Ch03-Instructor Modified_EEO and HRM

Report
Equal Employment Opportunity
and Human Resources
Management
The Challenges of Human Resources Management
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1–1
The Four Layers of Diversity
2
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2 of 36
Historical Perspective of EEO Legislation
• Equal Employment Opportunity (EEO)

The treatment of individuals in all aspects of
employment—hiring, promotion, training, etc.
—in a fair and nonbiased manner.
• Changing National Values
• Economic Disparity
• Early Legal Developments



Civil Rights Act (1866)
Unemployment Relief Act (1933)
Executive Order 8802 (1941)
3 of XX
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3 of 36
Government Regulation of Equal
Employment Opportunity
1–4
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4 of 36
What’s Your Knowledge of EEO Law?
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5 of 36
Age Discrimination Actions
• Excluding older workers from important work activities.
• Making negative changes in the performance evaluations
of older employees.
• Denying older employees job-related education, career
development, or promotional opportunities.
• Selecting younger job applicants over older, betterqualified candidates.
• Pressuring older employees into taking early retirement.
• Reducing the job duties and responsibilities of older
employees.
• Terminating older employees through downsizing.
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6 of 36
Government Regulation of Equal
Employment Opportunity
• Protected Classes

Individuals of a minority race, women, older
people, and those with disabilities who are covered
by federal laws on equal employment opportunity

More specifically the classes include race, color,
religion, national origin, sex, age, and those with
physical or mental disabilities.
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7 of 36
Major Federal Laws
1–8
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8 of 36
Jurisdiction of the Civil Rights Act of 1964
• All private employers in interstate commerce who employ
fifteen or more employees for twenty or more weeks per year
• State and local governments
• Private and public employment agencies, including the U.S.
Employment Service
• Joint labor-management committees that govern
apprenticeship or training programs
• Labor unions having fifteen or more members or employees
• Public and private educational institutions
• Foreign subsidiaries of U.S. organizations employing U.S.
citizens
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1–9
9 of 36
Exemptions From
Antidiscrimination Regulations
• Business Necessity

Work-related practice that is necessary to the safe and efficient operation
of an organization.
– Spurlock v. United Airlines
– Valid selection tests
•
•
Kinds of validity
Correlation
• Bona Fide Occupational Qualification (BFOQ)

Suitable defense against a discrimination charge only where age,
religion, sex, or national origin is an actual qualification for performing the
job.
– Safety-based mandatory retirement ages for commercial airline pilots
– Court cases
•
Pan American v. Diaz
•
Joseph Garcia v. Hooters
•
Carol Cameron v. La Vielle Maison
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10 of 36
These Correlations Have Actually Been
Observed. What’s Up Here?
• The more people weigh, the higher their
salaries.
• The greater the number of storks nesting
on roofs in Northern Europe, the greater
the number of births nine months later.
• The number of cows per acre the lower
the crime rate.
• The bigger the CEO’s home, the worse the
company’s stock fares.
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11 of 36
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12 of 36
Exemptions From
Antidiscrimination Regulations
• Business Necessity

Work-related practice that is necessary to the safe and efficient operation
of an organization.
– Spurlock v. United Airlines
– Valid selection tests
•
•
Kinds of validity
Correlation
• Bona Fide Occupational Qualification (BFOQ)

Suitable defense against a discrimination charge only where age,
religion, sex, or national origin is an actual qualification for performing the
job.
– Safety-based mandatory retirement ages for commercial airline pilots
– Court cases
•
Pan American v. Diaz
•
Joseph Garcia v. Hooters
•
Carol Cameron v. La Vielle Maison
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13 of 36
Gender and BFOQs (essence of business)
• Joseph Garcia v. Hooters
Hooters Restaurants had a competitive strategy of appealing to the young,
affluent male population through a number of features. Large-screen
television for sports events, happy hours, sports celebrity events, and very
attractive scantily clad waitresses were part of their strategy. Joseph Garcia
was a waiter from Chicago who worked at similar restaurants for over 10
years. He heard from a friend that Hooters was hiring. However, he was told
that he would have to apply in person. When he showed up at one of the 25
franchise establishments, he was told that they were not in fact hiring. He
learned a few weeks later that an attractive female had been hired at the
same restaurant. He filed a timely complaint with the EEOC.
• Carol Cameron v. La Vielle Maison
La Vielle Maison is a five-star restaurant in East Cupcake, Florida. Carol
Cameron, a waitress with over 10 years experience in "upscale" restaurants
and an esoteric knowledge of wine, applied for a job at La Vielle Maison in a
period when the restaurant was hiring waiters in preparation for the heavy
winter season. She was not hired. The restaurant employs only waiters and
makes the argument that five-star French restaurants traditionally employ only
waiters. After learning that the restaurant hired three new waiters, Ms.
Cameron filed a timely Title VII lawsuit against the restaurant.
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14 of 36
Religious Preference
• Title VII of the Civil Rights Act

Prohibits discrimination based on religion in
employment decisions, though it permits employer
exemptions.

Defines religion to “include all aspects of religious
observance and practice, as well as belief.”

Does not require employers to grant complete
religious freedom in employment situations.

Requires that employers make a reasonable
accommodation (at minimum cost) without incurring
undue hardship in the conduct of the business.
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15 of 36
Religious Preference (cont.)
• Managers or supervisors may have to
accommodate an employee’s religion in the
specific areas of



holidays and observances (scheduling),
personal appearance (wearing beards, veils,
or turbans), and
religious conduct on the job (missionary work
among other employees).
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16 of 36
What Is a “Disability”?
• The Americans With Disabilities Act (ADA) defines a
disability as:

A physical or mental impairment that substantially limits one or
more of the major life activities.
– Walking
-- Caring for oneself
– Seeing
-- Performing manual tasks
– Hearing
-- Sitting
– Breathing
-- Standing
– Thinking
-- Lifting
– Learning

A record of such impairment.

Being regarded as having such an impairment.
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17 of 36
Americans with Disabilities Act of 1990
• The act requires employers to make a reasonable
accommodation for disabled people

Reasonable accommodation is an attempt by employers
to adjust, without undue hardship, the working conditions
or schedules of employees with disabilities or religious
preferences
• A requested reasonable accommodation poses an
undue hardship if:



it involves a significant difficulty that disrupts the business;
it involves a significant expense; or
it requires the employer to change the basic nature of its
business.
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18 of 36
Example:
Ashley applies for a wait staff position at a
nightclub. She has a vision impairment that
makes it very difficult for her to see in dim
lighting. Ashley requests, as a reasonable
accommodation, that the nightclub be brightly
lit. The employer would probably be able to
show that this accommodation poses an undue
hardship. Bright lights would damage the
atmosphere of the club and make it difficult for
the patrons to see the stage shows.
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19 of 36
Example:
Kyung applies for a job as a cashier at a fast
food restaurant. Kyung is qualified for the job in
every way, but the employer is reluctant to hire
him, fearing that Kyung's cleft palate will offend
customers. If the employer refuses to hire
Kyung for this reason, the employer will not be
able to show undue hardship. An employer
cannot claim undue hardship based on
customers' (or employees')fears or prejudices
about a person's disability.
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20 of 36
Americans with Disabilities Act of 1990 (cont.)
• The ADA does not cover:






Homosexuality or bisexuality
Gender-identity disorders not resulting from physical
impairment or other sexual-behavior disorders
Compulsive gambling, kleptomania, or pyromania
Psychoactive substance-use disorders resulting from
current illegal use of drugs
Current illegal use of drugs
Infectious or communicable diseases of public health
significance (applied to food-handling jobs only and
excluding AIDS)
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21 of 36
Americans with Disabilities Act of 1990 (cont.)
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22 of 36
PGA Tour v. Casey Martin
Casey Martin, a talented golfer with a degenerative circulatory condition (a
congenital anomaly called Klippel-Trenaunay-Weber syndrome) that makes
it painful to walk, filed suit against the Professional Golf Association (PGA)
under the Americans with Disabilities Act (ADA) after the PGA refused to
waive its rule requiring all competitors to walk the golf course in its events.
The PGA argued that allowing Martin to ride, rather than walk the course,
would "fundamentally alter the nature" of the game played on the PGA Tour
because walking the course introduced a factor of fatigue into the game
that Martin would not be subjected to if he were allowed to ride between
shots. Secondly, the PGA believed that the ADA did not apply in this case,
because the PGA Tour was not a place of "public accommodation," as set
forth in Title III of the ADA.
Martin asserted that the essential feature of golf was shot making, and that
being allowed to ride in a golf cart did not alter the fundamental nature of
the game. He further argued that he had all the necessary skills to compete
at the level of other PGA golfers, but needed an individualized
accommodation that would allow his golfing skill to be fairly pitted against
the skill of the other golfers on the Tour.
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23 of 36
PGA Tour v. Casey Martin
(cont’d)
• Should Casey Martin be protected under the
Americans with Disabilities Act (ADA) and
allowed to use a cart to compete during the
PGA Tour? Why or why not?
• If you feel Martin should be protected under
the ADA, should this coverage extend to
other golfers with back problems, heart
problems, or arthritis? Why or why not?
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24 of 36
Other Federal Laws and Executive Orders
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25 of 36
Don’t Ask, Don’t Tell Repeal Act of 2010
• In 2010, the Don’t Ask, Don’t Tell Repeal Act was
enacted to end the ban on gay or bisexual persons
openly serving in the U.S. military
• The ban was established as a compromise
between the Clinton Administration and Congress
in the mid-1990s to prevent members of the
military from being dishonorably discharged for
being gay, so long as they did not openly reveal
their sexual orientation.
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26 of 36
Fair Employment Practice Laws
• Fair Employment Practices (FEPs)

State and local laws governing equal employment
opportunity that are often more comprehensive than
federal laws.

Although Title VII of the Civil Rights Act exempts
employers with fewer than fifteen employees, many
states extend antidiscrimination laws to smaller
employers with one or more workers.
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27 of 36
Sexual Harassment
• Sexual Harassment (under Title VII)

Unwelcome advances, requests for sexual favors,
and other verbal or physical conduct of a sexual
nature in the working environment

An employer is considered guilty of sexual
harassment when:
– The employer knew or should have known about
the unlawful conduct and failed to remedy it or to
take corrective action.
– The employer allows nonemployees (customers
or salespeople) to sexually harass employees.
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28 of 36
Two Kinds of Sexual Harassment
• Quid Pro Quo
• Hostile Work Enviornment
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29 of 36
Sexual Harassment
• Quid Pro Quo Harassment

= this for that.

Lawyers sometimes refer to this as “put out or get out.”

Occurs when “submission to or rejection of sexual
conduct is used as a basis for employment decisions.”

Involves a tangible or economic consequence,
such as a demotion or loss of pay.
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30 of 36
Sexual Harassment
(cont.)
• Hostile Environment

Occurs when unwelcome sexual conduct “has the
purpose or effect of unreasonably interfering with job
performance or creating an intimidating, hostile, or
offensive working environment.”

Dirty jokes, vulgar slang, nude pictures, swearing, and
personal ridicule and insult constitute sexual
harassment when an employee finds them offensive.

Courts use a “reasonable person” test for hostile
environment.
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31 of 36
Sexual Orientation
• Title VII of the Civil Rights Act of 1964 lists
“sex” (gender) as a protected class.




Sexual orientation is not a valid defense against
discrimination—gender applies to one’s sex at
the time of birth and not to one’s sexual orientation.
No federal law bars discrimination based on
sexual orientation, or transgender and
transsexual individuals.
Companies—in support of their diversity initiatives—
are fostering “gay-friendly” work places.
Most companies in the Fortune 500 now offer health
benefits to same-sex couples
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32 of 36
Immigration Reform and Control Act (1986)
• The U.S. Department of Justice, lists five actions
that employers must take to comply with the law:

Having employees fill out their part of Form I-9.

Checking documents establishing an employee’s
identity and eligibility to work.

Complete the employer’s section of Form I-9.

Retain Form I-9 for at least three years.

Present Form I-9 for inspection to an Immigration
and Naturalization Service officer or to a Department
of Labor officer upon request.
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33 of 36
Emerging Employment
Discrimination Issues
• Caregivers and Discrimination

Von Bergen, C. W. (2008). “The Times They are AChangin”:_Family Responsibilities Discrimination and the EEOC.
Employee Responsibilities and Rights Journal, 20, 177-194.
• Attractiveness and Discrimination
• Weight Discrimination
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34 of 36
Weight Discrimination: Hooters Sued for Weight
Discrimination
• Hooters was sued in Michigan for allegedly
violating a state law that bars discrimination
on the grounds of religion, race, age, sex,
height and, weight.

Other jurisdictions with weight discrimination laws
–
–
–
–
–
–
Birmingham, NY
Santa Cruz, CA
Madison, WI
San Francisco, CA
Washington, DC
Urbana, IL
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35 of 36
Takeaway from this suit …
• Hooters officials say that their waitresses can be
considered entertainers and the company’s image is
reliant on fit, attractive waitresses. Hooters’ girls are
responsible for maintaining their “image” just as
other entertainers are.
• If you want to have your employees look a certain
way, you may be challenged. Be prepared to defend
any position you (employer) take as to appearance.
• A business has a right to protect the image it wants
to present, but it must have to balance this against
the possibility of discrimination.
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36 of 36
Uniform Guidelines on
Employee Selection Procedures
• Uniform Guidelines on Employee
Selection Procedures

Is a procedural document published in the Federal
Register to assist employers in complying with federal
regulations against discriminatory actions.

Applies to employee selection procedures in the areas
of hiring, retention, promotion, transfer, demotion,
dismissal, and referral.
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37 of 36
Uniform Guidelines on Employee
Selection Procedures (Cont.)
• Uniform Guidelines on Employee Selection
Procedures define discrimination as:

The use of any selection procedure which has an
adverse impact on the hiring, promotion, or other
employment or membership opportunities of members
of any race, sex, or ethnic group will be considered to
be discriminatory and inconsistent with these
guidelines, unless the procedure has been validated in
accordance with these guidelines (or, certain other
provisions are satisfied).
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38 of 36
Validity
• The requirement that, when using a test or other
selection instrument to choose individuals for
employment, employers must be able to prove that
the selection instrument bears a direct relationship
to job success.
• Proof of validity is established through validation
studies that show the job relatedness or lack
thereof for the selection instrument under study.




Content validity
Concurrent validity
Predictive validity
Construct validity
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39 of 36
Forms of Discrimination
• Disparate Treatment

Means intentional discrimination

Exists where an employer treats an individual differently because that individual is
a member of a particular race, religion, gender, ethnic group, age, ….
– “We don’t hire women because they should be at home raising kids.”
• Disparate/Adverse Impact

The rejection of a significantly higher percentage of a protected class for
employment, placement, or promotion when compared with a non-protected
class.

Possibly the unintentional result of an innocent act, yet the outcome is still
discriminatory.
– “Employees must have a college degree.”
• Utilization Analysis

A comparison of the race, sex, and ethnic composition of an employer’s workforce
with that of the available labor supply.
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40 of 36
Employee Screening Devices with
Potential Adverse/Disparate Impact
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41 of 36
Determining Discrimination
• Adverse Rejection Rate, or Four-Fifths Rule

Rule of thumb followed by the EEOC in determining
adverse impact for use in enforcement proceedings.

According to the Uniform Guidelines, a selection
program has an adverse impact when the selection
rate for any racial, ethnic, or sex class is less than
four-fifths (or 80 percent) of the rate of the class with
the highest selection rate.

The four-fifths rule is not a legal definition of
discrimination, rather it is used to monitor severe
discrimination practices.
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42 of 36
Dennis Goebel et al. v. Jayjoe Clothiers
• A division of Jayjoe Clothiers had 16 openings for assistant store manager
last year and, as part of the company's affirmative action program, filled the
vacancies with 10 blacks and 6 whites. The selection process used was a
multiple-hurdle approach which began with an application form and an
intelligence test. Applicants who scored 60 (out of 100) or higher were
invited back for an interview by the store managers. Based on the
interview performance, the 16 vacancies were filled.
Applicants
Black White
Number scoring 60 or higher
25
74
Number scoring lower than 60
26
29
Total
51
103
• Dennis Goebel, black applicant who scored 39 on the test, filed suit on
behalf of all black applicants who failed the exam. Mr. Goebel claimed
race discrimination based on Title VII of the Civil Rights Act. Jayjoe
Clothiers has argued that over 62 percent of the actual supervisory
vacancies were filled with blacks (i.e. 10 out of 16), therefore, there was
obviously no racial discrimination in the selection process.
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43 of 36
Jayjoe Clothiers
(cont’d)
1. Were Mr. Goebel and the other black
candidates victims of racial
discrimination? Explain your position.
Show me the math.
2. Given the results of your disparate
impact analysis, what action should the
defendant (Jayjoe) take next? Be
specific.
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44 of 36
Determining Discrimination
• Restricted Policy (Disparate Treatment)

An employer’s intentional unequal treatment or
evaluation by different standards of
protected-class members.

A situation in which protected class members
receive unequal treatment or are evaluated by
different standards
• Workforce utilization analysis

A process of classifying protected-class members
by number and by the type of job they hold within
the organization
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45 of 36
Utilization Analysis
• http://www.ok.gov/opm/documents/Affirmati
veActionPlanManual-2011.pdf
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46 of 36
Enforcing Equal Employment
Opportunity Legislation
• Composition of EEOC




Five members and a general counsel appointed by
the president and confirmed by the Senate
Members serve staggered five-year terms
No more than three commission members from the
same political party.
General counsel serves a four-year term.
• Purpose of EEOC

Formulating EEO policy and approving all litigation
involved in maintaining equal employment opportunity.
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47 of 36
Equal Employment
Opportunity Commission
• U.S. EEOC home page
• Statistics
• Various types of discrimination prohibited by
the laws enforced by EEOC
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48 of 36
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49 of 36
Retaliation
• Managers and supervisors must not retaliate against
individuals who invoke their legal rights to file charges or
to support other employees during EEOC proceedings
• Title VII of the Civil Rights Act states that an employer
may not discriminate against any of his employees
because the employee has opposed any unlawful
employment practice, or because the employee has
made a charge, testified, assisted, or participated in any
manner in an investigation, proceedings, or hearing
under this Act.
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50 of 36
Preventing Discrimination Charges
• The foundation to preventing any form of
discrimination is having a comprehensive EEO policy
• Employers that do not have an EEO policy are
legally vulnerable
• A comprehensive EEO training program for
managers and supervisors will include:




The prohibitions covered in the various EEO statutes
Guidance on how to respond to complaints of
discrimination
Procedures for investigating complaints
Suggestions for remedying inappropriate behavior
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51 of 36
Affirmative Action and Diversity Management
• Affirmative Action

Policy that goes beyond equal employment
opportunity by requiring organizations to comply
with the law and correct past discriminatory
practices by increasing the numbers of minorities
and women in specific positions
• Reverse Discrimination

The act of giving preference to members of
protected classes to the extent that unprotected
individuals believe they are suffering
discrimination
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Affirmative Action and Diversity Management
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Managing Diversity: Affirmative Action
• Challenges to Affirmative Action (AA):

AA has not improved protected groups employment.

Individuals hired under AA feel prejudged as inferior
performers, and are often viewed as “tokens.”

AA programs have failed in assimilating protected
classes into the workforce.

Preferences shown toward one protected class may
create conflicts between other minority groups.
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Affirmative Action (AA)—Pros and Cons
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Beyond Affirmative Action: Leveraging Diversity
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Beyond Tolerance: Appreciating and
Celebrating Differences
• Teaching tolerance in diversity training



Endurance
Acceptance
Appreciating and celebrating differences
• Different definition of tolerance

Civility and respect toward those who are different
– Von Bergen, C. W., & Collier, G. (2013). Tolerance as Civility in
Contemporary Workplace Diversity Initiatives. Administrative Issues
Journal, 3(1), 86-97.
– Von Bergen, C. W. (2013). Misconstrued Tolerance: Issues for
Multicultural and Diversity Training. Development and Learning in
Organizations: An International Journal, 27(2), 9-12.
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57 of 36
Key Terms
adverse impact
affirmative action
bona fide occupational
qualification (BFOQ)
fair employment practices
(FEPs)
four-fifths rule
protected classes
business necessity
reasonable accommodation
charge form
reverse discrimination
disabled individual
sexual harassment
disparate treatment
Uniform Guidelines on Employee
Selection Procedures
EEO-1 report
equal employment opportunity
workforce utilization analysis
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© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
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© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
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60 of 36
Chapter 3 - Learning Outcomes
Learning Outcome Statements
Related Outcomes from Body of the Text
1
Explain the reasons behind passage of equal employment
opportunity (EEO) legislation.
People’s attitudes towards discrimination have evolved over time in the
United States. What do you think will be the prevailing attitude of people
towards discrimination 20 years from now? Will there be more or less
discrimination in the workplace? Why?
2
Prepare an outline describing the major EEO laws and the
employment practices they prohibit. Describe what a bona
fide occupational qualification is.
How have EEO laws changed over time? What do you think HR
managers and first-line
3
Understand why sexual harassment, immigration reform,
and other practices such as discrimination based on a
person’s weight, appearance, and sexual orientation have
become equal employment opportunity issues.
Which types of discrimination do you think managers are most likely to
have to deal with on a regular basis and why?
4
Explain how the Uniform Guidelines on Employee Selection
Procedures were developed and how firms use them to
ensure they are abiding by the law.
As a manager, how would the Uniform Guidelines on Employee Selection
Procedures affect how you deal with employees and applicants?
5
Understand the concepts of adverse impact and disparate
treatment.
Have you ever been the victim of adverse or disparate impact? If so, in
what context? Discuss your experience with your classmates.
6
Understand EEOC record keeping and posting
requirements.
Why do you think the federal government treats small businesses
differently than large
7
Describe how discrimination charges are processed by the
EEOC.
In what ways do you think HR managers can help other managers deal
with discrimination complaints so there is less of a chance employees will
feel compelled to report them to the EEOC?
8
Explain what affirmative action is and how companies today
are seeing the value of voluntarily having diverse
workforces.
What effect, if any, do you think ending affirmative action programs in the
United States have on the diversity and competitiveness of U.S.
businesses?
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Chapter Objectives
After studying this chapter, you should be able to
LEARNING OUTCOME 1
LEARNING OUTCOME 2
LEARNING OUTCOME 3
LEARNING OUTCOME 4
LEARNING OUTCOME 5
Explain the reasons behind passage of equal employment
opportunity (EEO) legislation.
Prepare an outline describing the major EEO laws and the
employment practices they prohibit. Describe what a bona fide
occupational qualification is.
Understand why sexual harassment, immigration reform, and other
practices such as discrimination based on a person’s weight,
appearance, and sexual orientation have become equal
employment opportunity issues.
Explain how the Uniform Guidelines on Employee Selection
Procedures were developed and how firms use them to ensure
they are abiding by the law.
Understand the concepts of adverse impact and disparate
treatment.
LEARNING OUTCOME 6
Understand EEOC record-keeping and posting requirements.
LEARNING OUTCOME 7
Describe how discrimination charges are processed by the EEOC.
LEARNING OUTCOME 8
Explain what affirmative action is and how companies today are
seeing the value of voluntarily having diverse workforces.
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62 of 36

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