Chapter No.

Managing Equal Opportunity and Diversity

SELECTED EQUAL EMPLOYMENT OPPORTUNITY LAWS

Equal employment laws have a long history, with the Fifth Amendment protecting individuals' rights.
Discrimination against minorities became illegal in theory by the early 1900s. However, significant action
on equal employment wasn't taken until the early 1960s.

Equal Pay Act of 1963 - The act requiring equal pay for equal work, regardless of sex.The Equal Pay Act
of 1963, amended in 1972, prohibits pay discrimination based on sex for jobs involving equal work, skills,
effort, and responsibility under similar working conditions. Differences in pay are allowed based on
seniority, merit, quantity/quality of production, or factors other than sex.

Title VII of the 1964 Civil Rights Act - The section of the act that says an employer cannot discriminate
on the basis of race, color, religion, sex, or national origin with respect to employment. Title VII of the
1964 Civil Rights Act, amended by the 1972 Equal Employment Opportunity Act, prohibits employers
from discriminating based on race, color, religion, sex, or national origin. It covers various aspects of
employment, including hiring, compensation, and working conditions. Title VII also established the Equal
Employment Opportunity Commission (EEOC) to enforce these laws. The commission, created by
Title VII, empowered to investigate job discrimination complaints and sue on behalf of complainants.
The EEOC has a dedicated staff to administer and ensure compliance with civil rights laws in
employment settings. The establishment of the EEOC has significantly strengthened the enforcement of
equal employment opportunity laws. The EEOC receives and investigates job discrimination complaints,
and if reasonable cause is found, it seeks to reach an agreement through conciliation. If conciliation fails,
the EEOC has the authority to take the case to court. Since the Equal Employment Opportunity Act of
1972, the EEOC can file discrimination charges on behalf of aggrieved individuals or individuals can file
charges themselves. Office of Federal Contract Compliance Programs(OFCCP) The office responsible for
implementing the executive orders and ensuring compliance of federal contractors.Executive Orders
11246 and 11375 go beyond Title VII and require employers who do business with the U.S. government
to not only prohibit discrimination but also take affirmative action to ensure equal employment
opportunity. These orders established the Office of Federal Contract Compliance Programs (OFCCP),
which ensures compliance with federal contracts.

Age Discrimination in Employment Act (ADEA) of 1967 - The act prohibiting arbitrary age discrimination
and specifically protecting individuals over 40 years old. The Age Discrimination in Employment Act
(ADEA) of 1967 prohibits discrimination against employees or job applicants who are 40 years old or
older. It also allows for jury trials and double damages in cases of "willful" discrimination. In the
O'Connor v. Consolidated Coin Caterers Corp. case, the Supreme Court ruled that employers cannot
simply replace employees over 40 with those who are "significantly younger" but still over 40 to avoid
ADEA protections.
Vocational Rehabilitation Act of 1973 - The act requiring certain federal contractors to take affirmative
action for disabled persons. The Vocational Rehabilitation Act of 1973 mandates that employers with
federal contracts exceeding $2,500 must engage in affirmative action to promote the employment of
individuals with disabilities. It's important to note that the act doesn't oblige employers to hire
unqualified individuals, but it does require them to make reasonable accommodations for disabled
workers unless it causes undue hardship. 📜✅

Pregnancy Discrimination Act (PDA) - An amendment to Title VII of the Civil Rights Act that prohibits sex
discrimination based on “pregnancy, childbirth, or related medical conditions.” The Pregnancy
Discrimination Act (PDA) of 1978, an amendment to Title VII, prohibits discrimination based on
pregnancy, childbirth, and related medical conditions in various aspects of employment. It ensures that
pregnancy and childbirth are treated like any other disability, requiring employers to include them in
disability coverage. Court decisions and the increasing number of working mothers have led to more
successful PDA claims. It's crucial for managers to make decisions based on medical documentation
rather than their own interpretation.

Federal Agency Uniform Guidelines on Employee Selection Procedures - The federal agencies, including
the EEOC, Civil Service Commission, Department of Labor, and Department of Justice, have established
uniform guidelines for employers to ensure compliance with the laws and executive orders. These
guidelines provide instructions on various aspects, such as validating selection procedures. Additionally,
the Office of Federal Contract Compliance Programs (OFCCP) has its own set of guidelines. The American
Psychological Association has also published its own Standards for Educational and Psychological
Testing, although they are not legally binding.

Selected Court Decisions Regarding Equal Employment Opportunity (EEO)

Several early court decisions helped to form the courts’ interpretive foundation for EEO laws.

 Griggs v. Duke Power Company - Supreme Court case in which the plaintiff argued that his
employer’s requirement that coal handlers be high school graduates was unfairly discriminatory.
In finding for the plaintiff, the Court ruled that discrimination need not be overt to be illegal,
that employment practices must be related to job performance, and that the burden of proof is
on the employer to show that hiring standards are job related. Griggs v. Duke Power Company
(1971) was a significant case that defined unfair discrimination. The Supreme Court ruled in
favor of Griggs, stating that the company's requirement of a high school diploma for coal
handlers was unlawfully discriminatory. The court established three important guidelines: 1)
Discrimination doesn't have to be intentional, only that it occurred. 2) Employment practices
must be job-related if they disproportionately affect protected groups. Protected class - Persons
such as minorities and women protected by equal opportunity laws, including Title VII.
According to Justice Burger, the Civil Rights Act prohibits not only obvious discrimination but
also practices that may seem fair but have a discriminatory effect. The key factor is whether the
practice is necessary for business purposes. If an employment practice excludes individuals from
a protected class and cannot be proven to be job-related, it is considered prohibited.
Additionally, Burger's opinion places the burden of proof on the employer to show that the
 hiring practice is necessary for the job. In this case, the employer must demonstrate that
requiring a high school diploma is essential for satisfactory job performance, especially if it
disproportionately affects protected groups.
 ALBEMARLE PAPER COMPANY v. MOODY - In the Albemarle case, the Supreme Court clarified
the requirements for proving that a test or screening tool is related to job performance. The
Court stated that before using a test, the employer must have clear and unambiguous
performance standards for the job. This allows the employer to determine which employees are
performing better and evaluate the effectiveness of the screening tool. The Court also
referenced the EEOC guidelines, which were deemed the "law of the land" in this context.

Civil Rights Act of 1991 (CRA 1991) - The act that places burden of proof back on employers and permits
compensatory and punitive damages. The Civil Rights Act of 1991 addressed the burden of proof in
discrimination cases. Now, the plaintiff needs to demonstrate that an employment practice has a
disparate impact on a particular group, meaning it has a greater adverse effect on protected groups.
Disparate impact -An intentional disparity between the proportion of a protected group and the
proportion getting the job.

For example, requiring a college degree for a job may disproportionately impact certain minority groups.
The act aimed to roll back the limitations on protecting women and minority groups set by earlier
Supreme Court rulings in the 1980s.

Under the Civil Rights Act of 1991, the plaintiff does not need to prove discriminatory intent. Instead,
they must show that a seemingly neutral employment practice is causing a disparity. Once the plaintiff
demonstrates disparate impact, the burden shifts to the employer to prove that the practice is job-
related and necessary. The act also allows employees to seek compensatory and punitive damages for
intentional discrimination. Disparate impact- An unintentional disparity between the proportion of a
protected group applying for a position and the proportion getting the job. Additionally, it addresses
"mixed motive" cases, where employers claim other factors justified their actions. If any discriminatory
motive exists, the practice may be deemed unlawful.

Americans with Disabilities Act (ADA) - The act requiring employers to make reasonable
accommodations for disabled employees; it prohibits discrimination against disabled persons. The
Americans with Disabilities Act (ADA) of 1990 protects qualified individuals with disabilities from
discrimination in various aspects of employment. Employers with 15 or more workers must provide
reasonable accommodations unless it causes undue hardship. The ADA defines disabilities as physical or
mental impairments that substantially limit major life activities. It includes physiological disorders,
cosmetic disfigurement, and mental or psychological disorders. The act does not consider
homosexuality, bisexuality, voyeurism, compulsive gambling, pyromania, and certain drug-related
disorders as disabilities. The ADA also prohibits discrimination against people with HIV/AIDS.

 MENTAL IMPAIRMENTS AND THE ADA - Mental disabilities are the most common ADA claims.
They include mental or psychological disorders like major depression, anxiety disorders, and
personality disorders. The ADA also protects employees with intellectual disabilities, including
 those with IQs below 70-75. Employers should be aware that behaviors like chronic lateness
could be related to mental impairments, and reasonable accommodations may involve
providing room dividers or partitions.
 Qualified Individual - To have a claim under the ADA, a person must be a qualified individual
who can carry out the essential functions of the job, with or without a reasonable
accommodation. Essential functions are those that are necessary for the job and may include
specialized skills or expertise. In a case where a worker's driver's license was suspended due to
seizures, and driving was an essential function of the job, the court ruled that the worker did not
have an ADA claim.
 Reasonable Accommodation - Employers are required to provide reasonable accommodations
for individuals who cannot perform the job as currently structured, unless it would cause undue
hardship. Accommodations can include job redesign, modified schedules, or acquiring
equipment. For example, technologies like screen-reading programs can enable blind individuals
to successfully work in various jobs. The definition of "reasonable accommodation" is still
evolving, as seen in a case where a Walmart door greeter with a bad back requested to sit while
on duty, but the court ruled that standing was an essential job function.
 Traditional Employer Differences - Employers used to win the majority of ADA cases, but a
Supreme Court ruling clarified that carpal tunnel syndrome is only covered if it affects both job
performance and daily living activities. In a specific case, the employee admitted to being able to
perform personal chores, so the Court ruled that the disability must be central to daily living, not
just the job.
 The 'New' ADA - The ADAAA of 2008 made it easier for employees to show that their disabilities
are limiting by expanding the definition of major life activities. Employers should ensure
compliance and provide reasonable accommodations. Some employers, like Walgreens, have
taken a progressive approach by aiming to fill a significant portion of jobs with people with
disabilities.

Uniformed Services Employment and Reemployment Rights Act - Under the Uniformed Services
Employment and Reemployment Rights Act (1994), employers must generally reinstate employees
returning from military leave to comparable positions.

Genetic Information Nondiscrimination Act of 2008 - The Genetic Information Nondiscrimination Act
(GINA) of 2008 prohibits health insurers and employers from discriminating based on genetic
information. It also prohibits the intentional acquisition of genetic information and enforces strict
confidentiality requirements.

Sexual Orientation - If passed, the federal Employment Non-Discrimination Act (ENDA) would protect
LGBTQ+ workers from discrimination based on sexual orientation and gender identity. It would prohibit
discriminatory practices in hiring, firing, promotion, compensation, and protect against retaliation.
Additionally, some states already have laws in place that bar workplace discrimination based on sexual
orientation.
State and Local Equal Employment Opportunity Laws - State and local governments have their own
laws prohibiting employment discrimination, often covering smaller employers not covered by federal
legislation. For example, in Arizona, even employers with just one employee can face sexual harassment
claims. Some states extend age discrimination protection to those under 17 as well. State and local
equal employment opportunity agencies, like "human resources commissions" or "fair employment
commissions," also play a role in ensuring equal employment compliance. When the EEOC receives a
discrimination charge, it may defer it to state and local agencies before resolving it.

Sexual harassment - Harassment on the basis of sex that has the purpose or effect of substantially
interfering with a person’s work performance or creating an intimidating, hostile, or offensive work
environment. Sexual harassment is when conduct based on sex interferes with work performance or
creates a hostile environment. The EEOC received around 11,717 sexual harassment charges, with about
15% filed by men. Employers have a duty to maintain harassment-free workplaces. Victims can seek
compensatory and punitive damages under CRA 1991 if the employer acted with "malice or reckless
indifference." Same-sex sexual harassment is also actionable under Title VII.

Minority women are at a higher risk of experiencing sexual and ethnic harassment. The Federal Violence
Against Women Act of 1994 allows women to seek relief for violent sexual harassment. Perpetrators of
gender-motivated violence can be held liable.

 WHAT IS SEXUAL HARASSMENT? Sexual harassment is unwelcome sexual advances, requests

for sexual favors, and other verbal or physical conduct of a sexual nature, including creating an
intimidating, hostile, or offensive work environment. Sexual harassment, as defined by EEOC
guidelines, includes unwelcome advances or conduct of a sexual nature that interferes with
work performance or creates a hostile environment. It can also involve using such conduct as a
basis for employment decisions.
 Proving Sexual Harassment.
There are three main ways someone can prove sexual harassment.
1. Quid Pro Quo - To prove sexual harassment through quid pro quo, one must show that rejecting
advances from a supervisor resulted in negative employment actions like firing or demotion. In
one case, an employee demonstrated that her job success depended on complying with her
supervisors' sexual demands. Suppose, In a specific case, an employee faced the choice of either
agreeing to her supervisor's sexual demands or risking negative consequences in her job, such as
being passed over for promotions or facing unfair work assignments. This demonstrates the quid
pro quo nature of the harassment.
2. Hostile Environment Created By Supervisors. To prove sexual harassment, it's not always
necessary to show tangible consequences like demotion. In one case, a court found that a male
supervisor's harassment had a significant impact on a female employee's emotional well-being
to the point where she felt compelled to quit her job. This demonstrates that even without
direct threats or promises, the supervisor's behavior created a hostile work environment. Sexual
relationships during employment are generally not considered harassment unless they have a
substantial effect on the employment.
3. Hostile Environment Created By Coworkers or Nonemployee. If a hostile work environment is
created by coworkers or nonemployees, the employer can still be held responsible. For example,
if a mandatory sexually provocative uniform leads to lewd comments by customers and the
employee is fired for refusing to wear it, the employer can be held liable. The employer should
have known about the harassment and taken action to prevent it.
 When Is the Environment 'Hostile'? A hostile work environment is determined by the severity
and frequency of intimidating, insulting, or ridiculing behavior that alters working conditions.
Factors considered include the physical threat, humiliation, or offensiveness of the conduct, as
well as its interference with work performance. The employee's subjective perception of the
environment is also taken into account, such as whether they welcomed or immediately
expressed that the conduct was unwelcome.
 Supreme Court Decisions - In the case of Meritor Savings Bank, FSB v. Vinson, the U.S. Supreme
Court endorsed the EEOC's guidelines on sexual harassment. Two other Supreme Court
decisions, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, further clarified
sexual harassment law. In Burlington Industries, the employee accused her supervisor of quid
pro quo harassment, while in Faragher, the employee accused the employer of condoning a
hostile work environment. The Court ruled in favor of the employees in both cases.
 Implications - The Supreme Court's decisions in these cases have important implications for
employers. Firstly, in quid pro quo cases, the employee does not need to suffer a tangible job
action to win the case; the threat alone may be sufficient. Secondly, the Court established a
defense against harassment suits, stating that the employer must demonstrate that they took
reasonable care to prevent and address sexually harassing behavior, and that the employee
unreasonably failed to take advantage of the employer's policies. This means that an employer
can defend themselves against sexual harassment liability by showing that they made efforts to
prevent and address harassment, and that the employee did not utilize available reporting
systems.
To prevent sexual harassment, prudent employers should take complaints seriously, issue a
strong policy statement condemning such behavior, communicate a zero-tolerance stance, and
provide training to supervisors and managers. Disciplining those involved in harassment is also
important.
 When the Law Isn't Enough - Unfortunately, women may perceive a broader range of behaviors
as harassment. Sexual harassment training programs and policies can help address this issue.
Additionally, employees may be hesitant to report harassment due to fear of retaliation and
psychological distress. To overcome this, it's important for organizations to execute anti-
harassment policies diligently.
 What the Employer Can Do - If an employee experiences harassment, it's important for them to
promptly use the employer's reporting procedures to file a complaint. Courts generally look at
whether the employee utilized the available complaint procedure and cooperated in the
investigation. When faced with harassment, an employee can take the following steps:
1. File a verbal complaint with the harasser and their boss, clearly stating that the unwanted
behavior should stop.
 2. If the harassment continues, document the incidents and report them verbally and in writing
to the harasser's manager or the HR director.
3. If internal reports do not resolve the issue, the employee can file a claim with the EEOC. In
severe cases, consulting an attorney may be an option to pursue legal action.
Remember, it's important to follow the employer's reporting procedures and cooperate in the
investigation.

Defenses Against Discrimination Allegations

To defend against employment discrimination claims, employers need to understand the legal terms.
Disparate treatment refers to intentional discrimination where individuals are treated differently based
on their protected characteristics. For example, a rule that excludes hiring bus drivers over 60 years of
age exemplifies disparate treatment.

Adverse impact - The overall impact of employer practices that result in significantly higher percentages
of members of minorities and other protected groups being rejected for employment, placement, or
promotion. Disparate impact refers to employment practices that have a greater adverse effect on
protected groups, regardless of intent. For example, a rule that requires a college degree for a job may
have a disparate impact if it disproportionately affects certain minorities. To defend against such claims,
employers may need to show a business necessity for the practice.