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Dear Tutor please use you expertise in the Political Science Field of study to answer these questions. Tutor please write solution in APA format and write a thorough and complete answer. Must be two pages. Tutor please feel free to attached PDF file and outside resources please site your resources.Question 5 of 720.0 PointsExplain the purpose, the scope and enforcement of Title VII of the Civil Rights Act of 1964. What are the two types of illegal discrimination? What is required to establish a prima facie case of discrimination for each? Choose two other equal employment opportunity laws and discuss their purpose and scope as well. Are these three laws related in any way? Discuss..1em;”>CHAPTER
3
EQUAL EMPLOYMENT OPPORTUNITY
Learning Objectives
After students have read this chapter, they
should be able to:
Describe key provisions in Title VII of the Civil Rights Acts of
1964 and 1991
Show how women are affected by pay, job assignment, and career
issues in organizations.
Define the two types of sexual harassment and how employers should
respond to sexual harassment complaints.
Identify two means that organizations are using to deal with the
aging of their workforces.
Discuss how reasonable accommodation is made when managing
individuals with disabilities and differing religious beliefs.
Evaluate several arguments supporting and opposing affirmative
action.
Explain diversity management and discuss why diversity training is
important.
CHAPTER 3: EQUAL EMPLOYMENT OPPORTUNITY
Chapter
Overview
This chapter explores the concept of equal employment
opportunity. It first briefly describes
the history of Equal Employment Opportunity (EEO) in the United States
and explains protected categories, disparate treatment, and disparate impact.
Then additional EEO concepts such as business necessity and job relatedness,
bona fide occupational qualification (BFOQ), burden of proof, and
non-retaliatory practices are discussed.
Next the chapter covers the provisions of the following federal laws
that forbid discrimination in employment and/or require affirmative
action: Title VII of the Civil Rights
Act of 1964, Executive Orders 11246, 11375, 11478, and the Civil Rights Act of
1991. Also issues around managing racial issues and racial harassment are
included. Affirmative action and affirmative action plans are explained and the
debate about affirmative action is included.
Then discrimination laws and issues dealing with sex and gender are
explored. This discussion includes the topics of pregnancy discrimination,
equal pay, and sexual harassment. Issues dealing with individuals with
differing sexual orientations, nepotism, and consensual relationships at work
are also presented. The section ends with a discussion of sexual harassment
including the different types of sexual harassment, employer responses,
liability, and harassment likelihood.
The next section deals with discrimination and issues surrounding
individuals with disabilities. The Americans with Disabilities Act (ADA) is
discussed including the definition of disabled, mental disabilities, and
amendments to ADA
included in ADAAA. Genetic bias regulations including the Genetic Information
non-Discrimination Act (GINA) are presented. The section ends with a discussion
of managing disabilities in the workforce including common means of reasonable
accommodation.
The next section covers age discrimination and discusses the major
laws, the Age Discrimination in Employment Act (ADEA) and the Older Workers
Benefit Protection Act (OWBPA), and how to manage age discrimination issues.
Then religion and spirituality diversity issues are presented followed by
information regarding other discrimination issues including immigration reform,
language issues, military status, sexual orientation, appearance, and family
responsibility discrimination (FRD).
The chapter concludes with coverage of diversity training including
the components of diversity training, mixed results, and the backlash against
this type of training.
Chapter Outline
HR
Headline: Sexual Harassment at the
United Nations
The United Nations (UN) is struggling
with sexual harassment complaints among its global staff of around 60,000
people around the world. Since many UN managers have diplomatic immunity
the organizations internal justice system is the only one employees can
use. However, the system was set up in 1946 and employs a bewildering
array of channels and processes that has resulted in many harassment cases
not being settled to anyones satisfaction. Often, when someone complains
their employment contract is not renewed when their current contract
expires and the case is ended.
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In the U.S.,
using race, gender, disability, age, religion, and certain other non-job
related characteristics as the basis for making work place decisions is
generally illegal. Doing so can be quite expensive as fines and back wages can
be awarded as well as sizable law suit settlements. It was the Civil Rights Act
of 1964 that started a legislative movement toward leveling the playing field
in employment. Initially focused on race, gender, and religion other
characteristics such as age, pregnancy, and disabilities were added. Perhaps
nothing has had the impact of Equal Employment Opportunity (EEO) on HR during
the same period of time. Employers have paid (and continue to pay) large
amounts for violating EEO laws.
I. NATURE OF EQUAL EMPLOYMENT OPPORTUNITY
(EEO)
Discrimination, which simply means recognizing differences among items or people,
may be either legal or illegal. In
employee selection, employers intentionally and legally discriminate
against those who are less qualified than others for specific job
openings. Laws have been passed to
protect individuals who share certain characteristics, such as race, age, or
gender. Various federal, state, and/or
local laws have extended protection to the following:
Race, ethnic origin, color
(including multi-race/ethnic backgrounds)
Sex/Gender (including pregnant
women)
Age (individuals over age 40)
Individuals with physical or
mental disabilities
Military experience (military
status and Vietnam-era veterans)
Religion (special beliefs and
practices)
Marital status (some states)
Sexual orientation (some states
and cities)
Those individuals within a group identified for protection under
equal employment laws and regulations are known as members of a protected category. Figure
3-1 shows the two types of illegal employment discrimination: Disparate
Treatment and Disparate Impact.
A.
Disparate Treatment Certain categories of discrimination may be illegal in the
employment situation where either (1) different standards are used to judge
different individuals, or (2) the same standard is used, but it is not related
to the individuals jobs.Disparate
treatment occurs when members of a protected category are treated
differently from others.
B. Disparate Impact-
Disparate impact occurs when members
of a protected category are substantially underrepresented as a result of
employment decisions that work to their disadvantage. The landmark case that
established the importance of disparate impact as a legal foundation of EEO law
is Griggs v. Duke Power (1971). The
Supreme Court established two major points: 1) It is not enough to show a lack
of discriminator intent if the employment tool results in a disparate impact
and 2) The employer has the burden of proving that an employment requirement is
directly job related as a business necessity. Consequently, the intelligence
test and high school diploma requirements of Duke Power were ruled not to be
related to the job. The courts have made it clear that employers must be able
to statistically prove that disparate treatment and disparate impact has not
occurred. See Appendix E for information related to these issues.
LOGGING ON:
Equal Employment Opportunity Commission this website provides details on employment discrimination facts,
enforcement statistics, and technical assistance programs .eeoc.gov/”>www.eeoc.gov
C. Equal Employment Opportunity
Concepts There are four key EEO concepts (see Figure 3-2) that have evolved as a result of court decisions, laws,
and regulatory actions to clarify how disparate impact and treatment are
interpreted.
1.
Business Necessity and Job
Relatedness –
Abusiness necessity is a practice necessary for safe and efficient
organizational operations. Educational requirements are often based on business
necessity; however, the employer must be able to defend the minimum level of
education requirement as essential to the performance of the job. In Washington v. Davis the Supreme Court ruled
that a clearly job-related test is not
illegal simply because a greater percentage of minorities or women do not
pass it.
2.
Bona Fide Occupational
Qualification (BFOQ) Title VII has a provision
that specifically states that employers may discriminate on the basis of sex,
religion, or national origin if the characteristic can be justified as a bona fide occupational qualification (BFOQ). Thus, a BFOQ is a characteristic providing a
legitimate reason why an employer can exclude persons on otherwise illegal
bases of consideration. What constitutes
a BFOQ has resulted in differing opinions in a number of court cases. Hiring
Asians as wait staff in a Chinese restaurant and hiring Catholics to serve in
certain religious-based positions in Catholic churches have been legal uses of
BFOQ.
3.
Burden of Proof – Burden of proof is
what the individuals filing suit against employers must be able to prove to
establish the existence of illegal discrimination. In EEO cases, the plaintiff
must be a protected-category member
and prove that either disparate impact
or disparate treatment existed. Once
a court rules that a preliminarycase
has been made, the burden of proof shifts to the employer. The employer then
must show that the bases for making employment-related decisions were
specifically job related and consistent with considerations of business
necessity.
4.
Non-Retaliation Employers are prohibited by EEO laws from retaliating against
individuals who file discrimination charges. Retaliation occurs when employers take punitive actions against
individuals who exercise their legal rights. This includes making a charge,
testifying, assisting, or participating in any manner in any investigation,
proceedings, or hearing. To avoid retaliation employers should train supervisors
on what is retaliation, conduct a thorough internal investigation of any
claims, and take appropriate action when any retaliation occurs.
D. Progressing Toward
Equal Employment Opportunity – Even though
there is disagreement on the best way to achieve equal employment opportunity,
there seems to be little disagreement that equal
employment (employment that is not affected by illegal discrimination) is
the goal. One approach is a blind to
differences approach that argues differences among people should be
ignored and everyone should be treated equally. The second common approach is affirmative action where employers are
urged to hire groups of people based on their race, age, gender or national
origin to make up for historical discrimination.
The HR Perspective describes an example of one age discrimination
case where the organization did not conduct a very thorough investigation of
the claim.
HR Perspective: Officer
Dirt
When a former police officer
suggested age discrimination was involved in his dismissal the Kansas City PD
investigated and decided to fight the case. It appears their investigation was
not very thorough. A jury awarded the former police officer called Officer
Dirt (because he was Older than Dirt) $700,000 in actual damages and $2
million in punitive damages. Some important lessons from this case are 1) be
thorough in the investigation and 2) dont demonize the claimant. Other employees are watching how you handle
the former employees claim and you want the current employees to believe you
are doing the right thing.
Questions for Discussion:
1.
What can an employer do to reduce the number of age discrimination
claims?
2.
Often older workers are the most satisfied and have the lowest
absenteeism and turnover rates. Why do you think this would be true? Why is
this important for an employer?
3.
Why do you think the number of age discrimination claims is increasing?
Do you think it will continue to increase as the workforce ages? Why or why
not.
II. RACE/ETHNIC/NATIONAL ORIGIN – Numerous
federal, state, and local laws address equal employment opportunity
concerns.
A. Civil Rights Act of
1964, Title VII forbids employment discrimination on the basis of race,
color, religion, sex, or national origin.
It was passed in part to bring about equality in all employment-related
decisions. The Equal Employment Opportunity Commission (EEOC) enforces the
provisions of Title VII.
1. Title VII Coverage – Most employers in the United States
must comply with the provisions of Title VII.
Compliance extends to all private employers of 15 or more persons who are
employed 20 or more weeks per year, all educational institutions, state and
local governments, public and private employment agencies, labor unions with 15
or more members, and joint labor/management committees for apprenticeships and
training. In 1980, the law was extended to include sexual harassment.
B. Executive Orders
11246, 11375, and 11478 require that employers holding federal government
contracts not discriminate on the basis of race, color, religion, national
origin, or sex. Many states have similar requirements for firms with state
government contracts. An Executive Order is issued by the
President of the United
States to provide direction to government
departments on a specific area. These
executive orders are enforced by the Office of Federal Contract Programs
(OFCCP) in the U.S. Department of Labor. Many states have similar requirements
for firms with state government contracts.
C. Civil Rights Act of
1991 – This act established important legal requirements for both employers
and employees in EEO cases. Employers
must show that a challenged employment practice is job related for the position and is consistent with business necessity. Plaintiffs bringing
discrimination charges must identify the particular employment practice being
challenged and must show that protected-class status played some role in the employers action. For
employers, this requirement means that an individuals race, color, religion,
sex, or national origin must play no role
in their employment practices. The act allows people who have been targets
of intentional discrimination based on sex, religion, or disability to receive
both compensatory and punitive damages. One key provision of the 1991 Act
relates to how U.S.
laws on EEO are applied globally.
D. Managing Racial and
National Origin Issues Employment discrimination can occur in numerous
ways, from refusal to hire someone because of race/ethnicity to treatment of
those protected category employees. Sometimes racial discrimination can be more
subtle such as using social networking sites to fill open positions when only
5% of LinkedIn users are Black and 2% are Hispanic. Discriminating against
someone because of skin color is just as illegal as discriminating based on
race. For example, if you select a light-skinned African American over
dark-skinned African Americans.
1. Racial/Ethnic
Harassment It is recommended that employers adopt policies against
harassment of any type, including ethnic jokes, vulgar epithets, racial slurs,
and physical actions. Management should quickly conduct an investigation of any
incidents and take corrective and disciplinary actions against the offending
employees.
E. Affirmative Action
-Through affirmative action employers are urged
to hire groups of people based on their race, age, gender, or national origin,
to make up for historical discrimination. Federal government contractors must
submit plans describing their attempts to narrow the gaps between the
composition of their workforces and the composition of labor markets where they
obtain employees. But affirmative action has been the subject of numerous court
cases and an ongoing political and social debate in the US and globally. Supporters offer
many reasons why affirmative action is important, while opponents argue firmly
against it. Figure 3-3 shows the
reasons given most frequently by both sides.
F. Managing Affirmative
Action Requirements – An affirmative
action plan (AAP) is a formal document that an employer compiles annually
for submission to enforcement agencies. Generally, contractors with at least 50
employees and $50,000 in government contracts annually must submit these plans.
Courts have noted that any employer may
have a voluntary AAP and some courts
have ordered employers to submit required AAPs because of past discriminatory
practices. Contents of an AAP and the policies flowing from it must be
available for review by managers and supervisors within the organization. Plans
vary in length and some are long and require extensive staff time to prepare.
1. Affirmative Action Plan
Metrics – A crucial but time-consuming part of AAPs in the analyses. The availability
analysis identifies the number of protected-class members available to work
in the appropriate labor markets in given jobs. Another major section is the utilization analysis, which identifies
the number of protected-class members employed and the types of jobs they hold
in an organization. Once all the
data have been analyzed and compared, then underutilization
statistics must be calculated by comparing the workforce analyses with the
utilization analysis. Using the underutilization data, goals and timetables for reducing the underutilization of
protected-class individuals must then be identified. Actions will be described
to recruit, hire, promote, and train more protected-class individuals. Also,
the AAP must be updated and reviewed each year to reflect changes. If an audit
of an AAP is done by the OFCCP, the employer must provide additional details
and documentation
LOGGING ON: The
Affirmative Action and Diversity Project a
resource for opinions surrounding the issues of affirmative action and its
cultural and economic aspects .aad.english.ucsb.edu/”>www.aad.english.ucsb.edu
III. SEX/GENDER DISCRIMINTION LAWS AND
REGULATIONS
A number of laws and regulations address discrimination on the bases
of sex/gender. The inclusion of sex for
protected-class status in Title VII of the Civil Rights Act of 1964 has led to
various areas of protection for women.
A. Pregnancy
Discrimination – The Pregnancy Discrimination Act (PDA) of 1978 requires
that any employer with 15 or more employees treat maternity leave the same as
other personal or medical leaves. Closely related to the PDA is the Family and
Medical Leave Act (FMLA) of 1993, which requires that individuals be given up
to 12 weeks of family leave without pay and allowed to return to their jobs on
completion of their leave (see Chapter 13 for details). The FMLA applies to
both men and women.
B. Equal Pay and Pay
Equity – The Equal Pay Act of 1963 requires employers to pay similar wage
rates for similar work without regard to gender. The jobs at issue do not have to be
identical, but they must have a similar common
core of tasks. The act does permit
pay differentials based on (1) differences in seniority, (2) differences in
performance, (3) differences in quality and/or quantity of production, and (4)
factors other than sex such as skill, effort, and working conditions. A
significant U.S. Supreme Court decision on pay discrimination was Ledbetter v. Goodyear Tire and Rubber Co.
This decision stated that the rights of workers to sue for previous years of
paid discrimination are limited. However, in 2009 Congress passed the Lilly
Ledbetter Fair Pay Actthat cancelled
the Supreme Court ruling. The new law effectively eliminates the statute of
limitations for employees to file pay discrimination claims.
Another pay-related theory
is pay equity(also known as comparable
worth). This is the idea that
pay for jobs requiring comparable levels of knowledge, skill, and ability
should be similar, even if actual job duties differ significantly. Except where state laws have mandated pay
equity for public-sector employees, U.S. federal courts generally have
ruled that the existence of pay differences between jobs held by women and jobs
held by men is not sufficient to prove that illegal discrimination has
occurred.
A major reason for the development of the pay equity idea is the
continuing gap between the earnings of women and men. For instance, in 2008 the
average annual pay of full-time women workers was 80% of that of full-time men
workers. This is an increase from 60% in 1980 as shown in Figure 3-4.
C. Sexual Harassment-
The EEOC has issued guidelines designed to curtail sexual harassment. Sexual harassment refers to actions
that are sexually directed, are unwanted, and subject the worker to adverse
employment conditions or create a hostile work environment. Sexual harassment can occur between a boss
and a subordinate, among co-workers, and when non-employees have business
contacts with employees.
D. Managing Sex/Gender
Issues The growth in the number of women in the workforce has led to more
sex/gender issues related to jobs and careers. To guard against illegal pay
inequities under the Equal Pay Act, employers should follow these guidelines:
Include everything, including
benefits, in the calculation of pay.
Make sure people know how the
pay practices work.
Base pay on the value of jobs
and performance.
Benchmark against local and
national markets
Check frequently for gender
based equity and fair pay
1. Nontraditional Jobs
– Another result of an increasing number of women in the workforce is the
movement of women into jobs traditionally held by men. The right of employers to reassign women from
hazardous jobs to others that may be lower paying because of health-related
concerns is another issue. The U.S. Supreme Court has ruled that such policies
as reproductive and fetal protection policies that apply only to women are
illegal. Figure 3-5 shows some of
the occupations in which women constitute high percentages and low percentages
of those employed.
2. The Glass Ceiling
Womens groups have alleged that women encounter a glass ceiling which refers to discriminatory practices that have
prevented women and other protected-class members from advancing to
executive-level jobs. Women have continued to make strides; however, women hold
only a small percentage of the highest-ranking executive management jobs in big
companies. By comparison, women hold much lower percentages of the same kinds
of jobs in France, Germany, Brazil, and many other global
countries. A related problem is that women have tended to advance to senior
management positions in a limited number of functional areas, such as human
resources or corporate communications, rather than in such areas as operations,
sales, or finance. Limits that keep
women from progressing in certain fields have been referred to as glass walls
or glass elevators.
3. Breaking the Glass
Some of the most common means used by employers to break the glass are as
follows:
Establishing formal mentoring
programs for women and racial/ethnic minorities.
Providing career rotation
opportunities into operations, marketing, and sales for individuals who have
shown talent in accounting, human resources, and other areas.
Increasing top management and
Board of Directors memberships to include women and individuals of color.
Establishing clear goals for
retention and progression of protected-class individuals and holding managers
accountable for achieving these goals.
Allowing for alternative work
arrangements for employees, particularly those balancing work family
work/family responsibilities.
E. Individuals with
Differing Sexual Orientations At present only a few cities and states
have laws that protect individuals with differing lifestyles or sexual
orientations from employment discrimination. Regarding individuals who have had
sex-change surgery, federal court cases and the EEOC have ruled that sex
discrimination under Title VII
applies to a persons gender at birth and does not apply to the new gender. Issues
that arise at work on sexual orientation or sex change include the reactions of
co-workers and managers and ensuring that such individuals are evaluated fairly
and not discriminated against in work assignments, raises, training, or
promotions
F. Nepotism – Many
employers have policies that restrict or prohibit nepotism, the practice of allowing relatives to work for the same
employer. Other employers require only that relatives not work directly for or
with each other or be placed in a position where potential conflicts could
occur. The courts have generally upheld anti-nepotism policies in spite of the
concern that they tend to discriminate against women more than men (because
women tend to be denied employment or leave employers more often as a result of
marriage to other employees).
G. Consensual Relationships
and Romance at Work Employers must determine whether or not they should
attempt to regulate romantic relationships between employees. Most executives,
HR professionals, and employees agree that workplace romances are risky because
they have great potential for causing conflict. They strongly agree that
romance must not take place between a supervisor and a subordinate.
H. Dealing with Sexual
Harassment Sexual harassment is a significant concern in many
organizations. As shown in Figure 3-6, individuals in many
different roles can be sexual harassers. The most frequent type of sexual
harassment involves a male in a supervisor or managerial position who harasses
a woman with his power structure. Harassment
of men by women and same sex harassment have also occurred. Court decisions have held that a persons
sexual orientation neither provides nor precludes a claim of sexual harassment
until Title VII.
I. Types of Sexual
Harassment Two basic types of sexual harassment have been defined by EEOC
regulations and by the courts:
Quid pro quo is harassment in which
employment outcomes are linked to the individuals granting sexual favors.
Hostile environment harassment exists
when an individuals work performance or psychological well being is
unreasonably affected by intimidating or offensive working conditions.
In the quid pro quo
type, an employee may be told he or she may get promoted, receive a special
raise, or be given a desirable work assignment, but only if the employee
submits to granting some sexual favors to the supervisor. Hostile environment
harassment is much more prevalent and the standards and consequences are more
varied. Court cases based on hostile environment reveal that commenting on
dress or appearance, telling jokes that are suggestive or sexual in nature,
allowing revealing photos and posters to be on display, or making continual
requests to get together after work can lead to the creation of a hostile work
environment.
As computer and
Internet technology has spread, the number of electronic sexual harassment
cases has grown. Cyber sexual harassment may occur when an employee forwards an
e-mail joke with sexual content or it may take the form of accessing
pornographic Websites at work and sharing content with other employees. Cyber
stalking, in which a person continually e-mails an employee requesting dates
and sending personal messages, is growing as instant messaging expands. Many
employers have computers equipped with scanners that screen for inappropriate
words and images.
J. Employer Responses to
Sexual Harassment Employers must be proactive to prevent sexual and other
types of harassment. Evidence of providing reasonable care to prohibit sexual
harassment would include the following components: establish a sexual
harassment policy, communicate the policy regularly, train employees and
managers on avoiding sexual harassment, and investigate and take action when
complaints are voiced. Figure 3-7
shows how sexual harassment liability determination is made.
K. Harassment Likelihood
One study found that supervisors or women with more workplace authority are
more likely to be harassed. Further research suggests that the likelihood of
men to sexually harass and the tolerance of sexual harassment vary across countries.
IV. INDIVIDUALS WITH DISABILITIES
A. Americans with
Disabilities Act (ADA)
– The Americans with Disabilities Act (ADA) in 1990 expanded the scope and
impact of laws and regulations on discrimination against individuals with
disabilities. As with Title VII of the Civil Rights Act, this law covers all
employers with 15 or more employees, is enforced by the EEOC, and applies to private
employers, employment agencies and labor unions. State government employees are
not covered by the ADA
but they can bring suits under state laws in state courts.
1. ADA and Job
Requirements – The ADA contains a number of specific requirements that deal
with employment of individuals with disabilities. The major ones include:
Essential Job Functions. Discrimination is prohibited against
individuals with disabilities who can perform essential job functions (the fundamental duties of a job) of the
position that an individual with a disability holds or desires.
Reasonable Accommodation. For persons with disabilities, employers must
make a reasonable accommodation,
which is a modification or adjustment to a job or work environment for a
qualified individual with a disability that enables that qualified individual
to have equal employment opportunity. The EEOC guidelines encourage an
interactive process between employers and individuals to determine what
appropriate reasonable accommodations are, rather than the employer solely
making that judgment.
Undue Hardship. Reasonable accommodation is restricted to
actions that do not place an undue
hardship on an employer. An undue
hardship is a significant difficulty or expense imposed on an employer when making
an accommodation for individuals with disabilities.
2. ADA
Restrictions and Medical Information The ADA contains restrictions on obtaining and
retaining medically related information on applicants and employees. The ADA prohibits employers
from rejecting an individual because of a disability and from asking job
applicants any question relative to current or past medical history until a
conditional job offer is made. The ADA also prohibits the
use of pre-employment medical exams, except for drug tests, until a job has
been conditionally offered.
B. Who
Is Disabled? – As defined by the ADA, a disabled person is someone who has a
physical or mental impairment that substantially limits life activities, who
has a record of such impairment, or who is regarded as having such impairment. Figure 3-8shows the most frequent
disabilities identified in ADA
charges. The ADA
does not protect current users of illegal drugs and substances, but it does
protect those who are recovering addicts.
1. Mental Disabilities
A mental illness is often more difficult to diagnose than physical
disabilities. Employers must be careful
when considering emotional or mental health factors such as depression when
making employment-related decisions and must not stereotype individuals with
mental disabilities, but use sound medical information.
2. Amendments to ADA (ADAAA) Congress passed amendments to the ADA effective in 2009
that over ruled several key cases and regulations. The effect was to expand the
definition of disabled individuals to include anyone with a physical or mental
impairment that substantially limits one of more major life activities without
regard for the effects of measures such as medication, prosthetics, hearing
aids, etc. The definition of major life activities was also expanded.
C. Genetic Bias
Regulations – An emerging ethical issue centers on workplace genetic bias.
Medical tests have been developed that can identify an individuals genetic
markers for various diseases. The
question has arisen as to whether or not employers should be permitted to use
these tests. Employers either use genetic tests to make workers aware of
genetic problems so that medical treatment can begin or they are used to
terminate employees who may raise benefits costs and utilization rates of the
employer. Burlington Northern Santa Fe had to publicly apologize to employees
for secretly testing to determine if they were genetically predisposed to
carpal tunnel syndrome.
1. Genetic Information Nondiscrimination
Act (GINA) Congress passed GINA to limit the use of information by health
insurance plans. Employers are prohibited from collecting genetic information
or making employment decisions based on genetic information.
D. Managing Disabilities
in the Workforce Common means of reasonable accommodation are shown in Figure 3-9. Key to making reasonable
accommodation is identifying the essential job functions and then determining
which accommodations are reasonable so that the individual can perform the core
job duties.
1. Recruiting and Selecting Individuals with Disabilities – The
means used to screen individuals for positions should be reviewed. As the HR
On-The-Job indicates, questions asked in the employment process should be job
related. One common means is the use of physical abilities tests which can be
challenged as discriminatory. The physical tests must be specifically
job-related
HR On-the-Job: ADA and the Employment
Questions
The ADA
prohibits asking job applicants any questions about past or current medical or
health history until a conditional job offer is made. The offer is often based
on passing a physical or medical background check; however, any physical
requirements must be job-related. On employment applicants and interviews, the
following question is often used: Can you perform the essential functions of
the job for which you are applying with or without accommodation? The text
includes a list of questions that employers should and should not ask.
Questions for Discussion:
1.
Do you think that there will be more
employment of individuals with disabilities in the workforce in the next five
years? Why or why not?
2.
Do you think physical or mental disabilities
are the most difficult for an employer to deal with in recruiting? Explain your
rationale for your choice
3.
How should an employer deal with co-workers
that have concerns about working with an individual that has AIDS or a
life-threatening illness?
2. Employees Who Develop Disabilities- For many employers
the impact of the ADA
has been greatest on handling employees who develop disabilities, rather than
dealing with applicants with disabilities.
As the workforce ages, it is likely that more employees are likely to
develop disabilities. Employers must develop responses on handling requests
from satisfactory employees who have now developed disabilities and must be
considered for accommodations if they are to be able to continue working. Sometimes these employees can be shifted to
other jobs where their disabilities do not affect them as much. Even if the
accommodations are just for one employee, the reactions of co-workers must be
considered.
3. Individuals with Mental Disabilities It is becoming more
common for ADA
complaints to be filed by individuals with mental disabilities. Employers need
to obtain medical verification for claims of mental illnesses and consider
accommodation requests for mental disabilities in the same manner as physical
disability requests.
4. Individuals with
Life-Threatening Illnesses Individuals with life-threatening illnesses
are covered by the ADA. Individuals with leukemia, cancer, or AIDS
are all considered as having disabilities, and employers must respond to them
appropriately or face charges of discrimination. Also, all medical information
must be maintained in files separated from the general personnel files. The
medical files must have identified security procedures and limited access
procedures must be identified.
5. Management Focus on ADAAA Adaptation After ADAAA less
effort should be place on determining whether an individual is indeed disabled,
rather management should do the following: define essential functions in
advance, handle all requests for accommodation properly, interact with the
employee with good faith and documentation, and know and follow the reasonable
accommodation rules.
V. AGE AND EEO
A. Age Discrimination in
Employment Act (ADEA) – The ADEA of 1967, as amended in 1978 and 1986,
prohibits employment discrimination against all individuals age 40 or older
working for employers having 20 or more workers. As the U.S. workforce
has been aging, the number of age-discrimination cases has been increasing. As
with most EEO issues, age discrimination details are continuing to be defined
by the various courts. Recent cases suggest that the employee retains the
heavier burden for proving that the adverse employment action was taken because
of the employees age. However, employers that focus on recruiting or providing
preferential treatment of older workers do not violate the ADEA.
B.
Older Workers Benefit
Protection Act (OWBPA) The OWBPA is an amendment to the ADEA and is aimed
at protecting employees when they sign liability waivers for age discrimination
in exchange for severance packages. An early retirement package which includes
a waiver stating the employee will not sue for age discrimination if he takes
the money for early retirement must include a written, clearly understood
agreement to that effect.
LOGGING ON: Administration on Aging provides information on aging and age discrimination from government
agencies, associations, and organizations .aoa.gov/”>www.aoa.gov
C. Managing Age Discrimination One issue that has lead to
age discrimination charges is labeling older workers as overqualified for
jobs or promotions. In a number of cases, courts have ruled that the term overqualified may have been a code word
for workers being too old. Other companies are actually recruiting older
workers and are making efforts to retain current older workers. One strategy
used by some employers to retain the talents of older workers is phased retirement, whereby employees gradually
reduce their workloads and pay levels.
VI. RELIGION AND
SPIRITUALITY IN THE WORK PLACE
Title VII of the CRA identifies
discrimination on the basis of religion as illegal. Also, the employers must
make reasonable accommodation efforts
regarding an employees religious beliefs according to the Supreme Court.
Terrorist attacks have increased the complaints filed by Muslims because of
treatment or insults made by co-workers and managers. Religious cases also have
addressed the issues of beards, mustaches, and hair length and style.
A. Managing Religious
Diversity in the Workplace One way to balance the rights of employees
with differing religious beliefs is to make reasonable accommodation for
religious beliefs when assigning and scheduling work, because many religions
have differing days of workshop and holidays. Figure 3-10 indicates common areas for accommodating religious
diversity. Other potential areas of conflict between employer policies and
employee religious practices are dress, appearance, and issues related to
religious expression.
VII. MANAGING OTHER DISCRIMINATION ISSUES
A. Immigration Reform and
Control Acts (IRCA) – The Immigration Reform and Control Acts (IRCA) require
employers to obtain and inspect I-9 forms, and verify documents such as birth
certificates, passports, visas, and work permits. They can be fined if they
knowingly hire illegal aliens.
1. Visas and
Documentation Requirements – Revisions to the IRCA changed some of the
restrictions on the entry of immigrants to work in U.S. organizations, particularly
organizations with high-tech and other scarce skill areas. Among the most
common visas encountered by employers are B1 for business visitors, H-1B for
professional or specialized workers and L-1 for intra-company transfers.
Usually the employer must sponsor the workers and cannot displace U.S.
workers to hire visa holders.
B. Language Issues
Some employers have attempted to restrict the use of foreign languages in the
workplace and other employers have recognized that bilingual employees have
valuable skills and may even pay language premiums. The EEOC has issued
guidelines clearly stating that employers may require workers to speak only
English at certain times or situations, but the business necessity must be
justified.
C. Military Status and
USERRA The employment rights of military veterans and reservists have
been addressed in several laws, most notably by the Vietnam-Era Veterans
Readjustment Act of 1974 and the Uniformed Services Employment and Reemployment
Rights Act (USERRA) of 1994. Under the
USERRA employees are required to notify their employers of military service
obligations. Employees serving in the military must be provided leaves of
absence. Figure 3-11 lists some of
the common issues regarding employees on military duty.
LOGGING ON: Uniformed Services
Employment and Reemployment Rights Act (USERRA)
information on USERRA is provided .dol.gov/vets/programs/userra”>www.dol.gov/vets/programs/userra
D. Sexual Orientation
Recent battles in a number of states and communities illustrate the depth of
emotions that accompany discussions of gay rights. Some states and cities
have passed laws prohibiting discrimination based on sexual orientation or
lifestyle. Even the issue of benefits coverage for domestic partners, whether
heterosexual or homosexual, has been the subject of state and city legislation.
No laws of a similar nature have been passed at the federal level. A related
issue is dealing with transgender individuals who have had sex-change surgery. Court
cases and the EEOC have ruled that sex discrimination under Title VII only
applies to a persons gender at birth. Transvestites and individuals with other
sexual behavior disorders are specifically excluded from being considered as
disabled under the ADA
of 1990.
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