Chapter 2

Equal Opportunity
and the Law

Part One | Introduction

Copyright 2011 Pearson Education, Inc.
publishing as Prentice Hall

PowerPoint Presentation by Charlie Cook

The University of West Alabama

Equal Employment Opportunity

19641991
Title VII of the
1964
Civil Rights Act
(EEOC)

Executive Orders
11246, 11375
OFCCP

Federal Agency
Guidelines

Pregnancy
Discrimination
Act of 1978

Equal
Employment
Opportunity

Vocational
Rehabilitation
Act of 1973

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Equal Pay Act

of 1963

Age
Discrimination in
Employment Act
of 1967

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Title VII of the 1964 Civil Rights Act

Employer cannot discriminate based on race, color,
religion, sex, or national origin.
Applies to public and private employers with 15 or more

employees.

Unlawful employment practices for an employer:

To fail or refuse to hire or to discharge an individual because of

the individuals race, color, religion, sex, or national origin.

To limit, segregate, or classify employees or applicants by their
race, color, religion, sex, or national origin such that they would
be deprived employment opportunities or employment status.

Equal Employment Opportunity Commission

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Equal Employment Opportunity

Commission (EEOC)
Established by Title VII of the 1964 Civil Rights Act.
Comprised of five members appointed by the President
for five-year terms; approved by the Senate.
Administers and enforces civil rights employment law.
Issues federal guidelines for EEO procedures to be
followed by employers.
Receives and investigates job discrimination complaints.

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Equal Employment Opportunity

199091present
Civil Rights Act of
1991

Burden of Proof
Disparate
treatment
Adverse impact

Money
Damages
Compensatory
and punitive
awards

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Mixed Motives
Motivation versus
alternative
factors

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Equal Employment Opportunity

199091present (contd)
Americans with
Disabilities Act (ADA) of
1990

Mental
impairments

Qualified
individual

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Reasonable
accommodatio
n

Employer
defenses

26

FIGURE 21

Examples of How to Provide Reasonable Accommodation

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27

Employer Obligations Under ADA

An employer must make a reasonable accommodation for a
qualified disabled individual unless doing so would result in
undue hardship.
Employers are not required to lower existing performance
standards or stop using tests for a job.
Employers may ask pre-employment questions about essential
job functions but can not make inquiries about disability.
Medical exams (or testing) must be job related.
Employers should review job application forms, interview
procedures, and job descriptions for illegal questions and
statements.
Employers should have up-to-date job descriptions that identify
the current essential functions of the job.

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Employers and ADA

Employers are not required to tolerate misconduct or
erratic performance, even if the behaviors can be
attributed to the disability.
Employers do not have to create a new job for the
disabled worker nor reassign that person to a light-duty
position for an indefinite period, unless such a position
exists.
Employers should not treat employees as if they are
disabled so that they will not be regarded as disabled
and protected under the ADA.

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29

The New ADA Amendments Act

of 2008 (ADAAA)
ADAA expanded the list of major life activities making it
easier for an employee to show his or her disability as
limiting in his or her ability to engage in a major life
activity.
Under ADAAA, an employee is considered disabled even
if he or she has been able to control his or her
impairments through medical or learned behavioral
modifications.

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210

FIGURE 22

ADA Guidelines For Managers And Employers

Do not deny a job to a disabled individual if the person is qualified and able
to perform the essential job functions.
Make a reasonable accommodation unless doing so would result in undue
hardship.
You need not lower existing performance standards or stop using tests for a
job. However, those standards or tests must be job related and uniformly
applied to all employees and candidates.
Know what you can ask applicants. In general, you may not make
preemployment inquiries about a persons disability before making an offer.
However, you may ask questions about the persons ability to perform
essential job functions.
Review job application forms, interview procedures, and job descriptions for
illegal questions and statements about health, disabilities, medical histories,
or previous workers compensation claims.
Itemize essential job functions in job descriptions. In ADA legal actions, a
central question will be what are the essential functions of the job?
Do not allow misconduct or erratic performance (including absences and
tardiness), even if that behavior is linked to the disability.
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Other Employment Acts and Laws

Genetic Information Nondiscrimination Act of 2008
(GINA)
Prohibits discrimination by health insurers and the use of genetic

information by employers in employment.

Prohibits the intentional acquisition of genetic information about
applicants and employees.
Imposes strict confidentiality requirements.

State and Local Equal Employment Opportunity Laws

Cannot conflict with federal law but can extend coverage to

additional protected groups.

The EEOC can defer a discrimination charge to state and local
agencies that have comparable jurisdiction.

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TABLE 21

Summary of Important Equal Employment Opportunity Actions

Action

What It Does

Title VII of 1964 Civil Rights Act,

as amended

Bars discrimination because of race, color, religion, sex, or

national origin; instituted EEOC.

Executive orders

Prohibit employment discrimination by employers with federal

contracts of more than $10,000 (and their subcontractors);
establish office of federal compliance; require affirmative action
programs.

Federal agency guidelines

Indicate guidelines covering discrimination based on sex,

national origin, and religion, as well as employee selection
procedures; for example, require validation of tests.

Supreme Court decisions:

Griggs v. Duke Power Co.,
Albemarle v. Moody

Rule that job requirements must be related to job success; that

discrimination need not be overt to be proved; that the burden of
proof is on the employer to prove the qualification is valid.

Equal Pay Act of 1963

Requires equal pay for men and women for performing similar
work.

Age Discrimination in
Employment Act of 1967

Prohibits discriminating against a person age 40 or over in any

area of employment because of age.

State and local laws

Often cover organizations too small to be covered by federal

laws.

Vocational Rehabilitation Act

of 1973

Requires affirmative action to employ and promote qualified

handicapped persons and prohibits discrimination against
handicapped persons.

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TABLE 21

Summary of Important Equal Employment Opportunity Actions (contd)

Action

What It Does

Pregnancy Discrimination Act of 1978

Prohibits discrimination in employment against pregnant

women, or related conditions.

Vietnam Era Veterans Readjustment

Assistance Act of 1974

Requires affirmative action in employment for veterans

of the Vietnam war era.

Ward Cove v. Antonio

Made it more difficult to prove a case of unlawful

discrimination against an employer.

Americans with Disabilities Act of 1990

Strengthens the need for most employers to make

reasonable accommodations for disabled employees at
work; prohibits discrimination.

Civil Rights Act of 1991

Reverses various U.S. Supreme Court decisions; places

burden of proof back on employer and permits
compensatory and punitive money damages for
discrimination.

ADA Amendments Act of 2008

Makes it easier for employee to show that his or her

disability substantially limits" a major life function.

Genetic Information Nondiscrimination

Act

Signed into law in May 2008, this prohibits discriminating

against employees and applicants based on their
genetic information.

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Other Considerations in
Discriminatory Practice Defenses
1. Good intentions are no excuse.
2. Employers cannot hide behind collective bargaining
agreementsequal opportunity laws override union
contract agreements.
3. Firms should react by agreeing to eliminate an illegal
practice and (when required) by compensating the
people discriminated against.

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The EEOC Enforcement Process

EEOC Claim and Enforcement
Process
1

File charge

Charge acceptance

Service of notice of charge

Investigation/fact-finding

Declaration of cause/no cause

Offer of conciliation

Notice to sue

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FIGURE 25
The EEOC
Charge-Filing
Process

Applicant or employee
files charge

EEOC advises employer of charge

and if mediation is an option
Unsuccessful
mediation
EEOC may ask employer to
submit statement of position
of employers side of story

Finds no reasonable
cause

Successful
mediation
EEOC may ask employer to
respond to request for
information (personnel files, etc.)

EEOC completes
investigation

Issues charging party

Dismissal and
Notice of Rights

EEOC may ask employer to permit

onsite visit by EEOC and to provide
information for witness interview

Finds
reasonable cause

Issues
Letter of Determination

Offers parties conciliation

Charging party may file
lawsuit in Federal Court
within 90 days

Conciliation
successful

Conciliation
fails
EEOC may decide not to litigate
EEOC may litigate
in Federal Court
within 180 days
of charge

Sends charging party

notice of Right to Sue

Party may sue

within 90 days

Note: Parties may settle at any time.

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FIGURE 26

Questions to Ask When an Employer Receives

Notice That EEOC Has Filed a Bias Claim

1. Exactly what is the charge and is your company covered by the

relevant statutes?
2. What protected group does the employee belong to? Is the
EEOC claiming disparate impact or disparate treatment?
3. Are there any obvious bases upon which you can challenge
and/or rebut the claim?
4. If it is a sexual harassment claim, are there offensive comments,
calendars, posters, screensavers, and so on, on display in the
company?
5. Who are the supervisors who actually took the allegedly
discriminatory actions and how effective will they be as potential
witnesses?

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FIGURE 27

Management Guidelines for Addressing EEOC Claims

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Addressing EEOC Claims

During the EEO Investigation
1

Conduct own investigation to get facts

Limit information supplied to EEOC

Meet with employee

Be aware of limits of EEOC authority

Give EEOC a documented position statement

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Addressing EEOC Claims (contd)

During the FactFinding Conference:

During EEOC
Determination and
Attempted Conciliation:

Official records

Review carefully

Employers attorney

Conciliate prudently

Information

Witnesses

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Diversity, Equal Employment

Opportunity, and Affirmative Action
Diversity
the variety or multiplicity of demographic features that

characterize a companys workforce, particularly in terms of

race, sex, culture, national origin, handicap, age, and religion.

Equal Employment Opportunity

Aims, through legal compliance, to ensure that anyone,

regardless of race, color, disability, sex, religion, national origin,

or age, has an equal opportunity based on his or her
qualifications.

Affirmative Action
Employers take actions, to comply legally or voluntarily, in the

recruitment, hiring, promotion, and compensation of protected

classes to eliminate the current effects of past discrimination.
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Managing Diversity
Steps in a Diversity Management
Program
1

Provide strong leadership

Assess the situation

Provide diversity training and education

Change culture and management systems

Evaluate the diversity management program

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Is the Diversity Initiative Effective?

Are there women and minorities reporting directly to
senior managers?
Do women and minorities have a fair share of job
assignments that are stepping stones to successful
careers in the company?
Do women and minorities have equal access to
international assignments?
Are female and minority candidates in the companys
career development pipeline?
Are turnover rates for female and minority managers the
same or lower than those for white male managers?

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Reverse Discrimination
Reverse Discrimination
Discriminate against non-minority applicants and employees by

protected-class quota-based systems.

Bakke v. Regents of the University of California

Race cannot be the sole deciding factor in admission decisions.

Ricci v. DeStefano
Valid test results cannot be ignored solely because higher
scoring candidates are members of the majority group.

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