Chapter 2
Equal Opportunity
and the Law
Part One | Introduction
Copyright 2011 Pearson Education, Inc.
publishing as Prentice Hall
PowerPoint Presentation by Charlie Cook
The University of West Alabama
Equal Employment Opportunity
19641991
Title VII of the
1964
Civil Rights Act
(EEOC)
Executive Orders
11246, 11375
OFCCP
Federal Agency
Guidelines
Pregnancy
Discrimination
Act of 1978
Equal
Employment
Opportunity
Vocational
Rehabilitation
Act of 1973
Copyright 2011 Pearson Education, Inc. publishing as Prentice Hall
Equal Pay Act
of 1963
Age
Discrimination in
Employment Act
of 1967
22
Title VII of the 1964 Civil Rights Act
Employer cannot discriminate based on race, color,
religion, sex, or national origin.
Applies to public and private employers with 15 or more
employees.
Unlawful employment practices for an employer:
To fail or refuse to hire or to discharge an individual because of
the individuals race, color, religion, sex, or national origin.
To limit, segregate, or classify employees or applicants by their
race, color, religion, sex, or national origin such that they would
be deprived employment opportunities or employment status.
Equal Employment Opportunity Commission
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23
Equal Employment Opportunity
Commission (EEOC)
Established by Title VII of the 1964 Civil Rights Act.
Comprised of five members appointed by the President
for five-year terms; approved by the Senate.
Administers and enforces civil rights employment law.
Issues federal guidelines for EEO procedures to be
followed by employers.
Receives and investigates job discrimination complaints.
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Equal Employment Opportunity
199091present
Civil Rights Act of
1991
Burden of Proof
Disparate
treatment
Adverse impact
Money
Damages
Compensatory
and punitive
awards
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Mixed Motives
Motivation versus
alternative
factors
25
Equal Employment Opportunity
199091present (contd)
Americans with
Disabilities Act (ADA) of
1990
Mental
impairments
Qualified
individual
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Reasonable
accommodatio
n
Employer
defenses
26
FIGURE 21
Examples of How to Provide Reasonable Accommodation
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27
Employer Obligations Under ADA
An employer must make a reasonable accommodation for a
qualified disabled individual unless doing so would result in
undue hardship.
Employers are not required to lower existing performance
standards or stop using tests for a job.
Employers may ask pre-employment questions about essential
job functions but can not make inquiries about disability.
Medical exams (or testing) must be job related.
Employers should review job application forms, interview
procedures, and job descriptions for illegal questions and
statements.
Employers should have up-to-date job descriptions that identify
the current essential functions of the job.
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28
Employers and ADA
Employers are not required to tolerate misconduct or
erratic performance, even if the behaviors can be
attributed to the disability.
Employers do not have to create a new job for the
disabled worker nor reassign that person to a light-duty
position for an indefinite period, unless such a position
exists.
Employers should not treat employees as if they are
disabled so that they will not be regarded as disabled
and protected under the ADA.
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29
The New ADA Amendments Act
of 2008 (ADAAA)
ADAA expanded the list of major life activities making it
easier for an employee to show his or her disability as
limiting in his or her ability to engage in a major life
activity.
Under ADAAA, an employee is considered disabled even
if he or she has been able to control his or her
impairments through medical or learned behavioral
modifications.
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210
FIGURE 22
ADA Guidelines For Managers And Employers
Do not deny a job to a disabled individual if the person is qualified and able
to perform the essential job functions.
Make a reasonable accommodation unless doing so would result in undue
hardship.
You need not lower existing performance standards or stop using tests for a
job. However, those standards or tests must be job related and uniformly
applied to all employees and candidates.
Know what you can ask applicants. In general, you may not make
preemployment inquiries about a persons disability before making an offer.
However, you may ask questions about the persons ability to perform
essential job functions.
Review job application forms, interview procedures, and job descriptions for
illegal questions and statements about health, disabilities, medical histories,
or previous workers compensation claims.
Itemize essential job functions in job descriptions. In ADA legal actions, a
central question will be what are the essential functions of the job?
Do not allow misconduct or erratic performance (including absences and
tardiness), even if that behavior is linked to the disability.
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211
Other Employment Acts and Laws
Genetic Information Nondiscrimination Act of 2008
(GINA)
Prohibits discrimination by health insurers and the use of genetic
information by employers in employment.
Prohibits the intentional acquisition of genetic information about
applicants and employees.
Imposes strict confidentiality requirements.
State and Local Equal Employment Opportunity Laws
Cannot conflict with federal law but can extend coverage to
additional protected groups.
The EEOC can defer a discrimination charge to state and local
agencies that have comparable jurisdiction.
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TABLE 21
Summary of Important Equal Employment Opportunity Actions
Action
What It Does
Title VII of 1964 Civil Rights Act,
as amended
Bars discrimination because of race, color, religion, sex, or
national origin; instituted EEOC.
Executive orders
Prohibit employment discrimination by employers with federal
contracts of more than $10,000 (and their subcontractors);
establish office of federal compliance; require affirmative action
programs.
Federal agency guidelines
Indicate guidelines covering discrimination based on sex,
national origin, and religion, as well as employee selection
procedures; for example, require validation of tests.
Supreme Court decisions:
Griggs v. Duke Power Co.,
Albemarle v. Moody
Rule that job requirements must be related to job success; that
discrimination need not be overt to be proved; that the burden of
proof is on the employer to prove the qualification is valid.
Equal Pay Act of 1963
Requires equal pay for men and women for performing similar
work.
Age Discrimination in
Employment Act of 1967
Prohibits discriminating against a person age 40 or over in any
area of employment because of age.
State and local laws
Often cover organizations too small to be covered by federal
laws.
Vocational Rehabilitation Act
of 1973
Requires affirmative action to employ and promote qualified
handicapped persons and prohibits discrimination against
handicapped persons.
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TABLE 21
Summary of Important Equal Employment Opportunity Actions (contd)
Action
What It Does
Pregnancy Discrimination Act of 1978
Prohibits discrimination in employment against pregnant
women, or related conditions.
Vietnam Era Veterans Readjustment
Assistance Act of 1974
Requires affirmative action in employment for veterans
of the Vietnam war era.
Ward Cove v. Antonio
Made it more difficult to prove a case of unlawful
discrimination against an employer.
Americans with Disabilities Act of 1990
Strengthens the need for most employers to make
reasonable accommodations for disabled employees at
work; prohibits discrimination.
Civil Rights Act of 1991
Reverses various U.S. Supreme Court decisions; places
burden of proof back on employer and permits
compensatory and punitive money damages for
discrimination.
ADA Amendments Act of 2008
Makes it easier for employee to show that his or her
disability substantially limits" a major life function.
Genetic Information Nondiscrimination
Act
Signed into law in May 2008, this prohibits discriminating
against employees and applicants based on their
genetic information.
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214
Other Considerations in
Discriminatory Practice Defenses
1. Good intentions are no excuse.
2. Employers cannot hide behind collective bargaining
agreementsequal opportunity laws override union
contract agreements.
3. Firms should react by agreeing to eliminate an illegal
practice and (when required) by compensating the
people discriminated against.
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215
The EEOC Enforcement Process
EEOC Claim and Enforcement
Process
1
File charge
Charge acceptance
Service of notice of charge
Investigation/fact-finding
Declaration of cause/no cause
Offer of conciliation
Notice to sue
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216
FIGURE 25
The EEOC
Charge-Filing
Process
Applicant or employee
files charge
EEOC advises employer of charge
and if mediation is an option
Unsuccessful
mediation
EEOC may ask employer to
submit statement of position
of employers side of story
Finds no reasonable
cause
Successful
mediation
EEOC may ask employer to
respond to request for
information (personnel files, etc.)
EEOC completes
investigation
Issues charging party
Dismissal and
Notice of Rights
EEOC may ask employer to permit
onsite visit by EEOC and to provide
information for witness interview
Finds
reasonable cause
Issues
Letter of Determination
Offers parties conciliation
Charging party may file
lawsuit in Federal Court
within 90 days
Conciliation
successful
Conciliation
fails
EEOC may decide not to litigate
EEOC may litigate
in Federal Court
within 180 days
of charge
Sends charging party
notice of Right to Sue
Party may sue
within 90 days
Note: Parties may settle at any time.
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FIGURE 26
Questions to Ask When an Employer Receives
Notice That EEOC Has Filed a Bias Claim
1. Exactly what is the charge and is your company covered by the
relevant statutes?
2. What protected group does the employee belong to? Is the
EEOC claiming disparate impact or disparate treatment?
3. Are there any obvious bases upon which you can challenge
and/or rebut the claim?
4. If it is a sexual harassment claim, are there offensive comments,
calendars, posters, screensavers, and so on, on display in the
company?
5. Who are the supervisors who actually took the allegedly
discriminatory actions and how effective will they be as potential
witnesses?
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FIGURE 27
Management Guidelines for Addressing EEOC Claims
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Addressing EEOC Claims
During the EEO Investigation
1
Conduct own investigation to get facts
Limit information supplied to EEOC
Meet with employee
Be aware of limits of EEOC authority
Give EEOC a documented position statement
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Addressing EEOC Claims (contd)
During the FactFinding Conference:
During EEOC
Determination and
Attempted Conciliation:
Official records
Review carefully
Employers attorney
Conciliate prudently
Information
Witnesses
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Diversity, Equal Employment
Opportunity, and Affirmative Action
Diversity
the variety or multiplicity of demographic features that
characterize a companys workforce, particularly in terms of
race, sex, culture, national origin, handicap, age, and religion.
Equal Employment Opportunity
Aims, through legal compliance, to ensure that anyone,
regardless of race, color, disability, sex, religion, national origin,
or age, has an equal opportunity based on his or her
qualifications.
Affirmative Action
Employers take actions, to comply legally or voluntarily, in the
recruitment, hiring, promotion, and compensation of protected
classes to eliminate the current effects of past discrimination.
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Managing Diversity
Steps in a Diversity Management
Program
1
Provide strong leadership
Assess the situation
Provide diversity training and education
Change culture and management systems
Evaluate the diversity management program
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Is the Diversity Initiative Effective?
Are there women and minorities reporting directly to
senior managers?
Do women and minorities have a fair share of job
assignments that are stepping stones to successful
careers in the company?
Do women and minorities have equal access to
international assignments?
Are female and minority candidates in the companys
career development pipeline?
Are turnover rates for female and minority managers the
same or lower than those for white male managers?
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Reverse Discrimination
Reverse Discrimination
Discriminate against non-minority applicants and employees by
protected-class quota-based systems.
Bakke v. Regents of the University of California
Race cannot be the sole deciding factor in admission decisions.
Ricci v. DeStefano
Valid test results cannot be ignored solely because higher
scoring candidates are members of the majority group.
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