Transcript Individual Competencies for Managing Diversity in the

Attracting & Developing
a Diverse Workforce
(The Legal Approach)
Organizational Factors
Part 5
The Legal Approach can be
described as a “Minefield”
• Laws Change Daily – new
statutes passed
daily by federal, state and local legislatures and
regulatory agencies.
• Law is Inconsistent – federal, state and local
law may contradict one another.
• Law is Vague – may require you to do what is
“reasonable”, but that varies by situation.
Employment Discrimination
• Occurs whenever criteria that are not jobrelevant qualifications affect how an
employee is treated.
• Illegal discrimination exists when members
of a protected class (blacks, women, persons
over 40) have a lower likelihood of being
recruited, selected, promoted, given merit
raises, or receiving other favorable treatment,
although the probability of their performing
successfully on a job is about the same as it
is for those not in that group.
Employment Discrimination
occurs in two forms
Disparate TREATMENT
Disparate IMPACT
• Intentional Acts
• Unintended
Consequences
Example: A parcel delivery
service does not hire
female drivers
Example: A parcel delivery
service hires drivers
who speak English.
Status: illegal
Status: may be illegal
if it unnecessarily
excludes certain
groups . . . .
Bona Fide Occupational Qualification
BFOQ
• As a general rule, statutes do not
restrict an employer’s right to
establish BFOQ.
• BFOQ = criteria that can be clearly
justified as related to a person’s
capacity to perform a job.
Bona Fide Occupational Qualification
BFOQ permits legal discrimination if it is
“reasonably necessary to normal operations.
It might be allowed under the following conditions
• A nursing home was granted a BFOQ to
discriminate against male nurses aides since
the majority of residents were female.
• The U.S. Supreme Court held that women can
be barred from working as guards in (male)
maximum security prisons.
• A male actor might be rejected for casting in a
female role in a Broadway play.
• A male might be rejected for position as a
female locker room attendant at a health spa.
Affirmative Action vs.
REVERSE DISCRIMINATION
Affirmative Action
Reverse Discrimination
• Rationale is to enable • Giving preferential
treatment to targeted
qualified targeted
groups, usually by
groups to catch up
excluding betterthe effects of past
qualified candidates
discrimination in the
who are not part of the
workplace.
preferred group.
Except under unusual circumstances, reverse discrimination is
not legal under EEO law.
Ways of Avoiding Bias in the Recruitment
Step 1: Develop specific hiring criteria; make sure all interviewers and hiring
managers make use of them.
Step 2. Develop specific instruments to measure the criteria.
Step 3. Train interviewers. Interviewers need to go through their own self-analysis
so as to assess their own culture, norms, values, emotional intelligence, racial
and gender attitudes and the like. They should go through the recruitment
process, like any other new job candidate. They should even receive feedback
from recruits about their skills.
Step 4. Have diverse interviewers. Because of our natural tendency to hire people
like ourselves, it is crucial that women and people of color be recruiters and
interviewers.
Step 5. Use a team-review approach. All parties to the process should meet as a
team to review candidates, and to arrive at a team decision.
Step 6. Evaluate the recruiters in terms of their number of hires, as well as the
race and gender, types of positions, and the success or failure of their recruits.
Employment Laws
• Equal Employment Opportunity (EEO):
is federally enforced by the EEOC and
generally applies to all public and
private organizations employing 15 or
more.
• Affirmative Action (AA): Organizations
doing business with the federal
government must also have Affirmative
Action programs promoting employment
opportunities for women & other
minorities, including Vietnam-era
veterans, the aged, and the disabled.
Affirmative Action
• Employers holding federal contracts (above a
specified $ amount) are required by federal
executive order to engage in fair and
affirmative employment if racial minorities,
those over 40, & women are
underrepresented in their workforce.
• Affirmative hiring is not required by law or
executive order to alleviate religious
discrimination.
Employment Laws
Title VII of the Civil
Rights Act
amended by Equal
Employment
Opportunity Act
1964
1972
Civil Rights Act
1991
Age Discrimination
Employment Act
1967
Discrimination in employment
based on race, color, religion, sex,
or national origin.
Reaffirms Title VII; reinstates
burden of proof by employer and
allows for punitive and
compensatory damages.
Discrimination in employment
against persons over 40; restricts
mandatory retirement
Title VII of the Civil Rights Act
does not apply to . . .
• Religious corporations, associations, educational
institutions, or societies can limit employment to same
faith; it is illegal to discriminate on race, sex, or age.
• Bona fide tax exempt private clubs.
• Indian tribes insofar as they act as employers.
• Elected state & local officials, their assistants, and
immediate advisors.
• Jobs requiring national security clearance (national
origin may be basis for exclusion).
Employment Laws
Equal Pay Act
1963
Pay differences for men and women
doing equal work
Vocational Rehabilitation
Act
1973
Discrimination in employment
against persons based on physical
or mental disability
Pregnancy
Discrimination Act
1978
Discrimination in employment
against pregnant workers
Americans with
Disabilities Act
1990
Discrimination against a qualified
individual based on disability; must
provide reasonable accommodation
Family & Medical Leave
Act
1993
Allows employees up to 12 weeks of
unpaid leave with job guarantees for
childbirth, adoption, or family illness.
Employment Laws
Immigration Reform &
Control Act
1986
1990
1996
Establishes Penalties for
employers who knowingly hire
illegal aliens
Applies to individuals &
companies
Employer obligated to determine
status of employee; can’t plead
ignorance.
Sexual Harassment
“Unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a
sexual nature”
The law lists 3 situations in which unwelcome advances need to
occur for behavior to fit the legal definition.
1. Submission to conduct is made either explicitly or
2.
3.
implicitly a term or condition of employment.
Submission or rejection of such conduct is use as
the basis for employment decisions affecting an
individual.
Conduct has the purpose or effect of unreasonably
interfering with an employee’s work performance
or creating an intimidating, hostile or offensive
working environment.
What Must Employers Do
Regarding Harassment ?
1. Written Policy on Harassment with clear-cut
definitions, penalties for disregarding the policy,
innocent or otherwise.
2. Communicate – classes, videos, pamphlets, etc.
3. Create a Reporting Process – including several
different sources (supervisor, HR, Legal Counsel,
CEO.
4. Treat All Complaints Seriously. Investigate.
5. Take Decisive Action – any reasonable action that
will end it and prevent recurrence.
6. Document Every Complaint, no matter how trivial.
EEOC Charges & Compliance Actions
1.
2.
3.
4.
5.
6.
Preliminary Relief: injunction to prevent further
discriminatory acts until complaint can be resolved by EEOC
or courts.
Affirmative Relief: reinstating dismissed workers, ordering a
promotion, seniority or other employment conditions that have
been denied.
Back Pay: lost pay that would have been earned had
discrimination never occurred.
Front Pay: compensates for loss of future wages that would
have been earned if promotion had occurred at the time of
discrimination.
Attorney’s fees: reasonable legal costs.
Compensatory and Punitive Damages: pecuniary losses,
emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life.