In 1995 the Supreme Court fueled the debate over affirmative action with its decision in Adarand Constructors Inc . v. Pe –a . In this case, Adarand submitted the lowest bid for a Department of Transportation job, but a minority-owned business was awarded the
HR Challenge
(continued from page 65)Hugo Rodriguez has just returned from his discussion with Gregory Inness, company presi- dent. Gregory seemed impressed with Hugo’s presentation, but he still seemed to doubt that more women and minorities would “fit in” at Reliable. Hugo had pointed out that the EEOC and the courts wouldn’t think much of this reasoning. He wondered if Gregory would take the next step in instituting an EEO plan at Reliable Insurance.
Hugo decided to be ready, just in case. He prepared an EEO program designed to focus on the areas where he felt Reliable was in the worst shape. He prepared a list of current employees, primarily in the clerical ranks, who could be promoted to underwriters and claims agents. These promotions could increase female representation in better jobs fairly quickly. They would require training, but it could be done.
To get minorities represented fairly in all categories would require special recruiting efforts. Hugo prepared a plan to increase Reliable’s recruiting efforts in all categories of employment. The plan was drawn up to protect the position of current white male em- ployees and applicants. In no case would a person be hired with fewer qualifications than white male applicants.
Luckily, Reliable was growing and was hiring more people as it expanded. Attrition would also open positions in most lower-level managerial, professional, and sales positions.
After spending quite a bit of time developing the plan, Hugo waited. When he didn’t hear from Gregory, he made an appointment to see the president.
Hugo Gregory, you recall we discussed the EEO issue. We hired Osanna, but that’s as far as our effort went. I’ve prepared an EEO . . .
Gregory Hugo, after we discussed it, I checked with the rest of the management. We feel we’re okay as is. We don’t want to upset our local workforce with an EEO plan. Now, about the pay plan for next year . . .
And that was that. Hugo took his EEO plan and placed it in a folder in his desk drawer.
Six months later, another female employee, Dot Greene, filed a complaint. The EEOC came to investigate, and the investigators indicated that Reliable had not taken the neces- sary steps to eliminate job discrimination. The company was instructed to develop an EEO plan to correct the problem.
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subcontract under a program that sets aside 5 percent of federal funding for businesses deemed “economically and socially disadvantaged.” 75 While the Court did not rule di- rectly on whether reverse discrimination had occurred, it did hold that any governmental action based on race should be subjected to strict judicial scrutiny to ensure that the per- sonal right to equal protection under the law is not infringed. The Equal Protection Clause of the 14th Amendment of the U.S. Constitution states that all citizens of the United States are to be treated equally under the law.
The Adarand decision has not affected contractors’ obligation to make good faith affir- mative action efforts. In 1995 the Department of Justice issued an opinion letter distin- guishing programs and laws such as Executive Order 11246 (which requires federal government contractors to take affirmative action) from the type of programs prone to preferences, numerical quotas, and percentages, such as that examined in Adarand.
Two other important affirmative action cases relate to the degree to which race can be used in admissions decisions at public universities. Both cases occurred in 2003 and focused on the undergraduate and law school admissions policies at the University of Michigan. In Gratz v. Bollinger ,76 the main complaint was that the undergraduate admissions policy awarded 20 points to certain minority applicants; ultimately ensuring that many of these individuals would gain admission into the university. The Supreme Court acknowledged the
university’s efforts to diversify the student body but ruled that a rigid point system went too far to achieve its diversification objectives.
In Grutter v . Bollinger ,77 the admissions criteria of the University of Michigan Law School also considered race as one of many criteria that should be considered when evaluating appli- cants. In contrast to the undergraduate admissions policy, the law school did not award points to minority applicants but rather considered race as part of a holistic evaluation of each appli- cant. The Supreme Court ruled in favor of the law school’s admission policy and supported the idea that “diversity can be a compelling state interest for public colleges and universities.” 78 At the heart of both cases is the following question: Is diversity of the student body a compelling interest that justifies taking race into account in deciding which applicants to admit? 79 Taken together, these two Supreme Court rulings supported the use of affirmative action (and race) in decision making. As a response to the high court’s rulings, voters in Michigan passed Proposal 2—Michigan Civil Rights Initiative—that amended the state con- stitution prohibiting state agencies and institutions (like the University of Michigan) from
“operating affirmative action programs that grant preferences based on race, color, ethnic- ity, national origin, or gender.” 80 Michigan is not alone in its stance against affirmative action. Nebraska, California, and Washington have amended their state constitutions to prohibit governmental employers, contractors, and educators from using race and gender preferences in decision-making and employment decisions. 81
Summary
This chapter has focused on EEO programs designed to eliminate bias in HRM programs.The role of EEO and the law as a significant force in shaping HRM policies and programs is now an accepted fact in society. The law, executive orders, and the court’s interpretations will continue to influence every phase of HRM programs and activities. This influence will become clearer as specific HRM activities are discussed in Chapters 4–17. This chapter provides only the general theme of the importance of the law in HRM. The remaining chapters will at times spell out specifically how the law affects HRM.
To summarize the major points covered in this chapter:
1. Equal employment opportunity is one of the most significant activities in the HRM function today.
2. The three main influences on the development of EEO were a. Changes in societal values.
b. The economic status of women and minorities.
c. The emerging role of government regulation.
3. Laws prohibiting employment discrimination that were discussed in this chapter include:
a. Title VII of the 1964 Civil Rights Act.
b. Executive Order 11246.
c. Age Discrimination Act.
d. Pregnancy Discrimination Act.
e. Americans with Disabilities Act of 1990.
f. Civil Rights Act of 1991.
4. Two different definitions of discrimination have been arrived at by the courts over the years:
a. Disparate treatment.
b. Disparate impact.
Chapter 3 Legal Environment of Human Resource Management: Equal Employment Opportunity 87
5. The criterion for compliance with EEO and affirmative action can theoretically be re- duced to two questions:
a. Does an employment practice have unequal or adverse impact on the groups (race, color, sex, religion, or national origin) covered by the law?
b. Is that practice job-related or otherwise necessary to the organization?
6. The government unit most responsible for enforcing EEO regulations is the U.S. Equal Employment Opportunity Commission (EEOC)—Title VII.
7. Courts are constantly interpreting the laws governing EEO. Owing to numerous appeals, an EEO complaint can take years to reach settlement.
8. EEO planning can be used as a preventive action to reduce the likelihood of employment discrimination charges and to ensure equal employment opportunities for applicants and employees.
9. Affirmative action plans may be either voluntary or involuntary. Characteristics neces- sary for a lawful voluntary plan include:
a. Implemented to eliminate discrimination.
b. Cannot trammel the rights of the majority.
c. Temporary.
d. No set-asides permitted.
Key Terms
affirmative action, p. 83 Age Discrimination in Employment Act (ADEA) of 1967, p. 76Americans with
Disabilities Act (ADA) of 1990, p. 77
Americans with Disabilities Act Amendments Act (ADAAA) of 2008, p. 78
bona fide occupational qualification (BFOQ), p. 69 Civil Rights Act of 1964, Title VII, p. 72
Civil Rights Act of 1991 (CRA 1991), p. 75 disparate impact, p. 70 disparate treatment, p. 69 Equal Employment Opportunity Commission (EEOC), p. 79
Equal employment opportunity (EEO) programs, p. 66
Equal Pay Act (EPA), p. 76 four-fifths rule, p. 70 Pregnancy Discrimination Act of 1978, p. 74 Rehabilitation Act of 1973, p. 77
retaliation, p. 71 sexual harassment, p. 72
1. For approximately 80 percent of employers, complying with ADA requirements to make “reasonable accommodation” costs $500 or less. What types of changes would fall into this category?
2. Do you believe that Muslims working in the United States need legal protection against retaliation? Why or why not?
3. When employees are discriminated against because of their age, gender, or a disability, what negative effects does this discrimination have on the organization and other employees?
4. What are the major differences between disparate treatment and disparate impact?
Explain.
5. What can managers do to minimize their chance of litigation and of being found neg- ligent with regard to sexual harassment?
Questions for
Review and
Discussion
6. Why is the decision in Griggs v. Duke Power Company considered a landmark?
7. In a workplace with a diverse workforce, how could an English-only rule create lower morale, poorer communication, and lower productivity?
8. What is meant by the term bona fide occupational qualification (BFOQ)?
9. Should the broader interpretation of what constitutes a disability under the ADA Amendments Act of 2008 be considered significant for the HRM area of an organization?
10. Affirmative action has become a political economic, and emotional issue. What are some of the reasonable arguments in favor of and opposed to affirmative action?
Objective
The purpose of this exercise is to understand the requirements for bona fide occupational qualifications (BFOQs).
Background
Title VII of the Civil Rights Act of 1964 has stated that it is unlawful for an employer to discriminate against a person in any condition of employment because of race, religion, color, national origin, or sex. As with most rules, however, there are exceptions. Regarding Title VII, one exception to the rule is termed a bona fide occupational qualification (BFOQ). With the BFOQ provision, Congress has stated that it is not unlawful to utilize certain personal characteristics in employment (such as sex) in situations where that par- ticular characteristic is necessary to meet the normal operation of the business. The BFOQ is not intended, however, to serve as a loophole for resistant organizations that want to flout the Equal Employment Opportunity Commission (EEOC) requirements. The EEOC believes that the BFOQ provision should be “interpreted narrowly” and places the burden of proof for justifying the BFOQ squarely upon the organization.
Want Ads
A number of hypothetical situations in which an organization has advertised for an employee of a particular race, color, religion, sex, or national origin are presented. In your opinion, do these particular situations warrant a BFOQ? Read each description carefully and indicate whether you think a BFOQ is warranted.
Broadway Actress Finally a chance to make it big on stage. A company needs four young, liberal-minded females to star in sophisticated adult play off Broadway. The appearance of the person to fit the part is important.
Apply in person at Off Broadway Stage Forum New York, NY
BFOQ warranted? YES___ NO___
Why? _____________________________
Warehouseman Small lumber company needs six men to replace striking warehousemen.
Job involves lifting and carrying heavy lumber products. Excellent pay and benefits.
Apply in person at
Knothole Lumber Company Bark and Splinter Streets Macon, GA
EXERCISE 3–1 Dissecting the Diagnostic Model and Its Application
Chapter 3 Legal Environment of Human Resource Management: Equal Employment Opportunity 89
BFOQ warranted? YES___ NO___
Why? ______________________________
Prison Guard Need self-confident, muscular, and experienced male facility guard. Must be able to work effectively with others in a potentially violent, dangerous environment.
Send résumé to
District Attorney for Penal System Illinois Board of Corrections Springfield, IL
BFOQ warranted? YES___ NO___
Why? ______________________________
Mechanic Large auto dealer needs several men for light mechanic work. Experienced only need apply. Must have own tools.
Apply in person at
Friendly Frank’s Foreign Imports Michigan Avenue
Evanston, IL
Digital Equipment Assembler Need females to assemble intricate computer equipment. Must have excellent hand-eye coordination and dexterity. No experience necessary—we train.
Apply in person at
Rayco Digital Equipment Co.
Third Street New Albany, IN
(The owner attended a recent convention of computer manufacturers and heard an industrial psychologist say that a number of sophisticated research studies have shown that women are much more dextrous than men and therefore make better assemblers of intricate parts and equipment.)
BFOQ warranted? YES___ NO___
Why? _____________________________
Sales Representative Large title manufacturer needs aggressive salesperson to cover Texas region. Prefer male with extensive title-selling experience.
Send résumé to Rachman Title Trans Street Houston, TX
BFOQ warranted? YES___ NO___
Why? _____________________________
Flight Attendant Regional airline needs young, attractive female to fly West Coast routes.
Must pass height and weight requirements.
Apply at Flightly Airlines Mesa Boulevard San Diego, CA
(The human resource director had conducted a study showing that the airline’s passengers—mostly male—show a strong preference for attractive female flight at- tendants. Additionally, the firm’s consulting psychologist stated that the airline cabin represents a unique environment in which the psychological needs of passengers are better attended to by females than males.)