Legal Framework of Equal Employment
¡ Explain four basic EEO concepts.
¡ Describe key provisions in Title VII of the Civil Rights Acts of 1964 and 1991.
¡ Indicate important requirements of four other key EEO-related laws.
¡ Discuss the two general approaches for complying with the 1978 Uniform Guidelines on Employee Selection Procedures.
¡ Identify typical EEO enforcement and compliance requirements.
Nature of Equal Employment Opportunity
• Equal Employment Opportunity (EEO)
Ø The concept that all individuals should have equal treatment in all employment-related actions.
Ø “Recognizing differences among items or people.”
• Protected Class
Ø Individuals within a group identified for protection under equal employment laws and regulation.
• Race, ethnic origin, color • Sex/gender • Age
• Disability • Military experience • Religion
• Marital status • Sexual orientation
FIGURE 4-1 Illegal Employment Discrimination
Nature of EEO (cont’d)
• Disparate Treatment
Ø Occurs in employment-related situations when either:
v Different standards are used to judge different individuals, or the same standard is used, but it is not related to the individuals’ jobs
Ø The outcome of the employer’s actions, not the intent, is considered by the regulatory agencies or courts when deciding whether or not illegal discrimination has occurred.
Nature of EEO (cont’d)
• Disparate Impact
Ø Occurs when substantial underrepresentation of protected-class members results from employment decisions that work to their disadvantage.
Ø Griggs vs. Duke Power (1971) decision:
v Lack of intent to discriminate is no employer defense if discrimination occurs.
v The employer has the burden of proof in proving that an employment requirement is a job-related “business necessity.”
FIGURE 4-2 EEO Concepts
Burden of Proof
• McDonnell-Douglas v. Green
Ø The court ruled that a prima facie (preliminary) case of employment discrimination exists by showing:
v The person is a member of a protected group.
v The person applied for and was qualified for a job but was rejected.
v The employer continued to seek other applicants after the rejection occurred.
Ø Once a court rules that a prima facie case has been made, the burden of proof shifts to the employer.
Progressing Toward EEO
• Equal Employment
Ø Employment that is not affected by illegal discrimination.
• Blind to differences
Ø Differences among people should be ignored and everyone should be treated equally.
• Affirmative Action
Ø Employers are urged to hire groups of people based on their race, age, gender, or national origin to make up for historical discrimination.
FIGURE 4-3a Major Federal Equal Employment Opportunity Laws and Regulations
FIGURE 4-3b Major Federal Equal Employment Opportunity Laws and Regulations
FIGURE 4-3c Major Federal Equal Employment Opportunity Laws and Regulations
• Pay Equity (Comparable Worth)
Ø The concept that pay for jobs requiring comparable levels of knowledge, skill, and ability should be paid similarity, even if actual duties differ significantly.
Ø Arises from the continuing gap between the earnings of women and men.
Ø Courts have consistently ruled against the concept.
Sex/Gender Discrimination (cont’d)
• Sexual Harassment
ØActions that are sexually directed, are unwanted, and subject the worker to adverse employment conditions or create a hostile work environment.
ØCan occur between a boss and a subordinate, among co-workers, and when non-employees have business contacts with employees.
Americans with Disabilities Act (ADA)
• Disabled Person
Ø Someone who has a physical or mental impairment that substantially limits life activities, who has a record of such impairment, or who is regarded as having such an impairment.
• Who is disabled?
Ø Mitigation means and methods
Ø Mental disabilities (e.g., depression)
Ø Life-threatening illnesses (e.g., AIDS and HIV)
Ø Genetic bias regulations
ADA and Job Requirements
FIGURE 4-4 Most Frequent ADA Disabilities Cited
Employment Discrimination Acts
• Age Discrimination in Employment (ADEA)
Ø Prohibits employment discrimination against all individuals age 40 or older working for employers having 20 or more workers.
Ø Does not apply if age is a job-related qualification (BFOQ).
• Older Workers Benefit Protection Act (OWBPA)
Ø An amendment to the ADEA aimed at protecting employees when they sign liability waivers for age discrimination in exchange for severance packages.
Immigration Reform and Control Act (IRCA)
• Immigration Reform and Control Act (IRCA)
Ø Prohibits employment discrimination against persons legally permitted to work in the United States.
Ø Requires employers to document (I-9 form) eligibility for employment.
Ø Provides penalties for knowingly
employing illegal workers.
Discrimination Laws and Regulations
• Religious Discrimination
Ø Discrimination is illegal unless religion is a bona fide occupational qualification.
Ø Reasonable accommodation of beliefs is required.
• Military Status and USERRA
Ø The Vietnam-Era Veterans Readjustment Act and the Uniformed Services Employment and Reemployment Act encourage the employment of veterans and require employers to provide leaves of absence and reemployment rights for employees called to active duty.
FIGURE 4-5 Uniformed Services Employment and Reemployment Rights Act (USERRA) Provisions
Discrimination Laws and Regulations (cont’d)
• Sexual Orientation
Ø At present, federal protection against workplace discrimination has not been granted.
Ø Court cases and the EEOC have ruled that sex discrimination under Title VII applies to a person’s gender at birth.
• Appearance and Weight Discrimination
Ø Uniform application of dress codes is permitted.
Ø Height and weight-related job requirements must be job-related.
Discrimination Laws and Regulations (cont’d)
• Seniority and Discrimination
Ø Courts have held that the application of a valid seniority system does not violate the rights of protected-class individuals.
• Conviction and Arrest Records
Ø Employers may not use arrest records in employment decisions.
Ø Conviction records may be used in determining employability if the offense is job-related.
FIGURE 4-6a Guidelines to Lawful and Unlawful Pre-Employment Inquiries
FIGURE 4-6b Guidelines to Lawful and Unlawful Pre-Employment Inquiries
FIGURE 4-6c Guidelines to Lawful and Unlawful Pre-Employment Inquiries
FIGURE 4-6d Guidelines to Lawful and Unlawful Pre-Employment Inquiries
Uniform Guidelines on Employee Selection Procedures (1978)
• Used by the EEOC, the Department of Labor’s OFCCP, the Department of Justice, and the Office of Personnel Management.
Ø Attempt to explain how an employer should deal with hiring, retention, promotion, transfer, demotion, dismissal, and referral.
Ø If sued, employers can choose one of two routes to prove they are not illegally discriminating against employees: no disparate impact, and job-related validity.
Uniform Guidelines on Employee Selection Procedures (cont’d)
• “No Disparate Impact” Approach
Ø Disparate impact occurs whenever a substantial underrepresentation of protected-class members is evident in selection decisions.
Ø 4/5ths Rule
v If the selection rate for a protected-class is less than 80% (4/5ths) of the selection rate for the majority group or less than 80% of the group’s representation in the relevant labor market, then discrimination exists.
FIGURE 4-7 Internal Disparate Impact Example
Internal Metrics for Disparate Impact
FIGURE 4-8 Racial Distribution in Valleyville (Example of Relevant Labor Market)
Job-Related Validation Approach
• Employment “test”
ØAny employment procedure used as the basis for making an employment-related decision.
ØMust have both job-related validity and reliability.
ØThe extent to which a test actually measures what it says it measures.
ØThe consistency with which a test measure measures an item.
Validity and Equal Employment
• Selection Procedures and Validity
ØEmployers must demonstrate that tests of knowledge, skills, and abilities (KSAs) are valid and job-related.
• Content Validity
ØUse of a logical, non-statistical method (e.g., job analysis) to identify the KSAs and other characteristics necessary to perform the job.
• Criterion-Related Validity
ØValidity measured using a test as the predictor of how well an individual would perform on the job.
EEO Enforcement Agencies
• Equal Employment Opportunity Commission
ØIs the enforcement authority for federal laws.
ØIts policy statements are not “law,” they are “persuasive authority” in most cases.
• Office of Federal Contract Compliance (OFFCP)
ØEnsures that federal contractors have nondiscriminatory practices and take affirmative action to overcome the effects of past discrimination.
• State and Local Agencies
ØSometimes provide greater remedies, require different actions, or prohibit discrimination in more areas.
• Records Retention
Ø All employment records must be maintained as required by the EEOC
v Application forms and documents concerning hiring, promotion, demotion, transfer, layoff, termination
v Rates of pay or other terms of compensation
v Selection for training and apprenticeship
Ø The length of time documents must be kept varies, but generally three years is recommended as a minimum.
EEOC Reporting Forms
• EEOC-1 (Annual Reporting Form) required for:
Ø All employers with 100 or more employees, except state and local governments
Ø Subsidiaries of companies if the total number of combined employees equals 100 or more
Ø Federal contractors with at least 50 employees and contracts of $50,000 or more
Ø Financial institutions with at least 50 employees, holding government funds or issuing saving
• Applicant Flow Data
Ø Self-reported information on an employer’s employment process from applicants.
Stages in the EEOC’s Response to an EEO Complaint
Stages in the Employer’s Response to an EEO Complaint