1. Attracting & Developing a Diverse Workforce (The Legal Approach) Organizational Factors
Part 5

2. The Legal Approach can be described as a “Minefield”
Laws Change Daily – new statutes passed daily by federal, state and local legislatures and regulatory agencies.
Law is Inconsistent – federal, state and local law may contradict one another.
Law is Vague – may require you to do what is “reasonable”, but that varies by situation.

3. Employment Discrimination
Occurs whenever criteria that are not job-relevant qualifications affect how an employee is treated.
Illegal discrimination exists when members of a protected class (blacks, women, persons over 40) have a lower likelihood of being recruited, selected, promoted, given merit raises, or receiving other favorable treatment, although the probability of their performing successfully on a job is about the same as it is for those not in that group.

4. Employment Discrimination occurs in two forms
Disparate TREATMENT
Disparate IMPACT
Intentional Acts
Example: A parcel delivery service does not hire female drivers
Status: illegal
Unintended Consequences
Example: A parcel delivery service hires drivers who speak English.
Status: may be illegal if it unnecessarily excludes certain groups

5. Bona Fide Occupational Qualification BFOQ
As a general rule, statutes do not restrict an employer’s right to establish BFOQ.
BFOQ = criteria that can be clearly justified as related to a person’s capacity to perform a job.

6. Bona Fide Occupational Qualification BFOQ permits legal discrimination if it is “reasonably necessary to normal operations. It might be allowed under the following conditions
A nursing home was granted a BFOQ to discriminate against male nurses aides since the majority of residents were female.
The U.S. Supreme Court held that women can be barred from working as guards in (male) maximum security prisons.
A male actor might be rejected for casting in a female role in a Broadway play.
A male might be rejected for position as a female locker room attendant at a health spa.

7. Affirmative Action vs. REVERSE DISCRIMINATION
Rationale is to enable qualified targeted groups to catch up the effects of past discrimination in the workplace.
Giving preferential treatment to targeted groups, usually by excluding better-qualified candidates who are not part of the preferred group.
Except under unusual circumstances, reverse discrimination is not legal under EEO law.

8. Ways of Avoiding Bias in the Recruitment
Step 1: Develop specific hiring criteria; make sure all interviewers and hiring managers make use of them.
Step 2. Develop specific instruments to measure the criteria.
Step 3. Train interviewers. Interviewers need to go through their own self-analysis so as to assess their own culture, norms, values, emotional intelligence, racial and gender attitudes and the like. They should go through the recruitment process, like any other new job candidate. They should even receive feedback from recruits about their skills.
Step 4. Have diverse interviewers. Because of our natural tendency to hire people like ourselves, it is crucial that women and people of color be recruiters and interviewers.
Step 5. Use a team-review approach. All parties to the process should meet as a team to review candidates, and to arrive at a team decision.
Step 6. Evaluate the recruiters in terms of their number of hires, as well as the race and gender, types of positions, and the success or failure of their recruits.

9. Employment Laws
Equal Employment Opportunity (EEO): is federally enforced by the EEOC and generally applies to all public and private organizations employing 15 or more.
Affirmative Action (AA): Organizations doing business with the federal government must also have Affirmative Action programs promoting employment opportunities for women & other minorities, including Vietnam-era veterans, the aged, and the disabled.

10. Affirmative Action
Employers holding federal contracts (above a specified $ amount) are required by federal executive order to engage in fair and affirmative employment if racial minorities, those over 40, & women are underrepresented in their workforce.
Affirmative hiring is not required by law or executive order to alleviate religious discrimination.

11. Employment Laws Title VII of the Civil Rights Act
amended by Equal Employment Opportunity Act
Civil Rights Act
1964
1972
1991
Discrimination in employment based on race, color, religion, sex, or national origin.
Reaffirms Title VII; reinstates burden of proof by employer and allows for punitive and compensatory damages.
Age Discrimination Employment Act
1967
Discrimination in employment against persons over 40; restricts mandatory retirement

12. Title VII of the Civil Rights Act does not apply to . . .
Religious corporations, associations, educational institutions, or societies can limit employment to same faith; it is illegal to discriminate on race, sex, or age.
Bona fide tax exempt private clubs.
Indian tribes insofar as they act as employers.
Elected state & local officials, their assistants, and immediate advisors.
Jobs requiring national security clearance (national origin may be basis for exclusion).

13. Employment Laws Equal Pay Act
1963
Pay differences for men and women doing equal work
Vocational Rehabilitation Act
1973
Discrimination in employment against persons based on physical or mental disability
Pregnancy Discrimination Act
1978
Discrimination in employment against pregnant workers
Americans with Disabilities Act
1990
Discrimination against a qualified individual based on disability; must provide reasonable accommodation
Family & Medical Leave Act
1993
Allows employees up to 12 weeks of unpaid leave with job guarantees for childbirth, adoption, or family illness.

14. Employment Laws Immigration Reform & Control Act
1986
1990
1996
Establishes Penalties for employers who knowingly hire illegal aliens
Applies to individuals & companies
Employer obligated to determine status of employee; can’t plead ignorance.

15. Sexual Harassment “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature”
The law lists 3 situations in which unwelcome advances need to occur for behavior to fit the legal definition.
Submission to conduct is made either explicitly or implicitly a term or condition of employment.
Submission or rejection of such conduct is use as the basis for employment decisions affecting an individual.
Conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile or offensive working environment.

16. What Must Employers Do Regarding Harassment ?
Written Policy on Harassment with clear-cut definitions, penalties for disregarding the policy, innocent or otherwise.
Communicate – classes, videos, pamphlets, etc.
Create a Reporting Process – including several different sources (supervisor, HR, Legal Counsel, CEO.
Treat All Complaints Seriously. Investigate.
Take Decisive Action – any reasonable action that will end it and prevent recurrence.
Document Every Complaint, no matter how trivial.

17. EEOC Charges & Compliance Actions
Preliminary Relief: injunction to prevent further discriminatory acts until complaint can be resolved by EEOC or courts.
Affirmative Relief: reinstating dismissed workers, ordering a promotion, seniority or other employment conditions that have been denied.
Back Pay: lost pay that would have been earned had discrimination never occurred.
Front Pay: compensates for loss of future wages that would have been earned if promotion had occurred at the time of discrimination.
Attorney’s fees: reasonable legal costs.
Compensatory and Punitive Damages: pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life.