Diversity in the Workplace & Environmental Protection

Title VII is the broadest of the laws dealing with discrimination in many aspects of the employment relationship and prohibits discrimination against employees or job applicants on the b

SOME OF THE MAJOR FEDERAL

EMPLOYMENT DISCRIMINATION LAWS

1964 C ivil R ights A ct - Title VII

Enacted to improve the economic and social conditions of women and minorities

Title VII is the broadest of the laws dealing with discrimination in many aspects of the employment relationship and prohibits

discrimination against employees or job applicants on the basis of:

Race

ColorReligion

Title VII prohibits any practices or procedures, which limits or

adversely affects employment opportunities on the basis of the

protected classes, including:

advertising recruitment referrals

testing hiring

assignments transfers promotions

training benefits

disciplinary actions terminations compensation

layoffs recalls apprenticeships

and all other terms, conditions and privileges of employment Title VII

covers employers with 15 or more employees

Title VII also prohibits any reprisals or adverse action against

an individual or group of individuals because they have

opposed discriminatory practices, participated or assisted, in any way, in a charge investigation or proceeding brought under its provisions

Retaliation

E XECUTIVE O RDERS

Orders issued by the President to regulate employers who do

business with federal government agencies

A number of executive orders have been issued that prohibit

employers, holding federal government contracts, from discriminating against employees and applicants on the basis of:

E xecutive O rder 11246

Under E.O 11246, government contractors and subcontractors, who

do over $10,000 in government business in one year, are required to refrain from discriminating in employment decisions such as:

Recruitment, Advertising, Layoffs, Terminations, Compensation, Training, Demotions, etc

And to engage in affirmative steps to ensure that applicants and

employees receive equal employment opportunity regardless of

race, color, religion, national origin, sex, or age

In addition, each government contractor with 50 or more employees and $50,000 or more in government contracts is required to develop

a written affirmative action plan for each of its establishments

A FFIRMATIVE A CTION

 Good faith efforts by employers to address past and/

or present discrimination through a variety of specific, results-oriented procedures

 Actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.

 Not preferential treatment.

 Should not unnecessarily trammel the rights of the

non-minorities

Affirmative action helps an employer identify problem areas, set

goals and take positive steps to guarantee equal employment

opportunities for people in a protected class

The focus is placed on hiring, promoting, and training protected-class members where they are underrepresented in an organization in relation to their availability in the labor markets from which recruiting occurs

In addition to being required by E.O 11246, affirmative action can also be initiated :

• voluntarily

• as a result of conciliation or litigation; or

• under other federal, state, or local laws.

Utilizes GOALS not QUOTAS

C ivil R ights A ct of 1991 (amends Title VII)

Places a heavier burden on the employer to defend itself against

charges of intentional discrimination

Provides that an employment practice that adversely impacts a

protected class is unlawful if the employer cannot demonstrate that the challenged practice is:

(1) job related for the position in question, and

(2) consistent with a business necessity

Allows compensatory and punitive damage awards in cases of

intentional discrimination

Also allows jury trials to determine the liability for and the amount of compensatory and punitive damages, subject to established caps

The E qual P ay A ct of 1963

The Equal Pay Act (EPA) was passed as a major amendment to the Fair Labor Standards Act , prohibiting discrimination on the basis of sex in the payment of compensation, including benefits

An employer cannot discriminate between employees

on the basis of sex by paying different wage scales

for equal work, on jobs requiring:

equal skill,

effort,

responsibility, and

performed under similar working conditions

• The EPA applies to both men and women

• Job titles cannot be used to disguise discrimination in pay.

For example, if a male “janitor” and a female “cleaning woman” are

performing substantially “equal” work, their pay must be comparable.

The A ge D iscrimination in E mployment A ct

The Age Discrimination in Employment Act (ADEA)

prohibits employment discrimination on the basis of age

against anyone age 40 and over.

The ADEA makes it illegal for employers to discriminate in:

terms,conditions, orprivileges of employment and compensation because of an individual’s age

1967

The P regnancy D iscrimination A ct of

employees on the basis of their ability

or inability to work

Employers have to treat maternity leave and leave for other pregnancy-related conditions the same as other personal or medical leaves

A woman may not be refused a job

or promotion merely because of pregnancy or related conditions

V ietnam E ra V eterans R eadjustment

A ssistance A ct

It prohibits employment discrimination and requires

employers with federal contracts or subcontracts of

$25,000 or more to provide equal opportunity and

affirmative action

• veterans who served on active duty for 180

days or more during a war or in a campaign or

expedition for which a campaign badge has been

U niformed S ervices E mployment &

R eemployment R ights A ct of 1994

The USERRA prohibits employment discrimination because of an employee’s or applicant’s past,

current, or future military obligations

The law seeks to ensure that those who serve their country can retain their civilian employment and

benefits, and can seek employment free from discrimination because of their service

It requires employers to reinstate employees, upon honorable completion of their military duty, to their former jobs

Enforced by the VETS & OSC

I mmigration R eform and C ontrol A ct of 1986

The Immigration Reform and Control Act

was passed to control unauthorized

immigration to the United States and to

deal with problems arising from the

continued flow of immigrants

The IRCA prohibits discrimination against

any individual with respect to hiring,

recruitment, or the discharging of the

individual from employment because of

national origin or citizenship status

Individuals in this country illegally are not protected

The Act also forbids employers to knowingly hire or recruit illegal immigrants (immigrants who do not possess lawful work

authorization)

Enforced by the OSC

R ehabilitation A ct of 1973

The Rehabilitation Act prohibits employment

discrimination against qualified individuals with

disabilities.

The Act applies to federal government contractors and sub-contractors whose contracts are in excess of

$10,000, and programs that receive federal funds.

An employee defined to be covered under the Act

is the same as one covered under the Americans

with Disabilities Act.

The person must be qualified for the job in order to

be protected from job discrimination.

An individual must meet the following criteria to be considered a person with a disability:

Has a physical or mental impairment that substantially limits one or more major life activities;

Has a record of such impairment ; or

Is regarded as having such an impairment

An individual only has to meet one of the three criteria

G enetic I nformation N ondiscrimination A ct of

2008

The GINA prohibits genetic information discrimination in employment

Under Title II of GINA, it is illegal to discriminate against employees because of genetic information Title

II prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II and strictly limits the disclosure of genetic information

The A mericans with D isabilities A ct of 1990

Extends the Coverage of the Rehabilitation Act

Expanded the legal responsibilities, of an employer,

as defined by the Rehabilitation Act and made it

easier for people with disabilities to:

• gain and hold employment,

• have easier access to public places,

• travel on public transportation,

• use public telecommunication services, and

• seek redress when the law is violated

p 43

As amended by the ADA Amendments Act of 2008

An individual is covered under the ADA if he/she:

has a physical or mental impairment that substantially limits one or more major life activities;

has a record of such an impairment; or

Is regarded as having such an impairment

An individual only has to meet one of the three criteria

p 43

The ADA A mendments A ct of 2008 ( ADAAA ) effective Jan 1 2009

Retains the ADA’s basic definition of a “disability” but:

• revises the term “substantially limits”

• expands the definition of “major life activities”

• states that mitigating measures other than “ordinary eyeglasses” shall not be considered in assessing whether a person has a disability

• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major activity when active

• states that an employee or applicant is “regarded as” if subject to an action prohibited by the ADA based on an impairment that is not transitory and minor

• clarifies that individuals “regarded as” are not entitled to a reasonable

accommodation

Implications: employers are likely going to face more instances in which they

need to provide accommodations to employees who might not have been

considered disabled in the past, but who are considered disabled under the new law

The ADA protects those individuals who are disabled and qualified

to perform the essential functions of the job with or without

reasonable accommodation

The individual must satisfy the position requirements:

•Skills, experience, education, licenses

•Physical and mental requirements

•Meet performance standards

An organization does not have to give

preference, hire, or retain a disabled

individual, if the individual is not qualified to

perform the job

It does not interfere with an employer’s right to hire the best qualified applicant.

Reasonable Accommodation

A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process,

to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.

• the essential functions of the job;

• qualifications of the person to perform the essential functions;

• determination whether a reasonable accommodation can be made for the qualified individual

When Making a Reasonable Accommodation Consider:

An accommodation is not required if it imposes undue hardship.

Undue hardship means that an accommodation

If the need for accommodation is not

obvious, an employer may ask an applicant for reasonable documentation about his/her disability if the applicant requests

reasonable accommodation for the hiring or working process

Hiring People with Disabilities

Prior to an employment offer the ADA prohibits all

disability-related inquiries and medical examinations even if they are related Disability related questions are:

job-•Questions that are likely to elicit information about a

disability.

-Disability related questions:

•Can be asked after a conditional job offer is made to a

candidate, but before s/he starts work, as long as it is done for all employees entering into the same area.

•After employment begins, an employer may make

disability-related inquiries and require medical exams only

if job-related.

Employers may ask about an applicant’s ability to perform

specific job functions & non-medical qualifications

When an employer could reasonably believe that

an applicant will need a reasonable

accommodation to perform the functions of a job, the employer may ask:

• whether the applicant needs a reasonable accommodation;

• what type of accommodation is needed.

An employer may ask these questions if they

believe the applicant needs a reasonable

accommodation because the applicant:

• has an obvious disability;

• has voluntarily disclosed a hidden disability; or

• has voluntarily disclosed the need for an accommodation.

Employers may not conduct medical exams as a part of the

application process

Unlawful Harassment

Harassment That Results In A

• Usually inflicts direct economic

harm, because tangible job benefits are granted or denied based on the submission to or rejection of the unwelcome conduct

• Only an individual with managerial or supervisory authority

can engage in harassment that results in a tangible

employment action, since it requires the harasser to have the authority to grant or withhold job benefits

An employer is liable for the actions of a supervisor who

engages in this type of harassment

Hostile Environment

Affirmative Defense

• A work environment in which the

employee feels threatened or or abused

Can consists of unwelcome verbal or physical conduct

Has the effect of unreasonably interfering with the work performance

or psychological well-being of a reasonable person

An employer is also liable for hostile environment harassment by a supervisor even if it did not know unless the employer can prove it exercised reasonable care to prevent harm

Our Changing Workforce

 How has the workforce changed over the past 20-30 years?

Managers who are culturally savvy and

resilient will be the survivors

EEO + AA = DIVERSITY

Understanding Diversity is understanding how

to be responsive to a wide range of people

unlike oneself

The Impact of Stereotyping & Prejudice

When we Stereotype we:

 Over simplify and over

among diverse people

When we are Prejudiced we:

 Make premature judgments towards a person or group of people

 Hold views that make us:

– Unreasonable – Unjust

– Intolerant