Chapter Three
Implementing Equal Employment Opportunity
Chapter Learning Objectives
After studying this chapter, you should be able to:
1.Explain the role of the Employer
Information Report, EEO-1.
2.Define employment parity,
occupational parity, systemic
discrimination, underutilization,
and concentration.
Chapter Outline
EEOC Compliance
Legal Powers of the EEOC EEOC Posting Requirements Records and Reports Compliance Process Preemployment Inquiry Guide
Affirmative Action Plans
Bona Fide Occupational Qualification
(BFOQ)
Business Necessity
Sexual Harassment
Comparable Worth and Equal Pay Issues
Other Areas of Employment Discrimination
Religion
Native Americans
3.Describe an affirmative action plan.
4.Define bona fide occupational
qualification (BFOQ).
5.Explain what business necessity
means.
6.Define sexual harassment.
7.Describe the comparable worth
theory.
HIV-Positive Status
Sexual Orientation
Summary of Learning Objectives Review Questions Discussion Questions
Incident 3.1: Promotions for Lovers
Incident 3,2: Religion and Real Estate Exercise 3.1: Affirmative Action Debate Exercise 3.2: The Layoff Exercise 3.3: How Much Do You Know about Sexual Harassment? Notes and" Additional Readings On the Job: Preemployment Inquiry Guide
Web site: United States Equal Employment Opportunity Commission
As the previous chapter indicated, the legal requirements of equal employment opportunity are quite complex. Nevertheless, each organization must develop its own approach to equal employment within the legal guidelines. Chapter 3 presents the history of equal employment opportunity. Chapter 4 presents management practice issues that HR managers confront because of EEO law. Thus, this chapter provides specific information and guidelines for implementing equal employment opportunity.1
43
HRM in Action
MATERNITY STORE SETTLES PREGNANCY DISCRIMINATION AND RETALIATION LAWSUIT
A Philadelphia-based maternity clothes retailer will pay $375,000 to settle a pregnancy discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that Mothers Work, Inc., doing business as Motherhood Maternity, refused to hire qualified female applicants because they were pregnant.
According to the EEOC's lawsuit (Case No. 3:05-CV-990-J-32TEM in U.S. District Court for the Middle District of Florida, Jacksonville Division), LaShonda Burns, a former assistant manager, complained about Motherhood's policy and practice of discrimination against pregnant applicants. The EEOC said Motherhood illegally disciplined and ultimately fired Burns because it believed she was pregnant and in retaliation for her complaints.
Such alleged conduct violates the Pregnancy Discrimination Act. The EEOC filed suit after first attempting to reach a voluntary settlement, and Burns also took part in the suit with a private attorney.
The three-year consent decree settling the suit requires Motherhood to pay Ms. Burns $135,000 in compensatory and punitive damages; $50,000 in back pay; $130,000 for
Burns's private attorney's fees and costs; and $20,000 in compensatory and punitive damages to each of three women who were denied emloyment opportunities because they were pregnant—Lakevia Rollins, Aimee Tart, and Jackie Ciardiello. Motherhood mustalsoadoptand distribute an antidiscrimination policy that specifically prohibits! denying women employment opportunities because of' their pregnancy; Train all of its current and future Florida employees on the new policy and federal employment discrimination laws; post notice of resolution of the lawsuit; and report to EEOC twice annually regarding pregnancy discrimination complaints.
According to company information, Motherhood, which began its operations in 1982, employs over 5,000 people. It is the leading designer, manufacturer and retailer of-maternity fashion in the United States, with over 1,000, stores nationwide and Internet retailing. Motherhood owns leading brands including Mimi Maternity, A Pea in the Pod, and Maternitymail.com.
Source: Adopted from "Maternity Store Giant to Pay $375,000 to Settle EEOC Pregnancy Discrimination, Retaliation Lawsuit," "U.S. Fed News Service," Washington, D.C., Jan, 8, 2007.
EEOC COMPLIANCE
Web site: National Employment Lawyers Association
Web site: United States National Labor Relations Board
Employer Information Report (Standard Form 100)
Form that all employers with 100 or more employees are required to file with the EEOC; requires a breakdown of the employer's workforce in specified job categories by iauc, sca, and national origin. 44
The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), both described in the previous chapter, are the two primary enforcement agencies for equal employment opportunity. All organizations with 20 or more employees must keep records that the EEOC or OFCCP can request.
Legal Powers of the EEOC
Section 713 of Title VII (Civil Rights Act of 1964), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, the Americans with Disabilities Act (ADA) of 1990, and the Civil Rights Act of 1991 authorize the EEOC to develop and publish procedural regulations regarding the enforcement of these acts. As a result, the EEOC has issued substantive regulations (or guidelines, as they are more frequently called) interpreting Title VII, the ADEA, the Equal Pay Act, the ADA, and the Civil Rights Act of 1991. The EEOC also has enforcement authority to initiate litigation and to intervene in private litigation. HRM in Action 3.1 describes a legal action undertaken by EEOC.
EEOC Posting Requirements
Title VII requires employers, employment agencies, and labor organizations covered by the act to post EEOC-prcpared notices summarizing the requirements of Title VII, the ADEA, the Equal Pay Act, the ADA, and the Civil Rights Act of 1991. The EEOC has prepared such a poster, and a willful failure to display it is punishable by a fine of not more than $100 for each offense. Organizations subject to notice requirements by Executive Order 11246 and Title VII can display a poster meeting the requirements of both the EEOC and the OFCCP. Figure 3.1 shows a copy of this poster.
Records and Reports
Employers with 100 or more employees must annually file Standard Form 100, known as the Employer Information Report, EEO-1. Figure 3.2 shows the form. The EEO-1 report requires a breakdown of the employer's workforce in specified job categories by race, sex, and origin. Other, similar types of forms are required of unions, political jurisdictions,
Chapters Implementing Equal Employment Opportunity 45
FIGURE 3.1 EEOC Poster
Equal Employment Opportunity is
THE LAW
Employers ^Holding Federal Contracts or Subcontracts
Applicants to and employees of companies with a Federal government contract or subcontract are protected under the following federal authorities:
RACE, COLOR, RELIGION, ,5EX, NATIONAL ORIGIN
Executive Order I 1246, as amended, prohibits job discrimination on the basis of race, color, religion, sex or national origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment.
INDIVIDUALS WITH DISABILITIES
Section 503 of the Rehabilitation Act of I973, as amended, prohibits |ob discrimination because of disability and requires affirmative action to empfoy and advance in employment qualified individuals with disabilities who, with reasonable accommodation, can perform the essential functions of a job.
VIETNAM ERA, SPECIAL DISABLED, RECENTLY SEPARATED, AND OTHER PROTECTED VETERANS
38 U.S.C. 4212 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, prohibits job discrimination and requires affirmative action to employ and advance in employment qualified Vietnam era veterans, qualified special disabled veterans, recently separated veterans, and other protected- veterans.
Any person who believes a contractor has violated its nondiscrimination or affirmative action obligations under the authorities above should contact immediately:
The Office of Federal Contract Compliance Programs (OFCCP), Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W, Washington, D.C. 20210 or call
(202) 49J-0 I 0 I, or an OFCCP
regional or district office, lisivJ m
most telephone directories under U.S. Government. Oeoartment of Labor.
Private Employment, State and Local Governments, Educational Institutions
Applicants to and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are protected under the following Federal laws:
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN
Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of empfoyment, on the basis of race, color, religion, sex or national origin.
DISABILITY
The Americans with Disabilities Act of 1990, as amended, protects
qualified applicants and employees with disabilities from discrimination in hiring, promotion, discharge, pay, job training, fringe benefits, classification, referral, and other aspects of employment on the basis of disability. The Saw also requires that covered entities provide qualified applicants and employees with disabilities with reasonable accommodations that do not impose undue hardship.
AGE
The Age Discrimination in Employment Act of 1967, as amended, protects applicants and employees 40 years of age or older from discrimination on the basis,of age in hiring, promotion, discharge, compensation, terms, conditions or privileges of employment.
SEX (WAGES)
in addition to sex discrimination prohibited byTitleVH of the Civil Rights Act of 1964, as amended (see above), the Equal Pay Act of 1963, as amended, prohibits sex discrimination in payment of wages to women and men performing substantially equal work in the same establishment.
Retaliation against a person who files a charge of discrimination,
participates in an investigation, or opposes an unlawful employment practice is prohibited by all of these Federal laws.
If you believe that you have been discriminated against under any of the above laws, you should contact immediately:
The U.S. Equal Employment Opportunity Commission (EEOC), 1801 L Street, N.W.,Washington, D.C. 20507 or an EEOC field office by calling toll free (800) 669-4000. For individuals with hearing impairments, EEOC's toll free TDD number is (800) 669-6820.
Programs or Activities Receiving Federal Financial Assistance
RACE.COLOR, RELIGION, NATIONAL ORIGIN, SEX
In addition to the protection of Title VII of the Civil Rights Act of 1964, as amended, Title VI of the Civil Rights Act prohibits discrimination on the basts of race, color or national origin in programs or activities receiving Federal financial assistance. Employment discrimination is covered by Title VI if the primary objective of the financial assistance is provision of empioyment, or where employment discrimination causes or may cause discrimination in providing services under such programs. Title IX of the Education Amendments of 1972 prohibits employment discrimination on the basis of sex in educational programs or activities which receive Federal assistance.
INDIVIDUALS WITH DISABILITIES
Sections SO 1, 504 and 505 of the
Rehabilitation Act of 1973, as amended, prohibits employment discrimination on the basis of disability in any program or activity which receives Federal financial assistance in the federal government. Discrimination is prohibited in afl aspects of employment against persons with disabilities who, with reasonable accommodation, can perform the essential functions of a job.
If you believe you have been discriminated against in a program of any institution which receives Federal assistance, you should contact immediately the Federal agency providing such assistance.
46 Part One Introduction and Background of Human Resources FIGURE 3.2 Standard Form 100
Joint Reporting
Committee
Equal Employment Opportunity Commission
Office of Federal Contract Compliance Programs (Labor)
EQUAL EMPLOYMENT OPPORTUNITY
EMPLOYER INFORMATION REPORT EEO—1
O.M.B. No. 3046-007 EXPIRES 10/31/99 100-214
Section A—TYPE OF REPORT
Refer to instructions for number and types of reports to be filed.
1. Indicate by marking in the appropriate box the type of reporting unit for which this copy of the form is submitted (MARK ONLY ONE BOX).
Multi establishment Empioyer:
Single-establishment Employer Repori
(2)D Consolidated Report (Required)
(3)D Headquarters Unit Report (Required)
(4)D Individual Establishment Report (submit one for each es-
tablishment with 50 or more employees) (1) D Special Report
2, Total number of rejjgrts being filed by this Company (Answer on Consolidated Report only) -
! OFFICE 1 USE
Section B—COMPANY IDENTIFICATION (to be answered Oy all employers)
1, Parent Company
a. Name of parent company (owns or controls establishment in item 2) omit if same as abel / a.Address (Number and street) / b.
City or town State ZIP code
2. Establishment for which this report is filed. (Omit if same as label)
a. Name of establishment / d.
Address (Number and street) City or Town County State ZIP code / e.
d. Employer Identification No. (IRS 9-DIGIT TAX NUMBER! / f.
c. Was an EEO-1 report filed for this establishment last y
ir? I I Ye;
Section C—EMPLOYERS WHO ARE REQUIRED TO FILE ITo be answered Oy all employers)
D Yes D No 1. Does the entire company have at least 100 employees in the payroll period for which you are reporting?
D Yes D No 2. Is your company affiliated through common ownership and/or centralized management with other entitles
______in an enterprise with a total employment of 100 or more?______
D Yes D No 3. Does the company or any of its establishments (a) have 50 or more employees AND (b) is not exempt as provided by 41 CFR 60-1.5, AND either (1) is a prime government contractor or forsl-tier subcontractor, and has a contract, subcontractor, or purchase order amounting to $50,000 or more, or (2) serves as a depository of Government funds in any amount or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes?
If the response to question C-3 is yes, please enter your Dun and Bradstreet identification number (if you have one ): j
NOTE: If the answer is yes to questions 1, 2, or 3, complete the entire form, otherwise skip to Section G.
educational institutions, school districts, and joint labor- management committees that control apprenticeship programs. Persons willfully making false statements on EEOC reports may be punished by fine or imprisonment.
In addition to EEO-1, Title VII requires the covered organizations to make and keep certain records that may be used to determine whether unlawful employment practices have been or , are being committed. Thus, it is a good practice for covered organizations to maintain records ; relating to job applicants, payroll records, transfers, recalls, ana discharges. The length of time '• required for the retention of these records varies, but a good time frame for retaining suchj records is three years.
Since the EEOC and OFCCP are interested in the recruitment and selection of protected ; groups and because the collection of certain data about the protected groups is not permitted i
Chapter 3 Implementing Equal Employment Opportunity 47
FIGURE 3.2 Standard Form 100 (Concluded)
Section D—EMPLOYMENT DATA
Employment at this establishment—Report all permanent full-time and part-time employees including apprentices and on-the-job trainees unless specifically excluded as set forth in the instructions. Enter the appropriate figures on all lines and in all columns. Blank spaces will be considered as zeros.
JOB CATEGORIES / NUMBER OF EMPLOYEESOVERALL TOTALS
COL. 8 / FEMALE
(not or
HIS»A.NrC
origin;
a / (NOT OF HISP4NIC ORIGIN)
3 / D / PACFIC ISLANDER
E / IMD.AN OR ALASKAN
F / iNOT OF
HISPANIC ORIGW)
a / [NOT OF HISPANIC ORIGIN) / HISPANIC / PACIFIC ISLANDER / iND-i'j OR 4USKAM NATIVE
Officials and Managers 1
Professionals 2
Technicians 3
Sales Workers 4
Office and
Clerical 3
Cra*t Workers
(Skilled) 6
Operatives
(Sern-SKiiied'' 7
Laborers
(Unskilled; 8
Service Workers 9
TOTAL 10
Total ernp'oymeni repggdggevious u
NOTE: Omit questions 1 and 2 on the Consolidated Report.
1 Date(s) of payroll period used:2. Does this establishment employ apprentices?
______1 q Yes2 D No______
Section E—ESTABLISHMENT INFORMATION (Omit on we Consolidated Report)
1. What is the major activity of this establishment? (Be specific, i.e., manufacturing steet castings, retail grocer, wholesale plumbing supplies, title insurance, etc. Include the specific type of product or type of service provided, as well as the principal business or industrial activity.}
Section F—REMARKS
Use this item to give any identification data appearing on last report which differs from that given above, explain ma|or changes in composition of reporting units and other pertinent information.
Section G—CERTIFICATION (See instructions G)
Check-^ n ^' reP°r^sare accurate and were prepared in accordance with the instructions (check on consolidated only)
one2 D This report is accurate and was prepared tn accordance with the instructions.
"\i ':• / ne of Ce / tifymg / Official / Title / Signature / DateName of person to contact regarding j Address (Number and Street)
this report (Type or print)Title / City and State / ZIP Code / Telephone Number (including Area Code) / Extension
All reports and information obtained from individual reports will be kept confidential as required by Section 709(e) of Title VU WILLFULLY FALSE STATEMENTS ON THIS REPORT ARE PUNISHABLE BY LAW, U.S. CODE, TITLE 18. SECTION 1001.
on an organization's application form, the EEOC allows organizations to use a separate form, often called an applicant diversity chart, for collecting certain data. An example of such a form is shown in Figure 3.3. The data on this form must be maintained separately from all employment information.
Compliance Process
An individual may file a discrimination charge at any EEOC office or with any representative of the EEOC, If the charging party and respondent are in different geographic areas, the office where the charging party resides forwards the charge to the office where the respondent is located. Class action charges or charges requiring extensive investigations are processed in the EEOC's Office of §3'stemic Programs.
48 Part One introduction and Background oj Human Resources FIGURE 3.3 Applicant Diversity Chart
[Fo< EEO office uie only]
3-4 I • 7 • 9
NAME OF APPLICANT
degree; education
DATE APPLIED
POSITION APPLIED FOR
CODES:
EEO JOB CATEGORY
01 — Officials/Managers 02—Professionals 03—Technicians 04—Sales Workers 05—Office and Clerical 06—Craft Workers 07—Operatives 08—Laborers 09—Service Workers
AGE
A —Below 40 B —40-45 C —46-50 D-51-55 F —56-60 G-61-65 H—66 & over
DISPOSITION
1 —Hired
2—Offer Outstanding 3—Offer Rejected 4—Applicant Rejected 5—No offer-No Opening
ETHNIC IDENTIFICATION (E.I.)
W—White
B —Black
H —Hispanic
A — Asian or Pacific Islanders