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Mgmt 383


The employer is responsible for the wrongful acts of its servants or agents. ... Conduct that is not severe or pervasive enough to create an objectively hostile ... – PowerPoint PPT presentation

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Title: Mgmt 383

Mgmt 383
  • Chapter 5
  • Managing Equal Employment and Diversity
  • Fall 2008

  • Race/ethnicity
  • Age
  • Gender
  • Physical disabilities
  • Sexual orientation

The Diversity/EEO Paradox
  • Diversity recognizing differences.
  • EEO ignoring differences based on race, color,
    religion, sex, national origin, age, and

Affirmative Action
  • Recruitment of underrepresented/
  • underutilized groups.
  • Changing management attitudes.
  • Removing discriminatory obstacles (employment
    practices creating disparate impact).
  • Preferential treatment.

Developing An Affirmative Action Plan
  • Three general components under Revised Order
  • (1) Utilization Analysis
  • (2) Goals and Timetable
  • (3) An Action Plan
  • Source 41 C.F.R. Part 60-2

Affirmative Action
  • Conditions that must be met in order to be
    permissible under Title VII. Steelworkers v.
    Weber, 443 U.S. 193, 208 (1979)
  • Must be justified (remedial).
  • Cannot create an absolute bar.
  • Cannot unnecessarily trammel the rights of
    members of nonfavored groups.
  • Must be temporary in nature.

Affirmative Action
  • Failure to meet the standards provided in
    Steelworkers v. Weber will result in reverse
  • Hiring an unqualified individual simply because
    he or she is a member of an underutilized group
    will establish reverse discrimination.

Affirmative Action
  • Grutter v. Bollinger, the Supreme Court has
    declared that diversity can serve as a
    justification in college admissions.
  • Only deals with state, local, and federal
    government programs.
  • Note the applicant must still be minimally
  • This justification has not been applied to
    employment and contract award situations (yet).

Requirements for Immigrants Foreign-Born Workers
  • Visas Work Permits
  • Insure that the worker has authorization to work
    in the US
  • H-1B for professional employees (good for 6
  • L-1 for intra company transfers.
  • SSAN and employee name mismatches
  • Unreported name change.
  • Marital status change.
  • Stolen identity.
  • Clerical error.
  • Fraud (likely an illegal alien).

National Origin English-Only Rules
  • English-Only work rules
  • Must be justified.
  • Cannot create a universal prohibition.
  • Must describe consequences for noncompliance
  • Must be communicated to all employees.
  • Source Garcia v. Spun Steak, 13 F.3d 296 (9th
    Cir. 1993)

Racial/Ethnic Harassment
  • Note that in our discussion of sexual harassment,
    what applies to sex may be applied to race,
    religion, and national origin.

Categories of Sex Discrimination
  • Disparate Treatment
  • Disparate Impact
  • Sexual Harassment
  • Sex-Plus
  • Pregnancy
  • Pay Differentials

What is Sexual Harassment?
?Any unwelcome sexual advances, requests for
sexual favors, or other verbal or physical
conduct of a sexual nature constitutes harassment
when Submission to such requests is made
explicitlyor implicitly a condition of one's
employment (i.e., hiring,firing, raises,
promotions, etc.).
What is Sexual Harassment?
Submission to such conduct is used as the basis
for employment decisions. Such behavior has
the purpose or effect of "unreasonably"
interfering with an individual's performance on
the job or creating an intimidating, hostile, or
offensive work environment.
Common Examples of.Sexual Harassment.
? Unwanted physical contact, including touching,
pinching, brushing the body,
coerced sexual intercourse, or assault.? Verbal
sexual innuendoes, graphic comments
about an individual's body, jokes of a sexual
nature, suggestive comments, sexual
propositions, or threats.? Displays in the
workplace of sexually suggestive objects or
Proofs for Quid Pro Quo Sexual Harassment
1. The complaining party is a member of a
protected class. 2. The conduct of a sexual
nature was unwelcomed. The complaining party did
not encourage it by word or deed. 3. But for the
complaining party's sex, she would not have been
subjected to the unwelcomed conduct.
Proofs for Quid Pro Quo Sexual Harassment
4. The complaining party's acceptance or
rejection of the unwelcomed conduct would affect
tangible job benefits. 5. Respondeat superior.
When the employer is liable for the actions of
its agents Since tangible job benefits are
involved, only management personnel can
perpetrate quid pro quo sexual harassment.
Respondeat Superior
  • Literally, let the master answer.
  • The employer is responsible for the wrongful acts
    of its servants or agents.

Proofs for Hostile Environment
1. The complaining party is a member of a
protected class. 2. The conduct of a sexual
nature was unwelcomed. The complaining party did
not encourage it by word or deed. 3. But for
the complaining party's sex, he or she would not
have been subjected to the unwelcomed conduct.
Proofs for Hostile Environment
4. The unwelcomed conduct was so severe or
pervasive as to alter the employees conditions
of employment by creating an intimidating and
adverse work environment. 5. Respondeat
superior. The perpetrator of hostile
environment sexual harassment may be anyone
managers, coworkers, vendors, clients, customers,
It is Not a Civility Code
  • The prohibition of harassment on the basis of
    sex requires neither asexuality nor androgyny in
    the workplace it forbids only behavior so
    objectively offensive as to alter the
    conditions of the victim's employment. Conduct
    that is not severe or pervasive enough to create
    an objectively hostile or abusive work
    environment -- an environment that a reasonable
    person would find hostile or abusive -- is beyond
    Title VII's purview. Harris v. Forklift Systems,
    Inc., 510 U.S. 17, 21, citing Meritor Savings
    Bank, FSB v. Vinson, 477 U.S. 57, 67.

Recent Developments
  • Faragher v. City of Boca Raton and Burlington
    Industries v. Ellerth decided on June 26, 1998,
    created new federal guidelines for determining
    employer liability in sexual harassment
  • Oncale v. Sundowner Offshore Services, Inc.
    decided on March 4, 1998, held that same-sex
    sexual harassment is actionable under Title VII.

Employer Liability for Coworkers
  • Direct Liability for sexual harassment initiated
    by coworkers, vendors, clients, customers.
  • The employer is liable when
  • The employer knew, or should have known
    (constructive knowledge), that the sexual
    harassment was occurring and failed to take
    immediate and appropriate corrective action.
  • Sources Katz v. Dole, 709 F.2d 251 Barrett
    v. Omaha Natl Bank, 726 F.2d 424.

Employer Liability for Supervisors
  • Vicarious (Indirect, Strict) Liability for sexual
    harassment committed by supervisory personnel.
  • The employer is liable for the actions of its
    agents regardless of whether or not the employer
    knew or should have known, of its agents sexual
    harassment, even after taking prompt corrective
  • Sources Miller v. Bank of America, 600 F.2d 211
    (9th Cir. 1979).

Employer Liability
The Faragher/Ellerth Affirmative Defense
  • Faragher Ellerth permit an employer to avoid
    vicarious liability provided they can demonstrate
    a two-part affirmative defense
  • (1) The employer exercised reasonable care to
    prevent promptly correct any sexually harassing
    behavior, and
  • (2) the complaining party unreasonably failed to
    take advantage of any preventative or corrective
    opportunities provided by the employer or to
    other wise avoid harm.

Reasonable Care
  • Anti-Harassment Policy is now a necessary, though
    not sufficient, part of any affirmative defense.
  • Not only must there be a written policy, it must
  • Disseminated
  • Consistently enforced
  • Train supervisory personnel.

Unreasonably Failed
  • The second part of the defense is that employers
    must also show that the CP unreasonably failed to
    avail herself of the organizations protective
    policy procedures.
  • Show the policy was disseminated.
  • Show the policy had been enforced.
  • Show the CP was aware of the policy

What is a Manager's Responsibility?
Understand. Know your company's policies on
sexual harassment, and its complaint and
investigation procedures. Observe. 1. Be aware
of what goes on around you. 2. Be conscious of
how your subordinates interact. 3. Watch for
more subtle forms of sexual harassment and how
they may negatively affect the work and
self-esteem of some of your subordinates.
What is a Manager's Responsibility?
Model. 1. Set the example of the behavior you
expect from your subordinates. 2. Let your
subordinates know that you will take action
if a case of sexual harassment comes to your
attention. 3. Demonstrate your willingness to
discuss the issue. Investigate. Take all
allegations seriously and begin the formal
investigation process upon notification.
Company incentives to investigate
It violates federal civil rights laws. Size of
Employers Maximum Combined Punitive Work Force
and Compensatory Damages 15-200
50,000 201-300 100,000 301-500
200,000 gt500 300,000 Failure to
do so may diminish the firm's reputation.
Sex Discrimination Terms
  • Nontraditional Job - historically male jobs
    (construction, factory, mining etc.)
  • Glass Ceiling - discriminatory practices that
    prevent women from advancing to executive-level
  • Glass Walls - practices that preclude women from
    certain executive-level jobs (i.e., key line
  • Glass Elevator synonymous with glass walls.

Developments in Age Discrimination
  • Age Discrimination in Employment Act of 1967
  • Even if you replace one gt40 employee with another
    gt40 employee you can still violate the ADEA if
    the replacement was based upon age.
  • An older gt40 employee was replaced by a
    substantially younger gt40 employee. OConnor v.
    Consolidated Coin Caterers, 519 U.S. 1040 (1996).

Developments in Age Discrimination
  • Age Discrimination in Employment Act of 1967
  • General Dynamics Land Systems v. Cline, 540 U.S.
    581 (2004), the U.S. Supreme Court held that the
    ADEA only prohibits age-based discrimination
    against relatively older individuals.

Religious Discrimination
  • Religious BFOQ (702)
  • Title VII...shall not apply ... to a religious
    corporation, association, educational
    institution, or society with respect to the
    employment of individuals of a particular
    religion to perform work connected with the
    carrying on by such corporation, association,
    educational institution, or society of its
  • Source 42 U.S.C. section

Religious Accommodation
  • Religious Accommodation - In his or her rebuttal,
    the employer must show that the obligation to
    "reasonably" accommodate the employees religious
    beliefs and practices was met, or that the
    accommodation would impose an undue hardship on
    the employer.
  • By showing that the employees desired
    accommodation would impose an undue hardship, the
    accommodation becomes "unreasonable".
  • Source Chalmer v. Tulon Company of Richmond, 101
    F.3d 1012, 1019 (4th Cir. 1996).

Religious Accommodation
  • Prima facie case of religious discrimination
    based on accommodation by demonstrating that
  • (1) the individual has a bona fide belief that
    compliance with an employment requirement would
    be contrary to his religious beliefs or practice,
  • (2) the individual informed the employer of the
    conflict, and
  • (3) the individual was disciplined or discharged
    for failing to comply with the conflicting
    employment requirement.
  • Source Wilson v. U.S. West
    Communications, 58 F.3d 1337, 1340 (8th Cir.

Traditional Training Approaches to Diversity
  • Legal awareness legal implications of
  • Cultural awareness attempts to deal with
    stereotypes through discussion and exercises.
  • Sensitivity training sensitizes people to the
    differences among them and how their words and
    behaviors are perceived by others.

Diversity-Demographic Trends
  • The white population declined from 76 in 1990
    to 69 in 2003.
  • Hispanics became the largest ethnic minority
    according to the 2000 census.
  • Their growth rate was 58 for 1990 to 2003
    compared to 13 for the total US population.
  • There is a greater need for bilingual

Diversity-Demographic Trends
  • Workforce will become older (Mean age 77., men
    74.0, women, 80.7)
  • The 16 to 24 year-old group will decrease
    (fertility rate is 2.08).
  • More phased retirement.
  • A range of industries will experience shortages
    of qualified workers.
  • More disabled employee participation.

Effects of Increased Female Participation
  • More flexible work schedules.
  • More shared work.
  • More part-time work.
  • Greater variety of benefits to attract women.
  • Child care.
  • Maternity leave.
  • More job placement for spouses.
  • More sex discrimination litigation.

Effects of Ethnic Minority Participation on HRM
  • More training in English as a second language.
  • Greater demand for multilingual employees
    (especially supervisors).
  • More cultural awareness and diversity training.
  • Increased ethnic tensions in the work place,
    including minority v. minority conflict.
  • More discrimination litigation.

Effects of Ethnic Minority Participation on HRM
  • Requisite skill shortages.
  • Only 33 of immigrants have a high school
  • 800,000 to 900,000 legal immigrants arrive
  • Low skills from Mexico, Sudan, and the Balkans.
  • Inpatriates in technical skill becoming common
    (primarily India and Asia)

Effects of Ethnic Minority Participation on HRM
  • Ethnic minorities with college degrees are often
    over-represented in low demand areas and
    under-represented in high demand areas (from a
    business perspective)
  • Ethnic minority degrees are over concentrated in
  • Social work
  • Liberal arts
  • Ethnic studies

Mixed Reviews on Diversity Trainings
  • Draws attention to differences and builds walls
    rather than breaking them down.
  • Is viewed as being politically correct by
    focusing on blaming the majority group for past
    wrongs that are no longer relevant.
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