Avoiding Pitfalls in EEO
The great majority of employees and job applicants in the United States fall into one or more protected classes. This means that almost any decision made by a manager that affects a worker’s employment status can be challenged in a court of law. In most cases, sound management practices will not only help managers avoid EEO lawsuits, but also contribute to the organization’s bottom line. Five specific management practices are recommended: providing training, establishing a complaint resolution process, documenting decisions, being honest, and asking applicants for only needed information.
Provide Training
One of the best ways to avoid EEO problems is to provide training.76 Two types of training are appropriate. First, the HR department should provide supervisors, managers, and executives with regular updates on EEO and other labor issues, because this area of law is in a constant state of flux.77 The Supreme Court regularly decides cases that affect HR practice. Although managers can try to read periodicals or search the Web to obtain current information, most find their everyday demands too taxing to allow time for this. Regular, focused training sessions conducted by the HR department are the most efficient method of communicating this information to managers.
Second, employers should focus on communicating to employees their commitment to a discrimination-free work environment. For instance, all employees need to be instructed in what sexual harassment is, how to stop it before it becomes a problem, and what to do if it does become a problem. Honeywell has a council of employees with disabilities, one function of which is to promote awareness of disability issues throughout the company.78
Establish a Complaint Resolution Process
Every organization should establish a process for the internal resolution of EEO and other types of employee complaints. It is much less expensive to resolve these concerns if the EEOC, OFCCP, and legal counsel are not involved. More important, employee morale and satisfaction can be improved when employees are able to pass along their concerns to upper-level management. (We describe complaint resolution systems in detail in Chapters 13 and 15.)
Once in place, the complaint resolution process should be followed correctly. AT&T avoided liability in a sexual harassment case because it was able to show that it had acted promptly to remedy the problem once management had been informed of it.79 Exhibit 3.1, “Alternative Dispute Resolution Methods at Marriott and the EEOC,” describes how Marriott and the EEOC have taken the lead in experimenting with new ways to resolve employee EEO complaints.
Document Decisions
Financial transactions and decisions need to be well documented so they can be audited and summarized, problem areas identified, and solutions implemented.80 The same rationale applies to decisions made about employees. The nature of any HR decision, and the rationale for it, should be clearly documented. Both the EEOC and OFCCP have certain reporting requirements. Employers that have a sound human resource information system in place do not find it difficult to comply with these requirements.
Be Honest
Typically, applicants and employees will not file an EEO complaint unless they think they have been mistreated. Perceptions of mistreatment often result from situations in which employees’ or applicants’ expectations have not been met. Imagine the following scenario: A 50-year-old employee has consistently received excellent performance evaluations over a 20-year period. He is then abruptly terminated by his manager for poor work performance. This employee is likely to file a lawsuit, because over time he has developed the expectation that he is a valued employee and he now believes that the only possible reason for his termination is his age. Although it may be painful in the short term, providing honest feedback to employees is a good management practice that may reduce legal problems in the long run.
EXHIBIT 3.1 ALTERNATIVE DISPUTE RESOLUTION METHODS AT MARRIOTT AND THE EEOC
Ron Wilensky, vice president for employee relations for Marriott International, was not satisfied with the company’s “Guarantee of Fair Treatment” program, which instructed employees with complaints to go first to their immediate supervisor, then to the supervisor’s manager, and so on up the ladder, if necessary. Based on his experience with three Fortune 500 companies that had similar policies, he estimated that 75 percent of employees bypass such a policy and consult an attorney. To verify his hunch, he established a committee to examine employee satisfaction with the Guarantee of Fair Treatment. The results indicated that employees did not trust the policy. Instead, they wanted a system that would give those with grievances a chance to air their concerns before impartial listeners and have those concerns addressed promptly—without fear of retribution.
To give employees what they want, Wilensky and his committee have been experimenting with three dispute resolution systems.
Mutual agreement through mediation A neutral person, typically an expert in dispute resolution, meets with both parties to the conflict and tries to arrange a negotiated settlement. Because 80 to 90 percent of litigation is settled out of court anyway, the goal is to reduce attorney fees and other associated costs.
A helping hotline Wilensky found that it was difficult to track employee grievances across so many different geographic locations, so Marriott uses a toll-free 800-number hotline at 300 of its food service locations. Available 24 hours a day, 7 days a week, the hotline is intended to be used only to report cases of perceived wrongful discharge, discrimination, and harassment. Marriott promises to initiate an investigation within three days of receiving the complaint.
A panel of peers In 50 Marriott locations, employees have an opportunity to air their grievance before a panel of their peers. The panel is chosen at random from a group of specially trained volunteers. The panel has the authority to make final, binding decisions on all grievances brought before it.a
The EEOC also uses alternative dispute resolution systems. It relies on mediation to achieve faster resolution of its large backlog of cases. The EEOC chairwoman, Ida L. Castro, made a strong commitment to use mediation by increasing the mediation budget by $13 million in 1999 to expand the use of mediation in each EEOC district office. Between 1999 and 2010 about 136,000 mediations at the EEOC took place and almost 70 percent of them were successfully resolved.b
aSources:Wilensky, R., and Jones, K. M. (1994, March). Quick response key to resolving complaints. HRMagazine, 42–47. Copyright 1999 by Society for Human Resource Management (SHRM). Reproduced with permission of Society for Human Resource Management (SHRM) in the format Textbook & Other book via Copyright Clearance Center. bLeonard, B. (1999, February). A new era at the EEOC. HRMagazine, 54–62; EEOC Web site. (2014). History of the EEOC mediation program.
www.eeoc.gov/
Ask Only for Information You Need to Know
Companies should ask only for information that is related to job performance.81 For instance, you should not ask about an applicant’s religious affiliation, although you may ask whether a person can work on specific days of the week. Similarly, you can ask whether the applicant is capable of performing the essential physical aspects of the job (preferably specifically listed), but asking general questions about health would probably be interpreted as a violation of the ADA. Figure 3.8 gives examples of appropriate and inappropriate questions to ask on an application form or during an interview.
Subject of Questions Examples of Acceptable Questions Examples of Unacceptable Questions Comments Name “What is your name?”
“Have you worked for this company under another name?”
“What was your maiden name?” Questions about an applicant’s name that may indicate marital status or national origin should be avoided. Age “Are you at least 18 years old?”
“Upon employment, all employees must submit legal proof of age. Can you furnish proof of age?”
“What is your date of birth?”
“What is your age?”
“When did you graduate from high school?”
A request for age-related data may discourage older workers from applying. Race, Ethnicity, and Physical Characteristics “After employment, the company must have a photograph of all employees. If employed, can you furnish a photograph?”
“Do you read, speak, or write a foreign language?”
“What is your race?”
“What are your height and weight?”
“Would you please submit a photograph with your application for identification purposes?”
“What language do you commonly use?”
Information relative to physical characteristics may be associated with sexual or racial group membership. Religion A statement may be made by the employer of the days, hours, and shifts worked. “What is your religious faith?”
“Does your religion keep you from working on weekends?”
“What holidays will you need off?”
Questions that determine applicants’ availability have an exclusionary effect because of some people’s religious practices. Gender, Marital Status, and Family “If you are a minor, please list the name and address of a parent or guardian.”
“Please provide the name, address, and telephone number of someone who should be contacted in case of an emergency.”
“What is your sex?”
“Describe your current marital status.”
“List the number and ages of your children.”
“If you have children, please describe the provisions you have made for child care.”
“With whom do you reside?”
Direct or indirect questions about marital status, children, pregnancy, and childbearing plans frequently discriminate against women and may be a violation of Title VII. Physical Conditions “Are you willing to take a physical exam if the nature of the job for which you are applying requires one?” “Do you have any physical disabilities, defects, or handicaps?”
“How would you describe your general physical health?”
“When was your last physical exam?”
A blanket policy excluding the disabled is discriminatory. Where physical condition is a requirement for employment, employers should be able to document the business necessity for questions on the application form relating to physical condition. Military Service “Please list any specific educational or job experiences you may have acquired during military service that you believe would be useful in the job for which you are applying.” “Please list the dates and type of discharge you may have received from military service.” Minority service members have a higher percentage of undesirable military discharges. A policy of rejecting those with less than an honorable discharge may be discriminatory. Hobbies, Clubs, and Organizations “Do you have any hobbies that are related to the job for which you are making application?”
“Please list any clubs or organizations in which you are a member that relate to the job for which you are applying.”
“Please list any hobbies you may have.”
“Please list all clubs and other organizations in which you are a member.”
If questions on club/organization memberships are asked, a statement should be added that applicants may omit those organizations associated with age, race, sex, or religion. Credit Rating None. “Do you own your own car?”
“Do you own or rent your residence?”
Use of credit rating questions tends to have an adverse impact on minority group applicants and has been found unlawful. Unless shown to be job related, questions on car ownership, home ownership, length of residence, garnishments of wages, etc., may violate Title VII. Arrest Record “Have you ever been convicted of a crime related to the job you will be expected to perform?”
Example: A conviction of embezzlement is related to the job of bank loan officer.
“Have you ever been arrested for a crime?” Asking if an applicant has ever been arrested violates the applicant’s Title VII rights because such questions adversely affect minority applicants.
FIGURE 3.8
Examples of Acceptable and Unacceptable Questions Asked on Application Forms or During Interviews
FIGURE 3.8 (Continued) Sources:Based on HR Focus. (2008, March). Interview with questions that should be on every company’s ‘don’t’ list, 9; Gatewood, R. D., and Feild, H. S. (2001). Human resource selection, 5th ed. Fort Worth, TX: Harcourt College Publishers. Copyright © 2001 by the Harcourt College Publishers, reproduced by permission of the publisher; and Bland, T., and Stalcup, S. (1999, March). Build a legal employment application. HRMagazine, 129–133.
A final point to consider in this chapter is that the EEOC rules affect the language that is spoken at the workplace. As described in the Manager’s Notebook titled “Employers Should Be Careful When Using English-Only Policies at the Workplace,” employers cannot enforce an English-only policy at the workplace unless there is a business necessity to justify that employees speak English on their job.
MANAGER’S NOTEBOOK Employers Should Be Careful When Using English-Only Policies at the Workplace
Ethics/Social Responsibility
Under EEOC rules, it may be unlawful to enforce English-only policies at the workplace. Such policies can be a form of national-origin discrimination against employees who prefer to speak the language of their ethnic background. However, an English-only rule may be justified in the following situations:
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▪ Communications with customers, coworkers, or supervisors who only speak English
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▪ In emergencies or other situations in which workers must speak a common language to promote safety
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▪ For cooperative work assignments in which the English-only rule is needed to promote efficiency
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▪ To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers
Even if justified by business necessity in the situations that are listed above, an English-only policy should not be applied to casual conversations between employees who are not performing their job.