The Equal Employment Opportunity Commission (EEOC) , which was created by Title VII, has three major functions. The first is processing discrimination complaints. The second is issuing written regulations. The third is information gathering and dissemination.66

In processing discrimination complaints, the EEOC follows a three-step process:

• ▪ Investigation An applicant or employee who thinks that he or she has been discriminated against begins the process by filing a complaint with the EEOC. The EEOC then notifies the company that a complaint has been filed, and the company becomes responsible for ensuring that any records relating to the complaint are kept safe. The EEOC usually finds itself with a backlog, so it may take up to two years to begin investigating the complaint. In 2012, 99,412 cases were filed with the EEOC, compared to 62,100 in 1990.

    Of the 99,412 total charges filed with the EEOC in 2012, the common types of discrimination among all filings were:67

  • ▪ Race: 33,512 (33.7 percent)

  • ▪ Sex/Gender: 30,356 (30.5 percent)

  • ▪ Age: 22,857 (23.0 percent)

  • ▪ Disability: 26,374 (26.5 percent)

  • ▪ National Origin: 10,883 (10.9 percent)

  • ▪ Religion: 3,811 (3.8 percent)

  • ▪ Equal Pay: 1,082 (1.1 percent)

    The average processing time for private-sector charge filings at the EEOC was 180 days.

    After conducting the investigation, the EEOC determines whether it is likely that the company did in fact violate one or more EEO laws. Complainants are always free to file a lawsuit, but the courts are unlikely to rule in their favor without the EEOC’s backing.

• ▪ Conciliation If the EEOC finds that an EEO law was probably violated, it attempts to resolve the case through conciliation. Conciliation consists of negotiation among the three parties involved: the complainant, the employer, and the EEOC. The goal of conciliation is to reach a fair settlement while avoiding a trial.

• ▪ Litigation If conciliation is not possible, the EEOC can choose between two courses of action. The EEOC does not have the power to compel an employer to pay compensation or any other kind of damages; this can be done only as the result of a court’s decision. Because pursuing a lawsuit is very expensive, the EEOC takes this course of action only in a relatively small percentage of cases. If the EEOC chooses not to pursue the case, it issues a right-to-sue letter to the complainant, who is then free to pursue court action with the blessing (if not the financial or legal support) of the EEOC.

In addition to resolving complaints, the EEOC is responsible for issuing regulations and guidelines. These documents put “meat on the bones” of the individual laws. For instance, when the EEOC decided that sexual harassment was prohibited by Title VII, it issued regulations defining what sexual harassment is (see Figure 3.3) and what it expects employers to do in response to employee complaints of harassment. Similarly, when the ADA was signed into law in 1990, the EEOC was given the responsibility of issuing regulations that would inform employers exactly what they would (and would not) be expected to do to comply with the law. The EEOC Web site ( www.eeoc.gov ) also provides a list of its regulations. Figure 3.6 lists some of the most prominent EEOC regulations.

The EEOC also gathers information to monitor the hiring practices of organizations. It does this by requiring organizations with 100 or more employees to file an annual report (EEO-1) indicating the number of women and minorities who hold jobs in nine different job categories. The EEOC examines this information to identify patterns of discrimination that may exist in organizations.

Finally, the EEOC disseminates posters to employers. These posters explain to workers how to protect themselves from employment discrimination and how to file a complaint. The EEOC requires employers to display the posters in a prominent place (such as the company cafeteria).

The first step in developing an affirmative action plan is conducting a utilization analysis to describe the organization’s current workforce relative to the pool of qualified workers in the labor force. There are two parts to conducting this analysis. The first involves determining the demographic composition of the current workforce by dividing all the jobs in the organization into classifications. For instance, all management jobs are placed in one classification, all clerical and secretarial jobs in a second, all sales positions in a third, and so on. The percentage of persons from each protected class working in each of these classifications is then determined.

The second part is determining the percentage of those same protected classes in the available labor market. In gathering this information, organizations need to consider the eight different pieces of information listed in Figure 3.7. For instance, what percentage of qualified and available managers are women? What percentage are African Americans? What percentage are Asian Americans? The OFCCP offers guidelines for determining these figures. If the available figures are significantly higher than the currently employed in any category, the protected groups are said to be underutilized in that job category.

The second step is setting goals and timetables for correcting underutilization. The OFCCP explicitly requires that rigid numerical quotas not be set. Rather, the employer should take into consideration the size of the underutilization, how fast the workforce turns over, and whether the workforce is growing or contracting. Another consideration in setting goals and timetables is the types of actions the employer intends to take.

The final step in developing an affirmative action plan is deciding exactly what affirmative actions to take. The OFCCP suggests the following guidelines:

• ▪ Recruiting protected-class members.

• ▪ Redesigning jobs so that the underrepresented workers are more likely to be qualified.

• ▪ Providing specialized training sessions for underprepared applicants.

• ▪ Removing any unnecessary barriers to employment. For instance, a company located in an area not served by public transportation might consider providing van service from certain areas so that potential applicants who do not have reliable transportation can become employees.

The central concern for organizations is determining how much (if any) preference they should give to applicants who belong to an underutilized protected class. For instance, a few decades ago there was a job opening in the transportation department of Santa Clara County, California. After going through the normal selection process, the candidates for promotion were ranked according to their performance on tests and in interviews. County rules allowed any of the top seven candidates to be chosen. The supervisors were poised to choose the employee ranked second—Paul Johnson, a white man. Diane Joyce, a white woman who was ranked fourth, called the county’s affirmative action officer and ended up with the job.

Johnson filed suit. His argument was straightforward: Title VII prohibits discrimination based on sex, and he did not get the job because he is a man. This is a classic case of alleged reverse discrimination , discrimination that occurs as the result of an attempt to recruit and hire more people from the protected classes. In this case, the job classification to which the person was to be promoted had 238 positions, none of which were held by women. Johnson pursued his case all the way to the U.S. Supreme Court. In 1987, the Court ruled that Santa Clara County’s decision was permissible.68

The Supreme Court has decided over a dozen reverse discrimination cases since the first one in 1977.69 Although the Court has favored the affirmative action strategy side of the tension outlined in Figure 3.1, almost all these cases were decided by 6–3 or 5–4 margins. Because new justices are added to the Supreme Court fairly regularly, the way these kinds of cases will be decided in the future is very much an open question.

In a landmark 2003 case involving the University of Michigan’s affirmative action policies, the U.S. Supreme Court upheld the right of affirmative action in university admissions decisions. First, in upholding the policy of the law school at the University of Michigan, it ruled that race can be one of many factors considered by colleges when selecting their students because it furthers “a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Second, it ruled that the University of Michigan’s undergraduate admissions policy, which was based on a formula that gave extra points to minorities, needed to be modified because, unlike the law school, it did not take into consideration individual aspects of applicants concerning admission to the university.70

The United States is not the only country with affirmative action. Other countries have created similar policies to provide employment or educational opportunities for disadvantaged groups. For example, India has tried to improve the status of the untouchables, the lowest caste in its society, by providing them with preferential treatment in employment and education. This policy has had mixed results because it has enraged some members of the higher castes. Malaysia has favored the Islamic Malays over the Chinese (who on average are wealthier and more highly educated than the Malays) for jobs and higher education opportunities. Significant numbers of Chinese Malaysians have responded to this policy by emigrating to Asia and North America.71 Other countries have disadvantaged groups in their population but have decided not to create employment policies favorable to these groups. For example, France has a large minority of Muslims from North Africa who have been historically disadvantaged, but it has avoided remedying the high Muslim unemployment rate with a policy similar to affirmative action in the United States. In Great Britain, the government’s Commission for Racial Equality concluded that most British firms do little to ensure equal employment opportunity beyond giving verbal support to the idea.72

Cultural values can influence how minorities or disadvantaged groups are treated on the basis of equality in countries outside the United States, as described in the Manager’s Notebook titled “In India, Gender Inequity in the Workplace Is Widespread.”