Transcript Chapter Three - Florida International University

Employment Discrimination and
Staffing
Juan I. Sanchez, Ph.D.
Testing your applied knowledge: EEO
Scenario: Sarah’s Surprise is a retail chain specializing in women’s
lingerie. Sarah’s Surprise employs mostly female sale associates, but there
are also some male employees in most stores. However, male employees
are assigned to the back of the store, and are normally charged with stocking
merchandise. Because sales associates work on commission, a male
employee is complaining that his income can never match the one of his
female coworkers, because he is not allowed to work on the sales floor. He is
threatening to suit the store on the grounds of sex discrimination. Which of
the following courses of action would you recommend to this company?
I want to make
some money too!
a.
b.
c.
d.
Open up 1/3rd of the sales positions to male candidates.
Open up the sales positions to male candidates, but make sure
there are enough female employees to help customers.
Raise the base pay of stocking clerks.
Argue that the sales position is a BFOQ that calls for female
employees.
Testing your applied knowledge: EEO
I want to make
some money too!
The following answers are correct:
a.
Open up 1/3rd of the sales positions to male candidates.
b.
Open up the sales positions to male candidates, but make sure
there are enough female employees to help customers.
c.
Raise the base pay of stocking clerks.
d.
Argue that the sales position is a BFOQ that calls for female
employees.
Explanation. The company should be able to make a business case that,
when it gets to women lingerie, having sufficient female salespeople helps,
because many customers feel more comfortable buying women lingerie from
other women. However, it’d be unreasonable to close the doors to all males,
because customer preferences are not enough of a reason to declare a rigid
BFOQ. Reserving 1/3rd of the positions for males would imply making gender
a job requirement. Raising the base pay of stocking clerks ignores job worth
and it may have a negative impact on pay structures.
Theories Used in Title VII
Cases

Disparate or differential treatment—
plaintiffs must show that an employer
treats one or more members of a
protected group differently
» burden on the plaintiff to prove that the employer
intended to discriminate because of race, sex,
color, religion, or national origin
Theories Used in Title VII Cases
 Disparate
or adverse impact—plaintiffs must
show that an employer’s practices had a
disparate impact on members of the protected
group by showing that the employment
procedures (e.g., tests, interviews,
credentials) had a disproportionately negative
effect on members of a protected group
» burden begins with the plaintiff showing evidence of adverse
or disparate impact (the 80% or 4/5ths rule).
» burden shifts to the employer to produce evidence of
“business necessity” and job relatedness” for the employment
practice
» burden shifts back to the plaintiff who must show that an
alternative procedure is available that is equal to or better than
the employer’s practice and has less adverse impact
Burden of Proof in Title VII
Cases
Differential treatment
Adverse impact
plaintiff
defendant
Business necessity
Burden of proof
Testing your applied knowledge: EEO
Scenario: A cable TV company is downsizing its operations nationwide. The company is concerned that the downsizing effort may be
challenged in court on the grounds that it is discriminatory. Which
one(s) of the following courses of action would you recommend to
this cable company?
Go?
a.
b.
c.
Stay?
Make sure to terminate about the same number of individuals from
each gender and ethnic group.
Before you terminate anyone, offer separation packages to those
who wish to resign voluntarily.
Terminate approximately similar proportions of individuals across
race and gender groups.
Testing your applied knowledge: EEO
Stay?
Go?
The following answers are correct:
a.
Make sure to terminate about the same number of individuals
from each gender and ethnic group.
b.
Before you terminate anyone, offer separation packages to
those who wish to resign voluntarily.
c.
Terminate approximately similar proportions of individuals
across race and gender groups.
Explanation: The 80% or 4/5ths rule deals with ratios or proportions of
employees, not with absolute numbers, which may be misleading due to
differences in the number of individuals that exist in the various
populations (e.g., minorities outnumber non-minorities in some areas).
Offering separation packages eases the transition for those who lose their
job, and it reduces the likelihood that disgruntled ex-employees may sue
the company, but the best employees may leave –and the worst may stay!
Affirmative Action

Affirmative action—the extent to which
employers make an effort through their
personnel practices to attract, retain, and
upgrade members of the protected classes of
the 1964 Civil Rights Act or persons with
disabilities
» examples of affirmative action strategies:
– actively recruiting underrepresented groups in a firm
– changing management and employee attitudes about
various protected groups
– eliminating irrelevant employment practices that bar
protected groups from employment
– granting preferential treatment to protected groups
Affirmative Action/Diversity Programs
 Criteria
»
»
»
»
»
»
for voluntary affirmative action plans must:
be designed to eradicate old patterns of discrimination
not impose an “absolute bar” to white advancement
be temporary
not “trammel the interests of white employees”
be designed to eliminate a “manifest racial imbalance”
show preference only from a pool of equally qualified
candidates
 Involuntary
affirmative action plans may legally show
preferential treatment when the program:
» is necessary to remedy “pervasive and egregious discrimination”
» is used as a flexible benchmark for court monitoring, rather than as
quota
» is temporary
» does not “unnecessarily trammel the interest of white employees”
Testing your applied knowledge: Affirmative Action
Scenario: Occaluchee County wants to have an internal promotion in the
road maintenance area. The AA plan includes increasing female
representation in management by 20% in the next five years. The internal job
announcement requires 5 years of road maintenance experience, plus a
college degree (preferred). There are three candidates. Jane Road has 7
years of experience and a college degree. Joe Bitterways has a college
degree and 11 years of experience. Jim Deadend has 20 years of
experience, but no degree. In the panel interview, Joe Bitterways received a
rating of 5 (5 = highly qualified), Jane Road received a 4, and Jim Deadend
also a 4. Which decision(s) would you recommend to the county?
Jane Road?
a.
b.
c.
d.
Joe Bitterways?
Jim Deadend?
hire Mr. Bitterways, who is the highest scoring candidate.
hire Ms. Road.
have Mr. Bitterways and Ms. Road go through a 2nd interview.
offer the job to Mr. Bitterways and, if he doesn’t take it, offer it to
Mr. Deadend (being male is a BFOQ in road maintenance).
Testing your applied knowledge: Affirmative Action
Jane Road?
Joe Bitterways?
Jim Deadend?
The correct answer is:
a.
hire Mr. Bitterways, who is the highest scoring candidate.
b.
hire Ms. Road.
c.
have Mr. Bitterways and Ms. Road go through a 2nd interview.
d.
offer the job to Mr. Bitterways and, if he doesn’t take it, offer it to
Mr. Deadend (being male is a BFOQ in road maintenance).
Explanation: The differences in years of experience and interview ratings do
not make these applicants significantly different from each other. The AA
goal should allow the company to give preferential treatment to the female,
especially if females were not represented among the interview panelists!
What the Future Holds

Trends in EEO
» increase in affirmative action litigation and legislation
– more state constitutional amendments or legislation
– increasing number of class-action lawsuits likely
» increase in number of ADEA cases due to an aging
workforce and the increasing proportion of workers who are
over 39
» increase in number of companies seeking employment
practices liability insurance
Testing your applied knowledge: Employment
Discrimination?
Consider the following salary figures for a retail chain.
Based on these data, is this employer managing the risk of
a discrimination lawsuit adequately?
Position Average earnings
Store manager
Co-manager
Asst. manager
Mgt. trainee
Cashier
Women
$89,300
$56,300
$37,300
$22,400
$13,800
Men
$105,700
$59,500
$39,800
$23,200
$14,500
%Women
14%
22.8%
35.7%
41.3%
92.5%
a. Yes, the data show no adverse impact by gender.
b. No, the data show adverse impact by gender.
c. Can’t tell based on just these data
%Men
86%
77.2%
64.3%
58.7%
7.5%
Testing your applied knowledge: Employment
Discrimination?
Position Average earnings
Store manager
Co-manager
Asst. manager
Mgt. trainee
Cashier
Women
$89,300
$56,300
$37,300
$22,400
$13,800
Men
$105,700
$59,500
$39,800
$23,200
$14,500
%Women
14%
22.8%
35.7%
41.3%
92.5%
%Men
86%
77.2%
64.3%
58.7%
7.5%
a. Yes, the data show no adverse impact by gender.
b. No, the data show adverse impact by gender.
c. Can’t tell based on just these data
Explanation: Without data on the number of applicants,
it’s difficult to make a judgment. However, these data
violate the 4/5ths or 80% rule, and therefore they may
suffice to shift the burden of proof to the employer.