Human Resource Management

1
ELEVENTH EDITION

GARY DESSLER BIJU VARKKEY

Part 1 | Introduction

Chapter 2

Equal Opportunity and the Law

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After studying this chapter, you should be able to:

1. Cite the main features of at least five employment discrimination laws.

2. Define adverse impact and explain how it is proved and what its significance is.
3. Provide a brief overview of important labor legislations in India. 4. Avoid employment discrimination problems. 5. Cite specific discriminatory personnel management practices in recruitment, selection, promotion, transfer, layoffs, and benefits. 6. Define and discuss diversity management.
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Laws related to Industrial Relationships

1. The Trade Unions Act, 1926. 2. The Industrial Employment (Standing Orders) Act, 1946. 3. The Industrial Disputes (ID) Act, 1947.

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The Trade Unions Act, 1926

The act allows freedom for any seven employees to apply to register a trade union, but a later amendment (2001) specified the minimum membership as 10% of the unionizable employees or 100 employees, whichever is less. Trade unions are to be registered with the appropriate government-appointed Registrar of Trade Unions.

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Industrial Employment (Standing Orders) Act, 1946

The act formally defines conditions of employment including recruitment, discharge, disciplinary action, working hours, holidays and leaves. The act is applicable to industrial establishments under the jurisdiction of central and state governments. It serves to reduce conflict and communication mechanism between management and labor.

Industrial Disputes (ID) Act, 1947

The act was formulated with the objective of having a machinery and procedure for the investigation and settlement of industrial disputes in place.

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Laws Related to Wages

1. The Payment of Wages Act, 1936
The act ensures payment of wages on time.

2. The Minimum Wages Act, 1948

a. The act sets the framework for declaring the

minimum wages payable for occupations, both in formal and the informal sectors. b. It specifies the structure and procedure for fixing and revising the minimum wages at regular intervals.

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Laws Related to Working Hours, Conditions of Services and Employment

1. The Factories Act, 1948
The act safeguards the health, safety and welfare of workers in establishments covered by the act.

2. The Shops and Commercial Establishments Act, 1961

a. The act deals with work-related aspects of shops

and commercial establishments. b. It prohibits employment of children, underage people, and women during night hours. c. It lays down the procedure for dismissal, discharge, and termination of employment.

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Laws Related to Equality and Empowerment of Women

1. The Maternity Benefit Act, 1961
It provides job security and support to pregnant women.

2. The Equal Remuneration Act, 1976

The act prevents gender-based discrimination in employment and wages.

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Laws Related to Social Security

1. Workmens Compensation Act, 1923
a. The act provides compensation to employees in cases of mishappening at work.

2.

Employees State Insurance Act, 1948 a. The act provides relief to employees and dependents in cases of sickness or events that prevent them from working. b. Various benefits given to eligible employees are:
i. ii. iii. iv. v. vi. Sickness benefit in cash Maternity benefit in cash Disablement benefit in cash Dependents benefit in cash Funeral expenses in cash Medical benefit as service and kind
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Laws Related to Social Security (Contd.)

3. Employees Provident Funds And Miscellaneous Provisions Act, 1952
The act provides security to employees during times of distress and old age.

4. Payment of Gratuity Act, 1972

The act provides for gratuity payment to all employees at the prescribed rates, currently 15 days for every year of service.

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Guidelines for Handling Sexual Harassment Complaints

The Supreme Court of India has given the following guidelines for defining sexual harassment of women:
1. Sexually determined behavior (whether directly or 2. 3. 4. 5.

6.

by implication) Physical contact and advances A demand or request for sexual favors Sexually colored remarks Showing pornography Any other unwelcome physical, verbal or nonverbal conduct of a sexual nature.
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Equal Employment Opportunity 196491 (US)

Title VII of the 1964 Civil Rights Act
EEOC

Federal Agency Guidelines

Executive Orders
11246, 11375 OFCCP

Pregnancy Discrimination Act of 1978

Equal Employment Opportunity

Equal Pay Act of 1963

Vocational Rehabilitation Act of 1973

Age Discrimination in Employment Act of 1967

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Equal Employment Opportunity 199091present (US)

Burden of Proof
Disparate Impact

Money Damages
Compensatory Punitive

Civil Rights Act of 1991

Mixed Motives
Desert Palace Inc. v. Costa

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Equal Employment Opportunity 199091present (US) (contd)

AIDS

Americans with Disabilities Act (ADA) of 1990

Qualified Individual

Reasonable Accommodation

Employer Defenses

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Adverse Impact
Showing Adverse Impact

Disparate Rejection Rates

Restricted Policy

Population Comparisons

McDonnellDouglas Test

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Showing Disparate Treatment

McDonnell-Douglas Test for Prima Facie Case
1

The person belongs to a protected class.

The person applied and was qualified for the job. The person was rejected despite qualification.

2 3

The employer continued seeking applications.

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Bona Fide Occupational Qualification

Age

Bona Fide Occupational Qualification (BFOQ)

Religion

Gender

National Origin

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Business Necessity
Business Necessity
A defense requiring employers to show that there

is an overriding business purpose (i.e., irresistible demand) for a discriminatory practice. Spurlock v. United Airlines

Validity
The degree to which the test or other employment

practice is related to or predicts performance on the job can serve as a business necessity defense.

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Other Considerations in Discriminatory Practice Defenses

1. Good intentions are no excuse. 2. Employers cannot hide behind collective bargaining agreementsequal opportunity laws override union contract agreements. 3. Firms should react by agreeing to eliminate an illegal practice and (when required) by compensating the people discriminated against.

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Discriminatory Employment Practices

Recruitment Word of Mouth Misleading Information

Selection
Educational Requirements Tests Preference to Relatives Height, Weight, and Physical Characteristics Arrest Records

Personal Appearance Dress Hair

Help Wanted Ads

Uniforms

Application Forms
Discharge Due to Garnishment

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The EEOC Enforcement Process

EEOC Claim and Enforcement Process
1 2 3

File Charge Charge Acceptance Serve Notice Investigation/Fact-Finding Cause/No Cause Conciliation Notice to Sue

4
5 6 7

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Addressing EEOC Claims

During the EEOC Investigation:
1

Follow Three Principles Meet with the Employee Limits of EEOC Authority Submitting Documents Position Statement

2
3 4 5

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Addressing EEOC Claims (contd)

During the FactFinding Conference:
1 2 3 4

During EEOC Determination and Attempted Conciliation:

1 2

Official Records Employers Attorney Information Witnesses

Review Carefully Conciliate Prudently

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Diversity Management Program

Steps in a Diversity Management Program:
1

Provide strong leadership Assess the situation Provide diversity training and education Change culture and management systems Evaluate the diversity management program

2
3 4 5

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Is the Diversity Initiative Effective?

Are there women and minorities reporting directly to senior managers? Do women and minorities have a fair share of job assignments that are stepping stones to successful careers in the company? Do women and minorities have equal access to international assignments?

Are female and minority candidates in the companys career development pipeline?
Are turnover rates for female and minority managers the same or lower than those for white male managers?

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Designing an Affirmative Action Program

Good Faith Effort Strategy
Eliminating the present effects of past practices

that excluded or underutilized protected groups. Identification through numerical analysis. Proactive elimination of employment barriers. Increased minority or female applicant flow.

Increasing Employee Support for Affirmative Action

Transparent selection procedures Communication Justifications
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Steps in an Affirmative Action Program

1. 2. 3. Issues a written equal employment policy. Appoints a top official to direct and implement the program. Publicizes the equal employment policy and affirmative action commitment. Surveys minority and female employment to determine where affirmative action programs are especially desirable. Develops goals and timetables to improve utilization of minorities and females. Carefully analyzes employer human resources practices to identify and eliminate hidden barriers. Uses focused recruitment to find qualified applicants from the target group(s). Establishes an audit and reporting system to monitor and evaluate progress of the program. Develops support for the affirmative action program, both inside the company and in the community.

4.
5.

6.
7. 8.

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Reverse Discrimination
Reverse Discrimination
Under the U.S. law, discrimination against non-

minority applicants and employees by quota-based systems is reversed discrimination.

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Important Indian Labor Laws

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Trade Unions Act, 1926 Industrial Employment (Standing Orders) Act, 1946 Industrial Disputes (ID) Act, 1947 Payment of Wages Act, 1936 Minimum Wages Act, 1948 Factories Act, 1948 Shops and Commercial Establishments Act, 1961 Maternity Benefit Act, 1961 Workmens Compensation Act, 1923 Employees State Insurance Act, 1948 Employees Provident Funds And Miscellaneous Provisions Act, 1952 Payment of Gratuity Act, 1972
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KEY TERMS
Indian Labor Laws Title VII of the 1964 Civil Rights Act Equal Employment Opportunity Commission (EEOC) affirmative action Office of Federal Contract Compliance Programs (OFCCP) Equal Pay Act of 1963 Age Discrimination in Employment Act of 1967 (ADEA) Vocational Rehabilitation Act of 1973 Vietnam Era Veterans Readjustment Act of 1974 Pregnancy Discrimination Act (PDA) uniform guidelines sexual harassment Federal Violence Against Women Act of 1994 protected class Civil Rights Act of 1991 (CRA 1991) mixed motive case Americans with Disabilities Act (ADA) qualified individuals adverse impact disparate rejection rates restricted policy bona fide occupational qualification (BFOQ) alternative dispute resolution or ADR program good faith effort strategy reverse discrimination

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