Chapter 3 Providing Equal Employment Opportunity and a Safe Workplace

Terms in this set (36)

Regulation of Human
Resource Management

All three branches of the U.S. government play an important role in creating a legal environment for HRM.

1. Legislative Branch: consists of the two houses of Congress. It has enacted a number of laws governing HR activities. Laws are generally developed in response to perceived societal needs.

2. Executive Branch: the president and the many regulatory agencies that the president oversees is responsible for enforcing the laws passed by Congress. Agencies can do with regulations detailing how to abide by laws and by filing suit against alleged violators. The president may issue executive orders, which are
directives issued solely by the president, without requiring congressional approval.

Some federal agencies involved in
regulating human resource management include the Equal Employment Opportunity
Commission and the Occupational Safety and Health Administration

In addition,
the president may issue executive orders, which are directives issued solely by the
president, without requiring congressional approval. Some executive orders regulate
the activities of organizations that have contracts with the federal government. For
example, President Lyndon Johnson signed Executive Order 11246, which requires
all federal contractors and subcontractors to engage in affirmative-action programs
designed to hire and promote women and minorities.

Judicial Branch: The federal court system. Influences employment law by interpreting the law and holding trials concerning violations of the law. U.S. Supreme Court is at the head of the judicial branch. It is the court of final appeal. Decisions made by the court are binding and can be overturned only through laws passed by Congress
Constitutional Amendments
Two amendments to the U.S. Constitution—the Thirteenth and Fourteenth—have
implications for human resource management.

The Thirteenth Amendment
• abolished
• slavery in the United States.

though you might be hard-pressed to cite an
example of race-based slavery in the United States today,

the Thirteenth Amendment
has been applied in cases where discrimination involved the "badges" (symbols)
and "incidents" of slavery.


The Fourteenth Amendment
• forbids the states from taking life, liberty, or property
• without due process of law and prevents the states from denying equal protection
• of the laws. Recently it has been applied to the protection of whites in charges
• of reverse discrimination. In a case that marked the early stages of a move away from
• race-based quotas,

example
Alan Bakke alleged that as a white man he had been discriminated
against in the selection of entrants to the University of California at Davis
medical school. 2 The university had set aside 16 of the available 100 places for
"disadvantaged" applicants who were members of racial minority groups. Under this
quota system, Bakke was able to compete for only 84 positions, whereas a minority
applicant was able to compete for all 100. The federal court ruled in favor of Bakke,
noting that this quota system had violated white individuals' right to equal protection
under the law.
An important point regarding the Fourteenth Amendment is that it applies only
to the decisions or actions of the government or of private groups whose activities are
deemed government actions. Thus, a person could file a claim under the Fourteenth
Amendment if he or she had been fired from a state university (a government
organization) but not if the person had been fired by a private employer.
Title VII of the Civil Rights Act of 1964

The major law regulating equal employment opportunity in the United States is Title
VII of the Civil Rights Act of 1964. Title VII directly resulted from the civil rights
movement of the early 1960s, led by such individuals as Dr. Martin Luther King Jr.
To ensure that employment opportunities would be based on character or ability
rather than on race, Congress wrote and passed Title VII, and President Lyndon
Johnson signed it into law in 1964.

The law is enforced by the Equal Employment
Opportunity Commission (EEOC), an agency of the Department of Justice.
Title VII
• prohibits employers from discriminating against individuals because of
• their race, color, religion, sex, or national origin.
An employer may not use these
• characteristics as the basis for not hiring someone, for firing someone, or for discriminating
• against them in the terms of their pay, conditions of employment, or
• privileges of employment. In addition, an employer may not use these characteristics
• to limit, segregate, or classify employees or job applicants in any way that would
• deprive any individual of employment opportunities or otherwise adversely affect
• his or her status as an employee.
• The act applies to organizations that employ 15 or more persons working 20 or more weeks a year and that are involved in interstate
• commerce, as well as state and local governments, employment agencies, and labor
• organizations

Title VII also states that employers may not retaliate against employees for either
"opposing" a perceived illegal employment practice or "participating in a proceeding"
related to an alleged illegal employment practice. Opposition refers to expressing
to someone through proper channels that you believe an illegal employment act has
taken place or is taking place. Participation in a proceeding refers to testifying in an
investigation, hearing, or court proceeding regarding an illegal employment act. The
purpose of this provision is to protect employees from employers' threats and other
forms of intimidation aimed at discouraging employees from bringing to light acts
they believe to be illegal. Companies that violate this prohibition may be liable for
punitive damages.
Age Discrimination in Employment Act (ADEA)

One category of employees not covered by Title VII is older workers. Older workers
sometimes are concerned that they will be the targets of discrimination, especially
when a company is downsizing. Older workers tend to be paid more, so a company
that wants to cut labor costs may save by laying off its oldest workers. To counter such discrimination, Congress in 1967 passed the Age Discrimination in Employment Act







(ADEA),-
• which prohibits discrimination against workers who are over the age of 40.
• Similar to Title VII, the ADEA outlaws hiring, firing, setting compensation rates, or
• other employment decisions based on a person's age being over 40.
• Many firms have offered early-retirement incentives as an alternative or supplement
• to involuntary layoffs. Because this approach to workforce reduction focuses on
• older employees, who would be eligible for early retirement, it may be in violation
• of the ADEA.

Early-retirement incentives require
• that participating employees sign
• an agreement waiving their rights to sue under the ADEA. Courts have tended to
• uphold the use of early-retirement incentives and waivers as long as the individuals
• were not coerced into signing the agreements, the agreements were presented in a
• way the employees could understand (including technical legal requirements such
• as the ages of discharged and retained employees in the employee's work unit), and
• the employees had enough time to make a decision. 3

However, the Equal Employment
Opportunity Commission recently expanded the interpretation of discriminatory
retirement policies when it charged a law firm with having an illegal "age-based
retirement policy."

example
According to the charges, Sidley Austin Brown & Wood, based
in Chicago, gave more than 30 lawyers older than age 40 notice that their status
was being lowered from partner to special counsel or counsel and that they would
be expected to leave the firm in a few years. The firm described the action as a way
to provide more opportunities for young lawyers, but lawyers who were pressured to
retire contended they were forced out as a way to boost profits by replacing highly
paid partners with less-experienced, lower-paid lawyers. Sidley Austin settled the
suit at a cost of $27.5 million. 4
Americans with Disabilities Act (ADA) of 1990
• One of the farthest-reaching acts concerning the management of human resources is
• the Americans with Disabilities Act. This 1990 law protects individuals with disabilities
• from being discriminated against in the workplace. It prohibits discrimination
• based on disability in all employment practices such as job application procedures,
• hiring, firing, promotions, compensation, and training. Other employment activities








• covered by the ADA are employment advertising, recruitment, tenure, layoff, leave,
• and fringe benefits.

The ADA defines disability as
• a physical or mental impairment that substantially
• limits one or more major life activities, a record of having such an impairment, or
• being regarded as having such an impairment.
o The first part of the definition refers
o to individuals who have serious disabilities—such as epilepsy, blindness, deafness, or
o paralysis—that affect their ability to perform Major bodily functions and major life
o activities such as walking, seeing, performing manual tasks, learning, caring for oneself,
o and working.

The second part refers to individuals who have a history of disability,
o such as someone who has had cancer but is currently in remission, someone with
o a history of mental illness, and someone with a history of heart disease.

The third part
o of the definition, "being regarded as having a disability," refers to people's subjective
o reactions, as in the case of someone who is severely disfigured; an employer might
o hesitate to hire such a person on the grounds that people will react negatively to such
o an employee.

In contrast to other EEO laws, the ADA goes beyond prohibiting discrimination to
require that employers take steps to accommodate individuals covered under the act.
If a disabled person is selected to perform a job, the employer (perhaps in consultation
with the disabled employee) determines what accommodations are necessary for the
employee to perform the job.

Examples include using ramps and lifts to make facilities
accessible, redesigning job procedures, and providing technology such as TDD lines
for hearing-impaired employees. Some employers have feared that accommodations
under the ADA would be expensive. However, the Department of Labor has found
that two-thirds of accommodations cost less than $500, and many of these cost nothing.
As technology advances, the cost of many technologies has been falling. The
" Best Practices " box provides an example of a company where accommodating disabilities
has been well worth the effort
Civil Rights Act of 1991
o In 1991 Congress broadened the relief available to victims of discrimination by passing
o a Civil Rights Act (CRA 1991).
o CRA 1991 amends Title VII of the Civil Rights
o Act of 1964, as well as the Civil Rights Act of 1866, the Americans with Disabilities
o Act, and the Age Discrimination in Employment Act of 1967. One major change
o in EEO law under CRA 1991 has been the addition of compensatory and punitive
o damages in cases of discrimination under Title VII and the Americans with Disabilities
o Act. Before CRA 1991, Title VII limited damage claims to equitable relief, which
o courts have defined to include back pay, lost benefits, front pay in some cases, and
o attorney's fees and costs. CRA 1991 allows judges to award compensatory and punitive damages when the plaintiff proves the discrimination was intentional or reckless.
o Compensatory damages include such things as future monetary loss, emotional pain,
o suffering, and loss of enjoyment of life. Punitive damages are a punishment; by requiring
o violators to pay the plaintiff an amount beyond the actual losses suffered, the
o courts try to discourage employers from discriminating.
o Recognizing that one or a few discrimination cases could put an organization out
o of business, and so harm many innocent employees, Congress has limited the amount
o of punitive damages. As shown in Table 3.2 , the
o amount of damages depends on the size of the
o organization charged with discrimination. The
o limits range from $50,000 per violation at a small
o company (14 to 100 employees) to $300,000 at a
o company with more than 500 employees. A company
o has to pay punitive damages only if it discriminated
o intentionally or with malice or reckless
o indifference to the employee's federally protected
o rights.
Executive Order 11246

• Prohibits federal contractors and subcontractors from discriminating based on race, color, religion, sex, or national origin.
• Employers whose contracts meet minimum size requirements must engage in affirmative action.


Ececutive order 11478
• Requires federal government to base all its employment decisions on merit and fitness.
• Also covers organizations doing at least $10,000 worth of business with federal government.


Two executive orders that directly affect human resource management are Executive
Order 11246, issued by Lyndon Johnson, and Executive Order 11478, issued by Richard
Nixon.

Executive Order 11246
prohibits federal contractors and subcontractors
from discriminating based on race, color, religion, sex, or national origin. In addition,
employers whose contracts meet minimum size requirements must engage in affirmative
action to ensure against discrimination. Those receiving more than $10,000 from the
federal government must take affirmative action, and those with contracts exceeding
$50,000 must develop a written affirmative-action plan for each of their establishments.
This plan must be in place within 120 days of the beginning of the contract. This executive
order is enforced by the Office of Federal Contract Compliance Procedures.


Executive Order 11478 requires
the federal government to base all its employment
policies on merit and fitness. It specifies that race, color, sex, religion, and national
origin may not be considered. Along with the government, the act covers all
contractors and subcontractors doing at least $10,000 worth of business with the
federal government. The U.S. Office of Personnel Management is in charge of
ensuring that the government is in compliance, and the relevant government agencies
are responsible for ensuring the compliance of contractors and subcontractors.
Equal Employment Opportunity Commission (EEOC)
The Equal Employment Opportunity Commission (EEOC) is responsible for

enforcing
most of the EEO laws, including Title VII, the Equal Pay Act, and the Americans
with Disabilities Act. To do this, the EEOC investigates and resolves complaints
about discrimination, gathers information, and issues guidelines.

When individuals believe they have been discriminated against, they may file a
complaint with the EEOC or a similar state agency. They must file the complaint
within 180 days of the incident. Figure 3.3 illustrates the number of charges filed
with the EEOC for different types of discrimination in 2009.

Many individuals file
more than one type of charge (for instance, both race discrimination and retaliation),
so the total number of complaints filed with the EEOC is less than the total of the
amounts in each category.

After the EEOC receives a charge of discrimination, it has 60 days to investigate
the complaint. If the EEOC either does not believe the complaint to be valid or
fails to complete the investigation within 60 days, the individual has the right to sue in federal court.


If the EEOC determines that discrimination has taken place,
its representatives will attempt to work with the individual and the employer to try
to achieve a reconciliation without a lawsuit. Sometimes the EEOC enters into a
consent decree with the discriminating organization. This decree is an agreement
between the agency and the organization that the organization will cease certain
discriminatory practices and possibly institute additional affirmative-action practices
to rectify its history of discrimination. A settlement with the EEOC can be
costly, including such remedies as back pay, reinstatement of the employee, and
promotions.
If the attempt at a settlement fails, the EEOC has two options. It may issue a
"right to sue" letter to the alleged victim. This letter certifies that the agency has
investigated the victim's allegations and found them to be valid. The EEOC's other
option, which it uses less often, is to aid the alleged victim in bringing suit in federal
court.
The EEOC also monitors organizations' hiring practices. Each year organizations
that are government contractors or subcontractors or have 100 or more
employees must file an Employer Information Report (EEO-1) with the EEOC.


The EEO-1 report
is an online questionnaire requesting the number of employees
in each job category (such as managers, professionals, and laborers), broken down
by their status as male or female, Hispanic or non-Hispanic, and members of various
racial groups.


The EEOC analyzes those reports to identify patterns of discrimination,
which the agency can then attack through class-action lawsuits. Employers
must display EEOC posters detailing employment rights. These posters must be in
prominent and accessible locations—for example, in a company's cafeteria or near its
time clock. Also, employers should retain copies of documents related to employment
decisions—recruitment letters, announcements of jobs, completed job applications,
selections for training, and so on. Employers must keep these records for at least six
months or until a complaint is resolved, whichever is later.


Besides resolving complaints and suing alleged violators, the EEOC issues guidelines
designed to help employers determine when their decisions violate the laws
enforced by the EEOC. These guidelines are not laws themselves. However, the
courts give great consideration to them when hearing employment discrimination
cases. For example,

the Uniform Guidelines on Employee Selection Procedures is a
set of guidelines issued by the EEOC and other government agencies. The guidelines
identify ways an organization should develop and administer its system for selecting
employees so as not to violate Title VII. The courts often refer to the Uniform
Guidelines to determine whether a company has engaged in discriminatory conduct.
Similarly, in the Federal Register, the EEOC has published guidelines providing details
about what the agency will consider illegal and legal in the treatment of disabled individuals under the Americans with Disabilities Act
Office of Federal Contract Compliance Procedures (OFCCP)
• Responsible for enforcing executive orders that cover companies doing business with federal government.
• Audits government contractors to ensure they are actively pursuing goals in their affirmative action plans.

The Office of Federal Contract Compliance Procedures (OFCCP)
is the
agency responsible for enforcing the executive orders that cover companies doing
business with the federal government. As we stated earlier in the chapter, businesses
with contracts for more than $50,000 may not discriminate in employment based on
race, color, religion, national origin, or sex, and they must have a written affirmative action
plan on file. This plan must include three basic components:

1. Utilization analysis —A comparison of the race, sex, and ethnic composition of the
employer's workforce with that of the available labor supply. The percentages in
the employer's workforce should not be greatly lower than the percentages in the
labor supply.
2. Goals and timetables —The percentages of women and minorities the organization
seeks to employ in each job group, and the dates by which the percentages are to
be attained. These are meant to be more flexible than quotas, requiring only that
the employer have goals and be seeking to achieve the goals.
3. Action steps —A plan for how the organization will meet its goals. Besides working
toward its goals for hiring women and minorities, the company must take affirmative
steps toward hiring Vietnam veterans and individuals with disabilities.

Each year, the OFCCP audits government contractors to ensure they are actively
pursuing the goals in their plans. The OFCCP examines the plan and conducts onsite
visits to examine how individual employees perceive the company's affirmative action
policies. If the agency finds that a contractor or subcontractor is not complying
with the requirements, it has several options.

It may notify the EEOC (if there is
evidence of a violation of Title VII),

advise the Department of Justice to begin criminal
proceedings, request that the Secretary of Labor cancel or suspend any current
contracts with the company, and forbid the firm from bidding on future contracts. For
a company that depends on the federal government for a sizable share of its business,
that last penalty is severe.
Avoiding Discrimination
How would you know if you had been discriminated against? Decisions about human
resources are so complex that discrimination is often difficult to identify and prove.
However, legal scholars and court rulings have arrived at some ways to show evidence
of discrimination.

Disparate Treatment
One sign of discrimination is disparate treatment —differing treatment of individuals,
where the differences are based on the individuals' race, color, religion, sex,
national origin, age, or disability status.
For example, disparate treatment would
include hiring or promoting one person over an equally qualified person because of
the individual's race. Or suppose a company fails to hire women with school-age children
(claiming the women will be frequently absent) but hires men with school-age
children. In that situation, the women are victims of disparate treatment, because
they are being treated differently based on their sex. To sustain a claim of discrimination
based on disparate treatment, the women would have to prove that the employer
intended to discriminate.



To avoid disparate treatment, companies can evaluate the questions and
investigations they use in making employment decisions. These should be applied
equally.
For example, if the company investigates conviction records of job applicants,
it should investigate them for all applicants, not just for applicants from certain
racial groups. Companies may want to avoid some types of questions altogether. For
example, questions about marital status can cause problems, because interviewers may
unfairly make different assumptions about men and women. (Common stereotypes
about women have been that a married woman is less flexible or more likely to get
pregnant than a single woman, in contrast to the assumption that a married man is
more stable and committed to his work.)

Evaluating interview questions and decision criteria to make sure they are job
related is especially important given that bias is not always intentional or even conscious.
Researchers have conducted studies finding differences between what people
say about how they evaluate others and how people actually act on their attitudes.

For example, one set of studies applied a statistical method called conjoint analysis,
which marketers use to see how consumers value particular packages of product features.
In conjoint analysis, subjects indicate their preferences in a whole set of decisions
(for example, cars with different features and prices), and researchers analyze
the results to determine what various features are worth to the subjects. To mimic
hiring decisions, the researchers invited subjects either to participate in a team game
or to rate possible jobs they might take, and then described people with various qualities.
Subjects selected which candidates they wanted on their team or which job
they would take. Although subjects said they didn't care about teammates' weight,
they actually sacrificed IQ scores to select thin teammates, and although subjects
said they didn't care about their boss's sex, they selected lower-paying offers when
the boss was male. 10 These results suggest that even when we doubt we have biases, it
may be helpful to use decision-making tools that keep the focus on the most important
criteria.









Is disparate treatment ever legal? The courts have held that in some situations, a
factor such as sex or race may be a bona fide occupational qualification (BFOQ),
that is, a necessary (not merely preferred) qualification for performing a job.


A typical
example is a job that includes handing out towels in a locker room. Requiring that
employees who perform this job in the women's locker room be female is a BFOQ.
However, it is very difficult to think of many jobs where criteria such as sex and race
are BFOQs.

In a widely publicized case from the 1990s, Johnson Controls, a manufacturer
of car batteries, instituted a "fetal protection" policy that excluded women
of childbearing age from jobs that would expose them to lead, which can cause birth
defects. Johnson Controls argued that the policy was intended to provide a safe workplace
and that sex was a BFOQ for jobs that involved exposure to lead. However, the
Supreme Court disagreed, ruling that BFOQs are limited to policies directly related to
a worker's ability to do the job. 11
A commonly
used test of disparate impact is the four-fifths rule, which finds evidence of
discrimination if the hiring rate for a minority group is less than four-fifths the hiring rate for the majority group. Keep in mind that this rule of thumb compares rates of
hiring, not numbers of employees hired.

Figure 3.4 illustrates how to apply the fourfifths
rule.

If the four-fifths rule is not satisfied, it provides evidence of discrimination.

To avoid declarations of practizing illegally, an organization must show that the
disparate impact caused by the practice is based on a "business necessity." This is
accomplished by showing that the employment practice is related to a legitimate
business need or goal.

In our example, the city could argue that disparate impact
of the pay increases between younger and older police officers and dispatchers
was necessary to keep pay within the city's budget. Of course, it is ultimately up
to the court to decide if the evidence provided by the organization shows a real
business necessity or is illegal.

The court will also consider if other practices could
have been used that would have met the business need or goal but not resulted in
discrimination.

An important distinction between disparate treatment and disparate impact is the
role of the employer's intent. Proving disparate treatment in court requires showing
that the employer intended the disparate treatment, but a plaintiff need not
show intent in the case of disparate impact. It is enough to show that the result
of the treatment was unequal.


For example, the requirements for some jobs, such
as firefighters or pilots, have sometimes included a minimum height. Although the

intent may be to identify people who can perform the jobs, an
unintended result may be disparate impact on groups that are
shorter than average.

Women tend to be shorter than men,
and people of Asian ancestry tend to be shorter than people of
European ancestry.

One way employers can avoid disparate impact is to be sure
that employment decisions are really based on relevant, valid
measurements. If a job requires a certain amount of strength
and stamina, the employer would want measures of strength
and stamina, not simply individuals' height and weight. The
latter numbers are easier to obtain but more likely to result
in charges of discrimination. Assessing validity of a measure
can be a highly technical exercise requiring the use of statistics.
The essence of such an assessment is to show that test
scores or other measurements are significantly related to job
performance.


In the case of age discrimination, the Supreme
Court's recent ruling allows a somewhat easier standard: To
justify disparate impact on older employees, the employer must be able to show that
the impact results from "reasonable factors other than age." 13 The Jackson police
department set up a pay policy to help it recruit new officers, and the Supreme
Court considered this plan reasonable
EEO Policy
Employers can also avoid discrimination and defend against claims of discrimination
by establishing and enforcing an EEO policy. The policy should define and prohibit
unlawful behaviors, as well as provide procedures for making and investigating
complaints. The policy also should require that employees at all levels engage in fair
conduct and respectful language. Derogatory language can support a court claim of
discrimination.


Affirmative Action and Reverse Discrimination
In the search for ways to avoid discrimination, some organizations have used affirmative-
action programs, usually to increase the representation of minorities. In its
original form, affirmative action was meant as taking extra effort to attract and retain
minority employees. These efforts have included extensively recruiting minority candidates
on college campuses, advertising in minority-oriented publications, and providing
educational and training opportunities to minorities. However, over the years,
many organizations have resorted to quotas, or numerical goals for the proportion of
certain minority groups, to ensure that their workforce mirrors the proportions of the
labor market. Sometimes these organizations act voluntarily; in other cases, the quotas
are imposed by the courts or the EEOC.
Whatever the reasons for these hiring programs, by increasing the proportion of
minority or female candidates hired or promoted, they necessarily reduce the proportion
of white or male candidates hired or promoted. In many cases, white and/or
male individuals have fought against affirmative action and quotas, alleging what is
called reverse discrimination. In other words, the organizations are allegedly discriminating
against white males by preferring women and minorities. Affirmative action
remains controversial in the United States. Surveys have found that Americans are
least likely to favor affirmative action when programs use quotas. 14





Reasonable Accommodation: An employer's obligation to do something to enable an otherwise qualified person to perform a job.
Companies should recognize needs based on individuals' religion or disabilities.
Employers may need to make such accommodations as adjusting work schedules or dress codes, making the workplace more accessible, or restructuring jobs.
Providing Reasonable Accommodation

Especially in situations involving religion and individuals with disabilities, equal
employment opportunity may require that an employer make reasonable accommodation.
In employment law, this term refers to an employer's obligation to do
something to enable an otherwise qualified person to perform a job.

example
The Vail Corporation
recently settled a case in which a Christian supervisor claimed that the ski
resort operator failed to make religious accommodation, because it scheduled her so
she had to work during the time of her religious services, even though other employees
were available to work during those hours.

Under the terms of the settlement,
the Vail Corporation agreed to accommodate the employee's religious practices with
more flexible scheduling. The company also had to educate its employees on avoiding
harassment, because the supervisor's manager and co-workers had created a hostile
environment in which she repeatedly felt offended.
In the context of religion, this principle recognizes that for some individuals, religious
observations and practices may present a conflict with work duties, dress codes,
or company practices.

For example, some religions require head coverings, or individuals
might need time off to observe the sabbath or other holy days, when the
company might have them scheduled to work. When the employee has a legitimate

religious belief requiring accommodation, the employee should demonstrate this need
to the employer. Assuming that it would not present an undue hardship, employers
are required to accommodate such religious practices. They may have to adjust schedules
so that employees do not have to work on days when their religion forbids it, or
they may have to alter dress or grooming requirements.

For employees with disabilities, reasonable accommodations also vary according
to the individuals' needs. As shown in Figure 3.5 , employers may restructure jobs,
make facilities in the workplace more accessible, modify equipment, or reassign an
employee to a job that the person can perform. In some situations, a disabled individual
may provide his or her own accommodation, which the employer allows, as in
the case of a blind worker who brings a guide dog to work.
If accommodating a disability would require significant expense or difficulty,
however, the employer may be exempt from the reasonable accommodation
requirement (although the employer may have to defend this position in court).
An accommodation is considered "reasonable" if it does not impose an undue hardship
on the employer, such as an expense that is large in relation to a company's
resources.
Sexual Harassment: refers to unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature when:
1. Submission to such conduct is made explicitly or implicitly a term of condition of an individual's employment,
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
3. Such conduct has the purpose of effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Under these guidelines, preventing sexual discrimination includes managing the
workplace in a way that does not permit anybody to threaten or intimidate employees
through sexual behavior.
In general, the most obvious examples of sexual harassment involve quid pro quo
harassment, meaning that a person makes a benefit (or punishment) contingent on an
employee's submitting to (or rejecting) sexual advances. For example, a manager who
promises a raise to an employee who will participate in sexual activities is engaging in
quid pro quo harassment. Likewise, it would be sexual harassment to threaten to reassign
someone to a less-desirable job if that person refuses sexual favors.
A more subtle, and possibly more pervasive, form of sexual harassment is to create or
permit a "hostile working environment." This occurs when someone's behavior in the
workplace creates an environment in which it is difficult for someone of a particular
sex to work. Common complaints in sexual harassment lawsuits include claims that
harassers ran their fingers through the plaintiffs' hair, made suggestive remarks, touched
intimate body parts, posted pictures with sexual content in the workplace, and used
sexually explicit language or told sex-related jokes. The reason that these behaviors are
considered discrimination is that they treat individuals differently based on their sex

To ensure a workplace free from sexual harassment, organizations can follow some
important steps.
First, the organization can develop a policy statement making it
very clear that sexual harassment will not be tolerated in the workplace. Second,
all
employees, new and old, can be trained to identify inappropriate workplace behavior.
In addition, the organization can develop a mechanism for reporting sexual harassment
in a way that encourages people to speak out.
Finally, management can prepare
to act promptly to discipline those who engage in sexual harassment, as well as to
protect the victims of sexual harassment. The " HR How To " box provides some additional
guidance on responding to complaints.
the annual summary that must be posted, even if no injuries or
illnesses occurred.

The act also grants specific rights; for example, employees
have the right to:
• Request an inspection.
• Have a representative present at an inspection.
• Have dangerous substances identified.
• Be promptly informed about exposure to hazards and be
given access to accurate records regarding exposure.
• Have employer violations posted at the work site.

Although OSHA regulations have a (sometimes justifiable)
reputation for being complex, a company can get started in
meeting these requirements by visiting OSHA's Web site
( www.osha.gov ) and looking up resources such as the agency's
Small Business Handbook and its step-by-step guide called
"Compliance Assistance Quick Start."
The Department of Labor recognizes many specific types
of hazards, and employers must comply with all the occupational
safety and health standards published by NIOSH.

For example, NIOSH is currently investigating exposures of
workers in nail salons to the vapor from solvents contained
in nail products. One part of the investigation includes a
study of vented nail tables, which are a type of work table
on which customers rest their hands for a manicure. On the
vented tables, a downdraft is supposed to pull the vapors away
from the technician's face. NIOSH is measuring how effective
these tables are at reducing exposure to vapor and will
use information from the research to develop educational
guidelines for protecting workers in nail salons. 19
Although NIOSH publishes numerous standards, it is impossible for regulators to
anticipate all possible hazards that could occur in the workplace. Thus, the generalduty
clause requires employers to be constantly alert for potential sources of harm in
the workplace (as defined by the standard of what a reasonably prudent person would
do) and to correct them. Information about hazards can come from employees or from
outside researchers. A recent study found that health care workers are unusually likely
to develop work-related asthma. The researchers found that the disease occurred
because the workers were frequently exposed to latex and disinfectants known to
cause asthma. They also worked around asthma-aggravating materials, including
cleaning products and materials used in renovating buildings. Hospitals and other
health care providers can protect their workers from asthma by substituting nonlatex
or powder-free gloves for powdered latex gloves. They also can be more selective in
their use of disinfectants. 20
Enforcement of the OSH Act

To enforce the OSH Act, the Occupational Safety and Health Administration conducts
inspections. OSHA compliance officers typically arrive at a workplace unannounced;
for obvious reasons, OSHA regulations prohibit notifying employers of inspections in advance.

After presenting credentials, the compliance officer tells the
employer the reasons for the inspection and describes, in a general way, the procedures
necessary to conduct the investigation.

An OSHA inspection has four major components.
First, the compliance officer
reviews the company's records of deaths, injuries, and illnesses. OSHA requires this
kind of record keeping at all firms with 11 or more full- or part-time employees
. Next,
the officer—typically accompanied by a representative of the employer (and perhaps
by a representative of the employees)—conducts a "walkaround" tour of the employer's
premises. On this tour, the officer notes any conditions that may violate specific
published standards or the less specific general-duty clause.
The third component of
the inspection, employee interviews, may take place during the tour. At this time,
anyone who is aware of a violation can bring it to the officer's attention.
Finally, in a
closing conference, the compliance officer discusses the findings with the employer,
noting any violations.
Following an inspection, OSHA gives the employer a reasonable time frame
within which to correct the violations identified. If a violation could cause serious
injury or death, the officer may seek a restraining order from a U.S. District Court.
The restraining order compels the employer to correct the problem immediately. In
addition, if an OSHA violation results in citations, the employer must post each citation
in a prominent place near the location of the violation.
Besides correcting violations identified during the inspection, employers may have
to pay fines. These fines range from $20,000 for violations that result in death of
an employee to $1,000 for less-serious violations. Other penalties include criminal
charges for falsifying records that are subject to OSHA inspection or for warning an
employer of an OSHA inspection without permission from the Department of Labor.
Employee Rights and Responsibilities
Although the OSH Act makes employers responsible for protecting workers from
safety and health hazards, employees have responsibilities as well.

They have to follow
OSHA's safety rules and regulations governing employee behavior. Employees
also have a duty to report hazardous conditions.
Along with those responsibilities go certain rights. Employees may file a complaint
and request an OSHA inspection of the workplace, and their employers
may not retaliate against them for complaining. Employees also have a
right to receive information about any hazardous chemicals they handle in the
course of their jobs. OSHA's Hazard Communication Standard and many states'

right-to-know laws require employers to provide employees with information
about the health risks associated with exposure to substances considered hazardous.
State right-to-know laws may be more stringent than federal standards,
so organizations should obtain requirements from their state's health and safety
agency, as well as from OSHA.

Under OSHA's Hazard Communication Standard, organizations must have
material safety data sheets (MSDSs) for chemicals that employees are
exposed to. An MSDS is a form that details the hazards associated with a chemical;
the chemical's producer or importer is responsible for identifying these hazards
and detailing them on the form. Employers must also ensure that all containers
of hazardous chemicals are labeled with information about the hazards, and they
must train employees in safe handling of the chemicals.
Employees, supervisors, and other knowledgeable sources need to sit down and discuss
potential problems related to safety.

One method for doing this is the job hazard
analysis technique.
With this technique, each job is broken down into basic elements,
and each of these is rated for its potential for harm or injury

. If there is agreement
that some job element has high hazard potential, the group isolates the element
and considers possible technological or behavior changes to reduce or eliminate the
hazard. The " Did You Know? " box shows the leading causes of injuries at work in 2007.

Another means of isolating unsafe job elements is to study past accidents.

The
technic of operations review (TOR)
is an analysis method for determining which
specific element of a job led to a past accident.


The first step in a TOR analysis is
to establish the facts surrounding the incident. To accomplish this, all members of
the work group involved in the accident give their initial impressions of what happened.
The group must then, through discussion, come to an agreement on the single,
systematic failure that most likely contributed to the incident, as well as two or three
major secondary factors that contributed to it.

ex
United Parcel Service combined job analysis with employee empowerment to
reduce injury rates dramatically. Concerned about the many sprains, strains, and other
injuries experienced by its workers, UPS set up Comprehensive Health and Safety
Process (CHSP) committees that bring together management and nonmanagement
employees. Each committee investigates and reports on accidents, conducts audits of
facilities and equipment, and advises employees on how to perform their jobs more
safely. For example, the committees make sure delivery people know safe practices for
lifting packages and backing up trucks. Whenever committee members see someone
behaving unsafely, they are required to intervene. Since the CHSP committees began
their work, the injury rate at UPS has fallen from over 27 injuries per 200,000 hours
worked to just 10.2 injuries per 200,000, well on the way to the company's target
injury rate of 3.2 per 200,000 hours. 25

To communicate with employees about job hazards, managers should
talk directly
with their employees about safety. Memos also are important, because the written
communication helps establish a "paper trail" that can later document a history of
the employer's concern regarding the job hazard. Posters, especially if placed near the
hazard, serve as a constant reminder, reinforcing other messages.
In communicating risk, managers should recognize that different groups of individuals
may constitute different audiences.

For example, as women started entering
more sectors of the workforce, it became apparent that personal protective equipment
designed with men in mind did not always fit women very well. For example, cutresistant
leather gloves designed for men's hands often proved too clumsy and bulky for
female workers. Likewise, gloves that are too big can actually make handling of slippery
or wet items more dangerous. And when gloves or other equipment doesn't fit properly,
workers are less motivated to wear it, losing the equipment's protection altogether

Fortunately, equipment designers today are becoming more aware of the needs of their
customers' female employees, so more sizes and designs are now available. 26
Other workers who may be at higher risk are at each end of the age spectrum. Older
workers tend to have fewer but more severe injuries and take longer to recover. In
addition, whereas young workers are more likely to suffer an acute injury such as a cut
or burn, older workers are more likely to injure themselves as a result of cumulative
trauma, such as repetitive motions, awkward postures, and the use of too much force
over and over. Such injuries can often be prevented with careful job design. 27 Organizations
may need to make reasonable accommodations in response to their concerns,
both to protect their employees and to meet the challenges of an aging workforce,
described in Chapter 2. With young workers, the safety challenge is to protect them

from risk taking. Young workers may be especially eager to please the adults they work
with, and they may be more fearful than their older colleagues when safety requires
challenging authority. Employees who are new to the workforce may not be aware
of the health and safety laws that are supposed to protect them. Research by the
National Safety Council indicates that 40 percent of accidents happen to individuals
in the 20-to-29 age group and that 48 percent of accidents happen to workers during
their first year on the job. 28 The "HR Oops!" box shows the danger of assuming that
employees are aware of safety risks on the job.
Reinforcing Safe Practices

To ensure safe behaviors, employers should not only define how to work safely but
reinforce the desired behavior.

One common technique for reinforcing safe practices
is implementing a safety incentive program to reward workers for their support of and
commitment to safety goals. Such programs start by focusing on monthly or quarterly
goals or by encouraging suggestions for improving safety. Possible goals might include
good housekeeping practices, adherence to safety rules, and proper use of protective
equipment. Later, the program expands to include more wide-ranging, long-term
goals.

Typically, the employer distributes prizes in highly public forums, such as company
or department meetings. Using merchandise for prizes, instead of cash, provides
a lasting symbol of achievement. A good deal of evidence suggests that such incentive
programs are effective in reducing the number and cost of injuries. 29
Besides focusing on specific jobs, organizations can target particular types of injuries
or disabilities, especially those for which employees may be at risk. For example,
Prevent Blindness America estimates that 2,000 eye injuries occur every day in occupational
settings. 30 Organizations can prevent such injuries through a combination

of job analysis, written policies, safety training, protective eyewear, rewards and sanctions
for safe and unsafe behavior, and management support for the safety effort. Similar
practices for preventing other types of injuries are available in trade publications,
through the National Safety Council, and on the Web site of the Occupational Safety
and Health Administration ( www.osha.gov ).
Promoting Safety Internationally


Given the increasing focus on international management, organizations also need
to consider how to ensure the safety of their employees regardless of the nation in
which they operate.

Cultural differences may make this more difficult than it seems.

For example, a study examined the impact of one standardized corporation wide safety
policy on employees in three different countries: the United States, France, and
Argentina. The results of this study indicate that employees in the three countries
interpreted the policy differently because of cultural differences.

The individualistic,
control-oriented culture of the United States stressed the role of top management in
ensuring safety in a top-down fashion. However, this policy failed to work in Argentina,
where the culture is more "collectivist" (emphasizing the group). Argentine
employees tend to feel that safety is everyone's joint concern, so the safety programs
needed to be defined from the bottom of the organization up. 31

Another challenge in promoting safety internationally is that laws, enforcement
practices, and political climates vary from country to country. With the increasing use
of offshoring, described in Chapter 2, more companies have operations in countries
where labor standards are far less strict than U.S. standards. Managers and employees
in these countries may not think the company is serious about protecting workers'
health and safety. In that case, strong communication and oversight will be necessary
if the company intends to adhere to the ethical principle of valuing its foreign workers'
safety as much as the safety of its U.S. workers. The Gap treats this issue as part
of its corporate social responsibility. The company views its supply chain as socially
sustainable only when working conditions and factory conditions meet acceptable
business practices. According to Eva Sage-Gavin, Gap's executive vice president of
human resources and corporate communications, "We know that better factory working
conditions lead to better factories, and better factories make better products." In
addition, Sage-Gavin notes, Gap employees in the United States care about working
for a company they view as socially responsible, so these efforts also matter for corporate
performance at home. 32
;