USD Difference Between Disparate Treatment and Disparate Impact Post

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This week, we have been studying and learning about equal employment opportunity which is in the documents that I uploaded. It is the backbone of human resources work. Read the questions and write a 400-600 word response:

1. Explain the difference between disparate treatment and disparate impact. Are they both unlawful? How does a human resources department go about evaluating their programs and practices for disparate impact?

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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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Running head: HUMAN RESOURCE MANAGEMENT

Human Resource Management
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HUMAN RESOURCE MANAGEMENT

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Human Resource Management
Explain the Difference between disparate treatment and disparate impact. Are they
unlawful?
Discrimination is based on factors like religion, gender, and sex, but this definition only
captures explicit forms. Employment practices may be discriminatory. Each organization
comprises several programs and policies that govern its operations in that they either directly or
indirectly influence each person in the organization. According to the law, the framework of
policies and programs should not have a disparate impact both in and out of the organization.
There are two discriminatory practices which manifests in the working place.
Disparate impact takes place when a company's policies and actions in...


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