• Legitimized some aliens through an amnesty program

• Candidates for employment are not required to be U.S. citizens but must prove they are eligible to work in U.S.

• U.S. Immigration & Customs Enforcement Agency aggressively pursuing violators of Act


3-37

Immigration Reform and Control Act (IRCA) of 1986 (Cont.)

• Employers must require all new employees to complete and sign verification form (Form I-9) to certify eligibility for employment

• Establish eligibility for employment by presenting U.S. passport, alien registration card with photograph, or work permit that establishes person’s identity and employment eligibility


3-38

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

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

• Places severe limitations on persons who come to U.S. and remain in country longer than permitted by their visas and/or persons who violate their nonimmigrant status

• Three-year ban• Ten-year ban


3-39

Americans with Disabilities Act of 1990 (ADA)

• Prohibits discrimination against qualified individuals with disabilities

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


3-40

Americans with Disabilities Act of 1990 (ADA) (Cont.)

• EEOC guidelines on pre-employment inquiries and tests regarding disabilities prohibit inquiries and medical examinations intended to gain information about applicants’ disabilities before a conditional job offer

• Ask only about potential employees’ ability to do job, and not about their disabilities


3-41

Leonel v American Airlines

• Supreme Court ruled that airline violated ADA’S required sequence for pre-hire medical inquiries/examinations by making medical inquiries and requiring individuals to take medical examinations before completing and making its hiring decisions


3-42

Civil Rights Act of 1991

• Provides appropriate remedies for intentional discrimination and unlawful harassment

• Codified business necessity and job related• Confirms authority and guidelines for finding

disparate impacts under Title VII. Disparate impact occurs when certain actions in employment process work to disadvantage of members of protected groups.

• Concept discussed under topic of adverse impact


3-43

Civil Rights Act of 1991 (Cont.)

• Expands scope of relevant civil rights statutes to provide adequate protection to victims of discrimination

• Extraterritorial employment • Does not apply to U.S.

companies operating in other countries if it would violate laws or customs of foreign country

• Glass Ceiling Act


3-44

Damages Permitted

Number of Employees Damages

15-100 $50,000 101-200 $100,000 201-500 $200,000 Over 500 $300,000


3-45

Glass Ceiling

Invisible barrier in organizations that prevents many women and minorities from achieving top-level management positions


3-46

Uniformed Services Employment and Reemployment Rights Act (USERRA) of

1994

• Provides protections to Reservists and National Guard members

• Workers entitled to return to civilian employment after completing military service

• Intended to eliminate or minimize employment disadvantages to civilian careers that can result from service in uniformed services


3-47

Escalator Principle of USERRA

• Requirement is designed to ensure that returning employee is not penalized (by losing pay raise, promotion, etc.) for time spent on active duty

• No special rights for temporary workers or new hires taking over reservists’ jobs under USERRA


3-48

Veterans’ Benefits Improvement Act (VBIA) of 2004

• Amends portions of USERRA • Enhances housing, education, and

other benefits for veterans • Requires employers to post notice

informing employees of their rights under USERRA

• Increases health care continuation period for employees on military leave from 18 to 24 months


3-49

State and Local Laws

• State and local laws affect EEO

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


3-50

Significant U.S. Supreme Court Decisions Affecting Equal Employment Opportunity

• Griggs v Duke Power Company• Albermarle Paper Company v Moody• Phillips v Martin Marietta Corporation• Espinoza v Farah Manufacturing Company• Dothard v Rawlingson• American Tobacco Company v Patterson• O'Connor v Consolidated Coin Caterers Corp.


3-51

Griggs v Duke Power Company

• Major decision affecting HR management

• When HR management practices eliminate higher percentage of minority or women applicants, burden of proof is on employer to show practice is job related


3-52

Griggs v Duke Power Company (Cont.)

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

• Asking non-job-related questions is legal; it is how a hiring person uses information that makes it illegal


3-53

Albermarle Paper Company v Moody

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


3-54

Phillips v Martin Marietta Corporation

• Company discriminated against woman because she had young children

• Major implication – Firm cannot impose standards for employment only on women

• Neither application forms nor interviews should contain questions for women that do not also apply to men


3-55

Phillips v Martin Marietta Corporation (Cont.)

Examples of questions that should not be asked are:

• Do you wish to be addressed as Ms., Miss, or Mrs.?

• Are you married?

• Do you have children?

• Do you plan on having any more children?

• Where does your spouse work?


3-56

Espinoza v Farah Manufacturing Company

• Title VII does not prohibit discrimination on basis of lack of citizenship


3-57

Dothard v Rawlingson

• Impact of decision was that height and weight requirements must be job related.

• Argument does not rebut prima facie evidence showing requirements have discriminatory impact on women, whereas no evidence was produced correlating these requirements with requisite amount of strength thought essential to good performance.


3-58

American Tobacco Company v Patterson

Allows seniority and promotion systems established since Title VII to stand, although they unintentionally hurt minority workers


3-59

O’Connor v Consolidated Coin Caterers Corp.

Declared discrimination is illegal even when all employees are members of the protected age group.


3-60

Significant U.S. Supreme Court Decisions Affecting Affirmative

Action

• University of California Regents v Bakke

• Adarand Constructors v Pena

• Grutter v Bollinger

• Gratz v Bollinger


3-61

University of California Regents v Bakke

Reaffirmed that race may be taken into account in admission decisions


3-62

Adarand Constructors v Pena

Criticized moral justification for affirmative action, saying race-conscious programs cause unconstitutional reverse discrimination and harm those they seek to advance


3-63

Grutter v Bollinger

• Appeared to support Bakke decision • Ruled in 5-4 decision that colleges and

universities have a compelling interest in achieving diverse campuses

• Schools may favor black, Hispanic, and other minority students in admissions as long as administrators take the time to assess each applicant’s background and potential


3-64

Gratz v Bollinger

In trying to achieve diversity, colleges and universities cannot use point systems that blindly give extra credit to minority applicants

Court determined that Michigan’s 150-point index for screening applicants, which gave an automatic 20 points to minority applicants, was not the proper way to achieve racial diversity


3-65

Equal Employment Opportunity Commission (EEOC)

• Title VII of Civil Rights Act, as amended, created the EEOC.

• Filing a discrimination charge

initiates EEOC action.

• Certain exceptions to coverage of

Title VII


3-66

Steps in Handling a Discrimination Case

Charge Filed

Investigation by the EEOC

Issue a Probable Cause or a No Probable Cause Statement

Attempt at Conciliation

Recommendations for or Against Litigation

Attempt at a No-Fault Settlement

Recommendation AgainstLitigation – Right to Sue Notice Issued

to Charging Party

Recommendation forLitigation – EEOC Initiates Action


3-67

Equal Employment Opportunity Commission (Cont.)

• Some factors that determine whether EEOC will pursue litigation are (1) number of people affected by alleged practice; (2) amount of money involved in charge; (3) other charges against employer; and (4) type of charge.

• EEOC files suit in only about 1% of charges


3-68

Uniform Guidelines on Employee Selection Procedures

Single set of principles designed to assist employers, labor organizations, employment agencies, and licensing and certification boards in complying with federal prohibitions against employment practices that discriminate on basis of race, color, religion, gender, and national origin


3-69

Concept of Disparate Treatment

• Employer simply treats some people less favorably than others because of race, religion, sex, national origin, or age

• Most easily understood form of discrimination • Common forms of disparate treatment include

selection rules with racial, sexual, or other premise, prejudicial action, unequal treatment on individual basis, and different hiring standards for different groups


3-70

McDonald v Santa Fe Trail Transportation Company

• Provides an example of disparate treatment • Three of company’s employees, two whites and

one black, had allegedly misappropriated 60 gallons of antifreeze

• Whites were fired, black worker was not• Supreme Court, in 1977 decision, agreed with

plaintiffs that they had been recipients of unequal treatment on basis of their race


3-71

Concept of Adverse Impact

• Defined in terms of selection rates

• Established by Uniform Guidelines

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

• Also called the four-fifths rule


3-72

Concept of Adverse Impact (Cont.)

Success rate for least-achieving group of applicants Success rate for best-achieving group of applicants

• Assuming adverse impact shown, employers have two avenues available if they desire to use particular selection standard.

• First, employer may validate a selection device by showing it is a predictor of success

• Second avenue is bona fide occupational qualification (BFOQ) defense

= = Determination of adverse impact


3-73

Adverse Impact Example 1

• During 2009, 400 people were hired for a particular job. 300 were white and 100 were black. There were 1,500 qualified applicants for these jobs, of whom 1,000 were white and 500 were black. Using the adverse impact formula, you have:

• 100/500 = 0.2300/1000 = 0.3 = 66.67%

• Thus, adverse impact exists.


3-74

Adverse Impact Example 2

• During 2009, assume that 300 blacks and 300 whites were hired. But there were 1,500 qualified black applicants and 1,000 qualified white applicants. Using the adverse impact formula, you have:

300/1500 = 0.2

300/1000 = 0.3 = 66.67%

Thus, adverse impact exists.


3-75

Additional Guidelines

• Guidelines on Sexual Harassment

• Guidelines on Discrimination Because of National Origin

• Guidelines on Discrimination Because of Religion


3-76

Guidelines on Sexual Harassment

• Title VII generally prohibits gender discrimination in employment

• EEOC issued interpretative guidelines

• Two distinct types of sexual harassment: (1) where hostile work environment is created, and (2) when there is quid pro quo


3-77

EEOC Definition of Sexual Harassment

1. When submission to such conduct is made either explicitly or implicitly a term or condition of individual’s employment

2. When submission to or rejection of such conduct by individual is used as basis for employment decisions affecting individual

3. When conduct has purpose or effect of unreasonably interfering with individual’s work performance or creating intimidating, hostile, or offensive working environment

Unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of sexual nature that occur under any of the following situations:


3-78

Sexual Harassment

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

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

• May be liable for acts committed by nonemployees in workplace

• Immediate and appropriate action


3-79

Faragher v City of Boca Raton and Burlington Industries, Inc. v Ellerth

• Supreme Court held that employer is strictly liable, meaning that it has absolutely no defense, when sexual harassment by a supervisor involves a tangible employment action


3-80

Meritor Savings Bank v Vinson

• First sexual harassment case to reach U.S. Supreme Court

• Ruled Title VII is not limited to discrimination with only economic or tangible effects


3-81

Harris v Forklift Systems, Inc.

• Expanded hostile workplace concept and made it easier to win sexual harassment claims

• No longer does severe psychological injury have to be proved. Plaintiff only needs to show employer allowed hostile-to-abusive work environment to exist


3-82

Oncale v Sundowner Offshore Services

• Held that same-sex sexual harassment may be unlawful under Title VII

• Does not prohibit all verbal or physical harassment in the workplace, only that which constitutes discrimination because of sex


3-83

Guidelines on Discrimination Because of National Origin

Discrimination on basis of national origin as denial of equal employment opportunity because of:

• Individual’s ancestors or place of birth

• Individual has physical, cultural, or linguistic characteristics of national origin group


3-84

Guidelines on Discrimination Because of National Origin (Cont.)

National origin protection also covers:(1) marriage or association with person of specific

national origin(2) membership in, or association with,

organization identified with, or seeking to promote interests of national groups

(3) attendance at, or participation in, schools, churches, temples, or mosques generally used by persons of national origin group

(4) use of individual’s or spouse’s name that is associated with national origin group


3-85

English-Only Rule

• Courts generally ruled in employer’s favor if rule would promote safety and product quality and stop harassment

• Rule must be justified by a compelling business necessity


3-86

Guidelines on Discrimination Because of Religion

Employers have obligation to accommodate religious practices unless they can demonstrate a resulting hardship


3-87

TWA v Hardison

• Supreme Court ruled that employers have an obligation to accommodate religious practices as long as the requested accommodation does not create more than a minimum cost to the employer


3-88

Methods for Accommodating Religious Practices

• Voluntary substitutes

• Flexible scheduling

• Lateral transfers

• Change in job assignments

• Union should accommodate by permitting donations


3-89

Trends & Innovations:Family Responsibilities Discrimination

• Discrimination against employees based on their obligations to care for family members

• Based on EEOC’s 2007 enforcement guidance entitled, “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities”


3-90

Statutory Bases for Family Responsibilities Discrimination Claims • Title VII of the Civil Rights Act of 1964 • Family and Medical Leave Act • Americans with Disabilities Act • Equal Pay Act • Employee Retirement Income Security Act • State fair employment practice laws • Common law causes of action, such as

wrongful discharge and breach of contract


3-91

Common Element for Family Responsibilities Discrimination Claims

• Employee alleges that caregiving responsibilities cause alleged discriminatory action by employer

• Challenge for employers is to develop right mix of flexibility and fairness in work scheduling, leave policies, dependent care assistance, and benefits

• Not just a female issue


3-92

Executive Order

Directive issued by President, having force and effect of laws enacted by Congress


3-93

Affirmative Action

• Many believe concept of affirmative action got its beginning in 1948 when former president Harry S. Truman officially ended racial segregation in all branches of the military by issuing Executive Order 9981

• Officially it began in 1965 when President Lyndon B. Johnson signed EO 11246


3-94

Executive Order 11246

• Establishes policy of U.S. government as providing equal opportunity in federal employment for all qualified people

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

• Positive, continuing program in each executive department and agency


3-95

Executive Order 11375

• In 1968 EO 11246 was modified.

• Changed word “creed” to “religion” and added sex discrimination to other prohibited items


3-96

Affirmative Action Programs

Approach developed by

organizations with government

contracts to demonstrate workers

are employed in proportion to

their representation in firm's

relevant labor market


3-97

Degree of Control OFCCP Will Impose

• Involves $10,000- $50,000 contracts. These contractors are governed by equal opportunity clause.

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


3-98

Degree of Control OFCCP Will Impose (Cont.)

• When contracts exceed $1 million

• All previously stated requirements must be met

• OFCCP is authorized to conduct pre-award compliance reviews


3-99

What Is Included in an AAP?

• Policy statement has to be developed • Analysis of deficiencies in utilization of

minority groups and women • Conduct a utilization analysis • Analyze all major job groups • Underutilization is defined as having fewer

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


3-100

Underutilization Example

• If utilization analysis shows availability of blacks for certain job group is 30%, organization should have at least 30% black employment in that group. If actual employment is less than 30%, underutilization exists, and firm should set a goal of 30% black employment for that job group.


3-101

Primary Focus

• Goals and timetables

• Annual and ultimate

• Annual goal is to move toward elimination of underutilization

• Ultimate goal is to correct all underutilization

• Goals should not establish inflexible quotas that must be met


3-102

A Global Perspective:

Global Equal Employment Opportunity

• Women presently make up nearly 25% of expatriates - up from 14% a decade ago

• Gains in female expatriate participation rates have not been equally distributed worldwide

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any

means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Printed in the

United States of America.


Copyright © 2010 Pearson Education, Inc. publishing as Prentice Hall 3-1 Human Resource Management...

Documents

Transcript of Copyright © 2010 Pearson Education, Inc. publishing as Prentice Hall 3-1 Human Resource Management...