means an irresistible demand. It said the practice must not only directly foster safety and efficiency but also be essential to these goals.76Furthermore, the business purpose must be sufficiently compelling to override any racial impact. . . . 77
However, many employers have used the business necessity defense successfully. In an early case,Spurlock v. United Airlines, a minority candidate sued United Airlines. He said that its requirements that pilot candidates have 500 flight hours and college degrees were unfairly discriminatory. The court agreed that the requirements did have an adverse impact on members of the person s minority group. But it held that in light of the cost of the training program and the huge human and economic risks in hiring unqualified candidates, the selection standards were a business necessity and were job related.78
In general, when a job requires a small amount of skill and training, the courts closely scrutinize any preemployment standards or criteria that discriminate against minorities. There is a correspondingly lighter burden when the job requires a high degree of skill, and when the economic and human risks of hiring an unqualified applicant are great.79
Attempts by employers to show that their selection tests or other employment
Second, the EEOC has said that it will disapprove of such practices, so just asking the questions may draw its attention. Such questions may identify and/or adversely affect an applicant as a member of a protected group. They become illegal if a complainant can show you use them to screen out a greater proportion of his or her protected group s applicants, and you can t prove the practice is required as a business necessity or BFOQ.
Let s look now at some of the potentially discriminatory practices to avoid.82
Recruitment
WORD OF MOUTH You cannot rely upon word-of-mouth dissemination of information about job opportunities when your workforce is all (or mostly all) white or all members of some other class such as all female, all Hispanic, and so on. Doing so reduces the likelihood that others will become aware of the jobs and thus apply for them.
MISLEADING INFORMATION It is unlawful to give false or misleading information to members of any group, or to fail or refuse to advise them of work opportunities and the procedures for obtaining them.
HELP WANTED ADS Help wanted male and help wanted female ads are violations unless gender is a bona fide occupational qualification for the job. The same applies to ads that suggest age discrimination. For example, you cannot advertise for a young man or woman.
Selection Standards
EDUCATIONAL REQUIREMENTS Courts have found educational qualifications to be illegal when (1) minority groups are less likely to possess the educational qualifications (such as a high school degree) and (2) such qualifications are also not job related. However, there may be jobs of course for which educational requirements (such as college degrees for pilot candidates) are a necessity.
TESTS Courts deem tests unlawful if they disproportionately screen out minorities or women andthey are not job related. According to a former U.S. Supreme Court Chief Justice,
Nothing in the [Title VII] act precludes the use of testing or measuring procedures;
obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrating a reasonable measure of job performance.
The employer must be prepared to show that the test results are job related for instance, that test scores relate to on-the-job performance.
PREFERENCE TO RELATIVES Do not give preference to relatives of current employees with respect to employment opportunities if your current employees are substantially nonminority.
HEIGHT, WEIGHT, AND PHYSICAL CHARACTERISTICS Physical requirements such as minimum height are unlawful unless the employer can show they re job related.
For example, a U.S. Appeals Court upheld a $3.4 million jury verdict against Dial Corp.
Dial rejected 52 women for entry-level jobs at a meat processing plant because they failed strength tests, although strength was not a job requirement.83Maximumweight rules generally don t trigger adverse legal rulings. To qualify for reasonable accommodation, obese applicants must be at least 100 pounds above their ideal weight or there must be a physiological cause for their disability. However, legalities aside, managers should be vigilant.84Studies leave little doubt that obese individuals are less likely to be hired, less likely to receive promotions, more likely to get less desirable sales assignments, and more likely to receive poor customer service as customers.85
RESEARCH INSIGHT A study compared the wages of women whose weights ranged from very thin to average with the wages and salaries of men. The very thin women received the most severe wage punishment for adding their first few pounds. For example, for very thin American women, gaining 25 pounds produces an average predicted decrease in salary of approximately $15,572 per year. For women with above average weight, gaining that extra 25 pounds costs the women about $13,847.
Conversely, For men, gaining 25 pounds produced a predicted increase in wages of approximately $8,437 per year at below-average weights and a predicted increase of approximately $7,775 per year at above-average weights [to the point of obesity].86 ARREST RECORDS Unless the job requires security clearance, do not ask an applicant whether he or she has been arrested or spent time in jail, or use an arrest record to disqualify a person automatically. There are several reasons for this. Various racial minorities are more likely than whites to have arrest records.87There is always a presumption of innocence until proven guilty. And arrest records in general are not valid for predicting job performance. Thus, disqualifying applicants based on arrest records adversely impacts minorities. You can ask about conviction records. Then determine on a case-by-case basis whether the facts justify refusal to employ an applicant in a particular position.
APPLICATION FORMS Employment applications generally shouldn t contain questions about applicants disabilities, workers compensation history, age, arrest record, or U.S. citizenship. In general it s best to collect personal information required for legitimate tax or benefit reasons (such as who to contact in case of emergency) after you hire the person.88
DISCHARGE DUE TO GARNISHMENT A disproportionate number of minorities suffer garnishment procedures (in which creditors make a claim to some of the person s wages). Therefore, firing a minority member whose salary is garnished is illegal, unless you can show some overriding business necessity.
Sample Discriminatory Promotion, Transfer, and Layoff Practices
Fair employment laws protect not just job applicants but also current employees. For example, the Equal Pay Act requires that equal wages be paid for substantially similar work performed by men and women. Therefore, courts may hold that any employment practices regarding pay, promotion, termination, discipline, or benefits that
1. are applied differently to different classes of persons;
2. adversely impact members of a protected group; and
3. cannot be shown to be required as a BFOQ or business necessity are illegally discriminatory.
PERSONAL APPEARANCE REGULATIONS AND TITLE VII Employees sometimes file suits against employers dress and appearance codes under Title VII.
They usually claim sex discrimination, but sometimes claim racial or even religious discrimination. A sampling of court rulings follows:89
* Dress.In general, employers do not violate the Title VII ban on sex bias by requiring all employees to dress conservatively. For example, a supervisor s suggestion that a female attorney tone down her attire was permissible when the firm consistently sought to maintain a conservative dress style and counseled men to dress conservatively.
However, Alamo Rent-A-Car lost a case when they tried to prevent a Muslim woman employee from wearing a head scarf.
* Hair.Here, courts usually favor employers. For example, employer rules against facial hair do not constitute sex discrimination because they discriminate only between clean-shaven and bearded men, discrimination not qualified as sex bias
under Title VII. Courts have also rejected arguments that prohibiting cornrow hair styles infringed on black employees expression of cultural identification.
* Uniforms.When it comes to discriminatory uniforms and/or suggestive attire, however, courts frequently side with employees. For example, requiring female employees (such as waitresses) to wear sexually suggestive attire as a condition of employment has been ruled as violating Title VII in many cases.90
* Tattoos and body piercings.Tattoos and body piercings are an issue at work. For example, about 38% of millennials in one survey had tattoos as compared with 15% of baby boomers. About 23% of millennials had body piercings as compared with 1% of baby boomers. One case involved a waiter with religious tattoos on his wrists at a Red Robin Gourmet Burgers store. The company insisted he cover his tattoos at work; he refused. Red Robin subsequently settled a lawsuit after the waiter claimed that covering the tattoos would be a sin based on his religion.91
What the Supervisor Should Keep in Mind
The human resource manager plays a big role in helping the company avoid practices like these, but at the end of the day, the first-line supervisor usually triggers the problem. You make an ill-informed or foolish comment, and the employee is quick to sue. Even something apparently nondiscriminatory like telling a female candidate you d be concerned about her safety on the job after dark might trigger a claim.
This is therefore a good point at which to emphasize three things. First, care- fully learning this chapter s contents is important. For example,understand the questions you can and cannot ask when interviewing applicants, and know what constitutessexual harassment. There is no substitute for that knowledge. Good intentions are no excuse.
Second, the courts may hold you (not just your employer) personally liable for your injudicious actions.Management malpracticeis aberrant conduct on the part of the manager that has serious consequences for the employee s personal or physi- cal well-being, or which, as one court put it, exceeds all bounds usually tolerated by society. 92In one outrageous example, the employer demoted a manager to janitor and took other steps to humiliate the person. The jury subsequently awarded the former manager $3.4 million. Supervisors who commit management malpractice may be personally liable for paying a portion of the judgment.
Third, know that retaliationis illegal under equal rights laws. To paraphrase the EEOC, all of the laws we enforce make it illegal to fire, demote, harass, or otherwise retaliate against people because they filed a charge, complained to their employer or other covered entity about discrimination, or because they participated in a discrimination investigation or lawsuit .93 In one U.S. Supreme Court case, the employee complained to a government agency that her employer paid her less than male counterparts. Soon after the company heard about the complaint, it fired her fiancé, who also worked for the firm. Finding for the employee, the U.S. Supreme Court decision said, a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.94