Equal Employment Opportunity Prof. John Kammeyer-Mueller MGT

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Equal Employment Opportunity

• Prof. John Kammeyer-Mueller
• MGT 6366

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Equal Employment Opportunity Outline

• How does staffing involve the law?
• Critical terms in EEO
• Major statutes/protected classes
• How are discrimination claims processed?
• Calculating EEO statistics

3
How does staffing involve the law?

• Efficiency and ideology
• Evidence for different labor market outcomes
• Representative outcomes from employment
  discrimination cases

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Does fortune favor the beautiful?
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Attractiveness Bias Against Your Own Interest

• Economist V. Bhaskar analysed 69 episodes of
  Shafted, which aired on Dutch TV in 2002, in
  which the highest-scoring player picks a
  contestant to eliminate at the end of each round.
  It is to your advantage to pick a high scoring
  partner.
• Although the least attractive players scored no
  worse in the show than others, they were twice as
  likely to be eliminated in the first round.
• In the final round of Shafted, the last two
  players vie for an accumulated pot of money. Each
  player must opt to share the prize or attempt to
  grab it all for themselves. If one player opts to
  grab while one opts to share, the grabber takes
  the lot. If both try to grab, they both leave
  empty-handed, so game theory dictates that the
  leading contestant should pick a fellow finalist
  who is likely to cooperate. Even though
  attractiveness was found to have no bearing on
  cooperativeness, the leader often elected to play
  the final round with the most attractive of their
  remaining rivals.
• In 13 shows, these looks-based decisions even
  overrode a simple imperative to choose their
  highest-scoring rival, which would have led to
  increases in the ultimate prize fund. In these
  cases, the prize was 350 lower than it could
  have been, on average.
• Source New Scientist, August 2008

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An odd case of discrimination Does fortune favor
the beautiful?

• Critical question
• Should employers be able to discriminate against
  people because they are attractive or
  unattractive?
• Get together in groups and come up with three
  reasons why this discrimination should be
  permitted, and three reasons why it should be
  forbidden by law
• Purpose of this question?
• To illustrate why discrimination is regulated in
  the first place
• To illustrate what a tricky issue regulating
  discrimination is

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A Great Debate How Much Regulation is Needed?

• Pro-regulation
• People are prone to stereotypes
• Historical evidence of discrimination
• Income and race statistics
• Representation in executive positions

• Anti-regulation
• This discrimination is inefficient, so someone
  irrational enough to do it will go out of
  business
• Government shouldnt interfere too much
• Differences in education, workforce attachment,
  etc. should be acknowledged

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The Three Big Laws

• Civil Rights Act of 1964
• Barred discrimination on the basis of race,
  gender, religion, and national origin
• Age Discrimination in Employment Act of 1967
• Protects individuals over the age of 40 from
  discrimination
• Americans with Disabilities Act of 1990
• Protects individuals with either physical or
  mental disabilities from being discriminated
  against

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Diversity and Equal Employment Opportunity

• Why do people discriminate?
• Similarity attraction hypothesis (Byrne)
• We like those who are like ourselves based on
  comfort, mere exposure, and the like
• Implications?
• Social identity/self categorization (Tajfel,
  Turner)
• Social categories are important cognitive
  concepts for understanding our world
• We have multiple group memberships, and our
  identities are cued based on situational factors
• Implications?
• Relational demography typically fuses these ideas
  together (major authors include Tsui, Pfeffer,
  Kanter, OReilly)

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Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate

• Change in the nature of racism
• Decline in overt racist attitudes
• Change to physiological/response latency measures
  because they are less susceptible to
  self-presentation
• How to measure discrimination objectively?
• Use of laboratory stimuli to control for any
  contaminants
• Major predictors in this study
• Overt racist attitudes
• Response latency measures of attitudes
• Organizational climate for discrimination

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Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate

• Important feature to note implicit attitudes
• There is a growing body of research (e.g., Fazio,
  Devine) showing that implicit and explicit
  attitudes dont match up
• There is a very strong social press against
  racial discrimination
• Implicit attitudes are better predictors of eye
  contact, helping, and perceived friendliness than
  are explicit attitudes

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Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate

• Procedures
• Participants were provided with dossiers of eight
  applicants
• Six of the eight applicants had outstanding
  qualifications
• Race of applicants was randomly assigned
• Manipulation of organizational climate
• Given that the vast majority of our workforce is
  White, it is essential we put a White person in
  the VP position
• Measure of how motivated individuals were to
  control prejudice based on social desirability

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Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate

• Respondents were asked to sort names into
  categories of pleasant, unpleasant, black, white,
  and mixed categories
• Implicit racism is inferred if they are slower to
  combine black and pleasant than they are to
  combine white and pleasant, and so on

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Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate

• Evidence showed that there was in fact more
  discrimination by more racist individuals when
  the climate seemed to permit inequality
• Also very important to realize that explicit and
  implicit measures capture completely different
  things

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Ziegert Hanges Discrimination and the Role of
Attitudes, Motivation, and Climate

• On a practical level, what are the implications?
• We might have no idea how prejudiced we really
  are
• An environment that fosters discrimination can
  activate their implicit attitudes that might
  otherwise not manifest themselves in behavior
• Further research
• Is it possible to change implicit attitudes in
  some way?
• Are there techniques that might make people more
  aware of their implicit attitudes?
• What are some of the other consequences of
  implicit attitudes besides mere preference?

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Critical Concepts in Employment Discrimination

• Social efficiency reasons
• Widespread discrimination means a waste of
  productive ability
• Justice/fairness
• Dimensions of justice are in conflict
• Equity vs. equality vs. need
• The question of intention
• Did a person deliberately do something to inflict
  harm or discriminate? Does this make a difference?

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So what is unfair?

• Disparate treatment
• The test predicts group A employees will perform
  worse than they actually do
• Just about everyone agrees this is wrong since it
  isnt equitable or equal

Performance
Group A
yA
Group B
yB
Test scores
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So what is unfair?

• Disparate impact
• The test predicts just as well for both groups,
  but one group gets consistently lower scores
• This passes the equity standard, but not equality
• The problem is that there is no factual or
  logically rigorous reason to say this is okay or
  not
• It all depends on whether the test is job relevant

Performance
Group B
Group A
Test scores
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Median Weekly Incomes by Race/Ethnicity (men)
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Median Weekly Incomes by Race/Ethnicity (women)
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Median Weekly Incomes by Gender
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Representation in Management

• BLS data from 2007 show that of employed adults
• White males45
• White females 37
• African American males5
• African American females6
• Asian men2.5
• Asian women2
• Hispanic men8.5
• Hispanic women5.5
• Hispanic is not a racial group (½ of American
  Hispanics self-identify as White)
• Data on the left is Chief Executives from the
  2007 Fortune 1000

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Education Rates By Demographic Group
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The Racial Wage Gap

• Trends generally point to lower racial
  differences in income since passage of the Civil
  Rights Act
• Note that other studies suggest that nearly all
  of this shift is a result of changes in human
  capital levels among African Americans, not
  necessarily having much to do with changes in the
  level of discrimination in employment
• From Welch, AER, 2003

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Skin Color and Income Is There a Relationship?

• Race is subjective and self-identified
• Different people may differentially consider
  themselves part of racial groups
• Hispanic is a difficult term to define and
  includes those whose families are completely from
  Spain and wealthy white individuals from a
  variety of Central and South American countries
• Research suggests that very few African Americans
  are 100 of African descent, and many Whites,
  Asians, and Native Americans also have a more
  varied ethnic background than they might believe
• Perhaps skin color can assess whether
  discrimination exists?
• There are studies where observers rate
  interviewee skin color
• Anecdotal and historical evidence of differential
  discrimination against African Americans on the
  basis of skin color

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Skin Color and Income Is There a Relationship?

• Darker skinned African Americans earn less money
• Could employers be discriminating?
• Are there some other characteristics that differ
  based on skin color, possibly reflecting region
  of the country (for example, New York has higher
  wages than Georgia, and less sunshine)?
• It is difficult to directly assess the first
  hypothesis, but there is still a significant
  negative relationship between income and skin
  color even after holding constant a variety of
  educational and regional characteristics
• Goldsmith, Hamilton, and Darity, Shades of
  Discrimination Skin Tone and Wages, American
  Economic Review, 2007

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Skin Color and Income Is There a Relationship?

• Darker skinned immigrants earn less money
• Could employers be discriminating?
• Are darker skinned immigrants less skilled
  (longer migrations, like from Europe or Asia,
  tend to be much more common for skilled workers)?
• Do people who work outside become more dark
  skinned compared to managerial and professional
  workers?
• It is difficult to directly assess the first
  hypothesis, but there is still a significant
  negative relationship between income and skin
  color even after holding constant a variety of
  educational, English language skills, and
  occupation-related characteristics
• Joni Hersch, Profiling the New Immigrant Worker
  The Effects of Skin Color and Height, Journal of
  Labor Economics, 2008

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The Gender Wage Gap

• Data are from Mooney Fan (AmSocRev, 1997)
• Show women make considerably less than men at
  career entry
• Variables like human capital and family structure
  explain part of the difference
• Aspirations explain more of the difference
• Occupation and industry contribute to the
  difference, but note that there is still a
  significant difference

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Gender Wage Gaps and Housework

• The more housework women do, the less they are
  paid
• Women who do typically female housework bear the
  brunt of this wage penalty, but there is no
  effect for men, and doing typically male
  housework actually is (not significantly)
  positively related to wages
• The effects are far greater for married than for
  unmarried women, but thats apparently because
  unmarried women do more typically male housework
• From Hersch Stratton, J Human Resources, 2002

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HR in the News Sex Discrimination at Morgan
Stanley

• 54 million consent decree from Morgan Stanley
  (MWD) for 340 female employees
• Alleged campaign to intimidate Ms. Schiefflin
  after she complained of discrimination
• Set aside 2 million to pay for diversity
  training and anti-discrimination programs
• Shares of MWD rose sharply when the settlement
  was announced
• AP, July 12, 2004

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Other individual case results

• The costs of settled cases is often even higher
  than for jury verdicts
• Texaco
• 176m for racial discrimination
• Coca-Cola
• 192m for racial and ethnic discrimination
• ATT Technologies
• 66m for pregnant women required to leave the
  company
• Monsanto Company
• 18m to salespeople replaced by younger recruits
• These do not include the costs of recruitment,
  training, and other personnel practices often
  stipulated in the settlements

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But beware the availability heuristic

• What types of cases are most likely to end up in
  the press?
• Very large cases
• Dramatic incidents
• Cases that have an outcome (plaintiff loses for
  lack of evidence is not especially exciting news)
• How different are results?
• One study found that newspaper reports reflected
  an 85 win rate for plaintiffs with average
  recoveries of 1.1 million, when the docket
  entries showed a 32 win rate, and a recovery
  average of 150,000
• Source Nielson, L.B., Beim, A. (2004). Media
  Misrepresentation Title VII, Print Media, and
  Public Perceptions of Discrimination Litigation,
  15 STAN. L. POLY REV. 237, 251-253.

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How does staffing involve the law?

• Efficiency and ideology
• Evidence for different labor market outcomes
• Representative outcomes from employment
  discrimination cases

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Major statutes/protected classes

• Civil Rights Act of 1964
• Age Discrimination in Employment Act of 1967
• Americans with Disabilities Act of 1990
• Emerging issues

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Civil Rights Act of 1964Title VII (covers
employment)

• Bedrock of all civil rights law (even outside US)
• Three major backer groups
• African-Americans
• Religious/political groups
• Southern business owners
• Four protected classes
• Race or color
• Religion
• National origin
• Gender
• originally added to keep bill from passing

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Despite the CRA of 1964, Employers Can Still

• Apply different standards of compensation, or
  different terms, conditions, or privileges of
  employment pursuant to a bona fide seniority or
  merit system.
• To give and to act upon the results of any
  professionally developed ability test.
• A MAJOR EXEMPTION FOR EMPLOYERS
• Nothing contained in this title shall be
  interpreted to require any employerto grant
  preferential treatment to any individual or to
  any group because of the race, color, religion,
  sex, or national origin of such individual or
  group.

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Race, Religion, and National Origin

• Race and national origin
• Still the number one source of claims
• Actions range across many categories
• Glass ceiling effects and insular networks
• Overt policies in hiring and promotions
• Religious discrimination claims escalated in the
  early 1990s
• Differences in holidays allowed (resultflextime)
• Requirement for violation of religious principles
• Grooming requirements (shaving, haircuts)
• Dress requirements (hijab/headscarf)

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Economic Backlash Against Muslims

• Robert Kaestner studied 4,300 Arab and Muslim men
  ages 21 to 54
• As a group, the men in the study were earning
  about 20 an hour prior to Sept. 11 after Sept.
  11 that decreased about 2 per hour
• They found that after Sept. 11, 2001, the impact
  on pay was less in states with lower rates of
  hate crime and presumably less prejudice.
• In relatively intolerant states, Sept. 11 is
  associated with an 11 percent decrease in the
  wages of Arab and Muslim men, whereas in
  relatively tolerant states, Sept. 11 is
  associated with only a 6 to 7 percent decline,
  they write.

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Sex Discrimination Two Critical Cases

• Employment conditions (Meritor v. Vinson)
• Vinson received sexual advances she believed
  would lead to consequences, but suffered no
  adverse economic results
• She actually had sex with her supervisor
• Court still said she was supported in her claim
• Sex roles (Price Waterhouse v. Hopkins)
• Hopkins' secured a 25 million contract, which
  she carried out "virtually at the partner level.
  Despite this performance she was not promoted due
  to poor interpersonal skills and being overly
  aggressive
• One partner described her as "macho" one advised
  her to "walk more femininely, talk more
  femininely, dress more femininely, wear make-up,
  have her hair styled, and wear jewelry."
• The court determined that the presence of these
  stereotypes may have undermined Hopkins ability
  to get a promotion
• While neither of these cases specifically
  involved external staffing, the results are
  applicable to the case of hiring decisions and
  interviewing

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Sex Harassment Against Men?

• Oncale v. Sundowner, a landmark case
• Lead to increases in men claiming
• Sexual harassment claims filed by men with the
  EEOC have grown from 9 of all charges in 1992 to
  15 in 2003
• 17 of men said they had experienced sexual
  harassment, vs. 35 of women, in a study by
  lawyers.com and Glamour magazine
• Claims usually are male-on-male harassment of
  men by women is rarer.
• "It's often the men who are not gay who pick on
  someone. They pick on men who seem effeminate or
  not aggressive enough." says Caroline Wheeler,
  assistant general counsel with the EEOC.

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Age Discrimination in Employment Act of 1967

• Prohibits discrimination against employees over
  the age of 40.
• Does not prohibit discrimination against the
  young
• Gets rid of most (but not all) mandatory
  retirement
• More lenient than Title VII since it allows an
  employer to rebut a prima facie case with
  anything other than age as an explanation
• Also different because it provides no protection
  from reverse discrimination

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Age Discrimination in Employment Act of 1967

• Specific reasons congress passed the law
• In the face of rising productivity and affluence,
  older workers find themselves disadvantaged in
  their efforts to retain employment, and
  especially to regain employment when displaced
  from jobs.
• The setting of arbitrary age limits regardless of
  potential for job performance has become a common
  practice.
• Long-term unemployment with resultant
  deterioration of skill, morale, and employer
  acceptability is, relative to the younger ages,
  high among older workers.
• The existenceof arbitrary discrimination in
  employment because of age, burdens commerce and
  the free flow of goods in commerce.
• IMPORTANTLY
• The prohibitions in this chapter shall be limited
  to individuals who are at least 40 years of age.

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Age Discrimination in Employment Act of 1967

• Economic rationale
• Older workers tend to be at the top of the pay
  scale (implicit contract)
• Older workers could be fired close to pension
  receipt
• Older workers may have a hard time finding
  long-term employment because they are,
  economically, a bad investment (Becker model)

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Despite the ADEA, Employers Can Still

• Take any action where age is a bona fide
  occupational qualification reasonably necessary
  to the normal operation of the particular
  business.
• Observe the terms of a bona fide seniority
  systemexcept that no such seniority system shall
  require or permit the involuntary retirement.
• Engage in voluntary early retirement incentive
  plan consistent with the relevant purpose or
  purposes of this chapter.
• Discharge or otherwise discipline an individual
  for good cause.

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Mandatory Retirement Retired in Japan (well, not
exactly)

• Japan has recently (April 2006) passed a law that
  encourages longer years of work because
  government pension benefits eligibility age has
  increased
• Mandatory retirement age now cannot be lower than
  62
• Some corporate responses
• McDonalds Japan is abolishing forced retirement
  ages
• Mitsubishi UFJ financial group has employees
  resign at 60 and then sign annual re-employment
  contracts until they are 65

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Americans with Disabilities Act of 1990

• What is the ADA?
• Protects people with a disability from being
  discriminated against along 3 lines
• Intentional discrimination for reasons of social
  bias
• Neutral standards with disparate impact on the
  disabled
• Results of barriers to job performance that could
  be overcome with an accommodation
• Precedent
• In 1973 Congress passed the Vocational
  Rehabilitation Act that protected disabled
  workers in federal government jobs

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Americans with Disabilities Act of 1990

• Some 43,000,000 Americans have one or more
  physical or mental disabilities, and this number
  is increasing as the population as a whole is
  growing older
• Studies have documented that people with
  disabilities, as a group, occupy an inferior
  status in our society, and are severely
  disadvantaged socially, vocationally,
  economically, and educationally
• Individuals with disabilitieshave been faced
  with restrictions and limitations, subjected to a
  history of purposeful unequal treatment, and
  relegated to a position of political
  powerlessness in our society, based on
  characteristics that are beyond the control of
  such individuals and resulting from stereotypic
  assumptions not truly indicative of the
  individual ability of such individuals.
• The continuing existence of unfair and
  unnecessary discrimination and prejudice denies
  people with disabilities the opportunity to
  compete on an equal basisand costs the United
  States billions of dollars in unnecessary
  expenses resulting from dependency and
  non-productivity.

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Disability Employment Outcomes

• Evidence shows
• Disabled individuals are much less likely to be
  employed
• Among those with jobs, disabled individuals make
  less per hour and work fewer hours
• From DeLeire, J Human Resources, 2000

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Americans with Disabilities Act of 1990

• Physical disabilities
• Mobility/physiological
• Wheelchairs
• Cerebral palsy
• Diabetes
• Sensory
• Blindness/nearsighted
• Hearing impairment
• Appearance
• Physical deformity
• Odor

• Mental disabilities
• Learning disorders
• Dyslexia
• Autism
• Psychiatric diagnoses
• Depression
• Schizophrenia
• Addictions
• Alcoholism
• Drug use

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What Are the Most Commonly Claimed Disabilities?
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Americans with Disabilities Act of 1990

• Important minimal standard
• It must be sufficient to be chronic
• It must substantially limit major life
  activities
• The role of medical professions
• A disability is still a disability even if
  medications make it less apparent
• Bipolar individuals on lithium and diabetics with
  insulin are specifically mentioned in Taylor v.
  Phoenixville School Districts (3rd Cir.)
• Often, specific medical diagnoses are invoked

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Medical Exams and the ADA

• One of the biggest issues with the ADA is when
  medical exams or inquiries can be made or job
  offers limited
• Prior to an offer, the organization may not make
  medical inquiries or require medical exams of an
  applicant.
• A job offer may be conditional, pending the
  results of a medical exam.
• The organization must examine all applicants, and
  cannot limit exams to individuals with a known or
  suspected disability.
• The reasons for rejecting an applicant on the
  basis of the exam must be job related.

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SHRM Recommendations for Asking Applicants
Questions
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Americans with Disabilities Act of 1990

• More specific decisions
• Ifa condition is disabling when untreated, but
  really is fully corrected by mitigating measures,
  then it is very unlikely that employers will need
  to make much in the way of accommodations.
• Taylor v. Phoenixville School district
• A disability exists only where an impairment
  substantially limits a major life activity, not
  where it might, could, or would be
  substantially limiting if corrective measures
  were not taken
• Sutton v. United Air Lines

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Americans with Disabilities Act of 1990

• Employers required to make reasonable
  accommodation
• Modifying facilities to make them accessible
• Changing work schedules
• Adjusting training materials
• What makes an accommodation reasonable?
• Its not economically prohibitive
• It doesnt interfere with core job tasks
• It doesnt put the public at risk
• No blind pilots or bus drivers no sociopaths in
  security jobs
• Remember drinking on the job is still something
  you can fire someone for!

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A Direct Threat Justification for Employment
Exclusion

• Significant risk
• An employees yelling I'm going to get that
  supervisor may not qualify as a significant risk
  if the remark was made in passing during a time
  of particular frustration and there is no
  previous pattern of violent behavior from the
  employee.
• Substantial harm
• The prospect of small damage would not seem to
  qualify as substantial harm.
• Health or safety
• The direct threat provisions apply not just to
  safety, but also to health. If an employee
  carelessly handles toxic substances in ways that
  carry a significant risk of substantial harm, the
  employee might be considered as presenting a
  direct threat.
• Individual or others
• A worker who presents a significant risk of
  substantial harm to himself or herself but poses
  little danger of harming others can still be
  considered as constituting a direct threat.
• Cannot be eliminated or reduced by reasonable
  accommodation
• The employer could be required to collaborate
  with the employee in seeking ways to reduce the
  chances of the employee committing harm.

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Reasonable Accommodation Case Cassidy v. Detroit
Edison

• From 1988 to October 1994, Cassidy experienced
  numerous allergic reactions from exposure in her
  work environment to cleaning chemicals, diesel
  fumes, food odors, paint fumes, and smoke.
• Detroit Edison scheduled her for straight day
  shifts, allowed her to leave when a known
  allergen would be present, tested the area to
  comply with environmental air standards, etc.
• When this did not alleviate her allergies, she
  was discharged because no job could be found that
  was acceptable for her
• The court found that this discharge was
  reasonable since the company had made consistent
  efforts to accommodate Cassidy

59
Reasonable Accommodation Case Doe v. Kohn Nast
Graf

• Plaintiff, Doe was discharged because he had
  contracted HIV, which substantially limited his
  ability to pursue a normal sex life or have
  children
• Defendant says this is not an ADA claim because
  HIV does not affect the plaintiffs ability to
  work as a lawyer
• However, because HIV also caused lymphatic
  swelling, skin rashes, and dramatic physical
  changes in weight
• Finally, the law does not specifically say that
  the disability needs to affect major work
  activities, but rather, that it needs to affect
  major life activities, so even non-work factors
  would qualify

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A Broad Statement of What is NOT Covered

• No matter how medieval a firms practices, no
  matter how high-handed its decisional process, no
  matter how matter how mistaken the firms
  managers, if the discrimination is not because
  of race, religion, sex, national origin,
  citizenship, age, or disability, the law does not
  interfere
• Pollard v. Rea Magnet Wire Co. (7th Cir., 1987)

61
Dont Take this the Wrong WayLimitations on the
ADA

• The ADA protects those who are able to do the
  job.
• Christopher Bell, attorney (who is blind) who
  helped with drafts of the ADA
• If someone is dangerous or acts out in the
  workplace, employers can discharge that person.
  Mental illness is not a defense. Its just like
  drinking on the job,
• Robert Dinerstein, professor of law, Washington
  College of Law at American University
• Source Workforce, December 2000, Vol. 79, No.
  12, pp. 40-46

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Reasonable Accommodations are Usually Quite
Reasonable

• The Job Accommodation Network reports that 80
  percent of the accommodations it suggests cost
  less than 500.
• It isnt the cost of accommodations, its the
  cost of litigation that hurts small firms.
  Remodeling a bathroom for wheelchair access can
  cost between 300 and 3,000, and adding a
  concrete ramp in lieu of stairs costs about
  1,000 per step.
• Mary Leon, spokesperson for the National
  Federation of Independent Businesses.
• Source Workforce, December 2000, Vol. 79, No.
  12, pp. 40-46

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Emerging Issues in What Constitutes a Protected
Class

• Sexual orientation
• Major legal issues
• Employment non-discrimination act (ENDA)
• Domestic partner benefits
• Extreme controversy
• Cracker Barrels termination policy
• Disneys domestic partner policy and the ensuing
  boycott
• Executive branch employment (Clinton executive
  order)
• Proof for Beckers theory?
• American Express and competitive advantage
• 100 Best Companies to work for and HRC HRC quotes

64
State Variation in Legal Coverage for Sexual
Orientation
Dark green-sexual orientation gender identity
covered Pale green-sexual orientation covered
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Spotlight on Floridas ENDA Regulations

• Current coverage
• Pensacola
• Gainesville
• Orlando
• Tampa/St. Pete
• Sarasota
• Palm Beach
• Broward county
• Miami-Dade county

• Not covered
• Jacksonville
• Tallahassee
• Ft. Meyers

66
Emerging Issues in What Constitutes a Protected
Class

• Weight discrimination
• Discriminatory attitudes found in empirical
  research
• Believed to be lacking self-discipline or lazy
• This does not appear to differ by gender
• Studies show they are less preferred in job
  interviews
• Weight is trumped by qualifications
• Weight is more linked to discrimination for sales
  jobs
• Facilities may be difficult to access for the
  obese
• Is this a disability?
• Physical impairments must substantially limit
  major life activities to qualify for the ADA
• The courts have generally had a threshold of 100
  or more overweight to count as a disability

67
Critical Concepts in Employment Discrimination

• Discrimination
• Employment decisions or working conditions that
  benefit members of one group compared to members
  of another
• Is there such a thing as good discrimination?
• Tort
• A claim involving civil, monetary outcomes
• Employment laws usually are torts and not crimes
• Because of this, economic damages are easier to
  deal with

68
Critical Concepts in Employment Discrimination

• Class action
• A single person or group represents the legal
  interests of a larger group
• Frequent when a large class of employees have
  been affected by the same employment decision
• Extremely high costs to employers if they lose
• Attractive to trial lawyers

69
HR in the News Class Action

• On June 22, 2004, a federal judge ruled that a
  class action could be formed including all 1.5
  million female WalMart employees from
  front-door greeters to executives
• Decision was upheld in 2007,
• Heading to the supreme court in 2011
• In 1997, Home Depot settled a bias case with
  25,000 women for 104 million 4,160 a person.

70
Critical Concepts in Employment Discrimination

• Respondeat superior/vicarious liability
• Employers are responsible for the actions of
  their agents even if unaware of agents actions
• In particular, discrimination is often a
  supervisor exercising or abusing his or her
  official position, so it is seen as acting in the
  stead of the organization
• A company is responsible for employees who
  discriminate even if it violates company policy
• What does it mean?
• Just having a policy is not sufficient
• Companies have an obligation to continually
  monitor employee behavior and provide consequences

71
Employer responsibility decided in two 1998 cases

• Faragher v. Boca Raton
• Basic story
• Beth Ann Faragher was supervised by Billy Terry,
  David Silverman, and Robert Gordon
• She and other lifeguards claimed these
  individuals engaged in uninvited and offensive
  touching, lewd remarks, and speaking of women in
  offensive terms
• Eventually, Faragher quit but never brought a
  formal complaint
• After quitting, Faragher sued the city for
  discrimination/harassment
• City had a sexual harassment policy that they
  addressed to all employees, but they did not
  disseminate the policy to all divisions under the
  Citys jurisdiction
• Importantly there was no way to bypass reporting
  to the supervisor provided in the harassment
  complaint policy
• Employer must exercise reasonable care

72
Employer responsibility decided in two 1998 cases

• Burlington Industries v. Ellerth
• Employer is liable if they knew or should have
  known
• Slowik was a mid-level manager
• Repeated boorish and offensive remarks and
  gestures
• Ellerth refused all of Slowiks advances, yet
  suffered no tangible retaliation
• She never informed anyone in authority about
  Slowiks conduct, despite knowing Burlington had
  a policy against sexual harassment.
• The supreme court didnt decide the case, but
  just noted that the employer did have an
  affirmative defense because they did have a
  potentially effective policy in place

73
Critical Concepts in Employment Discrimination

• Basic language (adapted from Title VII)
• It is unlawful for an employer to hire or
  discharge an individual with respect to
  compensation, terms, conditions, or privileges of
  employment because of protected class status
• It is also unlawful to limit, segregate, or
  classify employees or applicants for employment
  in any way which would tend to deprive an
  individual of employment opportunities because of
  protected class status
• Important point use of protected class rather
  than protected group status

74
Breaking Down Protected Classes and Groups
Protected Class Race
Protected Class Gender
Group Native Amer.
Group Asian
Group Females
Group Males
Group African
Group European
Group Pacific island
Group Etc., etc.
75
Protected Groups McDonald v. Santa Fe Trail

• Three employees (McDonald, Laird, and Jackson)
  were misappropriating 60 gallon cans of
  antifreeze. McDonald and Laird, who were White,
  were fired, while Jackson, who was
  African-American, was not.
• The unequal discipline based on race was found by
  the court was deemed discriminatory
• The congressional record around the passage of
  civil rights legislation clearly states that the
  law covers, white men and white women and all
  Americans, and create an obligation, not to
  discriminate against whites.

76
Implications

• Because there are generally no protected groups
  (with one important exception which well review
  later!), there is no such thing as reverse
  discrimination
• Case examples
• Ford settled out of course for 10.5 million for
  discriminating against white male employees
• Men file about 14.7 of all harassment claims
• While it is worth noting that white men can sue,
  it is also worth noting that there are relatively
  few cases brought by them

77
Recent Legal Landmarks

• Ricci v. DeStefano, United States Supreme Court,
  2009
• Ricci and his co-workers took a firefighter
  promotion test that was rationally designed but
  not empirically validated.
• Result showed that no African-Americans passed
  the test despite being a major proportion of the
  candidates.
• The city of New Haven threw out the results of
  the promotion test because they felt the test was
  biased and potentially opened them up to a
  lawsuit from African American firefighters.
• The SCOTUS determined (in a 5-4 verdict) that
  this was unfair discrimination against the white
  firefighters because the test wouldnt have been
  thrown out if fewer whites had passed.

78
Recent Legal Landmarks

• Webb v. City of Philadelphia U.S. District Court,
  Eastern Pennsylvania Case No. 05-5238 (June 12,
  2007)
• The Philadelphia Police Department denied a
  Muslim officer's request for permission to wear a
  traditional headpiece, or "khimar," while on
  duty.
• Summarily dismissing Kimberlie Webb's religious
  bias claims, U.S. District Judge Harvey Battle
  accepted the city's "undue hardship" defense.
• The uniform policy "has a compelling public
  purpose.
• Employment cases involving "garb-specific
  religious requests" are cropping up more
  frequently, particularly in the public sector.

79
Retaliation is Prohibited

• Civil rights laws prohibits companies from acting
  against employees who have filed suit or
  complained about discrimination
• Many employees feel stigmatized after losing a
  lawsuit and may file retaliation claims
• Burlington Northern Santa Fe Railroad v. White
  (2006) increased the scope for employees to claim
  retaliation to include several of the following
  types of activities
• Bringing an employee in for questioning after
  making a claim of discrimination
• Denial of promotions
• Changing job duties
• Denying a pay increase
• Co-worker retaliation or hostility (if condoned
  by the employer)
• Increased monitoring of an employees performance
  or activities

80
Employment Discrimination and Retaliation

• Sheila White was the only woman in her department
  of forklift operators at Burlington Northern's
  Memphis train yard.
• After only a few months on the job, White
  complained of sexual harassment by her boss she
  was suspended
• A few days after her suspension, the company told
  White she was getting transferred to track
  laborer duties, because other employees
  complained that White was given the forklift job
  over more experienced male employees
• White responded to the re-assignment by filing
  complaints with the EEOC for sexual
  discrimination and retaliation
• Approximately six months after White was moved to
  track laborer she was suspended for alleged
  insubordination

81
Employment Discrimination and Retaliation

• On Dec. 5, 2005, the U.S. Supreme Court accepted
  review in the case
• "Not every trifling event in the workplace should
  give rise to events of retaliation," said Carter
  Phillips, counsel for Burlington Northern, "If
  you are just transferred from one set of
  responsibilities to another, there are no adverse
  affects."
• Approximately two times as many claims of
  retaliatory discrimination were filed in the last
  few years than were filed a decade ago, according
  to the EEAC. For this reason, the EEAC says it
  seeks from the Court a set of uniform guidelines
  determining what constitutes retaliatory
  behavior.
• On June 22, 2006, the Court held 9-0 for White
• Justice Steven Bryer wrote We conclude that the
  anti-retaliation provision does not confine the
  actions and harms it forbids to those that are
  related to employment or occur at the workplace.
  We also conclude that the provision covers those
  (and only those) employer actions that would have
  been materially adverse to a reasonable employee
  or job applicant

82
Employment Discrimination and Retaliation

• Gomez-Perez v. Potter (decided in 2008)
• Myrna Gomez-Perez worked full-time for the United
  States Postal Service (USPS) in Dorado, Puerto
  Rico. She transferred to another office, then
  requested to return to her past position in
  Dorado. After her request was denied, she filed a
  complaint with the USPS alleging age
  discrimination. Gomez-Perez claims that after she
  filed the complaint, her supervisors retaliated
  by reducing her work hours and lodging false
  complaints against her.
• Without ruling on the specific case itself, the
  court ruled that summary judgment against her was
  not warranted and that Federal employees did have
  the right to file retaliation claims

83
Employment Discrimination and Retaliation

• CBOCS West, Inc. v. Humphries (decided in 2008)
• Herndrick Humphries, an African American, worked
  as an associate manager in a Cracker Barrel
  restaurant for three years, until Cracker Barrel
  terminated his employment on December 5, 2001 for
  violation of company policy. In August and
  October 2001, Humphries complained to his
  district manager about his general managers
  disciplinary reports, racially offensive remarks,
  and the termination of fellow employee, Venis
  Green. Humphries believes his general mangers
  disciplinary reports and the termination of Green
  were racially motivated and groundless.
• Again, the court was deciding whether he could
  use 42 U.S.C. 1981 to file a discrimination
  claim. Section 1981 protects parties from
  discriminatory treatment both at the time when
  contracts are formed, and in post-formation
  conduct. Using Section 1981 gives employees
  greater flexibility in filing claims of
  retaliation, because they will not be subject to
  the filing deadlines and limits on damages found
  in Title VII of the Civil Rights Act of 1964.

84
Critical Concepts in Employment Discrimination

• Accommodation
• Any modification or adjustment to a job or the
  work environment that will enable a qualified
  applicant or employee to participate in the
  application process or to perform essential job
  functions.
• Also includes adjustments to assure that a
  qualified individual has rights and privileges in
  employment equal to other employees.
• Although typically considered in terms of
  disability status, this applies to all protected
  classes (e.g., religion can require scheduling
  differences or adjustments to uniforms)

85
Reasonable Accommodations

• Employers required to make reasonable
  accommodation
• Modifying facilities to make them accessible
• Changing work schedules
• Adjusting training materials
• Think of examples of three reasonable
  accommodations and three unreasonable
  accommodations.

86
Reasonable Accommodations

• The ADA defines reasonable accommodation as
• (A) making existing facilities used by employees
  readily accessible to and usable by individuals
  with disabilities and
• (B) job restructuring, part-time or modified work
  schedules, reassignment to a vacant position,
  acquisition or modification of equipment or
  devices, appropriate adjustment or modifications
  of examinations, training materials or policies,
  the provision of qualified readers or
  interpreters, and other similar accommodations
  for individuals with disabilities.
• Undue hardship is "an action requiring
  significant difficulty or expense, when
  considered in light of"
• the nature and cost of the accommodation
• the overall size and financial resources of the
  facility involved

87
The Limits of Religion Cases of Undue Hardship

• Goldman v. Weinberger
• An ordained rabbi while working as a clinical
  psychologist was required to not wear a yarmulke
  while in uniform
• Because military regulations require specific
  dress (no headgear), the court found that Goldman
  had to comply
• It is also noted that the military is a special
  case because of the strict need for discipline.

• Williams v. Southern Union Gas
• Williams joined a church which forbade work on
  the Sabbath
• He work at Southern Union required him to work on
  call
• The company had to prove that accommodating this
  request was an extreme hardship if they made a
  reasonable effort to accommodate him, they were
  within their rights to discharge him.

88
How are discrimination claims processed?

• The EEOC
• Disparate treatment vs. disparate impact
• Evidencedefenses for disparate treatment
• Evidencedefenses for disparate impact

89
How do discrimination claims work?

• The Equal Employment Opportunity Commission is a
  regulatory body that oversees the enforcement of
  civil rights laws.
• Conduct initial investigation
• Issues fact finding letters
• Many cases go to arbitration these days
• Third party makes a binding decision that stays
  out of court (and out of the headlines)

90
Precipitating action
File claim with EEOC within 180 days (300 if
there is a relevant state law)
EEOC investigation
Decide case doesnt have merit (2/3 of all cases
are found to be without merit)
Attempt to enter consent decree with org.
Does org. redresses discrimination?
If not redressed, send letter to the courts
Settlement/arbitration These are cheaper to
administer and faster to complete. Some orgs.
urge such methods formally in policy manuals.
Employee files suit
Disparate treatment
Disparate impact
Defendant practices are discouraged and/or have
no consequence
Defendant practice is job-related business
necessity
Plaintiff practices are not actually job related
Plaintiff responds that the reason is a pretext
for discriminating
Ruling from the court
Appeal Usually reduces claim amount
91
Recent Legal Landmarks

• Ledbetter v. Goodyear Tire Rubber Co. U.S.
  Supreme Court 127 S.Ct. 2162 (May 29, 2007)
• A 5-4 majority of the Supreme Court held that
  employees claiming Title VII pay discrimination
  must file an EEOC complaint within 180 days of an
  adverse pay-setting decision even if subsequent
  paychecks are "infected" by discriminatory
  conduct.
• In July 2007, the House of Representatives passed
  legislation to overturn Ledbetter by restarting
  the 180-day deadline with each payment of a
  discriminatory wage. President Bush has
  threatened to veto the measure.

92
Alternative Dispute Resolution Processes

• An increasing percentage of EEO claims never
  involve a lawyer or a courtroom about 70 of EEO
  claims are settled out of court
• Employers often require employees to sign an
  agreement that disputes will be settled through
  alternative dispute resolution processes
• Is this a good idea?
• Media coverage?
• Cost?
• Timeliness?
• Repeat player advantages?

93
The EEOC Position on Mediation

• Successful mediation avoids a time consuming
  investigation and achieves a prompt resolution of
  the charge.
• The majority of mediations are completed in one
  session, which usually lasts for one to five
  hours.
• Mediators are neutral third parties who have no
  interest in the outcome. Their role is to help
  the parties resolve the charge.
• Settlement agreements secured during mediation
  are confidential and do not constitute an
  admission by the employer of any violation of
  laws enforced by the EEOC.
• Note that this refers to using the EEOC as a
  mediator, which is an alternative to other forms
  of ADR that are entirely in-house.

94
EEOC Research on Mediation

• The average time to complete mediation was 67
  days from the filing of a charge, and that the
  mediation sessions averaged 3.7 hours.
• Fifty-two percent of the mediations concluded
  with settlements and over half of these
  settlements provided for financial payments to
  the charging party.
• Most of the participants were satisfied with the
  mediation process 66 of the charging parties
  and 72 of respondents expressed satisfaction
  with the process 91 of the charging parties and
  93 of the respondents rated the process as fair.
  
• Eighty-four percent of the charging parties and
  83 of the respondents indicated that they would
  use the mediation process again, if they had a
  similar problem.

95
Alternative Dispute Resolution Processes

• Binding arbitration
• Agree to meet with a mutually agreed upon third
  party who has full contractual decision making
  power
• The arbitrator will outline the issues for both
  sides and find a reasonable compromise

• Mediation
• Agree to meet with a mutually agreed upon third
  party who has no decision making power
• This mediator will attempt to outline the issues
  for both sides and encourage structured bargaining

96
So Youre Going To CourtSome Important Issues

• Prima facie case
• Means on the face of it
• Minimum standard for a plaintiff
• Burden of Proof
• Q Do you want the burden of proof?
• A NO!
• The party with the burden is assumed to be wrong
• Example
• A professor accuses a student of plagiarism the
  professor has the burden of proof to demonstrate
  there is a problem
• The professor presents an exact copy of the paper
  turned in by another student in another section
  of the class
• The student then has the burden to prove that the
  other paper was actually a fraudulent copy of
  their work

97
Two main types of discrimination involving
personnel decisions

• Disparate treatment
• Prima facie case
• Protected class issue
• person was qualified
• was turned down (or fired, or demoted)
• job remained open (or others not in the protected
  class were treated more favorably)
• Burden of proof
• Must show intention
• Payout
• Back pay and punitive

• Adverse impact
• Prima facie case
• Disparity in outcomes from a facially neutral
  employment practice
• 4/5ths rule
• Test of statistical significance for employment
  outcomes
• Burden of proof
• Simple demonstration of differential outcomes
• Payout
• Back pay

98
Two standard defenses for disparate treatment

• Stray remarks
• Discriminatory words or phrases that do not
  result in actual discrimination in employment
• Examples include locker room talk or generic
  ethnic/gender slurs that are not pervasive
• Bona fide occupational qualifications (BFOQ)
• Legitimate criteria on which to discriminate on
  the basis of protected class status
• Only apply to qualifications that affect an
  employees ability to do the essential elements
  of the job

99
What is a BFOQ and What Is Not

• Authenticity usually protected.
• It is possible to announce gender or age
  preferences for models, actors, clergy and
  (str