Chapter Learning Objectives

Chapter Two

Equal Employment Opportunity: The Legal Environment

Chapter Learning Objectives

After studying this chapter, you should be able to:

1. 
   Define equal employment opportunity.
   

1. 
   Describe the intent of the Equal Pay
   Act of 1963.
   
2. 
   Describe the intent of Title VII of the
   Civil Rights Act of 1964.
   
3. 
   Define disparate treatment and
   disparate impact.
   
4. 
   Discuss the purpose of the Age
   Discrimination in Employment
   Act of 1967.
   
5. 
   Discuss the purpose of the
   Rehabilitation Act of 1973.
   
6. 
   Describe the intent of the Vietnam-Era
   Veterans Readjustment Assistance Act
   of 1974.
   
7. 
   Discuss the purpose of the Pregnancy
   Discrimination Act of 1978.
   
8. 
   Describe the intent of the Immigration
   Reform and Control Act of 1986.
   

10. Describe the purpose of the Americans with Disabilities Act of 1990.

Chapter Outline

Equal Employment Opportunity Laws

Equal Pay Act (1963)

Title VII, Civil Rights Act (1964)

Age Discrimination in Employment

Act (1967)

Rehabilitation Act (1973)

Vietnam-Era Veterans Readjustment

Assistance Act (1974)

11. 
    Explain the purpose of the Older
    Workers Benefit Protection Act of 1990.
    
12. 
    Discuss the intent of the Civil Rights
    Act of 1991.
    
13. 
    Explain the intent of the Family and
    Medical Leave Act of 1993.
    
14. 
    Discuss the purposes of Executive
    Orders 11246, 11375, and 11478.
    
15. 
    Describe the significance of the
    following Supreme Court decisions:
    Gr/ggs v. Duke Power, McDonnell
    Douglas v. Green, Albemarle Paper
    v. Moody, University of California
    Regents v. Bakke, United Steelworkers
    of America v. Weber, Connecticut
    

v. Teal, Memphis Firefighters, Local 1784 v. Stotts, City of Richmond v. J. A. Crosan Company, Wards Cove v. Atonio, Martin v. Wilks, Adarand Contractors v. Pena, Hopwood v. State of Texas, and University of Michigan's admissions procedures.

16. Name the federal agencies that have

primary responsibility for enforcing
equal employment opportunity.

Pregnancy Discrimination Act (1978) Immigration Reform and Control Act (1986) Americans with Disabilities Act (1990) Older Workers Benefit Protection Act (1990) Civil Rights Act (1991) Family and Medical Leave Act (1993) Executive Orders 11246, 11375, and 11478 State and Local Government Equal Employment Laws

21

22 Part One Introduction and Background of Human Resources

Landmark Court Cases

Griggs v. Duke Power Company

McDonnell Douglas v. Green

Albemarle Paper v. Moody

University of California Regents v. Bakke

United Steelworkers of America v. Weber

Connecticut v. Teal

Memphis Firefighters, Local 1784 v. Stotts

City of Richmond v. J. A. Crosan Company

Wards Cove v. Atonio

Martin v. Wilks

Adarand Contractors v. Pena

State of Texas v. Hop-wood

University of Michigan's Admission

Procedures

Enforcement Agencies

Equal Employment Opportunity Commission Office of Federal Contract Compliance Programs

Summary of Learning Objectives

Review Questions

Discussion Questions

Incident 2.1 Debate over Retirement Age Incident 2.2 Accept Things as They Are

Exercise 2.1: Discrimination because of

Sex, Religion or National Origin

Notes and Additional Readings

Two of the most important external influences on human resource management are government legislation and regulations and court interpretations of the legislation and regulations. Numerous laws influence recruitment and selection of personnel, compensation, working conditions and hours, discharges, and labor relations. Whenever appropriate, this text describes government legislation and its court interpretations as they relate to the specific area of human resource management being discussed.

However, because equal employment opportunity is so important and covers so many areas of human resource management, two separate chapters are devoted to the topic. This chapter describes the legal framework of equal employment opportunity. Chapter 3 describes specific organizational requirements for implementing equal employment opportunity.

EQUAL EMPLOYMENT OPPORTUNITY LAWS

equal employment opportunity

The right of all people to work and to advance on the basis of merit, ability, and potential.

Equal Pay Act

Prohibits sex-based discrimination in rates of pay for men and women working on the same or similar jobs.

In 1865, the Thirteenth Amendment to the U.S. Constitution abolished slavery. In addition, Congress passed the Civil Rights Act of 1866, the Fourteenth Amendment to the U.S. Constitution in 1868, and the Civil Rights Act of 1871. Yet Americans continued to live and work in a dual society, one black and one white. Businesses often refused to hire black workers or, if they did, placed them in low-paying and low-skilled jobs.

Discrimination against women was based on the view that men should work to support their families and women should care for their families at home. Furthermore, it was a rather commonly held belief that women were not equipped to do certain jobs.

Discrimination in society and in the workplace gave impetus to the civil rights movement, which in turn pressured the U.S. Congress to pass laws designed to eliminate discrimination. As a result, Congress has passed numerous laws to ensure equal employment opportunity. Unfortunately, a common misconception is that equal employment opportunity means that an employer must give preference to women and minorities in the workplace. However, equal employment opportunity refers to the right of all people to work and to advance on the basis of merit, ability, and potential.

•) Equal Pay Act (1963)

The Equal Pay Act of 1963 prohibits sex-based discrimination in rates of pay for men and

women working on the same or similar jobs. Specifically, the act states:

No employer having employees subject to [the minimum wage provisions of the Fair Labor Standards Act] shall discriminate, within any establishment. . ., between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.

Chapter 2 Equal Employment Opportunity: The Legal Environment 23

Title VII of the Civil Rights Act of 1964

Keystone federal legislation that covers disparate treatment and disparate impact discrimination; created the Equal Employment Opportunity Commission.

disparate treatment

Intentional discrimination; treatment of one class of employees differently from other employees.

disparate impact y

Unintentional discrimination involving employment practices that appear to be neutral but adversely affect a protected class of people.

The act permits differences in wages if the payment is based on seniority, merit, quantity and quality of production, or a differential due to any factor other than sex. The act also prohibits an employer from attaining compliance with the act by reducing the wage rate of any employee.

The Equal Pay Act is actually part of the minimum wage section of the Fair Labor Standards Act (FLSA), described in more detail in Chapter 12. Thus, coverage of the Equal Pay Act is coextensive (covers the same groups) with the coverage of the minimum wage provisions of the FLSA. Generally, the act covers employers engaged in commerce or in the production of goods for commerce, employers that have two or more employees, and labor organizations. Re­sponsibility for enforcing the Equal Pay Act was originally assigned to the secretary of labor but was transferred to the Equal Employment Opportunity Commission (EEOC) on July 1, 1979.

Title VII, Civil Rights Act (1964)

Title VII of the Civil Rights Act of 1964 is the keystone federal legislation in equal employment opportunity. Several important provisions of Section 703 of the act state the following:

Sec. 703.

(a) It shall be an unlawful employment practice for an employer—

1. 
   to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
   against any individual with respect to his compensation, terms, conditions, or privileges of
   employment, because of'such individual's race, color, religion, sex, or national origin; or
   
2. 
   to limit, segregate, or classify his employees or applicants for employment in any way
   which would deprive or tend to deprive any individual, of employment opportunities or
   otherwise adversely affect his status as an employee, because of such individual's race,
   color, religion, sex, or national origin.
   

(b)lt shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

(c) It shall be an unlawful employment practice for a labor organization—

1. 
   to exclude or to expel from its membership, or otherwise to discriminate against any
   individual because of his race, color, religion, sex, or national origin;
   
2. 
   to limit, segregate, or classify its membership or applicants for membership or to classify
   or fail or refuse to refer for employment any individual, in any way which would deprive
   or tend to deprive any individual of employment opportunities, or would limit such
   employment opportunities or otherwise adversely affect his status as an employee or as
   an applicant for employment, because of such individual's race, color, religion, sex, or
   national origin; or
   
3. 
   tofause or attempt to cause an employer to discriminate against an individual in
   violation of this section.
   

(d) It shall be an unlawful employment practice for any employer, labor organization, or joint
labor-management committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any individual because of his
race, color, religion, sex, or national origin in admission to, or employment in, any program
established to provide apprenticeship or other training.

Section 703 covers two basic areas of discrimination: disparate treatment and disparate impact. Disparate treatment. Section 703(a)(l), refers to intentional discrimination and in­volves treating one class of employees differently from other employees. Disparate impact, Section 703(a)(2), refers to unintentional discrimination and involves employment practices that appear to be neutral but adversely affect a protected class of people.

Title VII, the name most frequently used to describe the Civil Rights Act, was amended by the Equal Employment Opportunity Act of 1972. Organizations covered by the provisions of Title VII include the following:

• 
  All private employers of 15 or more people who are employed 20 or more weeks per year.
  
• 
  All public and private educational institutions.
  
• 
  State and local governments.
  
• 
  Public and private employment agencies.
  

24 Part One Introduction and Background of Human Resour,

Age Discrimination in Employment Act (ADEA)

Prohibits discrimination against employees over 40 years of age by all companies employing 20 or more people in the private sector.

Rehabilitation Act of 1973

Prohibits discrimination against handicapped individuals.

handicapped individual

Person who has a physical or mental impairment that substantially limits one or more of majnr life activities, has a record of such impairment, or is regarded as having such an impairment.

• Labor unions that maintain and operate a hiring hall or hiring office or have 15 or more

members.

• Joint labor-management committees for apprenticeships and training.

Title VII also created the Equal Employment Opportunity Commission (EEOC) to admin­ister the act and to prohibit covered organizations from engaging in any unlawful employment practices. The composition and powers of the EEOC are described later in this chapter.

Age Discrimination in Employment Act (1967)

The Age Discrimination in Employment Act (ADEA), passed in 1967, prohibits discrim­ination in employment against individuals aged 40 through 69. An amendment to the ADEA that took effect on January 1, 1987, eliminates mandatory retirement at age 70 for employees of companies with 20 or more employees. The prohibited employment practices of ADEA include failure to hire, discharge, denial of employment, and discrimination with respect to terms or conditions of employment because of an individual's age within the protected age group. Organizations covered by the ADEA include the following:

• 
  Private employers of 20 or more employees for each working day in each of 20 or more
  calendar weeks in the current or preceding calendar year.
  
• 
  Labor organizations.
  
• 
  Employment agencies.
  
• 
  State and local governments.
  
• 
  Federal government agencies, with certain differences; for example, federal employees
  cannot be forced to retire at any age.
  

One exception specified in the law concerns employees in bona fide executive or high policy-making positions. The act permits mandatory retirement at age 65 for high-level executives whose pensions exceed $44,000 a year.

Section 4(f) of the ADEA sets forth several conditions under which the act does not apply. The act does not apply where age is a bona fide occupational qualification, that is, reasonably necessary to the normal operation of the particular business. For example, pilots and copilots face mandatory retirement at age 60. In addition, a bus company's refusal to consider applications of individuals between ages 40 and 65 for initial employment as intercity bus drivers was ruled legal.^l Furthermore, it is not illegal for an employer to discipline or discharge an individual within the protected age group for good cause, such as unsatisfactory job performance.

Originally, the secretary of labor was responsible for enforcing the ADEA. On July 1,1979, the EEOC assumed that responsibility.

Rehabilitation Act (1973)

The Rehabilitation Act of 1973, as amended, contains the following general provisions. It

• 
  Prohibits discrimination against handicapped individuals by employers with federal
  contracts and subcontracts in excess of $2,500.
  
• 
  Requires written affirmative action plans (AAPs) from employers of 50 or more employees
  and federal contracts of $50,000 or more.
  
• 
  Prohibits discrimination against handicapped individuals by federal agencies.
  
• 
  Requires affirmative action by federal agencies to provide employment opportunities for
  handicapped persons.
  

• 
  Requires federal buildings to be accessible to handicapped persons.
  
• 
  Prohibits discrimination against handicapped individuals by recipients of federal financial
  assistance.
  

Section 7(7)(B) of the Rehabilitation Act defines a handicapped individual as follows:

any person who:

(l) has a physical u/ mental impairment which substantially limits one or more of such

person 's major life activities, (ii) has a record of such an impairment, or

Chapter 2 Equal Employment Opportunity: The Legal Environment 25

Vietnam-Era Veterans Readjustment Assistance Act of 1974

Prohibits federal government contractors and subcontractors with federal government contracts of $ 10,000 or more from discriminating in hiring and promoting Vietnam and disabled veterans.

Pregnancy Discrimination Act (PDA)

Requires employers to treat pregnancy just like any other medical condition with regard to fringe benefits and leave policies.

Immigration Reform and

Control Act

1986 act making it illegal to hire, recruit, or refer for U.S. employment anyone known to be an unauthorized alien.

(Hi) is regarded as having such an impairment. . . . Such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.

The primary responsibility for enforcing this act lies with the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor. OFCCP will be described in more depth later in this chapter.

Vietnam-Era Veterans Readjustment Assistance Act (1974)

The Vietnam-Era Veterans Readjustment Assistance Act of 1974 prohibits federal government contractors and subcontractors with federal government contracts of $10,000 or more from discriminating in hiring and promoting Vietnam and disabled veterans. Furthermore, the act requires employers with 50 or more employees and contracts that exceed $50,000 to have written affirmative action programs with regard to the people protected by this act. The protected class consists of disabled veterans with a 30 percent or more disability rating or veterans discharged or released for a service-connected disability and veterans on active duty for any part of the time period between August 5,1964, and May 7,1975. Covered contractors and subcontractors must also list job openings with the state employment service. The OFCCP enforces this act.

Pregnancy Discrimination Act (1978)

The Supreme Court decision, General Electric Co. v. Gilbert, had a significant impact on the passage of the Pregnancy Discrimination Act.² In that case, General Electric (GE) provided nonoccupational sickness and accident benefits to all employees under its sickness and accident insurance plan in an amount equal to 60 percent of an employee's normal straight-time weekly earnings. Several female employees at GE's Salem, Virginia, plant who were pregnant presented a claim for disability benefits under the plan to cover the period they were absent from work as a result of their pregnancies. The company denied these claims on the grounds that the plan did not provide disability benefit payments for such absences. The employees filed suit alleging a violation of Title VII, which prohibits sex discrimination. The Supreme Court ruled that the exclusion of pregnancy-related absences from the plan did not constitute sex discrimination.

As a result of this decision, in an effort to protect the rights of pregnant workers, Congress passed the Pregnancy Discrimination Act (PDA) as an amendment to the Civil Rights Act in 1978. The PDA, formally referenced as Section 701(K) of Title VII, states:

Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

Under the PDA, employers must treat pregnancy just like any other medical condition with regard to fringe benefits and leave policies. The EEOC, which is responsible for administering the act, has taken the view that an employer may not deny its tnmarried employees pregnancy benefits and that if pregnancy benefits are given to female employees, they must also be extended to the spouses of male employees.

Immigration Reform and Control Act (1986)

Recent years have seen an increasing influx of illegal aliens into the United States. These people are often unskilled, and many do not speak English. Unfortunately, their status often leads to abuses in their employment. Thus, in 1986, the Immigration Reform and Control Act was passed, making it illegal for anyone to hire, recruit, or refer for employment in the United States a person known to be an unauthorized alien. To meet the requirements of the law, a company must attest, under penalty of perjury, that it has verified that the individual is not an unauthorized alien by one of the following measures:

1. Examining the individual's U.S. passport; certificate of U.S. citizenship; certificate of naturalization; unexpired foreign passport, if the passport has an appropriate, unexpired

26 Part One Introduction and Background of Human Resources

endorsement of the attorney general authorizing the individual's employment in the United States; or resident alien card.

2. 
   Examining documents demonstrating employment authorization (social security card, birth
   certificate, or other documentation that the attorney general deems acceptable as proof).
   
3. 
   Examining documentation establishing identification (e.g., state driver's license with a
   photograph or other documentation that the attorney general deems acceptable as proof).
   

Americans with Disabilities Act (ADA)

Gives disabled persons sharply increased access to services and jobs.

Employers must accommodate the needs of disabled employees.

© Digital Vision

Americans with Disabilities Act (1990)

In May 1990, Congress approved the Americans with Disabilities Act (ADA), which gives disabled persons sharply increased access to services and jobs. Under this law, employ­ers may not:

• 
  Discriminate, in hiring and firing, against disabled persons who are qualified for a job.
  

• 
  Inquire whether an applicant has a disability, although employers may ask about his or her
  ability to perform a job.
  

• 
  Limit advancement opportunity for disabled employees.
  
• 
  Use tests or job requirements that tend to screen out disabled applicants.
  
• 
  Participate in contractual arrangements that "discriminate against disabled persons.
  

Employers must also provide reasonable accommodations for disabled employees, such as making existing facilities accessible, providing special equipment and training, arranging part-time or modified work schedules, and providing readers for blind employees. Employers do not have to provide accommodations that impose an undue hardship on business operations. Table 2.1 summarizes the ADA's suggestions for making the workplace accessible to disabled individuals. The bill covers all employers with 15 or more employees.

In 1997, the Equal Employment Opportunity Commission, which enforces the ADA and will be discussed in more detail later in this chapter, issued guidelines specifying that qualified individuals with psychiatric disabilities are protected from discrimination and are entitled to reasonable accommodations on the job. Mental disability is defined broadly as a mental impairment that substantially limits one or more of the major life activities of an indi­vidual, or a record of such impairment or being regarded as having such an impairment. Under this definition, the fact that an individual is regarded as having a mental disability or has a