Understanding Equal Opportunity and the Legal Environment Equal Pay Act (1963)

Prohibits pay discrimination based on gender Men and women must receive equal pay for “equal work” Allows pay differences based on

Seniority Merit Productivity Any factor other than gender

Civil Rights Act of 1964, Title VII Prohibits discrimination based on race, color, gender, religion,

national origin Ers w/ 15+ Ees “Protected class” vs. “Prohibited Basis”

Reverse discrimination

Understanding Equal Opportunity and the Legal Environment Age Discrimination Act (1967)

Prohibits age discrimination, 40+ Pregnancy Discrimination Act (1978)

Complaints filed w/ EEOC up 40% in 2007 from ten years prior Also, increased calls re: pregnancy bias to hotlines

However, many callers believe they can’t be terminated period when pregnant, or that law requires paid leave

In 2000, average American woman had first child at ~25 years of age, cf. 21.4 in 1970

More pregnant women staying in workforce rather than going on early leave

Stereotypes about pregnant women persist (overly emotional, often irrational, physically limited, less committed to jobs)

Source: USA Today, 2/16/05; Wall Street Journal, 3/27/08 What’s the most ethical course of action when you’re

pregnant, but not visibly so, and looking for a job? Applicant not legally required to disclose pregnancy, but best

to share facts as soon as sure of them and make case for ability to manage pregnancy and maternity leave

Source: Wall Street Journal, 10/14/04

Understanding Equal Opportunity and the Legal Environment

Americans with Disabilities Act (1990) Prohibits discrimination based on

disability (provided Ee can perform “essential functions”)

Requires Er offer “reasonable accommodation”

ADA in Practice Prohibits Ers from asking questions concerning

Medical history Prior workers’ comp or health insurance claims Work absences due to illness Past treatment of alcoholism Mental illness

Requires Ers to make “reasonable accommodation” by Acquiring or modifying work equipment Providing qualified readers or interpreters Adjusting work schedules Making existing facilities accessible

Defines a disabled person as one who Has a physical or mental impairment that limits one or more

“life activities” Has a record of such an impairment Is regarded as having such an impairment

“Young Workers With Dyslexia, ADD Find Office Less Accommodating Than School”

More young adults entering workplace w/ known learning disabilities and history of receiving accommodation But few Ers have adapted training or job

expectations for workers w/ learning disabilities Rude awakening for many – discrimination claims

involving learning disabilities increased 74% from ‘93 to ‘03

ADA entitles some workers w/ disabilities to accommodations such as quieter workplace, doesn’t require Ers to offer same broad services schools must provide learning-disabled students

Source: Wall Street Journal, 10/12/06

Understanding Equal Opportunity and the Legal Environment

Civil Rights Act of 1991 Adds compensatory and punitive

damages Right to jury trial

Family and Medical Leave Act (1993) Requires Ers to provide up to 12 weeks

leave, unpaid, for family and medical conditions

Ers w/ 50+ Ees

Cases to Consider

Nebraska telephone company Ee took religious vow to wear a particular antiabortion button that graphically portrayed a fetus. Coworkers objected to point that work became disrupted and some threatened to walk off job. What should mngt do?

Cases to Consider

Incident 1: The Obese Ee Critical Thinking Questions

Is an obese employee protected by any EEO laws?

Do you think John’s work reassignment was job-related or discriminatory treatment?

Team Exercise Should physical appearance matter in

making employment decisions?

“N.J. casino to fire weightier waitstaff” Borgata Hotel Casino & Spa (Atlantic City) adopted new policy in

February 2005 – servers who gain more than 7 percent of their body weight will be placed on unpaid suspension and given 90 days to lose that weight 160 ‘Borgata Babes’ and 50 other male and female bartenders New hires and incumbents weighed to establish baseline (in uniform,

wo/ shoes) During suspensions, Co will pay to put Ee through weight-loss program

and Ee will continue to have free access to casino’s spa If weight is not lost, Ee will be terminated (unless Ee is pregnant or has

medical condition contributing to weight) Casino’s “edgy marketing themes and sexy accents have helped

bowl over the competition” “Our costumed beverage servers are a huge part of our marketing and

our branding image” ‘Babes’ wear low-cut designer bustiers Female servers should have “natural hourglass figures” and male

servers should have “V-shaped torsos, broad shoulders, and slim waists”

Source: USA Today, 2/17/05

Cases to Consider

Does Ee have right to display Confederate flag decal on toolbox at work? Ee is member of sons of Confederate

Veterans, descendent of member of Confederate army Asserted that display is protected by First

Amendment Black co-worker complained, alleging

violation of Co’s anti-harassment policy

Comparison of Discrimination Theories Disparate Treatment

Intentional Prima facie case

involves showing plaintiff (1) was qualified, (2) was turned down, (3) job remained open

Er’s defense is legitimate, nondiscriminatory reason for decision or BFOQ

Remedy is compensatory and punitive damages

Adverse Impact Statistical Prima facie case

involves showing disparity in effects of facially neutral practice E.g., four-fifths rule

Er’s defense is to show that practice is job-related

Remedy is equitable relief (e.g., back pay)

Example of Four-Fifths rule Selection rate for men

50 apply, 20 hired, rate = 40% Selection rate for women

36 apply, 9 hired, rate = 25% Is there adverse impact?

Is .25 < (.40)*(.8)? “Hiring by the numbers”

How many more women would Co need to hire to eliminate adverse impact?

New Haven Firefighters case Ricci v. DeStefano (U.S. S.Ct., 2009)

Lawsuit brought against city by 18 firefighters (17 white, one Hispanic) alleging that city discriminated against them with regard to promotions Firefighters had passed test for promotion to mngt

Test developed by Industrial/Organizational Solutions (Westchester, IL), “the nation’s leading public safety human resources consulting firm” (Co website)

City invalidated test results because none of black firefighters who passed the exam had scored high enough to be considered for promotion City feared lawsuit over test’s adverse impact (pass rate for

blacks ~1/2 that of whites) Complainants claimed they were denied promotions

because of their race S.Ct. found in favor of complainants, 5-4

Sexual Harassment Defined

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when: Quid pro quo Unreasonably interferes with work

performance or creates an intimidating, hostile, or offensive work environment

Sexual Harassment Defined Elements of “hostile work environment”

Severe and pervasive Reasonable person (woman?) test

To what extent do men and women differ in their perceptions?

Employee need not have suffered any detriment (e.g., termination)

Basis for imputing liability to employer Conduct by supervisor Co-worker Client or customer

Sexual Harassment Defined Employer’s defense (when no tangible

employment action taken against employee) employer “exercised reasonable care to prevent

and correct promptly any sexually harassing behavior,” and

“the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise”

Elements Of An Effective Harassment Prevention Policy

Be in writing; Define what constitutes harassment and

declare that it will not be tolerated; Establish a complaint procedure; Involve training and education programs

to sensitize supervisors and employees to harassment issues;

Elements Of An Effective Harassment Prevention Policy

Include a prompt and thorough investigation of every complaint;

Provide for prompt corrective action, including appropriate disciplinary action, if it is determined that unlawful harassment occurred.

Hostile Work Environment and the “Assumption of Risk” You are a restaurant manager and patrons are making arguably

offensive comments to female waitstaff. What do you do? Does it matter whether it’s Hacienda or Hooters? Hooters staff must sign Co SH policy, which includes

acknowledgement that “female sexual appeal is an essential ingredient of the Hooters concept” Also must sign Ee handbook containing waiver:

“Work environment is one in which joking and innuendo based on female sex appeal is commonplace….I do not find my job duties, uniform requirements, or work environment to be offensive.” Uniform requirements include orange shorts, Hooters t-shirt, half-shirt, tank

top, and “prom-like appearance” (hair, makeup, nails done neatly) In Washington D.C. area, mngr filed SH case based in part on boss

taking her to lunch at Hooters Settled hiring discrimination lawsuit in 1997, after EEOC dropped

action in 1996

Affirmative Action Plans Objective distinguishable from equal

employment opportunity – it is to take “affirmative action” to increase representation of historically underrepresented groups

Elements Utilization analysis Goals and timetables

“goal” vs. “quota” Action steps

OFCCP

Legal Status of Affirmative Action Voluntary AAPs should be ‘narrowly tailored’ to achieve

ends – temporary measure that would cease when underrepresented group reaches parity w/ representation in labor market

Preferences re: terminations or layoffs inappropriate, as are barriers to selection/promotion of ‘overrepresented’ group

Preferential practices only appropriate where there is indication of past discrimination Substantial, inexplicable disparity in number of female/minority

ees in certain occupations relative to population statistics Preferential practices only appropriate when job candidates

judged to be ‘equally qualified’ Care should be taken to avoid ‘reverse discrimination’

Supreme Court decisions generally decided by narrow margin, changing Court membership may tip decisions in opposite direction

Affirmative Action Plans Supreme Court’s decision in the two cases involving the University

of Michigan Many large Cos filed briefs supporting UM Polls show Americans overwhelmingly opposed to preferences, but also

overwhelmingly in favor of diversity Court ruled undergraduate admission policy unconstitutional – granting

points to minority applicants too close to quota had also awarded points for athletic ability and “legacy” status, but not as

many Court ruled law school admission policy constitutional, in that it involved

individual consideration rather than mechanistic formula Racial diversity found to be a public interest

Only highly selective universities (~20%) really impacted In 2001, 64% of whites, 55% of African-Americans, 52% of Latinos went to

college Some argue real problem is not access but low test scores, which impacts

admission to highly selective universities absent affirmative action Source: The Economist, 6/28/03

Current Issues Same-sex harassment (e.g., “locker room” horseplay)

Actionable, but must show discrimination based on gender Sexual orientation harassment not unlawful “Equal opportunity harassment” not unlawful

But do men and women react similarly??? Sexual Orientation Discrimination

Indiana Equality Coalition 21 states (including IL but not IN, KY) prohibit

discrimination on basis of sexual orientation Nearly 90% of Fortune 500 Cos have such policies, while about

60% provide “domestic partner” medical benefits Wal-Mart expanded antidiscrimination policies to include sexual

orientation Timothy Plan, a religious-based investment group, indicated they

wouldn’t sell their Wal-Mart stock but would object to certain diversity training programs like “taking every employee in an organization and indoctrinating them in the homosexual agenda” (NYT, 7/2/03)

Is Racial Discrimination Still an Issue? Many white Americans think racial discrimination is no longer much

of a problem – many blacks think otherwise Recent Gallup poll asked: “Do you feel that racial minorities in this

country have equal job opportunities as whites, or not?” Whites: 55% yes, 43% no Blacks: 17% yes, 81% no

Recent research study (Chicago and MIT economists): Applicants named Greg Kelly or Emily Walsh were 50% more likely to get

called for interviews than those named Jamal Jackson or Lakisha Washington

Putting white-sounding name on an application worth as much as an extra eight years of work experience

Resumes were tweaked to make them more appealing (added work experience, some military experience, fewer periods for which no job was listed, computer skills, etc.):

Those white Ees w/better resumes called back 30% more than other whites

Black Ees w/same resume tweaks only called back 9% more often

Is Racial Discrimination Still an Issue? Recent research study (Northwestern U sociologist):

Two young HS grads w/similar job histories and demeanors apply in person for jobs as waiters, warehouse Ees, other low-skilled positions advertised in a Milwaukee newspaper.

One man is white, admits to having served 18 months in prison for cocaine possession with intent to sell

The other is black, w/no criminal record White applicant called back 17% of time, black

applicant 14%Acknowledging prison record cut white man’s chances of

getting called back by half, cut black man’s chances by two-thirds

Source: Wall Street Journal, 9/4/03

Fear of Bias Suits May Be Affecting Hiring Decisions Perception that non-whites may make legal issue out of

dismissal more often than whites Many of ‘rational’ justifications for these decisions based on

incorrect assumptions Last year, 0.2% of working African-Americans filed complaints

of racial discrimination w/EEOC (whereas 55% of African-Americans report knowing co-worker who was treated unfairly at work due to race in past year)

In press accounts of discrimination cases, plaintiffs won 85%; in all cases, plaintiffs won 31%

In press accounts, median jury award $1.1m; in all cases, $138k

HR consultants and lawyers overemphasize risk of lawsuits However, fear of being target of discrimination complaint

may be more socially acceptable reason for discrimination than acknowledging discomfort w/people who are different

Source: Wall Street Journal, 9/11/03

End-of-Chapter Discussion Questions

You own a small construction business. One of your workers is 55 years old and had heart bypass surgery about six months ago. He wants to come back to work, but you are concerned that he will not be able to handle the job’s physical tasks. What should you do? What are you prohibited from doing (if anything)?

Should Ers have a policy that prevents Ees from dating each other? Would such a policy be legal? Ethical?

Case Incident 1: Wearing a Head Scarf on a Temporary

Assignment Susan is an experienced clerical worker who wears a

hijab (head scarf) in conformance w/ her Muslim beliefs. ABC Temps places Susan in a long-term assignment w/ one of its clients. The client contacts ABC and requests that it instruct Susan to remove her hijab while working at the front desk, or ABC must provide an alternate person, effectively displacing Susan from her job. According to the client, Susan’s attire violates the firm’s dress code and presents the ‘wrong image’ because it is a very conservative firm. Should ABC comply with its client’s request?