The management of EEO practices will continue to play a key role in the performance of organizations in the years to come. Facing a number of laws and regulations, it is critical for HRM to make sure that their organizations avoid discriminatory practices. While avoiding discriminatory practices is a major charge of top management, oftentimes they have not established an organizational culture that
encourages EEO and discrimination may result.
One can well imagine the confusion resulting from the tangle of laws and executive orders. Many
organizations and individuals still have difficulty understanding what is meant by discrimination despite the efforts of the EEOC in publishing procedures like the Uniform Guidelines on Employee Selection and other efforts to further clarify related laws and regulations. It is not unusual for many to still have difficulty answering questions like: How would you know if you had been discriminated against? or How do you know if your organization does discriminate? Are
the organization’s EEO practices operating properly? Discrimination is a complex or multifaceted issue.
It is often not easy to determine the extent to which unfair discrimination affects an employer’s decision.
The answer to such questions might lie in a better understanding of the concept of disparate impact.
Disparate Impact
What is disparate impact? In order for individuals to claim discrimination, they must establish that
selection procedures resulted in a disparate or adverse impact on a protected class. Disparate impact may be defined as the rejection of a higher percentage of a protected class for employment, placement, or promotion. Up until the Wards Cove Packing v. Antonio decision in 1989, a person who felt
unintentionally discriminated against needed only establish a prima facie case of discrimination: This meant showing that the employer’s selection procedures had an adverse impact on a protected minority group. “Adverse impact” refers to the total employment process that results in a significantly higher percentage of a protected group in the candidate population being rejected for employment, placement, or promotion. (For example, if 80 percent of the male applicants passed the test, but only 20 percent of the female applicants passed, a female applicant would have a prima facie case showing adverse
impact.)
Then, once the employee had established a case (such as in Wards Cove Packing), the burden of proof shifted to the employer. It became the employer’s task to prove that any test, application blank,
interview, or other hiring procedure was a valid predictor of performance on the job (and that it was applied fairly and equitably to both minorities and nonminorities).
Wards Cove changed this situation. Before Wards Cove, a plaintiff might just show statistically that all clerical jobs were filled by women and all higher level jobs by men. Then the employer had to prove its hiring practices (such as a test) were nondiscriminatory. After the Wards Cove decision, the burden of proof switched to the plaintiff or employee. So much heat was generated by this decision that some claim Wards Cove was a major factor in adding to the passage of the CRA of 1991, which moved things back to a tougher standard. As this illustrates, the job of keeping up never ends.
Proving disparate impact. Because the burden of proof is shifted to the plaintiff or employee, it means the plaintiff must prove her or his case. There are four basic approaches that can be used. These are the
“four-fifths rule,” restricted policies, population or geographic comparisons, and statistical tests, or what some referred to as the “McDonnell-Douglas test.” It should be noted that each of these “tests’’ is
simply an indicator that risky practices may have occurred. It is up to some judicial body to make the final determination.
1. The four-fifths rule (or disparate rejection rates). This is one of the first measures of determining potentially discriminatory practices. This involves comparing the rejection rates between a minority group and another group. Issued by the EEOC, in its Uniform Guidelines on Employee Selection Procedures, the four-fifths rule serves as a basis for determining if an adverse impact has occurred.
Of course, the four-fifths rule is not a definition of discrimination. It is, however, a practical device to keep the attention of the enforcement agencies on serious discrepancies in hiring and promotion rates, or other employment decisions.
2. Restricted policy. This approach means demonstrating that the employer has (intentionally or unintentionally) been using an HRM selection policy that excludes members of a protected group.
Evidence of restricted policies is evidence of adverse impact. For instance, assume a company is downsizing and laying off an excessive number of employees who are over age 40.
Simultaneously, however, the company is recruiting for selected positions on college campuses only. Because of economic difficulties, the company wants to keep salaries low by hiring people just entering the workforce. Those over age 39, who were making higher salaries, are not given the opportunity even to apply for these new jobs. By these actions, a restricted policy has occurred:
That is, through its hiring practice (intentional or not), a class of individuals (in this case, those protected by age discrimination legislation) has been excluded from consideration.
3. Population (or geographical) comparisons. A third means of supporting discriminatory claims is through the use of population comparisons. This approach involves comparing the percentage of a protected class in an organization with the percentage of that protected class in the population in the surrounding community. If the organization has a proper mix of individuals at all levels in the organization that reflects its recruiting market, then the organization is in compliance. Additionally, that compliance may assist in fostering diversity in the organization. The key factor here is the qualified pool according to varying geographic areas.
4. Statistical evidence (or McDonnel–Douglas) test. Named for the McDonnell-Douglas Corp. v.
Green 1973 Supreme Court case, this approach involves using statistical analysis to show
underrepresentation of protected groups. It is used in situations of (intentional) disparate treatment rather than (unintentional) disparate impact (for which approaches 1 to 3 above are used). For this test to be used four components must exist: (1) The individual is a member of a protected group;
(2) The individual applied for a job for which he or she was qualified; (3) The individual was rejected; and (4) The organization, after rejecting this applicant, continued to seek other applicants with similar qualifications.
If these four conditions are met, an allegation of discrimination is supported. It is up to the organization to refute the evidence by providing a reason for such action. Should that explanation be acceptable to an investigating body, the protected group member must then prove that the reason used by the
organization is inappropriate.
that the organization can use: the bona fide occupational qualification (BFOQ), the business necessity defense, or seniority systems. Any one can be used to justify an employment practice that has been shown to have an adverse impact on the members of a minority group.
Bona Fide Occupational Qualifications
The bona fide occupational qualification (BFOQ) is one defense against discriminatory charges. Under Title VII, a BFOQ is permitted where such requirements are “reasonably necessary to meet the normal operation of that business or enterprise.” As originally worded, BFOQs could be used only to support sex discrimination. Today, BFOQ coverage is extended to other categories covered (i.e., religion, age, national origin). Bona fide occupational qualifications cannot, however, be used in cases of race or color.
Bona fide occupational qualifications are a statutory exception to the EEO laws that allows employers to discriminate in certain very specific instances. The BFOQ exception is usually interpreted narrowly by the courts. As a practical matter, it is used primarily (but not exclusively) as a defense against charges of intentional discrimination based on age. Bona fide occupational qualifications are essentially a defense to a disparate treatment case based upon direct evidence of intentional discrimination and not to
disparate impact (unintentional) discrimination.
When using a BFOQ defense, the employer argues that it purposely discriminated against all members of a protected group for one of the following four reasons:
1. All or nearly all. All or nearly all of the members of that group are not capable of performing the job in question.
2. Authenticity. Examples: “Selecting only persons of Japanese heritage to work as a server in an
“authentic” Japanese restaurant; hiring only women to model women’s clothes.
3. Propriety. Example: Hiring only men to work as attendants in a men’s restroom.
4. Safety. The employment of people in a certain protected group would put the workers or others at risk.
At one time, employers attempted to justify the exclusion of women from jobs traditionally held by men by using the all or nearly all rule. For example, women were excluded from jobs that require above- average strength (e.g., police officer, firefighter, construction worker) because women are generally physically weaker than men. The courts, however, have rarely (if ever) approved this type of BFOQ defense. They mandate that each applicant be evaluated according to his or her ability. In the earlier example, the courts would require that each female applicant be evaluated based on
her own strength. This is consistent with courts generally rejecting the BFOQ defense and holding that each individual job applicant should be permitted an opportunity to demonstrate the ability to perform.
The courts have also generally rejected customer preference as a BFOQ defense.
Organizational attempts to invoke the other BFOQ defenses (authenticity, propriety, and safety) have occasionally been successful. For example, the “safety’’ defense has been successfully used in cases where organizations establish an employment age limit (e.g., the employment of applicants who are over 50 years old will not be considered). To win such a case, an employer must be able to prove the safety- related skills (e.g., vision or reaction time) diminish with age and that employing people over the maximum age would thus pose a safety risk to themselves or others (Faley, Kleinman, and Lengnick- Hall, 1984). Thus, when public safety is involved, such as with airline pilots or interstate bus drivers, age may be used as a BFOQ.
Business Necessity
The business necessity defense basically requires showing that there is an overriding business purpose for the discriminatory practice and that the practice is therefore acceptable. The Supreme Court has made it clear that business necessity does not encompass such matters as avoiding inconvenience, annoyance, or expense to the employer. It’s not easy proving that a practice is required for “business necessity.” For example, an employer can’t generally discharge employees whose wages have been garnished merely because garnishment (requiring the employer to divert part of the person’s wages to pay his or her debts) creates an inconvenience.
The focus in business necessity is on the validity of various stated job specifications and their
relationship to the work performed. Attempts by employers to show that their selection tests or other employment practices are valid represent one example of the business necessity defense. Here the employer is required to show that the test or other practice is related—in other words, that it is a valid predictor of performance on the job. Where such validity can be established, the courts have often supported the use of the test or other employment practice as a business necessity. Used in this context, the word validity basically means the degree to which the test or other employment practice is related to or predicts performance on the job. For example, in using a business necessity defense, an employer would be required to prove that the ability to lift 100 pounds is necessary in performing a warehouse job.
When a BFOQ is established, an employer can refuse to consider all persons of the protected group.
When business necessity is established, an employer can exclude all persons who do not meet
specifications, regardless of whether the specifications have an adverse impact on a protected group.
Bona Fide Seniority Systems
Finally, the organization’s bona fide seniority system can serve as a defense against discrimination charges. So long as employment decisions, like layoffs, are the function of a well-established and
consistently applied seniority system, decisions that may adversely affect protected group members may be permissible. However, an organization using seniority as a defense must be able to demonstrate the
“appropriateness” of its system.
Although three means are available for organizations themselves, the best approach revolves around job- relatedness. BFOQ and seniority defenses are often subject to great scrutiny and at times are limited in their use.
Additional Considerations in Providing Defenses for Discriminatory Practices
There are three other points to stress in regard to defending against charges of discrimination. First, good intentions are no excuse. As the Supreme Court held in the Griggs case: “Good intent or absence of discriminatory intent does not redeem procedures or testing mechanisms that operate as built-in headwinds for minority groups and are unrelated to measuring job capability” (Cascio, 1978, p. 5).
Second, employers cannot count on hiding behind collective bargaining agreements (for instance, by claiming that the discriminatory practice is required by a union agreement). Courts have often held that EEO laws take precedence over the rights embodied in a labor contract. This isn’t iron clad, however.
For example, the U.S. Supreme Court, in its Stotts decision, held that a court cannot require retention of black employees hired under a court’s consent decree in preference to higher-seniority white employees who were protected by a bona fide seniority system. It’s unclear whether this decision also extends to personnel decisions not governed by seniority systems (Bureau of National Affairs, 1985).
Finally, remember that although a defense is often the most sensible response to charges of
discrimination, it is not the only response. When organizations are confronted with the fact that one or more of their HRM practices is discriminatory they can react by agreeing to eliminate the illegal practice and (when required) by compensating the people they discriminated against.
Other Relevant Issues
There are several other issues that are of interest to HRM staff, such as possible employer liability in failing to screen applicants in the selection process. Many managers are still unaware of their
unaccountability for the actions of employees. Negligent hiring can result in being liable for em-
ployees’ unlawful acts if the employer does not reasonably investigate their backgrounds. If, as the result of an inadequate investigation, the employee is put in a position to commit crimes harming others, the employer may be liable. Of prime importance to the question of employer liability is the nature of the job itself and its exposure to others. Many experts believe that an organization should obtain the
applicant’s written permission to conduct a thorough background investigation including references and, if appropriate, consumer credit reports (Munchus, 1992).
Sexual harassment is another issue of importance in EEO. Sexual harassment is an example of discrimination in the day-to-day treatment of employees.
Sexual Harassment
One of the more current issues in EEO is sexual harassment. Sexual harassment has long been a problem in organizations and has been held to be a violation of Title VII of the CRA of 1964. However, the
importance of sexual harassment was brought to center stage during a 1991 confirmation hearing for Supreme Court Justice Clarence Thomas. Sexual harassment is defined by the EEOC as unwelcome sexual advances in the work environment. If the conduct is indeed unwelcome and occurs with sufficient frequency to create an abusive work environment, the employer is responsible for changing the
environment by warning, reprimanding, or perhaps firing the harasser.
The courts have ruled and defined that there are two types of sexual harassment. One type of sexual harassment is quid pro quo harassment. In this case the harasser offers to exchange something of value for sexual favors. For example, a male supervisor might tell or imply to a female direct report that he will recommend her for promotion or provide her with a salary increase in exchange for sexual favors.
The other, more subtle, type of sexual harassment is the creation of a hostile work environment. For example, a group of male employees who continually make off-color jokes and lewd comments and perhaps decorate the work environment with inappropriate photographs may create a hostile work environment for a female colleague to the point where she is uncomfortable working in that job setting.
It is the organization’s responsibility to deal with this sort of problem (‘‘Is Sexual Haressment,” 1999, p.
92).
Although most sexual harassment cases involve men harassing women, many other situations of sexual harassment can be identified as well. Sometimes women harass men, and sometimes there is same sex harassment. And indeed, several recent cases involving same-sex harassment have focused new attention on this form of sexual harassment. Regardless of the pattern, however, the same rules apply: sexual harassment is illegal.
There still continues to be considerable ambiguity in particular work situations, as to whether or not illegal sexual harassment is occurring. For assessing the existence of a hostile work environment the courts typically examine questions such as:
• How frequent and severe is the behavior?
• Is the behavior threatening or humiliating?
• Is there interference with an employee’s work performance?
Despite the legislation against it and all the court decisions, sexual harassment remains a problem in the workplace, and HRM personnel and all others responsible for employment policy must develop policies to prevent its occurrence. In addition to establishing a written policy forbidding harassment,
organizations must communicate the policy and train employees. Further, efforts should include
establishment of an effective complaint procedure and the investigation of all claims in a timely manner.
Finally, managers should take remedial action to correct past harassment. While sometimes the emphasis seems to focus on laws and defensive measures, the effective HRM function knows that a proactive approach is the way to go. This proactive approach can begin with the organization updating and strengthening their anti-harassment policies to include the following components (Casey, 1999):
• Specific definitions and prohibition of sexual harassment;
• Formats for informing all employees of the sexual harassment policy;
• Strong prohibitions of retaliation for reporting allegations of harassment;
• Multiple channels for making complaints;
• Assurances of prompt investigations and appropriate remedial actions;
• Provisions for confidentiality and privacy.