Introduction
Close your eyes and imagine information technology experts sitting around a table.
Did you see mostly (or only) white and Asian males? If so, you were realistically picturing
many of the leading IT companies. Those who have studied the matter find
that this industry, more than others, has tended to hire mostly men, most of them
white or Asian, for technology positions.
Tech companies are bringing in HR leadership to change that picture. Cisco,
a leader in computer networking, hired Francine Katsoudas as its chief human
resources officer. Katsoudas urges Cisco’s managers to assemble diverse groups
of employees to interview job candidates, and she works with Cisco’s other top
executives, including five women, to set a good example. Padmasree Warrior,
Cisco’s chief technology officer, says when she hears her managers say no women
applied for an opening, she tells them to “go find women” instead of making excuses.
High-tech start-ups are trying to be more inclusive from the beginning. Slack
Technologies, based in San Francisco, hired Anne Toth as its vice president of people
and policy. Toth is helping Slack not only find talented women to hire but also ensure
that they stay and keep contributing to the company’s mission. She brought in a consultant
to help managers learn to interview all candidates with a fair process, and she
works on ensuring that Slack’s corporate culture is welcoming to all.
HR managers like Katsoudas and
Toth are trying to help their companies
comply with the letter and spirit
of the law as well as meet strategic
objectives. As we saw in Chapter 1,
human resource management
takes
place in the context of the company’s
goals and society’s expectations for
how a company should operate. In
the United States, the federal government
has set some limits on how
an organization can practice human
resource management. Among these
limits are requirements intended
to prevent discrimination in hiring
and employment practices and
to protect the health and safety of
workers while they are on the job.
Questions about a company’s compliance
with these requirements
can result in lawsuits and negative
publicity, which often cause serious
problems for a company’s success and survival. Conversely, a company that skillfully
navigates the maze of regulations can gain an advantage over its competitors. A further
advantage may go to companies that go beyond mere legal compliance to make fair
employment and worker safety important components of the company’s business strategy.
So, for example, if Cisco and Stack outdo their competitors in finding the best talent
from underused sources, they not only can develop a highly motivated workforce but
also might benefit from insights into customer groups or new perspectives on challenging
problems. Similarly, an employer that requires employees to treat one another with
respect or emphasizes workers’ safety and well-being fosters a climate that attracts and
keeps talented workers.
This chapter provides an overview of the ways government bodies regulate equal
employment opportunity and workplace safety and health. It introduces you to major laws
affecting employers in these areas, as well as the agencies charged with enforcing those
laws. The chapter also discusses ways organizations can develop practices that ensure they
are in compliance with the laws.
One point to make at the outset is that managers often want a list of dos and don’ts that
will keep them out of legal trouble. Some managers rely on strict rules such as “Don’t ever
ask a female applicant if she is married,” rather than learning the reasons behind those
rules. Clearly, certain practices are illegal or at least inadvisable, and this chapter will provide
guidance on avoiding such practices. However, managers who merely focus on how to
avoid breaking‑best way to carry out the company’s mission. This chapter introduces ways
to think more creatively and constructively about fair employment and workplace safety.
Regulation of Human Resource Management
All three branches of the U.S. government—legislative, executive, and judicial—play
an important role in creating the legal environment for human resource management.
The legislative branch, which consists of the two houses of Congress, has enacted a number of laws governing human
resource activities. U.S. senators and representatives
generally develop these laws in response to perceived societal needs. For example,
during the civil rights movement of the early 1960s, Congress enacted Title VII of the
Civil Rights Act to ensure that various minority groups received equal opportunities in
many areas of life.
The executive branch, including the many regulatory agencies that the president
oversees, is responsible for enforcing the laws passed by Congress. Agencies do this
through a variety of actions, from drawing up regulations detailing how to abide by
the laws to filing suit against alleged violators. Some federal agencies involved in
regulating human resource management include the Equal Employment Opportunity
Commission and the Occupational Safety and Health Administration. In addition, the
president may issue executive orders, which are directives issued solely by the president,
without requiring congressional approval. Some executive orders regulate the
activities of organizations that have contracts with the federal government. For example,
President Lyndon Johnson signed Executive Order 11246, which requires all federal
contractors and subcontractors to engage in affirmative-action programs designed
to hire and promote women and minorities. (We will explore the topic of affirmative
action later in this chapter.)
The judicial branch, the federal court system, influences employment law by interpreting
the law and holding trials concerning violations of the law. The U.S. Supreme
Court, at the head of the judicial branch, is the court of final appeal. Decisions made
by the Supreme Court are binding; they can be overturned only through laws passed
by Congress. The Civil Rights Act of 1991 was partly designed to overturn Supreme
Court decisions.
Equal Employment Opportunity
Among the most significant efforts to regulate human resource management are those
aimed at achieving equal employment opportunity (EEO)—the condition in which all
individuals have an equal chance for employment, regardless of their race, color, religion,
sex, age, disability, or national origin. The federal government’s efforts to create equal
employment opportunity include constitutional amendments, legislation, and executive
orders, as well as court decisions that interpret the laws. Table 3.1 summarizes major EEO
laws discussed in this chapter. These are U.S. laws; equal employment laws in other countries
may differ.
Constitutional Amendments
Two amendments to the U.S. Constitution—the Thirteenth and Fourteenth—have
implications for human resource management. The Thirteenth Amendment abolished
slavery in the United States. Though you might be hard-pressed to cite an example of
race-based slavery in the United States today, the Thirteenth Amendment has been
applied in cases where discrimination involved the “badges” (symbols) and “incidents”
of slavery.
The Fourteenth Amendment forbids the states from taking life, liberty, or property without
due process of law and prevents the states from denying equal protection of the laws.
Recently it has been applied to the protection of whites in charges of reverse discrimination.
In a case that marked the early stages of a move away from race-based quotas, Alan Bakke
alleged that as a white man he had been discriminated against in the selection of entrants to the University of California
at Davis medical school.2 The university had set aside 16 of
the available 100 places for “disadvantaged” applicants who were members of racial
minority groups. Under this quota system, Bakke was able to compete for only 84
positions, whereas a minority applicant was able to compete for all 100. The federal
court ruled in favor of Bakke, noting that this quota system had violated white individuals’
right to equal protection under the law.
An important point regarding the Fourteenth Amendment is that it applies only to the
decisions or actions of the government or of private groups whose activities are deemed
government actions. Thus, a person could file a claim under the Fourteenth Amendment if
he or she had been fired from a state university (a government organization) but not if the
person had been fired by a private employer.
Legislation
The periods following the Civil War and during the civil rights movement of the 1960s
were times when many voices in society pressed for equal rights for all without regard to
a person’s race or sex. In response, Congress passed laws designed to provide for equal
opportunity. In later years Congress has passed additional laws that have extended EEO
protection more broadly.
Civil Rights Acts of 1866 and 1871 During Reconstruction, Congress passed
two Civil Rights Acts to further the Thirteenth Amendment’s goal of abolishing slavery.
The Civil Rights Act of 1866 granted all persons the same property rights as
white citizens, as well as the right to enter into and enforce contracts. Courts have
interpreted the latter right as including employment contracts. The Civil Rights Act
of 1871 granted all citizens the right to sue in federal court if they feel they have been
deprived of some civil right. Although these laws might seem outdated, they are still
used because they allow the plaintiff to recover both compensatory and punitive damages
(that is, payment to compensate them for their loss plus additional damages to
punish the offender).
Equal Pay Act of 1963 Under the Equal Pay Act of 1963, if men and women in an
organization are doing equal work, the employer must pay them equally. The act defines
equal in terms of skill, effort, responsibility, and working conditions. However, the act
allows for reasons why men and women performing the same job might be paid differently.
If the pay differences result from differences in seniority, merit, quantity or quality of production,
or any factor other than sex (such as participating in a training program or working
the night shift), then the differences are legal.
Title VII of the Civil Rights Act of 1964 The major law regulating equal employment
opportunity in the United States is Title VII of the Civil Rights Act of 1964. Title VII
directly resulted from the civil rights movement of the early 1960s, led by such individuals
as Dr. Martin Luther King Jr. To ensure that employment opportunities would be based on
character or ability rather than on race, Congress wrote and passed Title VII, and President
Lyndon Johnson signed it into law in 1964. The law is enforced by the Equal Employment
Opportunity Commission (EEOC) , an agency of the Department of Justice.
Title VII prohibits employers from discriminating against individuals because of
their race, color, religion, sex, or national origin. An employer may not use these characteristics
as the basis for not hiring someone, for firing someone, or for discriminating against them in the terms of their pay,
conditions of employment, or privileges of
employment. In addition, an employer may not use these characteristics to limit, segregate,
or classify employees or job applicants in any way that would deprive any individual
of employment opportunities or otherwise adversely affect his or her status as an
employee. The act applies to organizations that employ 15 or more persons working 20
or more weeks a year and that are involved in interstate commerce, as well as state and
local governments, employment agencies, and labor organizations.
Title VII also states that employers may not retaliate against employees for either
“opposing” a perceived illegal employment practice or “participating in a proceeding”
related to an alleged illegal employment practice. Opposition refers to expressing to
someone through proper channels that you believe an illegal employment act has taken
place or is taking place. Participation in a proceeding refers to testifying in an investigation,
hearing, or court proceeding regarding an illegal employment act. The purpose
of this provision is to protect employees from employers’ threats and other forms of
intimidation aimed at discouraging employees from bringing to light acts they believe
to be illegal. Companies that violate this prohibition may be liable for punitive damages.
Age Discrimination in Employment Act (ADEA) One category of employees
not covered by Title VII is older workers. Older workers sometimes are concerned that
they will be the targets of discrimination, especially when a company is downsizing.
Older workers tend to be paid more, so a company that wants to cut labor costs may
save by laying off its oldest workers. To counter such discrimination, Congress in 1967
passed the Age Discrimination in Employment Act (ADEA), which prohibits discrimination
against workers who are over the age of 40. Similar to Title VII, the ADEA outlaws
hiring, firing, setting compensation rates, or other employment decisions based on a person’s
age being over 40.
Many firms have offered early-retirement incentives as an alternative or supplement
to involuntary layoffs. Because this approach to workforce reduction focuses on older
employees, who would be eligible for early retirement, it may be in violation of the
ADEA. Early-retirement incentives require that participating employees sign an agreement
waiving their rights to sue under the ADEA. Courts have tended to uphold the use
of early-retirement incentives and waivers as long as the individuals were not coerced
into signing the agreements, the agreements were presented in a way the employees could
understand (including technical legal requirements such as the ages of discharged and
retained employees in the employee’s work unit), and the employees had been given
enough time to make a decision.3 Also, these waivers must meet the basic requirements
of a contract, so the employer must offer something of value—for example, payment of
a percentage of the employee’s salary—in exchange for the employee giving up rights
under the waiver.
One practical way to defend against claims of discrimination is to establish performancerelated
criteria for layoffs, rather than age- or salary-related criteria. Of course, those criteria
must be genuinely related to performance. The EEOC recently settled a case in which a
Tennessee manufacturer appeared to be manipulating job classifications in order to target
older engineers for layoffs. According to the agency’s allegations, employees aged 40 and
older were coerced into accepting promotions from Tech II to Tech III jobs, after which
they lost their seniority in their old positions and were laid off. The claims of coercion and
the pattern of layoffs led to the lawsuit for age discrimination, which the company settled
by agreeing to pay 25 workers $600,000, establish a new policy for layoffs, and train its
employees in the laws concerning age discrimination Age discrimination complaints make up a large percentage of the
complaints filed with
the Equal Employment Opportunity Commission, and whenever the economy is slow, the
number of complaints grows. For example, as shown in Figure 3.1, the number of age
discrimination cases jumped in 2008, when many firms were downsizing, and has been
gradually falling during the long, slow economic recovery. Another increase in age discrimination
claims accompanied the economic slowdown at the beginning of the 2000s.
In today’s environment, in which firms are seeking talented individuals to achieve
the company’s goals, older employees can be a tremendous pool of potential resources.
Researchers have found that although muscle power tends to decline with age, older workers
tend to offer other important strengths, including conscientiousness and interpersonal
skills. Older workers also may have acquired deep knowledge of their work, industry, and
employer. Successful companies are finding ways to keep these valuable older workers on
the job and contributing. Barclays has expanded its apprenticeship program to include workers
older than 50 who would bring to the banking firm relevant life experiences that do not
necessarily involve prior work in any particular industry. Barclays assumes that qualified
candidates will bring skills relating to customers applying for loans, and it can train them to
be loan officers. Sodexo, which provides food and facilities management services to its corporate
clients, sets up mentoring partnerships of older and younger workers. The expectation
is that the older partner will share wisdom gained from a variety of career experiences while
the younger partner will contribute knowledge of social media and other technology—and
that the partnership itself will increase employees’ commitment and enthusiasm.5
Vocational Rehabilitation Act of 1973 In 1973, Congress passed the Vocational
Rehabilitation Act to enhance employment opportunity for individuals with disabilities.
This act covers executive agencies and contractors and subcontractors that receive
more than $2,500 annually from the federal government. These organizations must
engage in affirmative action for individuals with disabilities. Affirmative action is an organization’s active effort to
find opportunities to hire or promote people in a particular
group. Thus, Congress intended this act to encourage employers to recruit qualified
individuals with disabilities and to make reasonable accommodations to all those people
to become active members of the labor market. The Department of Labor’s Employment
Standards Administration enforces this act.
Vietnam Era Veterans’ Readjustment Act of 1974 Similar to the Rehabilitation
Act, the Vietnam Era Veterans’ Readjustment Act of 1974 requires federal contractors
and subcontractors to take affirmative action toward employing veterans of the Vietnam
War (those serving between August 5, 1964, and May 7, 1975). The Office of Federal
Contract Compliance Procedures, discussed later in this chapter, has authority to enforce
this act.
Pregnancy Discrimination Act of 1978 An amendment to Title VII of the Civil
Rights Act of 1964, the Pregnancy Discrimination Act of 1978 defines discrimination on
the basis of pregnancy, childbirth, or related medical conditions to be a form of illegal sex
discrimination. According to the EEOC, this means that employers may not treat a female
applicant or employee “unfavorably because of pregnancy, childbirth, or a medical condition
related to pregnancy or childbirth.”6 For example, an employer may not refuse to hire
a woman because she is pregnant. Decisions about work absences or accommodations
must be based on the same policies as the organization uses for other disabilities. Benefits,
including health insurance, should cover pregnancy and related medical conditions in the
same way that it covers other medical conditions.
Americans with Disabilities Act (ADA) of 1990 One of the farthest-reaching
acts concerning the management of human resources is the Americans with Disabilities
Act. This 1990 law protects individuals with disabilities from being discriminated against
in the workplace. It prohibits discrimination based on disability in all employment practices,
such as job application procedures, hiring, firing, promotions, compensation, and
training. Other employment activities covered by the ADA are employment advertising,
recruitment, tenure, layoff, leave, and fringe benefits.
The ADA defines disability as a physical or mental impairment that substantially
limits one or more major life activities, a record of having such an impairment, or being
regarded as having such an impairment. The first part of the definition refers to individuals
who have serious disabilities—such as epilepsy, blindness, deafness, or paralysis—
that affect their ability to perform major bodily functions and major life activities such
as walking, learning (for example, functions of the brain and immune system), caring
for oneself, and working. The second part refers to individuals who have a history of
disability, such as someone who has had cancer but is currently in remission, someone
with a history of mental illness, and someone with a history of heart disease. The third
part of the definition, “being regarded as having a disability,” refers to people’s subjective
reactions, as in the case of someone who is severely disfigured; an employer might
hesitate to hire such a person on the grounds that people will react negatively to such
an employee.7
The ADA covers specific physiological disabilities such as cosmetic disfigurement
and anatomical loss affecting the body’s systems. In addition, it covers mental and
psychological disorders such as mental retardation, organic brain syndrome, emotional
or mental illness, and learning disabilities. Conditions not covered include obesity,
substance abuse, irritability, and poor judgment.8 Also, if a person needs ordinary eyeglasses or contact lenses to
perform each major life activity with little or no
difficulty, the person is not considered disabled under the ADA. (In determining whether
an impairment is substantially limiting, mitigating measures, such as medicine, hearing
aids, and prosthetics, once could be considered but now must be ignored.) Figure 3.2
shows the types of disabilities associated with complaints filed under the ADA in 2015.
In contrast to other EEO laws, the ADA goes beyond prohibiting discrimination to
require that employers take steps to accommodate individuals covered under the act. If a
disabled person is selected to perform a job, the employer (perhaps in consultation with the
disabled employee) determines what accommodations are necessary for the employee to
perform the job. Examples include using ramps and lifts to make facilities accessible, redesigning
job procedures, and providing technology such as TDD lines for hearing-impaired
employees. Some employers have feared that accommodations under the ADA would be
expensive. However, the Department of Labor has found that two-thirds of accommodations
cost less than $500, and many of these cost nothing.9 As technology advances, the cost
of many technologies has been falling. In addition, the federal government has created a tax
credit, the Work Opportunity Tax Credit, of up to $2,400 for each qualified disabled worker
hired. That means accommodating disabled workers can lower an employer’s income taxes.
Civil Rights Act of 1991 In 1991 Congress broadened the relief available to victims
of discrimination by passing a Civil Rights Act (CRA 1991). CRA 1991 amends Title VII
of the Civil Rights Act of 1964, as well as the Civil Rights Act of 1866, the Americans
with Disabilities Act, and the Age Discrimination in Employment Act of 1967. One major
change in EEO law under CRA 1991 has been the addition of compensatory and punitive
damages in cases of discrimination under Title VII and the Americans with Disabilities
Act. Before CRA 1991, Title VII limited damage claims to equitable relief, which courts
have defined to include back pay, lost benefits, front pay in some cases, and attorney’s fees
and costs. CRA 1991 allows judges to award compensatory and punitive damages when the plaintiff proves the
discrimination was intentional or reckless. Compensatory damages
include such things as future monetary loss, emotional pain, suffering, and loss of enjoyment
of life. Punitive damages are a punishment; by requiring violators to pay the plaintiff
an amount beyond the actual losses suffered, the courts try to discourage employers from
discriminating.
Recognizing that one or a few discrimination cases could put an organization out of
business, and so harm many innocent employees, Congress has limited the amount of
punitive damages. As shown in Table 3.2, the amount of damages depends on the size
of the organization charged with discrimination. The limits range from $50,000 per violation
at a small company (14 to 100 employees) to $300,000 at a company with more
than 500 employees. A company has to pay punitive damages only if it discriminated
intentionally or with malice or reckless indifference to the employee’s federally protected
rights.
Uniformed Services Employment and Reemployment Rights Act of 1994
When members of the armed services were called up following the terrorist attacks of
September 2001, a 1994 employment law—the Uniformed Services Employment and
Reemployment Rights Act (USERRA)—assumed new significance. Under this law,
employers must reemploy workers who left jobs to fulfill military duties for up to five
years. When service members return from active duty, the employer must reemploy them
in the job they would have held if they had not left to serve in the military, providing them
with the same seniority, status, and pay rate they would have earned if their employment
had not been interrupted. Disabled veterans also have
up to two years to recover from injuries received during
their service or training, and employers must make
reasonable accommodations for a remaining disability.
Service members also have duties under USERRA.
Before leaving for duty, they are to give their employers
notice, if possible. After their service, the law sets
time limits for applying to be reemployed. Depending
on the length of service, these limits range from
approximately 2 to 90 days. Veterans with complaints
under USERRA can obtain assistance from the
Veterans’ Employment and Training Service of the
Department of Labor.
Genetic Information Nondiscrimination
Act of 2008 Thanks to the decoding of the
human genome and developments in the fields of
genetics and medicine, researchers can now identify
more and more genes associated with risks for developing particular diseases or disorders. Although learning that you
are at risk
of, say, colon cancer may be a useful motivator to take precautions, the information opens up
some risks as well. For example, what if companies began using genetic screening to identify
and avoid hiring job candidates who are at risk of developing costly diseases? Concerns
such as this prompted Congress to pass the Genetic Information Nondiscrimination Act
(GINA) of 2008.
Under GINA’s requirements, companies with 15 or more employees may not use
genetic information in making decisions related to the terms, conditions, or privileges of
employment—for example, decisions to hire, promote, or lay off a worker. This genetic
information includes information about a person’s genetic tests, genetic tests of the person’s
family members, and family medical histories. Furthermore, employers may not
intentionally obtain this information, except in certain limited situations (such as an
employee voluntarily participating in a wellness program or requesting time off to care for
a sick relative). If companies do acquire such information, they must keep the information
confidential. The law also forbids harassment of any employee because of that person’s
genetic information.
Lilly Ledbetter Fair Pay Act of 2009 In reaction to a Supreme Court decision
overturning an EEOC policy that defined the time frame when employees may file a complaint,
Congress passed the Lilly Ledbetter Fair Pay Act. The act covers discrimination in
pay—that is, not being paid the same as one’s co-workers, where the difference is due to
race, color, religion, sex, national origin, age, or disability. Named after the worker whose
pay discrimination complaint did not withstand the Supreme Court’s ruling, the act made
the EEOC’s policy a federal law. It provides three ways to determine the time period within
which an employee may file a complaint: counting from (1) when the employer’s decision
or other discriminatory practice happened; (2) when the person became subject to the decision
or practice; or (3) when the compensation was affected by the decision or practice,
including each time the employee received a discriminatory level of compensation from
the employer.
Executive Orders
Two executive orders that directly affect human resource management are Executive Order
11246, issued by Lyndon Johnson, and Executive Order 11478, issued by Richard Nixon.
Executive Order 11246 prohibits federal contractors and subcontractors from discriminating
based on race, color, religion, sex, or national origin. In addition, employers whose
contracts meet minimum size requirements must engage in affirmative action to ensure
against discrimination. Those receiving more than $10,000 from the federal government
must take affirmative action, and those with contracts exceeding $50,000 must develop a
written affirmative-action plan for each of their establishments. This plan must be in place
within 120 days of the beginning of the contract. This executive order is enforced by the
Office of Federal Contract Compliance Procedures.
Executive Order 11478 requires the federal government to base all its employment policies
on merit and fitness. It specifies that race, color, sex, religion, and national origin may
not be considered. Along with the government, the act covers all contractors and subcontractors
doing at least $10,000 worth of business with the federal government. The U.S.
Office of Personnel Management is in charge of ensuring that the government is in compliance,
and the relevant government agencies are responsible for ensuring the compliance of
contractors and subcontractors.
The Government’s Role in Providing for Equal
Employment Opportunity
At a minimum, equal employment opportunity requires that employers comply with
EEO laws. To enforce those laws, the executive branch of the federal government uses
the Equal Employment Opportunity Commission and the Office of Federal Contract
Compliance Programs.
Equal Employment Opportunity Commission (EEOC)
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing
most of the EEO laws, including Title VII, the Equal Pay Act, and the Americans
with Disabilities Act. To do this, the EEOC investigates and resolves complaints about
discrimination, gathers information, and issues guidelines. The EEOC has tried to
increase its effectiveness by setting priorities where it believes its enforcement will
have the most impact.
When individuals believe they have been discriminated against, they may file a complaint
with the EEOC or a similar state agency. They must file the complaint within
180 days of the incident. The meaning of an “incident” for this purpose is defined by
law. For example, the Lilly Ledbetter Fair Pay Act establishes that for determining
pay discrimination, an incident can be receiving a paycheck. Figure 3.3 illustrates the
number of charges filed with the EEOC for different types of discrimination in 2015
Many individuals file more than one type of charge (for instance, both race discrimination
and retaliation), so the total number of complaints filed with the EEOC is less than
the total of the amounts in each category.
After the EEOC receives a charge of discrimination, it has 60 days to investigate the
complaint. If the EEOC either does not believe the complaint to be valid or fails to complete
the investigation within 60 days, the individual has the right to sue in federal court. If
the EEOC determines that discrimination has taken place, its representatives will attempt
to work with the individual and the employer to try to achieve a reconciliation without a
lawsuit. Sometimes the EEOC enters into a consent decree with the discriminating organization.
This decree is an agreement between the agency and the organization that the
organization will cease certain discriminatory practices and possibly institute additional
affirmative-action practices to rectify its history of discrimination. A settlement with the
EEOC can be costly, including such remedies as back pay, reinstatement of the employee,
and promotions.
If the attempt at a settlement fails, the EEOC has two options. It may issue a “right to
sue” letter to the alleged victim. This letter certifies that the agency has investigated the
victim’s allegations and found them to be valid. The EEOC’s other option, which it uses
less often, is to aid the alleged victim in bringing suit in federal court.
The EEOC also monitors organizations’ hiring practices. Each year organizations that
are government contractors or subcontractors or have 100 or more employees must file an
Employer Information Report (EEO-1) with the EEOC. The EEO-1 report is an online
questionnaire requesting the number of employees in each job category (such as managers,
professionals, and laborers), broken down by their status as male or female, Hispanic or
non-Hispanic, and members of various racial groups. The EEOC analyzes those reports to
identify patterns of discrimination, which the agency can then attack through class-action
lawsuits. Employers must display EEOC posters detailing employment rights. These posters
must be in prominent and accessible locations—for example, in a company’s cafeteria
or near its time clock. Also, employers should retain copies of documents related to
employment decisions—recruitment letters, announcements of jobs, completed job applications,
selections for training, and so on. Employers must keep these records for at least
six months or until a complaint is resolved, whichever is later.
Besides resolving complaints and suing alleged violators, the EEOC issues guidelines
designed to help employers determine when their decisions violate the laws enforced
by the EEOC. These guidelines are not laws themselves. However, the courts give great
consideration to them when hearing employment discrimination cases. For example, the
Uniform Guidelines on Employee Selection Procedures is a set of guidelines issued
by the EEOC and other government agencies. The guidelines identify ways an organization
should develop and administer its system for selecting employees so as not to
violate Title VII. The courts often refer to the Uniform Guidelines to determine whether
a company has engaged in discriminatory conduct. Similarly, in the Federal Register,
the EEOC has published guidelines providing details about what the agency will consider
illegal and legal in the treatment of disabled individuals under the Americans with
Disabilities Act.
Office of Federal Contract Compliance Programs (OFCCP)
The Office of Federal Contract Compliance Programs (OFCCP) is the agency
responsible for enforcing the executive orders that cover companies doing business with
the federal government. As we stated earlier in this chapter, businesses with contracts for
more than $50,000 may not discriminate in employment based on race, color, religion, national origin, or sex, and they
must have a written affirmative-action plan on file. This
plan must include three basic components:
1. Utilization analysis—A comparison of the race, sex, and ethnic composition of the
employer’s workforce with that of the available labor supply. The percentages in the
employer’s workforce should not be greatly lower than the percentages in the labor supply.
2. Goals and timetables—The percentages of women and minorities the organization
seeks to employ in each job group, and the dates by which the percentages are to be
attained. These are meant to be more flexible than quotas, requiring only that the
employer have goals and be seeking to achieve the goals.
3. Action steps—A plan for how the organization will meet its goals. Besides working
toward its goals for hiring women and minorities, the company must take affirmative
steps toward hiring Vietnam veterans and individuals with disabilities.
Each year, the OFCCP audits government contractors to ensure they are actively pursuing
the goals in their plans. The OFCCP examines the plan and conducts on-site visits to examine
how individual employees perceive the company’s affirmative-action policies. If the
agency finds that a contractor or subcontractor is not complying with the requirements, it
has several options. It may notify the EEOC (if there is evidence of a violation of Title VII),
advise the Department of Justice to begin criminal proceedings, request that the Secretary
of Labor cancel or suspend any current contracts with the company, and forbid the firm
from bidding on future contracts. For a company that depends on the federal government
for a sizable share of its business, that last penalty is severe.
Businesses’ Role in Providing for Equal
Employment Opportunity
Rare is the business owner or manager who wants to wait for the government to discover
that the business has failed to provide for equal employment opportunity. Instead, out of
motives ranging from concern for fairness to the desire to avoid costly lawsuits and settlements,
most companies recognize the importance of complying with these laws. Often
management depends on the expertise of human resource professionals to help in identifying
how to comply. These professionals can help organizations take steps to avoid discrimination
and provide reasonable accommodation.
Avoiding Discrimination
How would you know if you had been discriminated against? Decisions about human
resources are so complex that discrimination is often difficult to identify and prove. However,
legal scholars and court rulings have arrived at some ways to show evidence of discrimination.
Disparate Treatment One potential sign of discrimination is disparate treatment—
differing treatment of individuals, where the differences are based on the individuals’
race, color, religion, sex, national origin, age, or disability status. For example, disparate
treatment would include hiring or promoting one person over an equally qualified person
because of the individual’s race. Or suppose a company fails to hire women with school-age
children (claiming the women will be frequently absent) but hires men with school-age children.
In that situation, the women are victims of disparate treatment, because they are being
treated differently based on their sex. To sustain a claim of discrimination based on disparate
treatment, the women would have to prove that the employer intended to discriminate. To avoid disparate treatment,
companies can evaluate the questions and investigations
they use in making employment decisions. These should be applied equally. For example,
if the company investigates conviction records of job applicants, it should investigate them
for all applicants, not just for applicants from certain racial groups. Companies may want to
avoid some types of questions altogether. For example, questions about marital status can
cause problems, because interviewers may unfairly make different assumptions about men
and women. (Common stereotypes about women have been that a married woman is less
flexible or more likely to get pregnant than a single woman, in contrast to the assumption
that a married man is more stable and committed to his work.)
Evaluating interview questions and decision criteria to make sure they are job related is
especially important given that bias is not always intentional or even conscious. Researchers
have conducted studies finding differences between what people say about how they evaluate
others and how people actually act on their attitudes. Duke University business professor
Ashleigh Shelby Rosette has found various ways to uncover how individuals evaluate the performance
of others.10 In a recent study, she and colleagues compared the way sports reporters
interpreted the performance of college quarterbacks—the leaders of football teams. The
researchers found that when teams with a white quarterback performed well, the commentators
more often gave credit to the intelligence of the quarterback. When the winning teams
had a black quarterback, the announcers were more likely to praise the athletic strengths
of the quarterback. When teams with a black quarterback lost, the announcers blamed the
quarterback’s decision making. In prior research, Rosette has found similar patterns in commentary
about the leadership of corporations. In describing successful companies led by
black managers, analysts more often credit the managers for their good sense of humor or
speaking ability or even point to a favorable market rather than crediting the leaders for their
intelligence. Notice that the pattern is not to say people consciously think the black leaders
lack intelligence; rather, the association between the leader and intelligence simply is not
made. These results suggest that even when we doubt that we have biases, it may be helpful
to use decision-making tools that keep the focus on the most important criteria.
Is disparate treatment ever legal? The courts have held that in some situations, a factor
such as sex or religion may be a bona fide occupational qualification (BFOQ) , that is,
a necessary (not merely preferred) qualification for performing a job. A typical example
is a job that includes handing out towels in a locker room. Requiring that employees who
perform this job in the women’s locker room be female is a BFOQ. However, it is very
difficult to think of many jobs where criteria such as sex and religion are BFOQs. In a
widely publicized case from the 1990s, Johnson Controls, a manufacturer of car batteries,
instituted a “fetal protection” policy that excluded women of childbearing age from jobs
that would expose them to lead, which can cause birth defects. Johnson Controls argued
that the policy was intended to provide a safe work place and that sex was a BFOQ for jobs
that involved exposure to lead. However, the Supreme Court disagreed, ruling that BFOQs
are limited to policies directly related to a worker’s ability to do the job.11
Disparate Impact Another way to assess potential discrimination is by identifying
disparate impact —a condition in which employment practices are seemingly neutral
yet disproportionately exclude a protected group from employment opportunities. In other
words, the company’s employment practices lack obvious discriminatory content, but they
affect one group differently than others. Examples of employment practices that might result
in disparate impact include pay, hiring, promotions, or training. In the area of hiring, for
example, many companies encourage their employees to refer friends and family members for
open positions. These referrals can produce a pool of well-qualified candidates who would
be a good fit with the organization’s culture and highly motivated to work with people they already know. However,
given people’s tendency to associate with others like themselves,
this practice also can have an unintentional disparate impact on groups not already well
represented at the employer. Organizations that encourage employee referrals therefore
should combine the program with other kinds of recruitment and make sure that every
group in the organization is equally encouraged to participate in the referral program.12
For another example of disparate impact, see “HRM Social”.
A commonly used test of disparate impact is the four-fifths rule, which finds evidence of
potential discrimination if the hiring rate for a minority group is less than four-fifths the hiring
rate for the majority group. Keep in mind that this rule of thumb compares rates of hiring,
not numbers of employees hired. Figure 3.4 illustrates how to apply the four-fifths rule.
If the four-fifths rule is not satisfied, it provides evidence of potential discrimination.
To avoid declarations of practicing illegally, an organization must show that the disparate
impact caused by the practice is based on a “business necessity.” This is accomplished by
showing that the employment practice is related to a legitimate business need or goal. Of
course, it is ultimately up to the court to decide if the evidence provided by the organization
shows a real business necessity or is illegal. The court will also consider if other practices
could have been used that would have met the business need or goal but not resulted in
discrimination. An important distinction between disparate treatment and disparate impact is the role of
the employer’s intent. Proving disparate treatment in court requires showing that the employer
intended the disparate treatment, but a plaintiff need not show intent in the case of disparate
impact. It is enough to show that the result of the treatment was unequal. For example, the
requirements for some jobs, such as firefighters or pilots, have sometimes included a minimum
height. Although the intent may be to identify people who can perform the jobs, an unintended
result may be disparate impact on groups that are shorter than average. Women tend to be shorter
than men, and people of Asian ancestry tend to be shorter than people of European ancestry.
One way employers can avoid disparate impact is to be sure that employment decisions are
really based on relevant, valid measurements. If a job requires a certain amount of strength
and stamina, the employer would want measures of strength and stamina, not simply individuals’
height and weight. The latter numbers are easier to obtain but more likely to result in
charges of discrimination. Assessing validity of a measure can be a highly technical exercise
requiring the use of statistics. The essence of such an assessment is to show that test scores
or other measurements are significantly related to job performance. Some employers are also
distancing themselves from information that could be seen as producing a disparate impact.
For example, many employers are investigating candidates by looking up their social-media
profiles. This raises the possibility that candidates for hiring or promotion could say the
company passes them over because of information revealed about, say, their religion or ethnic
background. Therefore, some companies hire an outside researcher to check profiles and
report only information related to the person’s job-related qualifications.13
Many employers also address the challenge of disparate impact by analyzing their pay
data to look for patterns that could signal unintended discrimination. If they find such
patterns, they face difficult decisions about how to correct any inequities. An obvious but
possibly expensive option is to increase the lower-paid employees’ pay so it is comparable
to pay for the higher-paid group. If these pay increases are difficult to afford, the employer
could phase in the change gradually. Another way to handle the issue is to keep detailed
performance records, because they may explain any pay differences. Finally, to make a pay gap less likely in the future,
employers can ensure that lower-paid employees are getting
enough training, experience, and support to reach their full potential and earn raises.14
EEO Policy Employers can also avoid discrimination and defend against claims of discrimination
by establishing and enforcing an EEO policy. The policy should define and
prohibit unlawful behaviors, as well as provide procedures for making and investigating
complaints. The policy also should require that employees at all levels engage in fair conduct
and respectful language. Derogatory language can support a court claim of discrimination.
Affirmative Action and Reverse Discrimination In the search for ways to avoid discrimination,
some organizations have used affirmative-action programs, usually to increase the
representation of minorities. In its original form, affirmative action was meant as taking extra
effort to attract and retain minority employees. These efforts have included extensively recruiting
minority candidates on college campuses, advertising in minority-oriented publications,
and providing educational and training opportunities to minorities. Such efforts have helped
to increase diversity among entry-level employees. Over the years, however, many organizations
have resorted to quotas, or numerical goals for the proportion of certain minority groups,
to ensure that their workforce mirrors the proportions of the labor market. Sometimes these
organizations act voluntarily; in other cases the quotas are imposed by the courts or the EEOC.
Whatever the reasons for these hiring programs, by increasing the proportion of minority
or female candidates hired or promoted, they necessarily reduce the proportion of white or
male candidates hired or promoted. In many cases, white and/or male individuals have fought
against affirmative action and quotas, alleging what is called reverse discrimination. In other
words, the organizations are allegedly discriminating against white males by preferring women
and minorities. Affirmative action remains controversial in the United States. Surveys have
found that Americans are least likely to favor affirmative action when programs use quotas.15
Besides going beyond EEO laws to actively recruit women and minorities, some companies
go beyond the USERRA’s requirement to reemploy workers returning from military service.
These companies actively seek returning veterans to hire. In doing so, they have helped
address a pressing need in U.S. society. The unemployment rate for Gulf War–era veterans
(those serving on active duty since September 2001) has until recently been higher than the
overall unemployment rate. Earlier during the 2010s, the veteran unemployment rate was in
the double digits; it was down to 7.2% in 2014 and continued to fall during 2015.16
Providing Reasonable Accommodation
Especially in situations involving religion and individuals with disabilities, equal employment
opportunity may require that an employer make reasonable accommodation. In employment
law, this term refers to an employer’s obligation to do something to enable an otherwise
qualified person to perform a job. Accommodations for an employee’s religion often involve
decisions about what kinds of clothing to permit or require or when the employee must be at
work. A restaurant called Rotten Ralph’s ran afoul of discrimination laws when the general
manager told a Muslim server that she could not continue to wear a khimar, a covering for
her hair, ears, and neck. She had been wearing it on the job until the general manager saw her
and insisted that employees were not allowed to wear “hoodies.” The EEOC unsuccessfully
attempted to reach a settlement and then filed a lawsuit. Another case involved the work
schedule of an employee of the National Federation of the Blind. The employee explained
that as a member of the Hebrew Pentecostal denomination of Christians, he could not work
between sunset Friday and sunset Saturday. When the organization asked him to work certain
Saturdays, management would not accommodate his religious beliefs by letting him work instead on Sundays or
weeknight evenings. After the EEOC filed suit, the federation
settled for $25,000 and a promise to avoid future religious discrimination.17
In the context of religion, this principle recognizes that for some individuals, religious
observations and practices may present a conflict with work duties, dress codes, or company
practices. For example, some religions require head coverings, or individuals might need
time off to observe the sabbath or other holy days, when the company might have them
scheduled to work. When the employee has a legitimate religious belief requiring accommodation,
the employee should demonstrate this need to the employer. Assuming that it
would not present an undue hardship, employers are required to accommodate such religious
practices. They may have to adjust schedules so that employees do not have to work on days
when their religion forbids it, or they may have to alter dress or grooming requirements.
For employees with disabilities, reasonable accommodations also vary according to the
individuals’ needs. As shown in Figure 3.5, employers may restructure jobs, make facilities
in the workplace more accessible, modify equipment, or reassign an employee to a job
that the person can perform. In some situations, a disabled individual may provide his or
her own accommodation, which the employer allows, as in the case of a blind worker who
brings a guide dog to work.
If accommodating a disability would require significant expense or difficulty, however,
the employer may be exempt from the reasonable accommodation requirement (although
the employer may have to defend this position in court). An accommodation is considered “reasonable” if it does not
impose an undue hardship on the employer, such as an expense
that is large in relation to a company’s resources. As the “HR Oops!” box suggests, some
employers may believe there is more of a hardship than actually exists. It is important to
investigate the possibilities rather than assume that they will be difficult or expensive.
Preventing Sexual Harassment
Based on Title VII’s prohibition of sex discrimination, the EEOC defines sexual harassment
of employees as unlawful employment discrimination. Sexual harassment refers
to unwelcome sexual advances. The EEOC has defined the types of behavior and the situations
under which this behavior constitutes sexual harassment:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact
of a sexual nature constitute sexual harassment when:
1. Submission to such conduct is made either explicitly or implicitly a term or condition of
an individual’s employment,
2. Submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individual, or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive working environment.18
Under these guidelines, preventing sexual discrimination includes managing the workplace
in a way that does not permit anybody to threaten or intimidate employees through
sexual behavior. In general, the most obvious examples of sexual harassment involve quid pro quo harassment,
meaning that a person makes a benefit (or punishment) contingent on an employee’s
submitting to (or rejecting) sexual advances. For example, a manager who promises a raise
to an employee who will participate in sexual activities is engaging in quid pro quo harassment.
Likewise, it would be sexual harassment to threaten to reassign someone to a lessdesirable
job if that person refuses sexual favors.
A more subtle, and possibly more pervasive, form of sexual harassment is to create
or permit a “hostile working environment.” This occurs when someone’s behavior in the
workplace creates an environment in which it is difficult for someone of a particular sex
to work. Common complaints in sexual harassment lawsuits include claims that harassers
ran their fingers through the plaintiffs’ hair, made suggestive remarks, touched intimate
body parts, posted pictures with sexual content in the workplace, and used sexually explicit
language or told sex-related jokes. The reason that these behaviors are considered discrimination
is that they treat individuals differently based on their sex.
Although a large majority of sexual harassment complaints received by the EEOC involve
women being harassed by men, more than 15% of sexual harassment claims have been filed by
men in recent years. Some of the men claimed that they were harassed by women, but samesex
harassment also occurs and is illegal. The EEOC recently announced lawsuits against
two companies where workers complained that they were harassed because they are gay.
At one company, a female forklift operator complained that her supervisor harassed and then
fired her because she is a lesbian; at the other, a male employee complained that his supervisor
created a hostile environment because he is gay. These cases marked the first time the EEOC
treated harassment based on sexual orientation as sexual harassment, a sign of broadening
protections based on sexual orientation and identity. In addition, more than 20 states forbid
discrimination on the basis of sexual orientation, and almost as many forbid discrimination
against transgender workers.19 Basic policies for treating all employees with respect can help
HR departments guide their companies through this changing area of the legal landscape.
To ensure a workplace free from sexual harassment, organizations can follow some
important steps. First, the organization can develop a policy statement making it very clear
that sexual harassment will not be tolerated in the workplace. Second, all employees, new
and old, can be trained to identify inappropriate workplace behavior. In addition, the organization
can develop a mechanism for reporting sexual harassment in a way that encourages
people to speak out. Finally, management can prepare to act promptly to discipline those
who engage in sexual harassment, as well as to protect the victims of sexual harassment.
Valuing Diversity
As we mentioned in Chapter 2, the United States is a diverse nation, and becoming more so.
In addition, many U.S. companies have customers and operations in more than one country.
Managers differ in how they approach the challenges related to this diversity. Some define
a diverse workforce as a competitive advantage that brings them a wider pool of talent and
greater insight into the needs and behaviors of their diverse customers. These organizations
say they have a policy of valuing diversity.
The practice of valuing diversity has no single form; it is not written into law or business
theory. Organizations that value diversity may practice some form of affirmative
action, discussed earlier. They may have policies stating their value of understanding and
respecting differences. Organizations may try to hire, reward, and promote employees who
demonstrate respect for others. They may sponsor training programs designed to teach
employees about differences among groups. Whatever their form, these efforts are intended
to make each individual feel respected. Also, these actions can support equal employment opportunity by cultivating an
environment in which individuals feel welcome and able to
do their best. The “HR How To” box describes some ways HR organizations can build
practices that support valuing diversity.
Valuing diversity, especially in support of an organization’s mission and strategy,
need not be limited to the categories protected by law. For example, many organizations
see workers struggling to meet the demands of family and career, so they provide
family-friendly benefits and policies, as described in Chapter 14. Managers and human
resource professionals also are concerned about learning how to treat transgender
employees respectfully and appropriately. Transgender individuals who are transitioning
to the opposite sex typically change their names. This change involves administrative
decisions for a human resource department. Some of these—for example, changing
e-mail addresses and business cards—are a simple matter of calling employees by the
names they wish to use. Typically, organizations already do this when, for example,
Rebecca Jones wants to be known as Becky or Paul John Smith wants to be known as
P. J. If company policies are too rigid to allow this kind of personal decision, the needs
of the transgender employee may prompt a review of the policies. Other aspects of the
change must meet legal requirements; for example, the name on tax documents must
match the name on the employee’s Social Security card, so changing those documents must wait for a legal name
change. Even so, employers can respect diversity by demanding
no more documentation for name changes in this situation than in other types of
name changes (for example, for a woman who wishes to change her name after getting
married).20
Occupational Safety and Health Act (OSH Act)
Like equal employment opportunity, the protection of employee safety and health is regulated
by the government. Through the 1960s, workplace safety was primarily an issue
between workers and employers. By 1970, however, roughly 15,000 work-related fatalities
occurred every year. That year, Congress enacted the Occupational Safety and Health
Act (OSH Act) , the most comprehensive U.S. law regarding worker safety. The OSH Act
authorized the federal government to establish and enforce occupational safety and health
standards for all places of employment engaging in interstate commerce.
The OSH Act divided enforcement responsibilities between the Department of Labor
and the Department of Health. Under the Department of Labor, the Occupational Safety
and Health Administration (OSHA) is responsible for inspecting employers, applying
safety and health standards, and levying fines for violation. The Department of Health
is responsible for conducting research to determine the criteria for specific operations or
occupations and for training employers to comply with the act. Much of the research is
conducted by the National Institute for Occupational Safety and Health (NIOSH).
General and Specific Duties
The main provision of the OSH Act states that each employer has a general duty to furnish
each employee a place of employment free from recognized hazards that cause or are likely to cause death or serious
physical harm. This is called the act’s generalduty clause. Employers also must keep records of work-related
injuries and illnesses and post an annual summary of these records
from February 1 to April 30 in the following year. Figure 3.6 shows
a sample of OSHA’s Form 300A, the annual summary that must be
posted, even if no injuries or illnesses occurred.
Although OSHA regulations have a (sometimes justifiable) reputation
for being complex, a company can get started in meeting these
requirements by visiting OSHA’s website (www.osha.gov) and looking
up resources such as the agency’s Small Business Handbook and
its step-by-step guide called “Compliance Assistance Quick Start.”
The Department of Labor recognizes many specific types of hazards,
and employers must comply with all the occupational safety
and health standards published by NIOSH. One area of concern is
the illnesses and injuries experienced by emergency response workers
who are putting aside concern for themselves as they aid victims
of a disaster. The General Accounting Office and Rand Corporation noted that the health
of workers responding to the World Trade Center attacks in 2001 was not sufficiently
addressed. Despite attempts to learn from the experience, problems occurred again following
Hurricane Katrina and the Deepwater Horizon oil spill in the Gulf of Mexico. In an
effort to improve planning for how to monitor the health and safety of emergency response
workers, NIOSH partnered with other federal agencies to develop a set of guidelines for
protecting these workers. The guidelines include efforts ahead of emergencies, such as
health screening and safety training of emergency responders, as well as requirements for
during and after deployment.21
Although NIOSH publishes numerous standards, it is impossible for regulators to anticipate
all possible hazards that could occur in the workplace. Thus, the general-duty clause
requires employers to be constantly alert for potential sources of harm in the workplace
(as defined by the standard of what a reasonably prudent person would do) and to correct
them. Information about hazards can come from employees or from outside researchers.
The union-backed Center for Construction Research and Training sponsored research into
the safety problems related to constructing energy-efficient buildings. The study found that
workers in “green” construction faced greater risks of falling and were exposed to new
risks from building innovations such as rooftop gardens and facilities for treating wastewater.
Employers need to make these construction sites safer through measures such as better
fall protection and more use of prefabrication.22
Enforcement of the OSH Act
To enforce the OSH Act, the Occupational Safety and Health Administration conducts
inspections. OSHA compliance officers typically arrive at a workplace unannounced; for obvious reasons, OSHA
regulations prohibit notifying employers of inspections in
advance. After presenting credentials, the compliance officer tells the employer the reasons
for the inspection and describes, in a general way, the procedures necessary to conduct the
investigation.
An OSHA inspection has four major components. First, the compliance officer reviews
the company’s records of deaths, injuries, and illnesses. OSHA requires this kind of record
keeping at all firms with 11 or more full- or part-time employees. Next, the officer—typically
accompanied by a representative of the employer (and perhaps by a representative of the
employees)—conducts a “walkaround” tour of the employer’s premises. On this tour, the
officer notes any conditions that may violate specific published standards or the less specific
general-duty clause. The third component of the inspection, employee interviews,
may take place during the tour. At this time, anyone who is aware of a violation can bring it
to the officer’s attention. Finally, in a closing conference, the compliance officer discusses
the findings with the employer, noting any violations.
Following an inspection, OSHA gives the employer a reasonable time frame within
which to correct the violations identified. If a violation could cause serious injury or death,
the officer may seek a restraining order from a U.S. District Court. The restraining order
compels the employer to correct the problem immediately. In addition, if an OSHA violation
results in citations, the employer must post each citation in a prominent place near the
location of the violation.
Besides correcting violations identified during the inspection, employers may have to
pay fines. These fines range from $20,000 for violations that result in death of an employee
to $1,000 for less-serious violations. Other penalties include criminal charges for falsifying
records that are subject to OSHA inspection or for warning an employer of an OSHA
inspection without permission from the Department of Labor.
Employee Rights and Responsibilities
Although the OSH Act makes employers responsible for protecting workers from safety
and health hazards, employees have responsibilities as well. They have to follow OSHA’s
safety rules and regulations governing employee behavior. Employees also have a duty to
report hazardous conditions.
Along with those responsibilities go certain rights. Employees may file a complaint and
request an OSHA inspection of the workplace, and their employers may not retaliate against
them for complaining. Employees also have a right to receive information about any hazardous
chemicals they handle in the course of their jobs. OSHA’s Hazard Communication
Standard and many states’ right-to-know laws require employers to provide employees
with information about the health risks associated with exposure to substances considered
hazardous. State right-to-know laws may be more stringent than federal standards, so organizations
should obtain requirements from their state’s health and safety agency, as well as
from OSHA.
Under OSHA’s Hazard Communication Standard, organizations must have material
safety data sheets (MSDSs) for chemicals that employees are exposed to. An MSDS
is a form that details the hazards associated with a chemical; the chemical’s producer
or importer is responsible for identifying these hazards and detailing them on the form.
Employers must also ensure that all containers of hazardous chemicals are labeled with
information about the hazards, and they must train employees in safe handling of the
chemicals. Office workers who encounter a chemical infrequently (such as a secretary
who occasionally changes the toner in a copier) are not covered by these requirements In the case of a copy machine,
the Hazard Communication Standard would apply to
someone whose job involves spending a large part of the day servicing or operating
such equipment.
Impact of the OSH Act
The OSH Act has unquestionably succeeded in raising the level of awareness of occupational
safety. Yet legislation alone cannot solve all the problems of work site safety.
Indeed, the rate of occupational illnesses more than doubled between 1985 and 1990,
according to the Bureau of Labor Statistics, while the rate of injuries rose by about
8 percent. However, as depicted in Figure 3.7, the combined rate of injuries and illnesses
has shown a steady downward trend since then, and illnesses remain a small share of the
total, at around 5%.23 A more troubling trend is an increase in the number of claims of
retaliation against employees who report injuries. The data do not indicate whether more
employers are actually retaliating, however, or more employees are learning that the law
forbids retaliation.24
Many industrial accidents are a product of unsafe behaviors, not unsafe working conditions.
Because the act does not directly regulate employee behavior, little behavior change
can be expected unless employees are convinced of the standards’ importance.25
Conforming to the law alone does not necessarily guarantee their employees will be
safe, so many employers go beyond the letter of the law. In the next section we examine
various kinds of employer-initiated safety awareness programs that comply with OSHA
requirements and, in some cases, exceed them. Employer-Sponsored Safety and Health Programs
Many employers establish safety awareness programs to go beyond mere compliance with
the OSH Act and attempt to instill an emphasis on safety. A safety awareness program
has three primary components: identifying and communicating hazards, reinforcing safe
practices, and promoting safety internationally. All three components can be more effective
when supported with today’s methods of collecting and analyzing data. In the health
care industry, for example, organizations can participate in NIOSH’s Occupational Health
Safety Network, a web-based system for using OSHA data. Participating organizations
can learn what kinds of injuries are most common in their facilities and see whether safety
programs have reduced their injury rates.26
Identifying and Communicating Job Hazards
Employees, supervisors, and other knowledgeable sources need to sit down and discuss
potential problems related to safety. One method for doing this is the job hazard analysis
technique.27 With this technique, each job is broken down into basic elements, and each
of these is rated for its potential for harm or injury. If there is agreement that some job
element has high hazard potential, the group isolates the element and considers possible
technological or behavior changes to reduce or eliminate the hazard. This method poses
some special challenges for high-tech companies, where workers may be exposed to materials
and conditions that are not yet well understood. An example is nanotechnology, which
involves applications of extremely tiny products. Masks and other traditional protective
equipment do not necessarily prevent nanoparticles from entering the body, and their
impact on health is not known. Some exposures may be harmless, but researchers are only
beginning to learn their impact.28
Another means of isolating unsafe job elements is to study past accidents. The technic
of operations review (TOR) is an analysis method for determining which specific element
of a job led to a past accident.29 The first step in a TOR analysis is to establish
the facts surrounding the incident. To accomplish this, all members of the work group
involved in the accident give their initial impressions of what happened. The group must
then, through discussion, come to an agreement on the single, systematic failure that most
likely contributed to the incident, as well as two or three major secondary factors that
contributed to it.
Job analysis may be entering a new level of sophistication, thanks to the development of
wearable devices that connect to the Internet. For example, Honeywell and Intel together
have been developing a wearable device that contains sensors and monitors for gathering
and communicating data related to the wearer’s safety. The device provides immediate
feedback to the wearer and his or her supervisor. Workers in high-risk environments could
transmit data about their whereabouts, movements, and conditions in their environment,
allowing supervisors to monitor their well-being. The data collected in particular incidents
also could prove useful for future safety training.30
To communicate with employees about job hazards, managers should talk directly with
their employees about safety. Memos also are important because the written communication
helps establish a “paper trail” that can later document a history of the employer’s
concern regarding the job hazard. Posters, especially if placed near the hazard, serve as a
constant reminder, reinforcing other messages. Modern technology, such as mobile devices,
also can provide convenient, effective channels for communicating safety messages. The
“Best Practices” box tells how organizations are communicating in order to prevent an alltoocommon type of injury: falls from ladders. In communicating risk, managers should recognize that different groups of
individuals
may constitute different audiences. Safety trainer Michael Topf often encounters workplaces
where employees speak more than one language. In those situations, Topf says, it is
important to provide bilingual training and signs. But English skills alone do not guarantee
that safety messages will be understood. Supervisors and trainers need to use vocabulary
and examples that employees will understand, and they need to ask for feedback in a culturally
appropriate way. For example, in some cultures, employees will think it is improper
to speak up if they see a problem. It is therefore important for managers to promote many
opportunities for communication.31 Human resource managers can support this effort by
providing opportunities for supervisors to learn about the values and communication styles
of the cultures represented at work.
Safety concerns and safety training needs also vary by age group. According to the
Bureau of Labor Statistics, injuries and illnesses requiring time off from work occurred
at the highest rate among workers between the ages of 45 and 54; workers aged 55 to 64
were the next highest group. However, patterns vary according to type of injury. Consider
the safety risks associated with the time changes related to daylight savings time. When
clocks are set ahead, people can have trouble falling asleep on time and can become
sleep deprived, making injuries more likely. The adjustment is particularly difficult for
those who naturally tend to stay up late—a pattern that is most common among younger workers. Safety training in
ways to prepare one’s body for the time change might be
particularly relevant for a young workforce. As people age, they tend to move toward
becoming “morning” people. For people with a strong pattern of getting up early, setting
the clocks back in the fall, with the drive home suddenly in the dark, might provide more
of a safety risk. The need for training on this issue in the fall might be especially great
among older workers.32
Reinforcing Safe Practices
To ensure safe behaviors, employers should not only define how to work safely but reinforce
the desired behavior. One common technique for reinforcing safe practices is implementing
a safety incentive program to reward workers for their support of and commitment to safety
goals. Such programs start by focusing on monthly or quarterly goals or by encouraging
suggestions for improving safety. Possible goals might include good housekeeping practices,
adherence to safety rules, and proper use of protective equipment. Later, the program
expands to include more wide-ranging, long-term goals. Typically, the employer distributes
prizes in highly public forums, such as company or department meetings. Surprisingly,
one of the most obvious ways to reinforce behavior often does not occur: when employees
report unsafe conditions or behavior, the employer should take action to correct the problem.
This response signals that the organization is serious when it says it values safety. In
a recent survey of employees, most said their organization had a policy that encouraged
reporting safety concerns, but many said they did not bother because they had come to
expect a negative reaction or no response at all.33
A practical way to get started with reinforcement is to target jobs or hazards that are most
likely to be associated with injuries in the company’s workplace. The “Did You Know?”
box identifies the top causes of workplace injuries overall; some of these might be more
likely in a particular business, depending on the jobs involved. Besides focusing on specific
jobs, organizations can target particular types of injuries or disabilities, especially those for
which employees may be at risk. For example, Prevent Blindness America estimates that
more than 2,000 eye injuries occur every day in occupational settings.34 Organizations can
prevent such injuries through a combination of job analysis, written policies, safety training,
protective eyewear, rewards and sanctions for safe and unsafe behavior, and management
support for the safety effort. Similar practices for preventing other types of injuries
are available in trade publications, through the National Safety Council, and on the website
of the Occupational Safety and Health Administration (www.osha.gov).
Promoting Safety Internationally
Given the increasing focus on international management, organizations also need to consider
how to ensure the safety of their employees regardless of the nation in which they
operate. Cultural differences may make this more difficult than it seems. For example, a
study examined the impact of one standardized corporationwide safety policy on employees
in three different countries: the United States, France, and Argentina. The results
of this study indicate that employees in the three countries interpreted the policy differently
because of cultural differences. The individualistic, control-oriented culture of
the United States stressed the role of top management in ensuring safety in a top-down
fashion. However, this policy failed to work in Argentina, where the culture is more
“collectivist” (emphasizing the group). Argentine employees tend to feel that safety is
everyone’s joint concern, so the safety programs needed to be defined from the bottom
of the organization up Another challenge in promoting safety internationally is that laws, enforcement practices,
and political climates vary from country to country. With the extensive use of offshoring,
described in Chapter 2, many companies have operations in countries where labor
standards are far less strict than U.S. standards. Managers and employees in these countries
may not think the company is serious about protecting workers’ health and safety. In that
90 PART 1 The Human Resource Environment
case, strong communication and oversight will be necessary if the company intends to
adhere to the ethical principle of valuing its foreign workers’ safety as much as the safety
of its U.S. workers.
Overseas experience also can provide insights for improving safety at home as well as
abroad. Liberty Mutual’s Center for Injury Epidemiology (CIE) noticed that during harvest
season in Vietnam, people who worked in both agricultural and industrial jobs were injured
at far higher rates than those who worked only in one position. The CIE applied that insight
to the U.S. workforce and investigated accident rates among employees holding two jobs
at the same time. The researchers found much higher accident rates for these workers, both
on and off the job. Possible reasons include that they may be less experienced, under more
stress, or more poorly trained than employees holding one job.36 Given that many employers
today are hiring people to work part-time, they should consider that these workers may try
to hold two jobs and be at greater risk of injury. Training programs and incentives should
take that risk into account—for example, with more flexible schedules for safety training.
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