Chapter Learning Objectives

TABLE 2.1

Suggestions for Making the Workplace Accessible to Disabled Workers

Install wheelchair ramps.

Make curb cuts in sidewalks and entrances.

Reposition shelves so those with disabilities can reach materials.

Rearrange tables, chairs, vending machines, display racks, and other furniture.

Reposition telephones and water fountains.

Add raised markings on elevator control buttons.

Install flashing alarm lights.

Widen doors.

Install offset hinges to widen doorways.

Eliminate turnstiles or revolving doors or provide an alternative accessible path.

Install accessible door hardware (such as levers) instead of, or in addition to, doorknobs.

Install grab bars in toilet stalls.

Rearrange toilet partitions to increase maneuvering space.

Move lavatory pipes underneath sinks to prevent burns.

Add raised toilet seats.

Add a full-length bathroom mirror.

Reposition paper towel dispensers.

Create designated accessible parking spaces.

Add a paper cup dispenser at existing accessible water fountains.

Remove high-pile, low-density carpeting.

Install vehicle hand controls.

HRM in Action

OBESITY AND THE ADA

The case, EEOCv. Watkins Motor Lines, Inc., 18 AD cases 641 (6th Cir. 2006), dealt with a man, Stephen Grindle, employed by the defendant company as a driver/dock worker, Grindle had been hired in August 1990. At that time, he weighed approximately 345 pounds. About 65 percent of his job involved dock work. That work included loading, unloading, and arranging freight. The job description stated that the work included "climbing, kneeling, bending, stooping, balancing, reaching, and repeated heavy lifting." Over the course of the next five years, Grindle's weight ranged from about 340 to 450 pounds. According to Grindle, he was unaware of any psychological or physiological reason that would explain his weight.

In November 1995, Grindle suffered a knee injury at work when a rung on a ladder he was climbing broke. Grindle returned to work the next day and worked 50 to 60 hours a week through December. However, in January he began a six-month leave of absence because of his knee injury. The company informed Grindle that he would be terminated if he was unable to return at the end of the six months. To return, he had to have a release from his physician and perhaps undergo a physical examination.

While on leave, Grindle's knee injury was treated by Dr. Zancan. At the end of the six months, Zancan gave Grindle a work release. However, the company would not accept it and return Grindle to work because the physician did not look at the job responsibilities before signing the release form. The company sent Zancan a list of Grindle's job responsibilities and a return to work form. However, Zancan never responded. The company ordered Grindle to see the industrial clinic physician. Dr. Lawrence. Lawrence found that Grindle had limited range of motion. Furthermore, he observed that Grindle could duck and squat but was short of breath after taking a few steps. Lawrence stated that the

most notable fact emerging from his physical examination of Grindle was that Grindle weighed 405 pounds. Lawrence concluded that, even though Grindle met Department of Transportation standards for truck drivers, he could not safely perform his job duties. The company put Grindle on safety hold. This resulted in Grindle's termination because he was unable to return to work after his six-month leave.

Grindle believed that he was terminated because of his weight and filed a claim with the EEOC in September 1998. In October 2002, the EEOC filed a federal action in which it claimed that the company violated the Americans with Disabilities Act by terminating Grindle. In February 2004, the company filed a motion for summary judgment. The district court granted the company's motion for summary judgment on the grounds that obesity not caused by a physiological reason was not an impairment under the ADA. Grindle appealed.

The EEOC acknowledged that merely being overweight did not satisfy the ADA'S definition of an impairment. However, it argued that it could be an ADA impairment if an individual was overweight as a result of a physiological condition or morbid obesity no matter what the cause. Morbid obesity is defined as body weight that is more than 100 percent more than the norm. In this case, neither Grindle nor the EEOC argued that Grindle's weight resulted from a physiological condition. Rather, the argument proffered was that Grindle was morbidly obese and the cause of that condition did not matter because morbid obesity is beyond the range of what is normal. The Sixth Circuit disagreed and upheld the district court's finding that, while physiologically caused morbid obesity may be an impairment under the ADA, non-physiological morbid obesity is not. Therefore, Grindle's morbid obesity was not an ADA impairment.

Source: Adapted from Mary Kathryn Zachary, "Obesity & the ADA— the Reason Matters," Super Vision, December 2006, pp. 23-27.


Older Workers Benefit Protection Act of 1990

Provides protection for employees over 40 years of age in regard to fringe benefits and gives employees time to consider an early retirement offer.

record of such disability is grounds for that person to claim-that they have a mental disability. Obviously, these guidelines will raise many issues for human resource managers. HRM in Action 2.1 shows the complexity of issues under the ADA.

Older Workers Benefit Protection Act (1990)

The Older Workers Benefit Protection Act of 1990 resulted from a 1989 decision of the U.S. Supreme Court. In that decision, an Ohio county agency denied disability benefits to an employee who had been laid off at age 61 because its disability plan cut off at age 60. The Court ruled that the agency had not violated the Age Discrimination in Employment Act because, it said, the law did not cover benefits, just hirings, firings, and promotions.

Under the Older Workers Benefit Protection Act, employers may integrate disability and pension pay by paying the retiree the higher of the two; integrate retiree health insurance and severance pay by deducting the former from the latter; and, in cases of plant closings or mass layoffs, integrate pension and severance pay by deducting from severance pay the amount added to the pension.

The act also gives employees time to consider a company's early retirement package— 21 days for an individual or 45 days if a group is involved. Employees also have seven days to change their minds if they have signed a waiver of their right to sue. Coverage of this law is

the same as that under the Age Discrimination in Employment Act.

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28 Part One Introduction and Background of Human Resources

Civil Rights Act (1991)

Permits women, persons with disabilities, and persons who are religious minorities to have a jury trial and sue for punitive damages if they can prove intentional hiring and workplace discrimination. Also requires companies to provide evidence that the business practice that led to the discrimination was not discriminatory but was job related for the position in question and consistent with business necessity.

Family and Medical Leave Act (FMLA)

Enables qualified employees to take prolonged unpaid leave for family- and health-related reasons without fear of losing their jobs.

executive orders

Orders issued by the president of the United States for managing and operating federal government agencies.

Civil Rights Act (1991)

The Civil Rights Act of 1991 permits women, persons with disabilities, and persons who are religious minorities to have a jury trial and sue for punitive damages of up to $300,000 if they can prove they are victims of intentional hiring or workplace discrimination. The law cov­ers all employers with 15 or more employees. Prior to the passage of this law, jury trials and punitive damages were not permitted except in intentional discrimination lawsuits involving racial discrimination. The law places a cap on the amount of damages a victim of nonracial, intentional discrimination can collect. The cap is based on the size of the employer: $50,000 for companies with 15 to 100 employees; $100,000 for companies with 101 to 200 employees; $200,000 for companies with 201 to 500 employees; and $300,000 for companies with more than 500 employees.

A second aspect of this act concerns the burden of proof for companies with regard to in­tentional discrimination lawsuits. In a series of Supreme Court decisions beginning in 1989, the Court began to ease the burden-of-proof requirements on companies. Several of these decisions are described later in this chapter. This act, however, requires that companies must provide evidence that the business practice that led to the discrimination was not discrimina­tory but was job related for the position in question and consistent with business necessity. Business necessity is defined in detail in Chapter 3.

Family and Medical Leave Act (1993)

The Family and Medical Leave Act (FMLA) was enacted on February 5, 1993, to enable qualified employees to take prolonged unpaid leave for family- and health-related reasons with­out fear of losing their jobs. Under the law, employees can use this leave if they are seriously ill, if an immediate family member is ill, or in the event of the birth, adoption, or placement for foster care of a child. To qualify for the leave, employees must have been employed for at least a year and must have worked for no less than 1,250 hours within the previous 12-month period. FMLA took effect in August 1993 for companies without collective bargaining agreements. For companies with collective bargaining agreements, the law took effect on termination of the labor contract or on February 5, 1994, whichever came first. HRM 2.2 illustrates one issue that has been decided by the courts.

Executive Orders 11246,11375, and 11478

Executive orders are issued by the president of the United States to give direction to gov­ernmental agencies. Executive Order 11246, issued in 1965, requires every nonexempt federal contractor and subcontractor not to discriminate against employees and applicants because of race, sex, color, religion, or national origin. The primary exemption from the order is for contracts and subcontracts that do not exceed $10,000. The OFCCP within the Department of Labor is responsible for administering this executive order. The equal opportunity clause specified by Executive Order 11246 requires the contractor or subcontractor to agree to do the following:

1. 
   Comply with the provisions of the executive order.
   
2. 
   Comply with those rules, regulations, and orders of the secretary of labor that are issued
   under the order.
   
3. 
   Permit access to its books and records for purposes of investigation by the secretary of
   labor.
   
4. 
   Include the equal employment clause in every subcontract or purchase order so that such
   provisions will be binding on each subcontractor or vendor.
   

Moreover, in the event of noncompliance with the executive order, the contract may be canceled, terminated, or suspended. After a hearing on the noncompliance, the contractor may be declared ineligible for future government contracts.

Executive Order 11246 also requires employers with 50 or more employees and contracts and subcontracts that exceed $50,000 to have a written affirmative action program (AAP). The AAP must include an identification and analysis of minority employment problem areas within the employers' workforce, and where deficiencies exist, employers must establish goals

HRM in Action

ELIMINATING TRAVEL DID NOT VIOLATE FMLA

The East Baton Rouge, Louisiana, Parish School Board employed Phyllis Smith as its assistant supervisor of school accounts. Prior to her maternity leave, this position required her to travel to various schools and directly assist school principals and staff members in keeping accurate accounting records. During Smith's leave, the board restructured the school accounts department and revised her job description so that she would audit the schools' books from a central office rather than by traveling to schools.

Smith sued under the FMLA after she returned, but the 5th U.S. Circuit Court of Appeals granted summary judgment to the board, holding that Smith's position after her FMLA leave was equivalent to her former position. In discussing "equivalent," the court cited the FMLA and stated that the

position must be virtually identical to the former position in pay, benefits and working conditions; must involve substantially similar duties, skills, and authority; must have similar opportunities for promotion and pay increases; and must be viewed as equally desirable to employees.

The court concluded that "de minimis, intangible changes" to an employee's position do not violate the FMLA. The elimination of travel responsibilities when the position no longer required travel to audit the schools' accounts, combined with providing the same salary and similar job description and title, amounted to only an intangible difference in employment position that did not violate the law.

Source: Adapted from Sarah T. Zaffina, "Eliminating Travel Did Not Violate FMLA," HRMagazine, October, 2006, p. 120.


utilization evaluation

Part of the affirmative action plan that analyzes minority group representation in all job categories; past and present hiring practices; and upgrades, promotions, and transfers.

and timetables for the prompt achievement of equal employment opportunity. Part of the AAP is called the utilization evaluation, which contains analyses of minority group representa­tion in all job categories; present and past hiring practices; and upgrading, promotions, and transfers. Chapter 4 describes AAP in more detail.

Executive Order 11246 also gave the U.S. Office of Personnel Management (OPM) author­ity to issue regulations dealing with discrimination within federal agencies. In 1966, the OPM (then called the Civil Service Commission) issued regulations that required agencies to cor­rect discriminatory practices and develop affirmative action programs.

In 1967, Executive Order 11375 amended Executive Order 11246 and prohibited sex-based wage discrimination for government contractors. Finally, in 1969 the OPM issued Executive Order 11478, which in part suspended Executive Order 11246, along with revised regulations. The new regulations merely modified a number of the procedures under the previous orders and regulations.

State and Local Government Equal Employment Laws

Many state and local governments have passed equal employment laws. For example, almost all states have some form of protection against employment discrimination on the basis of disability. However, at this point it is important to note the Supremacy Clause of the U.S. Constitution,³ which states:

The laws of the United States dealing with matters within its jurisdiction are supreme, and the judges in every state shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding.

As a result of this clause, as would be expected, many state and local laws became invalid after the passage of the Civil Rights Act and other equal employment legislation. For example, the California Supreme Court invalidated a state statute prohibiting females from tending bar.

No federal laws prohibit states from passing laws against discrimination in areas not covered by the federal law as long as the law does not require or permit an act that is unlawful under federal legislation.

One significant development at the state level on affirmative action occurred in California. Over the years, an array of programs based on race had been adopted throughout California. One particular concern was a set of affirmative action programs that had been applied to the University of California. The California Civil Rights Initiative (CCRI), known as Proposition 209, was placed on the November 1996 election ballot and was adopted by a 54 to 46 percent margin. Proposition 209 calls for the state not to discriminate for or against any group in state employment and benefits.

As is true with most laws, however, ambiguities in language leave much room for interpre­tation by the federal agencies that enforce the laws. Furthermore, court decisions regarding the

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30 Part One Introduction and Background of Human Resouri

laws often raise additional questions of interpretation. For these reasons and others, equal em­ployment opportunity is one of the most challenging and complex aspects of human resource management. Nevertheless, a good beginning point for understanding equal employment op­portunity is to know the basic legislation covering the area. Table 2.2 provides a chronological listing of the equal employment opportunity laws and executive orders discussed in this sec­tion. It also provides a brief statement of the purpose or intent and coverage of these laws and executive orders.

LANDMARK COURT CASES

Web site: National Employment Lawyers Association

www.nela.org

disparate impact doctrine

States that when the plaintiff shows that an employment practice disproportionately excludes groups protected by Title VII, the burden of proof shifts to the defendant to prove that the standard reasonably relates to job performance.

Laws passed by Congress are usually broad in nature and are refined when applied to specific
situations. Furthermore, the general nature of the equal employment laws both allowed and
caused enforcement agencies such as the EEOC to develop guidelines and enforce the acts as
they interpreted them. Unfortunately, employers were often confused about the guidelines and
enforcement of equal employment laws by the EEOC and OFCCP. The confusion and anger
that resulted have led to many lawsuits concerning the interpretation of equal opportunity laws
and guidelines. Again unfortunately, many court decisions have been not only confusing but,
in some instances, apparently conflicting. "

Nevertheless, several Supreme Court decisions have provided guidance for interpreting equal employment opportunity laws. Some of the more important decisions are described in the following sections.

Griggs v. Duke Power Company*

The Griggs case concerned the promotion and transfer policies of the Duke Power company at its Dan River Steam Station. Duke permitted incumbent employees who lacked a high school education to transfer from an "outside" job to an "inside" job by passing two tests: the Wonderlic Personnel Test, which purports to measure general verbal facility, and the Bennett Mechanical Aptitude Test. The passing scores approximated the national median for high school graduates.

In a class action suit, African American employees argued that these practices violated Title VII, since neither having a high school education nor passing the tests was necessary for successful performance on the jobs in question. The suit also argued that the practices were illegal because a much higher percentage of African Americans did not have high school educations. The company argued that the requirements were based on the company's judgment that they would generally improve the overall quality of the workforce and that the company had no discriminatory intent in instituting the requirements. The company argued that its lack of discriminatory intent was demonstrated by its efforts to help undereducated employees through financing two-thirds of the cost of tuition for high school education.

In 1971, the Supreme Court ruled in favor of the African American employees. The decision established several significant points concerning equal employment opportunity. (1) The consequences of employment practices, not simply the intent or motivation of the employer, are the thrust of Title VII in that practices that discriminate against one group more than another or continue past patterns of discrimination are illegal regardless of the nondiscriminatory intent of the employer; (2) the disparate impact doctrine provides that when the plaintiff shows that an employment practice disproportionately excludes groups protected by Title VII, the burden of proof shifts to the defendant to prove that the standard reasonably relates to job performance; and (3) the EEOC's guidelines that permitted the use of only job-related tests are appropriate.

McDonnell Douglas v. Green⁵

Percy Green, an African American man who had been employed by McDonnell Douglas, was laid off as a result of a reduction in McDonnell's workforce. After the layoff, Green participated in a protest against alleged racial discrimination by McDonnell in its employment practices. The protest included a "stall-in," whereby Green and others stopped their cars along roads leading to the plant to block access during the morning rush hour. At a later date,

HMMBBBI

Chapter 2 Equal Employment Opportunity: The Legal Environment 31

TABLE 2.2 Summary of Equal Employment Opportunity Laws and Executive Orders

Law/Executive Order

Equal Pay Act

Title VII, Civil Rights Act (as amended in 1972)

Executive Order 11246

Executive Order 11375 Executive Order 11478

Age Discrimination in Employment Act (ADEA)

Rehabilitation Act, as amended

Vietnam-Era Veterans Readjustment Assistance Act

Pregnancy Discrimination Act (PDA)

Immigration Reform and

Control Act

Americans with Disabilities Act

Older Workers Benefit Protection Act

Civil Rights Act

Family and Medical Leave Act (FMLA)

Year Purpose or Intent

1963. 
      Prohibits sex-based discrimination in rates of
      pay for men and women working in the same
      or similar jobs.
      
1964. 
      Prohibits discrimination based on race, sex,
      color, religion, or national origin.
      

1965 Prohibits discrimination on the basis of race, sex, color, religion, or national origin; requires affirmative action with regard to these factors.

1967 Prohibits sex-based wage discrimination.

1967 Supersedes Executive Order 11246 and

modifies some of the procedures under the previous orders and regulations.

1967 Prohibits discrimination against individuals

who are at least 40 years of age but less than 70. An amendment eliminates mandatory retirement at age 70 for employees of companies with 20 or more employees.

1973 Prohibits discrimination against handicapped
persons and requires affirmative action

to provide employment opportunity for handicapped persons.

1974 Prohibits discrimination in hiring disabled
veterans with 30 percent or more disability
rating, veterans discharged or released for a
service connected disability, and veterans on
active duty between August 5, 1964, and
May 7, 1975. Also requires written AAPs for
certain employers.

1978 Requires employers to treat pregnancy just like any other medical condition with regard to fringe benefits and leave policies.

1986 Prohibits hiring of illegal aliens.

1990 Increases access to services and jobs for disabled workers.

1990. 
      Protects employees over 40 years of age in
      regard to fringe benefits and gives employees
      time to consider an early retirement offer.
      
1991. 
      Permits women, persons with disabilities, and
      persons who are religious minorities to have a
      jury trial and sue for punitive damages if they
      can prove intentional hiring and workplace
      discrimination. Also requires companies to
      provide evidence that the business practice
      that led to the discrimination was not
      discriminatory but was job-related for the
      position in question and consistent with
      business necessity.
      

1993 Enables qualified employees to take

prolonged unpaid leave for family and health-related reasons without fear of losing their jobs.