Back To CourseBusiness 106: Human Resource Management
12 chapters | 112 lessons | 9 flashcard sets
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Linus is a new human resources specialist that is undergoing orientation with Mary, the manager of the company's human resources department. Today, Mary is explaining compliance with Title VII of the Civil Rights Act of 1964. Mary explains that Title VII applies to private sector employers, state government agencies and local government agencies that employ at least 15 people. It prohibits discrimination in employment based upon race, color, gender, religion and national origin.
Linus asks what employment activities are covered. Mary tells him that a covered employer may not discriminate in hiring, firing, pay, benefits, training, layoffs and any other term or condition of employment. She also tells him to remember that a job applicant is covered under the Act just like employees.
In making any employment decision, it's important that the company use neutral criteria that does not consider employee or applicant characteristics prohibited by Title VII, such as race, gender and religion. Applications and other pre-employment inquiries should only request information that is necessary for determining whether a person is qualified. This usually does not include things such as race, nationality, gender and religion.
Linus asks if there are any exceptions to the prohibition against discrimination, and Mary tells him that there is. An employer can make a hiring decision based upon race, sex and national origins if one of these characteristics is a bona fide occupational qualification. Mary tells Linus that an employer must establish that the required characteristic is necessary for the success of the company's business and another protected class does not have the characteristics necessary for success in employment.
Linus asks Mary for some examples. Mary tells him that a church can discriminate against non-followers of the religion in hiring someone as clergy because membership and belief in the religion is essential to success at the job. However, a church probably can't discriminate against people hired to clean or do secretarial work based upon their religious affiliation. Mary also explains that hiring an actor based upon race or gender may be a bona fide occupational qualification if the role requires a specific race or gender.
In a typical case, a person alleging discrimination has to establish a prima facie case of discrimination. In order to establish a prima facie case of discrimination under Title VII, a plaintiff must establish that:
Linus is a bit confused, so Mary gives an example. Imagine that an African-American woman applied for a management position in the company. She was qualified for the job but was not hired. A Caucasian male was hired instead. The employee can make out a prima facie case.
Once a prima facie case is made, the burden is on the employer, who has to present some evidence of a legitimate, nondiscriminatory reason for the employment action. In Mary's example, the company could present evidence that the person hired for the management position had more job experience and an MBA, while the African-American applicant did not.
If the employer submits evidence of a nondiscriminatory motive, then the burden shifts once again to the employee or applicant. Here, the employee needs to prove that the employer's explanation of a nondiscriminatory reason or motive is merely a pretext. A pretext is an explanation that is given to hide the discriminatory purpose.
Mary gives the example of a female employee being fired for allegedly being late three times, but the female employee is able to establish that the employer did not fire the five male employees who also were late three times. The employer's excuse is a mere pretext, hiding the discriminatory motive behind firing the female employee.
Just when Linus thought he had a handle on employment discrimination, Mary introduces the topic of disparate impact. An employer can be found to have discriminated even if the employer dutifully uses apparently neutral criteria in all of its employment decisions under the disparate impact theory of liability. Under this theory, an employer can be liable for employment discrimination if its employment policies or procedures have the effect of adversely affecting members of a protected class.
For example, a policy that ends up precluding members of a certain race will constitute discrimination. Mary emphasizes to Linus that a discriminatory motive is not necessary for liability under this theory. Once the disparate impact has been established, an employer must be able to justify the policy or procedure causing the disparate impact as a business necessity. For example, an engineering company's engineering educational requirements for hiring engineers may create a disparate impact, but the policy is a business necessity for the hiring of engineers.
Mary does note that before an employee or applicant can even file a discrimination lawsuit, a charge must be filed with the Equal Employment Opportunity Commission (EEOC). An employer facing a charge of discrimination needs to cooperate with the EEOC. Once a charge is filed, the EEOC will provide notice, and the employer should file a statement of position. This is the company's chance to explain the situation.
The EEOC will probably make a request for information, which may include a copy of the company's employment policies and procedures, as well as the employee's personnel file. The EEOC may visit the work site and interview relevant witnesses, such as managers and co-workers. The EEOC will also offer the parties a chance to mediate before the investigation concludes.
After the investigation is concluded, the EEOC will make a finding. It may find there is no reasonable cause to believe discrimination has taken place. If this is the case, it will issue a Dismissal and Notice of Rights (often referred to as a right to sue letter), telling the charging party that he or she has a right to file a lawsuit within 90 days from the receipt of the letter. If the EEOC finds reasonable cause to believe discrimination has occurred, it will issue a Letter of Determination. It will try to resolve the matter through an informal process called conciliation. If conciliation fails, the EEOC will either file a lawsuit or provide a Notice of Right to Sue to the charging party if it decides not to sue.
Mary finishes up her presentation with a discussion of retaliation. Title VII prohibits an employer from retaliating against an employee or applicant because she files a charge of discrimination, complains to the employer about discrimination or participates in a discrimination investigation or lawsuit. Linus asks Mary what is considered retaliation, and she explains that it can include such things as firing, demoting and harassing.
Let's review what we've learned. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based upon race, color, gender, religion and national origin. Title VII also prohibits a covered employer from retaliating against any individual for filing a charge of discrimination, participating in an investigation of discrimination or participating in a discrimination lawsuit or administrative proceeding.
In making employment-related decisions, an employer should only use neutral criteria and avoid making decisions based upon race, color, gender, religion and national origin. However, if the employer can establish that one of these characteristics represents a bona fide occupational qualification that is a business necessity and is required for success in employment, then the characteristic can be used as a criterion.
Employment discrimination can be established by showing an employment action was taken with discriminatory intent. The plaintiff has the initial burden to establish a prima facie case. The burden then shifts to the employer to present evidence of a non-discriminatory legitimate motive. If the employer presents evidence, then the burden shifts once again to the plaintiff to establish that the purported nondiscriminatory motive is a mere pretext hiding a discriminatory intent.
An employer can be liable if an apparently neutral policy has a disparate impact on a protected class. Under this theory, a discriminatory intent is not required. Once the disparate impact is established, the burden shifts to the employer to establish that the policy or procedure causing the disparate impact is a business necessity.
The Equal Employment Opportunity Commission is responsible for enforcing the provisions of Title VII. Before a lawsuit can be filed against an employer, the complaining party must first file a charge of discrimination with the EEOC, which will investigate the charge. If the EEOC finds reasonable cause to believe discrimination has occurred, it will try to settle the matter through conciliation. If unsuccessful, it will either sue the employer or issue a Notice of Right to Sue to the charging party. On the other hand, if the EEOC finds no reasonable cause to believe discrimination has occurred, it will dismiss the charge and issue a Dismissal and Notice of Rights. At that time, the charging party may file a lawsuit.
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Back To CourseBusiness 106: Human Resource Management
12 chapters | 112 lessons | 9 flashcard sets