Equal Employment Opportunities

Equal Employment Opportunities

Main Sources 1. Reconstruction of Civil Rights Act of 1866 2. Title VII of the Civil Rights Act of 1964

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Prohibits discrimination Led to creation of EEOC For organizations of >15 employees Affirmative Action? Poorly defined discrimination

Main Sources 3. Executive Order 11246 4. Revised Order #4: Federal contactors must… • Conduct a utilization analysis • Establish goals • Devise a strategy for implementation of AAP 5. Civil Rights Act of 1991

Pre – 1964 -Reconstruction Civil Rights Act of 1866: “all persons” shall have the same right to “make and enforce contracts” as “white citizens” -burden of proof on individual to prove disparate treatment -no firm size limitations

1964 – 1988 -Civil Rights Act of 1964; Title VII -Griggs vs. Duke Power 1971 landmark case proscribes practices fair in form but discriminating in operation (adverse impact) -burden of proof on the employer to prove job relatedness

1989-1990 -Wards Cove and other influential Supreme Court cases -employee shows not only adverse impact, but also that the procedure was not job related -employer need not show job relatedness

1991 -Civil Rights Act of 1991 -main purpose to overturn recent Supreme Court cases -allows punitive damages -burden of proof for job relatedness goes back to the employer

2000 -Supreme Court 5-4 decision overturned NJ Supreme Court ruling against BSA anti-gay membership -allowed BSA to maintain discriminatory policy

2003 -Grutter vs. Bollinger supports reverse discrimination -Gratz vs. Bollinger, University of Michigan admittance program struck down

Main Sources • Civil Rights Act of 1991 (cont’d) 

Fundamental purpose to restore "the right of employees to challenge practices that disproportionately exclude women or minorities from America's workplaces" (E. Kennedy)

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Reverses parts of ’89-90 decisions

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Prohibits racial harassment

Main Sources • Civil Rights Act of 1991 (cont’d)  

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Expands use of CRA 1866 Shifts burden of proof back to employer

Modifies burden of proof for plaintiff Consent decrees cannot be challenged Covers U.S. companies abroad Established “glass ceiling” committee Extends punitive damages

Other Laws to Prevent Discrimination

1. ADEA 1967 2. Veterans Reemployment Act 1967 3. EEO Act 1972 4. Vocational Rehabilitation Act 1973

Other Laws to Prevent Discrimination

5. Pregnancy Discrimination Act 1978 6. Immigration Reform and Control Act 1987

7. Americans with Disabilities Act 1990 8. Family and Medical Leave Act 1993

Relevant Supreme Court Cases • Ward’s Cove v. Antonio 1989 ruling – increased plaintiff’s burden of proof 1991 result – only exception to the rule

Relevant Supreme Court Cases • Patterson v. McClean 1989 ruling – 1866 Act restricted 1991 result – 1866 Act applies to other conditions

Relevant Supreme Court Cases • Price Waterhouse v. Hopkins 1989 ruling – employer’s burden eased 1991 result – eases plaintiff’s burden

Relevant Supreme Court Cases • Martin v. Wilkes 1989 ruling – consent decree can be challenged 1991 result – limited legality of challenging consent decrees

Relevant Supreme Court Cases Adarand Constructors v. Pena 1995 court “race-conscious programs can amount to unconstitutional reverse discrimination”

Relevant Supreme Court Cases Grutter v Bollinger (2003) - appeared to support Bakke and reverse discrimination

Gratz v Bollinger (2003) - colleges and universities cannot use point systems that blindly give extra credit to minority applicants

Discrimination Two ways courts define discrimination:

1. Disparate (adverse) treatment 2. Disparate impact

Tests for Discrimination 1. 4/5ths or 80% rule Disparate impact Compare selection rates

2. Geographical (population) comparisons Disparate impact

Tests for Discrimination 3. McDonnell Douglas Test Disparate treatment AQUA: Applied; Qualified; Unaccepted; Accepted; Other

Providing a Response 1. BFOQ 2. Business necessity, job relatedness, validation tests 3. Seniority or merit systems in use

What should an HR Manager do? According to a local labor-law attorney, "put the organization in a 'posture' such that: 1.) suit is not brought against the organization; 2.) if suit is brought, the organization can defend itself"

What should an HR Manager do? 

Ensure organizational values are accepted and adhered to

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Conduct an audit

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Inform employees of policies

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Ensure that HR practices are unbiased

What should an HR Manager do? 

Be aware of applicable state and federal regulations

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Conduct business in good faith

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Consult the Uniform Guidelines on Employee Selection Procedures