Valuing diversity, equal employment opportunity (EEO), and affirmative action (AA) are different. In this section, let’s explain EEO and the laws it enforces, AA, and how we have gone from AA to valuing diversity to inclusion.32
Laws Affecting Employment Opportunity
You are aware that an organization cannot discriminate against a minority. Who is legally considered a minority? A minority is just about anyone who is not a white male, of European heritage, or adequately educated. The Equal Employment Opportunity Commission (EEOC) minority list includes Hispanics, Asians, African Americans, Native Americans, and Alaska Natives. Women are also protected by law from discrimination in employment, but they are not considered a legal minority because in some situations they are a majority. Disadvantaged young people, workers with disabilities, and persons over 40 are also protected.
The EEOC has 37 offices across the nation. It offers seminars for employees who feel they aren’t getting a fair shake, and it operates a toll-free telephone line (1-800-USA-EEOC) and Web site (www.eeoc.gov) around the clock to provide information on employee rights. Some of the major laws and regulations affecting employment are presented in Exhibit 13.1.
Companies suspected of violating any of these laws may be investigated by the EEOC or become defendants in class-action or specific lawsuits. Clearly, it is impor- tant for you to be familiar with the law and your organization’s EEO and AA program guidelines.
Preemployment Inquiries
On the application blank and during interviews, no member of an organization can legally ask discriminatory questions. The two major rules of thumb to follow are:
1. Every question that is asked should be job related. When developing questions, you should have a purpose for using the information. Only ask legal questions you plan to use in your selection process.
2. Any general question that you ask should be asked of all candidates.
Below, we will discuss what you can (lawful information you can use to disqualify candidates) and cannot (prohibited information you cannot use to disqualify candi- dates) ask during a job interview. Prohibited information is information that does not relate to a bona fide occupational qualification for the job. A bona fide occupational qualification (BFOQ) allows discrimination on the basis of religion, sex, or national origin where it is reasonably necessary to normal operation of a particular enterprise. In an example of a BFOQ upheld by its supreme court, the state of Alabama required all WORK APPLICATION 13-3
Have you, or has anyone you know, gone through diversity training? If yes, describe the program.
Learning Outcome 13-2 State major laws
protecting minorities and women.
Communication Skills Refer to CS Question 2.
Communication Skills
CS
Learning Outcome 13-3 Identify what employers can and cannot ask job applicants.
guards in male maximum-security correctional facilities to be male. People believing that this requirement was sexual discrimination took it to court. The supreme court upheld the male sex requirement on the grounds that 20 percent of the inmates were convicted of sex offenses, and this creates an excessive threat to the security of female guards.
For a list of topics or questions that can and cannot be asked, see Exhibit 13.2.
WORK APPLICATION 13-4
Have you, or has anyone you know, been asked an illegal discriminatory question during the hiring process? If yes, identify the question(s).
EXHIBIT 13.1 | Federal Employment Laws
Law Description
Equal Employment Opportunity Equal Employment Opportunity Act of 1972 (Title VII of the Civil Rights Act of 1964)
Prohibits discrimination in all areas of the employment relationship (based on race, religion, color, sex, or national origin).
Civil Rights Act of 1991 Strengthened Civil Rights Act of 1964 by providing possible compensation and punitive damages for discrimination.
Age Discrimination in Employment Act of 1967 (amended 1978, 1984)
Prohibits age discrimination against people older than 40 and restricts mandatory retirement.
Vocational Rehabilitation Act of 1973 Prohibits discrimination based on physical or mental disability.
Americans with Disabilities Act of 1990
Strengthened the Vocational Rehab Act to require em- ployers to provide “reasonable accommodations” to al- low employees with disabilities to work.
Compensation and Benefits
Lilly Ledbetter Fair Pay Act of 2009 Amends the 1964 CRA to extend the period of time in which an employee is allowed to file a lawsuit over pay discrimination.
Equal Pay Act of 1963 Requires men and women to be paid the same for equal work.
Pregnancy Discrimination Act of 1978 Prohibits discrimination against women because of pregnancy, childbirth, or related medical conditions.
Family and Medical Leave Act of 1993 Requires employers (with 50 or more employees) to provide up to 12 weeks unpaid leave for family (child- birth, adoption, eldercare) or medical reasons.
Health and Safety
Occupational Safety and Health Act of 1970
Establishes mandatory safety and health standards in organizations, regulated by the Occupational Safety and Health Administration (OSHA).
A P P L I C A T I O N S I T U A T I O N S / / /
Legal Questions AS 13-2
Identify the five questions below as:
A. Legal (can be asked) B. Illegal (cannot be asked) 6. “Can you prove you are legally eligible to work?”
7. “What is your mother tongue or the major language you use?”
8. “Are you married or single?”
9. “Are you a member of the Teamsters Union?”
10. “Have you been arrested for stealing on the job?”
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EXHIBIT 13.2 | Preemployment Inquiries Name
Can Ask: Current legal name and whether the candidate has ever worked under a different name.
Cannot Ask: Maiden name or whether the person has changed his or her name.
Address
Can Ask: Current residence and length of residence.
Cannot Ask: If the candidate owns or rents his or her home, unless it is a BFOQ.
Age
Can Ask: If the candidate is between specific age groups, 21 to 70, to meet job specifica- tions. If hired, can you furnish proof of age?
For example, an employee must be 21 to serve alcoholic beverages.
Cannot Ask: How old are you? Cannot ask to see a birth certificate. Do not ask an older person how much longer he or she plans to work before retiring.
Sex Can Ask: Only if sex is a BFOQ.
Cannot Ask: If it is not a BFOQ. To be sure not to violate sexual harassment laws, do not ask questions or make comments remotely considered flirtatious.
Marital and Family Status Can Ask: If the candidate can meet the work schedule and whether the candidate has ac- tivities, responsibilities, or commitments that may hinder meeting attendance requirements.
The same question(s) should be asked of both sexes.
Cannot Ask: To state marital status. Do not ask any questions regarding children or other family issues.
National Origin, Citizenship, Race, or Color Can Ask: If the candidate is legally eligible to work in the United States, and if this can be proved if hired.
Cannot Ask: To identify national origin, citi- zenship, race, or color (or that of parents and other relatives).
Language
Can Ask: To list languages the candidate speaks and/or writes fluently. Candidates may be asked if they speak and/or write a specific language if it is a BFOQ.
Cannot Ask: The language spoken off the job, or how the applicant learned the language.
Convictions
Can Ask: If the candidate has been convicted of a felony and other information if the felony is job related.
Cannot Ask: If the candidate has ever been arrested (an arrest does not prove guilt). Do not ask for information regarding a conviction that is not job related.
Height and Weight
Can Ask: If the candidate meets or exceeds BFOQ height and/or weight requirements, and if it can be proved if hired.
Cannot Ask: The candidate’s height or weight if it is not a BFOQ.
Religion
Can Ask: If the candidate is of a specific religion when it is a BFOQ. Candidates can be asked whether they will be able to meet the work schedules or will have anticipated absences.
Cannot Ask: Religious preference, affiliations, or denominations.
Credit Ratings or Garnishments Can Ask: If it is a BFOQ.
Cannot Ask: If it is not a BFOQ.
Education and Work Experience Can Ask: For information that is job related.
Cannot Ask: For information that is not job- related.
References
Can Ask: For the names of people willing to provide references or for the names of people who suggested the candidate apply for the job.
Cannot Ask: For a reference from a religious leader.
Military
Can Ask: For information on education and experience gained that relates to the job.
Cannot Ask: Dates and conditions of discharge.
Do not ask about draft classification or other eligibility for military service, National Guard, or reserve units. Do not ask about experience in foreign armed services.
Organizations
Can Ask: To list membership in job-related organizations, such as union or professional or trade associations.
Cannot Ask: To identify membership in any non-job-related organization that would indi- cate race, religion, and so on.
Disabilities/AIDS
Can Ask: If the candidate has any disabilities that would prevent him or her from performing the specific job.
Cannot Ask: For information that is not job- related. In states where people with AIDS are protected under discrimination laws, you should not ask if the candidate has AIDS.
From Affirmative Action to Valuing Diversity to Inclusion
Affirmative action (AA) is a method of making up for prior discrimination in the workplace. AA requires that firms doing business with the federal government make special diversity efforts. Affirmative action (AA) programs are planned, spe- cial efforts to recruit, hire, and promote women and members of minority groups.
AA requires that organizations determine their racial and sexual compositions and compare these ratios with those of the available people in the population of the appropriate recruitment area. Based on these numbers, the organization plans and acts to obtain the proper percentages according to a complex calculation process.
Support for AA declined. Some of the many reasons that AA went out of favor were as follows: quotas often worked against minorities, quotas could not be met, and organizations were charged with reverse discrimination. Many believed that forced AA was not the answer to the problem of discrimination. Thus, we went from AA to valuing diversity to using the term inclusion.
In today’s global business, imagine the difficulty of meeting the complex, different diversity needs and laws in hundreds of countries at the same time, especially when the laws conflict.33