Disparate treatment is the employee’s belief or concept that they have experienced discrimination based upon a prohibited reason (race, color, sex, religion or national origin). If proven, this theory can be direct or indirect. An applicant may allege that the hiring manager stated that they do not hire women. An employee may over hear their manager talking with a co-worker, discussing how they refused to promote the employee because they were of Irish decent. In both examples, the discrimination, if true, is intentional on based on a prohibited reason. The hiring manager just completed interviewing 5 applicants for a position. Of the 5 applicants, the top applicant practices Islam. The hiring manager rejects the notion to hire the top applicant for the position and continues to conduct interviews to fill the position. In this case, it can be ruled out the lack of qualifications because the applicant is qualified and job availability because the hiring manager is still conducting interviews. The only assumption is that since the applicant practices Islam, religion, they didn’t get the position.
Disparate impact has more of a group concept than individual. The employee has to show that even though the organization appears to have no intent to discriminate, there is an impact on a protected group. Under this theory, once again, the intent to discriminate is irrelevant, however, a decision that appeared neutral must demonstrate whether it’s work related or a business necessity. For example, a company may have a policy stating that the employee is required to be of particular height and weight size. Men and women differ in height and weight and this policy eliminates the number of women applicants at a faster rate than men presenting disparate impact on women.
The Civil Rights Act of 1991 gave the opportunity for punitive damages to be awarded to the employee who accused the employer of discrimination providing the employee substantiate that the employer participated in discriminatory practices with malice or in a reckless manner with no regards to the law. This statute also created a group, the Glass Ceiling Commission, focused on the invisible barrier present in most organizations that prevents many women and minorities from achieving top-level management positions, also known as the glass ceiling. How businesses fill management positions, promote development practices to improve qualifications for advancement are examples that the commission view in steps to remove the glass ceilings in organizations.
Equal Pay Act of 1963 ( EPA )
The HR unit of an organization uses a job analysis to determine the dollar value of positions in company based on the significance of the duties & responsibilities and market value, just to name a few. The HR unit also takes in consideration the Equal Pay Act of 1963 to ensure there’s no discrimination within the compensation system. The Equal Pay Act is as follows:
The EPA, passed in 1963, established the minimum wage and prohibited gender-based wage discrimination. It states in part: “No employer having employees subject to any provisions of this section shall discriminate . . . between employees on the basis of sex by paying wages to employees . . .at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work . . . under similar working conditions (Arrendondo, 2002, 263).
Jobs that require equal skill, effort, and responsibility and performed under the same conditions are considered substantially the same. Employers may not bypass the law to justify pay differences by simply labeling the same job with different titles when performed by men and women. The burden falls upon the employer to prove that the pay differences are a result of an excusable instance outlined by the EPA. Unequal responsibility, seniority and merit pay system are the basis for which the EPA allows pay differences in the workplace. For an employer to claim unequal work, they must prove the skill/responsibility is substantially greater in one of the jobs compared, the tasks involving the skill/responsibility consume a significant amount of time for employees with questionable wages and the skill/responsibility must have value attached with the questioned pay differences.
The EPA raised the concept of comparable worth. Comparable worth is the employer’s comparison of the worth of jobs to determine its pay rate. It allows jobs that are not the same, but of comparable worth to the employee, be examined for wage discrepancies. One may say that a secretary position within an organization is paid less and female dominated; at the same time, a construction position within the same organization is paid more and male dominated. The employer is able to bypass the EPA limitation comparing jobs that are the same.
Employers should be aware that there are harsh penalties waiting in the rear for those who violate the EPA. In 1999, following a Department of Labor audit, Texaco agreed to pay $3.1 million to female employees who had been consistently paid less than male counterparts; $2.2 million in back pay/interest and $900,000 in salary increases (Bland, 1999, 138).
Age Discrimination in Employment Act of 1967 ( ADEA )
In an age where it was originally thought that many of the “Baby Boomers” would be making room for “Generation X” to make their mark in the business world, less and less older workers are leaving the workforce. This can be attribute to limited funds provided through the Social Security System or dipping into retirement funds for emergencies or to cover education costs. Whatever the individual reason may be, it is apparent that older worker wishes to stay employed as long as possible. To ensure they are not discriminate upon, the Age Discrimination in Employment Act of 1967 was created to protect the older worker. In the beginning, ADEA was the following:
The ADEA sought to protect older workers from discrimination based on age in both the hiring and retention process. The ADEA applies to employers with at least twenty employees (Arrendondo, 2002, 263).
ADEA started out protecting workers between the ages of 40 to 65 years old, however, in 1978, the protection class changed to at least 40 but less than 70 years of age. Ultimately, in 1986, discrimination against anyone over the age of 40 became illegal.
Employers should keep in mind that ADEA does not guarantee that a member of the protected class will maintain employment no matter their age or performance. With any job/position, if an employee can no longer perform a job, a nondiscriminatory, job-related basis for termination exists. We should never assume that an employee’s age is the reason for their declining performance and eventual termination. Regardless of age, an employee should be able to perform their assigned responsibilities or risk the increase possibility of termination.
The Older Workers Benefit Protection Act, which was an amendment to ADEA, prohibits discrimination in the administration of benefits on the basis of age but permits early retirement incentive plans as long as they are voluntary. This act contains an equal cost principle, which means that benefits of older employees can be less than those for younger employees only if the cost of providing the benefit increases with age.
In the 1996 case of O’Connor v. Consolidated Coin Caterers Corp., the US Supreme Court ruled that an employee does not have to show that he or she was replaced by someone younger than 40 to bring suit under ADEA and went on to state that discrimination is illegal even when all the employees are members of the protected age group. A 40-year old employee replaced a 56-year old regional sales manager. The Court found that being replaced by someone substantially younger was a more reliable indicator of age discrimination than being replaced by someone outside the protected class (DiCesane, 1996, 51).
Pregnancy Discrimination Act of 1978
Many women either become pregnant while employed or seeking employment. The site of a pregnant worker may lead to misconceptions about their performance or increase in health insurance. An employer may want to turn a pregnant applicant away for the simple fact they will have to incur medical costs for a woman who will give birth soon after employed with the company. In any event, the Pregnancy Discrimination Act of 1978 prohibits discrimination in employment based on pregnancy, childbirth or related medical conditions. Pregnant employees cannot be made to leave work early to take maternity leave at a certain arbitrarily set date. Women should be able to return to work after leave to the jobs they maintained before the leave went into effect. A woman is also entitled to disability benefits and any health insurance provides must cover expenses for pregnancy-related conditions.
Pregnant employees can use FMLA or Family Medical Leave Act to cover time off when the baby has been delivered. FMLA guarantees job securities for those who take time off, assuring them that their job will be available upon return.
This statute, if violated, comes with its share of harsh penaltities. AT&T settled a discrimination suit with the EEOC in 1991 for $66 million . . . charging that pregnant workers were required to leave at the end of their sixth month of pregnancy, denied seniority credit and refused to guarantee the employee a job after they returned (Keller, 1991, B8).
American with Disabilities Act ( ADA )
The American with Disabilities Act, ADA, forces employers to change not only their perception of who a disable person is but also the perception of what a disabled person is capable of achieving. Employers should attempt to think of employees as being able to perform in numerous ways, having abilities that differ from our general thinking. ADA is as follows:
The ADA, passed in 1990, sought to eliminate discrimination against individuals with disabilities”. It specifically prohibits discrimination against a qualified individual with a disability. A qualified individual is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”. The ADA defines a disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; (C) being regarded as having such an impairment”. The ADA applies to employers who have fifteen or more employees (Arrendondo, 2002, 264).
A unique aspect of ADA is that it also protects those who are discriminated against because they have a known association/relationship with a disabled individual.
The EEOC’s regulations expounds on three provisions in relation to ADA, impairment, major life activities and substantial limitations. Impairment is any physiological disorder or condition affecting one or more of the body systems, i.e., respiratory, or any mental/psychological disorder that substantially limits one of life’s major activities. Major life activities are functions such are caring for oneself, walking, seeing, hearing, speaking and working. The inability to perform a major life activity that the average person in the general population can perform or significantly restricts the condition, manner, or duration under which the person can perform a major life activity.
ADA prohibits discrimination from occurring in employment practices such as compensation, training, advancement or hiring. The EEOC prohibits a hiring company from conducting inquiries or require the applicant to submit to a medical examination with the intention to gain knowledge of a disability before extending a job offer. It is highly important during an interview that the applicant understands the tasks/responsibilities of the position for which they are seeking. An applicant may arrive to the interview in a wheelchair, in which case, it can be seen that applicant has a disability and reasonable accommodations can be discussed. Not all the time when it will be obvious that the applicant has a disability, therefore, questions should be focus towards whether or not the applicant can handle the functions of the position. If an applicant voluntarily disclose a disability or ask about reasonable accommodations, then the disability can be discussed.
Reasonable accommodations are made to ensure that nothing will interfere with the performance of an employee with a disability. EEOC’s regulations define reasonable accommodations as follows (Anderson, Kazmierski, Cronin, 1995, 199):
- Modifications or adjustments to a job application process that enables a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
- Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of the position; or
- Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges or employment as are enjoyed by its other similarly situated employees without disabilities.
If an employer fails to make reasonable accommodations for an employee or applicant with a disability, they are discriminating against that person. In an article by Anderson, Kazmierski and Cronin, when reasonable accommodation is requested, the employer should do the following (199):
- Analyze the particular job involved and determine its purpose and essential functions;
- Consult with the individual with a disability to ascertain the precise job-related limitations imposed by that disability and how those limitations could be overcome with a reasonable accommodation;
- In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
- Consider the preference of the individual with a disability, and select and implement the accommodation that is most appropriate for both employee and the employer.
By all means, it is important to keep the lines of communication open when attempting to accommodate an employee with a disability. It has been suggested that this process breaks down because employees do not know what accommodations they need to perform; employees do not know the limits of their rights to non-discriminatory employment practices; employees lack adequate self-advocacy and conflict resolution skills to participate in the complicated accommodation request process; and employers are not afraid to “dig in” and resist providing accommodations that the deem unreasonable (Rumrill, 2001, 235).
Defenses to Employment Discrimination
Employers may feel or not be aware that there are some defenses on their behalf in regards to employment discrimination cases, bona fide occupational qualification (BFOQ) and business necessity.
Bona fide occupational qualifications permit discrimination legally because there is a need for the employer’s particular business. The BFOQ defense is used in situations when, for example, authenticity is necessary, such as a female as BFOQ modeling Victoria Secrets lingerie. This can be taking in consideration when safety is involved. A high security correctional housing male inmates uses male guards would fall under this concept. Even though it’s a defense, the burden of proof falls on the employer to prove that it is necessary for a BFOQ within the organization.
Business necessity is a non-discriminatory reason for an employer’s policy that seems to discriminate against a protected class. For example, an employer may require all employees to have a good credit history within the last twenty years. A request of this type may adversely affect employees between the ages of 18-21 because they may have a short or no credit history. If the employer can show that the credit history is needed because the position involves handling money and finances, the request or policies may be justified by business necessity. Business necessity permits an employer whose workplace policies are necessary for performance, but have a adverse impact to still use them if the requirements are legitimate. In this way, an employer is more likely to have policies with disparate impact only when those policies are necessary to performing the employer’s business.
How To Prevent Employment Discrimination
The HR unit should be the company’s expert of laws and regulations that affect the daily operations and work culture. Discrimination cases can lead to harsh penalties from the EEOC or company loosing money because settlements or judgments. An article in the November 1999 issue of Workforce listed five tips to help prevent discrimination in the organization as well as prevent decreased productivity and low morale which results from discrimination in the organization.
The first tip states “never retaliate against an employee for filing complaints concerning discrimination”. It is against the law to punish employees who files or cooperates with complaints regarding discrimination. Title VII prohibits retaliation against employees who have opposed an illegal employment practice, as well as, protects those who have testified or participated in investigations.
The next tip states the employer should “eliminate any illegal screening practices”. The organization wants to make sure that their neither policies nor employment testing has a negative impact on a protected class. HR should make sure that the selection process is free of any opportunities of discriminatory claims. For example, HR should ensure that only those with extensive interview skills conduct interviews and ask all applicants the same question.
Third, HR should “set the example for appropriate behavior”. HR should be performing their job in a fair and impartial manner. With any organization, you lead by example. Employees pay attention to those who are their superiors and take on the notions that if my boss can do it, so can I, which is the wrong perception to adopt. If employees see that HR treat everyone the same, show no favoritism, no matter who they are, they will have more respect for the unit and attempt to follow their lead.
Fourth, “never ignore inappropriate behavior”. Ignoring inappropriate behavior is one of the worst, if not “the” worst thing someone can do. Everyone is guilty at some point for being a witness to inappropriate behavior but for whatever reason walked away or turned our head as if we didn’t see it. When inappropriate behavior has been witnessed, action should be taken immediately no matter how big or small to inform the party involved and others in the organization that the behavior will not be tolerated.
Last but not least, “involve the employees”. Employees like to feel that they have a part in the organization. The responsibility of maintaining a discrimination-free environment should be shared with employees. They should know and understand that they can bring their grievances or complaints to their reporting supervisor/manager. By bringing issues or concerns to their reporting manager, they are able to be the eyes and ears because management does not see everything; therefore, some things have to be brought to their attention.
Conclusion
Employment discrimination doesn’t appear to be going anywhere, anytime soon. Even though it may be here to stay, we can keep it to a bare minimum. The HR unit should educate everyone, especially from the first line supervisor to the CEO. Information can be obtained from the Equal Employment Opportunity Commission, EEOC, regarding employment laws and regulations. The HR unit can distribute the information to employees or advise them to visit the EEOC’s website, www.eeoc.gov
The Civil Rights Act of 1964 protects employees on the basis of race, color, sex, religion and national origin. Title VII currently do not protect aliens not authorized to work in the US and sexual orientation. Title VII is the most significant and common of the laws created to slow down or stop discrimination.
The Equal Pay Act of 1963 prohibits an employer from paying an employee of one gender less money than the opposite gender if performing the same work. The HR unit should be aware that the EPA only relates to pay differences based on gender, nothing prevents male from claiming pay inequities and make sure that the job titles accurately reflect job duties and responsibilities.
Age Discrimination in Employment Act of 1967 protects employees of an organization over the age of 40. One thing employers have to keep in mind under the ADEA, age and job performance has no bearing on one another. The employee must maintain an acceptable job performance rating no matter their age; consequently, if the employee’s job performance decline, the employee may be subject to termination.
Pregnancy Discrimination Act of 1978 prohibits employers from discriminating against women who are pregnant, after childbirth or experiencing medical problems. The act guarantees the employee will be assigned their job when they return from medical leave and they are not forced to take. The FMLA or Family Medical Leave Act comes into play when the employee has to take time off due to upcoming childbirth or other medical issue.
American with Disabilities Act, ADA, protects those individuals with a disability who either seek employment or currently employment. ADA calls for the employer to make reasonable accommodations to ensure the employee will be able to perform the essential functions required of the position seeking or in currently. Discussing a person’s disability should be used with great caution and should only be discussed with the applicant/employee voluntarily tell you about it.
Employers should use preventive measure to ensure that their organizations do not have to deal with the time-consuming investigation and legal proceedings due to discrimination allegations. The should make sure that appropriate behavior is occurring at all times, the employees are involved in keeping the environment stress free and taking care of situations when they happen as they happen.
We have the knowledge, we have the ability to keep discrimination out of the workplace and make it a comfortable environment for everyone.
References
Anderson, P. L., Kazmierski, S., & Cronin, M. E., (1995, April). Learning Disabilities, Employment Discrimination and the ADA. Journal of Learning Disabilities, 28, 196-204.
Arrendondo, R. H. (2002). Different Strokes for Different Folks: Balancing the Treatment of Employers and Employees in Employment Discrimination Cases in Courts within the Tenth Circuit Court of Appeals. Journal of Public Law, 16, 261-286.
Bland, T. S. (1999, July) Equal Pay Enforcement Heats Up. HRMagazine, p. 138
Brady, T. ( 1998, March). How Equal Is Equal Pay? Management Review, p. 59.
DiCesare, C. B. (1996, July). Age Discrimination (O’Connor v Consolidated Coin Caterers Corp). Monthly Labor Review, p. 51.
Keller, J. (1991, July 18). AT&T Will Settle EEOC Lawsuit for $66 Million. Wall Street Journal, p. B8.
Noble, R. J. (1991, June). To Waiver or Not to Waiver Is the Question of OWPWA. Personnel, p. 11.
Rumrill, P. (2001). Reasonable accommodations and the Americans with Disabilities Act – It’s all about communication. Journal of Vocational Rehabilitation, p. 235-236.
Waks, J. W., Fidlon, G. R, & Zellner, J. L. (2001, Jul/Aug). The Use of Statistics in Employment Discrimination Cases. The Trial Lawyer – Journal of Strategy, Technique & Case Management, 24, 261-274.
