The Legal Environment and Diversity Management Chapter 3.docx

The Legal Environment and Diversity Management
Chapter 3
Lussier, Human Resources Management 3e. © SAGE
Publications, 2019.
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Protecting Your Organization
A primary responsibility of an HR manager is to assist in
avoiding any discriminatory situations that can create legal,
ethical or social problems with employees, former employees,
communities, or other stakeholders.
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The HRM legal environment has become significantly more
complex in the past 30 years. There have been a significant
number of laws enacted just in the past 10 years that affect how
organizations must do business. In addition, we have grown to
believe in the value of a diverse workforce, much more so than
in the 1960s and 1970s
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Discrimination Versus Illegal Discrimination
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Discrimination
In HR, discrimination is making distinctions among people.

Illegal Discrimination
Making distinctions that harm people by inappropriately using a
individual’s membership in a protected class as a basis for an
employment decision.
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One of the primary jobs of an HR manager in any organization
is to assist in avoiding any discriminatory employment
situations that can create legal, ethical, or social problems with
employees, former employees, the community, or other
stakeholders. As a result, one of the first things we need to do
in this chapter is define discrimination, which is the act of
making distinctions or choosing one thing over another; in HR,
it is making distinctions among people. So you can quickly see
that we all discriminate, every day. If managers don’t
discriminate, then they’re not doing their jobs. However, we
want to avoid illegal discrimination based on a person’s
membership in a protected class (we will discuss protected
classes shortly) and we want to avoid unfair treatment of any of
our employees at all times. Illegal discrimination is making
distinctions that harm people and that are based on those
people’s membership in a protected class.
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The OUCH Test
To maintain fairness and equity whenever contemplating any
employment action.
Objective--fact-based and quantifiable.
Uniform in application--apply the same “tests” in the same
ways.
Consistent in effect--ensure the result is not significantly
different for different groups.

Has job relatedness--action must relate to the essential job
functions.
The 4/5ths rule: Used by federal courts, Department of Labor,
and Equal Employment Opportunity Commission to determine
whether disparate impact exists in an employment test.
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The OUCH test is a rule of thumb used whenever you are
contemplating any employment action, to maintain fairness and
equity for all of your employees or applicants. You should use
this test whenever you are contemplating any action that
involves your employees. For example, you should use it when
hiring new people, promoting employees, deciding whether or
not to give someone a raise, analyzing potential disciplinary
action against an employee, or in any other job-related action.
OUCH is an acronym that stands for Objective, Uniform in
application, Consistent in effect, Has job relatedness.
Does the action taken have a significantly different effect on
one or more protected groups than it has on the majority group?
Determining consistency in effect is a bit more difficult than the
other three OUCH test characteristics. There are many protected
groups in U.S. law. We have to try to make sure that we don’t
affect one of these protected groups disproportionately with an
employment action. But how can we know?
The Department of Labor and the Equal Employment
Opportunity Commission (EEOC) have given us the Four-Fifths
Rule, which is a test used by various federal courts, the
Department of Labor, and the EEOC to determine whether
disparate impact exists in an employment test. If the selection
ratio for any group (e.g., Asian males) is less than four fifths of
the selection rate for the majority group (e.g., White males) in

an employment action (e.g., promotions), then it constitutes
evidence of potential disparate impact.
If we are out of compliance with the Four-Fifths Rule, have we
automatically broken the law? No. We do have to investigate
why we are outside the four-fifths parameter, though. If there is
a legitimate reason (we will discuss this shortly) for the
discrepancy that we can prove in a court, then we are probably
OK with a selection rate that is outside the parameters. By the
way, we can also look at six fifths to determine the possibility
of reverse discrimination--Reverse discrimination is
discrimination against the majority employee group based on a
legally protected factor, such as race or religion--so we would
want to have between 16 and 24 African-American males
selected in the first example, since 6/5 of 20 is 24.
http://uniformguidelines.com/uniformguidelines.html#18/
(retrieved May 24, 2017).
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Equal Pay Act of 1963
Requires women who do the same job as men (“equal skill,
effort, and responsibility and performed under similar working
conditions”) in the same organization to receive the same pay.
Pay differences that result from differences in seniority, merit,
quantity or quality of production, or any factor other than sex
(e.g., shift differentials, training programs) are legally
allowable.
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Major employment laws
In any management position within any organization today, you
need a basic understanding of the major employment laws that
are currently in effect. If you don’t understand what is legal and
what isn’t, you can inadvertently make mistakes that may cost
your employer significant amounts of money and time, and if
that happens, your employer may not remain your employer for
very long. You don’t want that to happen, so let’s take a
chronological look at some of the laws listed in Exhibit 3-3.
Exhibit 3-3 Major EEO Laws in Chronological Order
Law
Description
Equal Pay Act of 1963
Requires that women be paid equal to men if they are doing the
same work
Title VII of the Civil Rights Act of 1964
Prohibits discrimination on the basis of race, color, religion,
sex, or national origin in all areas of the employment
relationship
Age Discrimination in Employment Act of 1967
Prohibits age discrimination against people 40 years of age or
older and restricts mandatory retirement
Vietnam Era Veterans Readjustment Assistance Act of 1974
Prohibits discrimination against Vietnam veterans by all
employers with federal contracts or subcontracts of US$100,000
or more. Also requires that affirmative action be taken.
Pregnancy Discrimination Act of 1978
Prohibits discrimination against women affected by pregnancy,
childbirth, or related medical conditions
Americans with Disabilities Act of 1990
Strengthened the Rehabilitation Act of 1973 to require
employers to provide “reasonable accommodations” to allow

disabled employees to work
Civil Rights Act of 1991
Strengthened civil rights by providing for possible
compensatory and punitive damages for discrimination
Uniform Services Employment and Reemployment Rights Act
(USERRA) of 1994
Ensures the civilian reemployment rights of military members
who were called away from their regular (nonmilitary) jobs by
U.S. government orders
Veterans Benefits Improvement Act of 2004
Amends USERRA to extend health care coverage while away on
duty, and requires employers to post a notice of benefits, duties,
and rights of reemployment
Genetic Information Nondiscrimination Act of 2008
Prohibits the use of genetic information in employment,
prohibits intentional acquisition of same, and imposes
confidentiality requirements
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
SHRM
Equal Pay Act of 1963 (EPA)
The first modern equal employment opportunity (EEO) law that
we will review is the Equal Pay Act. The act requires that
women who do the same job as men, in the same organization,
must receive the same pay. It defines equal in terms of “equal
skill, effort, and responsibility, and . . . performed under similar
working conditions.” Members of the U.S. Women’s Soccer
Team filed an Equal Pay complaint with the EEOC in 2016
based on a disparity in the per-game and win-incentives paid to
the men’s and women’s team members. They claim that if the
U.S. men’s team won a game, they would receive average
compensation of US$13,166 while if the women’s team won a
game their compensation would average US$4,950.The EPA
says that, if pay differences are the result of differences in

seniority, merit, quantity or quality of production, or any factor
other than sex (e.g., shift differentials and training programs),
then those differences are legally allowable. However, based on
the players’ allegations and the records of the U.S. men’s and
women’s teams at the time the suit was filed, these factors
should probably not play a part in deciding the compensation
differentials that the women claim. While the EPA was designed
to equalize pay between men and women, the act was never
fully successful, but the next law we will discuss added serious
consequences to such unequal treatment.
http://www.eeoc.gov/laws/statutes/epa.cfm (retrieved May 24,
2017)
https://www.nytimes.com/2016/04/01/sports/soccer/uswnt-us-
women-carli-lloyd-alex-morgan-hope-solo-complain.html ,
Retrieved May 22, 2017
https://www.shrm.org/resourcesandtools/legal-and-
compliance/employment-law/pages/women-soccer-players-
sue.aspx?_ga=2.158922298.1651600810.1495483867-
1947741147.1484770044, Retrieved May 22, 2017
http://www.eeoc.gov/laws/statutes/epa.cfm (retrieved May 24,
2017)
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Illegal for an employer to fail or refuse to hire, discharge, or
otherwise discriminate against any individuals with respect to
compensation, terms, conditions, or privileges of employment,
due to race, color, religion, sex, or national origin;
Or to limit, segregate, or classify employees or applicants in
any way that deprives them of employment opportunities or
otherwise adversely affects their employment status due to race,
color, religion, sex, or national origin.
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Title VII of the Civil Rights Act of 1964 (CRA)
This act was probably the most significant single piece of
legislation regulating EEO in the history of the United States. It
changed the way that virtually every organization in the country
did business, and it even helped change employers’ attitudes
about discrimination. Even in cases where the law does not
directly apply to an organization, it has been used to evaluate
internal policies to attempt to ensure fairness and equity for all
of our workers.
The 1964 CRA states that it is illegal for an employer “(1) to
fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin; or (2) to limit, segregate, or classify his
employees or applicants for employment in any way which
would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion,
sex, or national origin.”
The act applies to organizations with 15 or more employees who
are working 20 or more weeks a year and who are involved in
interstate commerce. Why does the organization have to be
involved in interstate commerce? Mainly because of the 10th
Amendment to the US Constitution, which deals with states’
rights. The federal government can’t make any laws that apply
wholly within the borders of a single state. The law also
generally applies to state and local governments; educational
institutions, public or private; all employment agencies; and all
labor associations of any type.
Let’s discuss some of the important concepts introduced by the
CRA of 1964 including:

Disparate treatment
Disparate (also called adverse) impact
Pattern or practice
Bona fide occupational qualification (BFOQ)
Business necessity
Job relatedness
http://www.cnn.com/2014/04/10/politics/civil-rights-act-
interesting-facts/ (retrieved May 24, 2017)
http://www.eeoc.gov/laws/statutes/titlevii.cfm (retrieved May
24, 2017)
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Applies to organizations involved in interstate commerce with
15 or more employees who work 20+ weeks a year.
Introduced important concepts:
Disparate treatment
Disparate (a.k.a. Adverse) impact
Pattern or practice
Bona Fide Occupational Qualification (BFOQ)
Business necessity
Job relatedness
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Types of Discrimination Addressed by Title VII
Disparate (adverse) treatment
When an employee is intentionally treated differently based on
his/her membership in a protected class.
Disparate (adverse) impact
When an officially neutral employment practice
disproportionately and unintentionally excludes members of a

protected group.
Pattern or practice
When an employer engages in actions over time that
intentionally deny the rights provided by Title VII to a member
of a protected class.
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Types of discrimination. The 1964 CRA identified, really for
the first time, three specific types of discrimination. While it
didn’t name them, it did describe the process of each of the
three in some detail. Once this was done, court rulings helped to
further define the three types, which we have come to call
disparate treatment, disparate impact, and pattern or practice.
Disparate treatment and impact are also called adverse
treatment or impact.
In addition to the three types of discrimination that were more
or less directly identified in the 1964 CRA, a fourth and fifth
type have been determined to exist by federal courts based on
the wording of the CRA. These other two types of
discrimination are religious discrimination and sexual
harassment. But for now, let’s discuss the three forms of
discrimination that were directly identified in the CRA.
Disparate (adverse) treatment. Disparate treatment exists when
individuals in similar situations are intentionally treated
differently and the different treatment is based on an
individual’s membership in a protected class. In a court case,
the plaintiff must prove that there was a discriminatory motive--
that is, that the employer intended to discriminate--in order to
prove disparate treatment. Disparate treatment is generally
illegal unless the employer can show that there was a “bona fide
occupational qualification” (or BFOQ--we will talk about these

shortly) that caused the need to intentionally disallow members
of a protected group from applying for or getting the job. One
place where disparate treatment still occurs with some
frequency is in access to mentoring and leadership development,
where women and minority individuals are still “substantially
underrepresented.”
Ibid.
http://www.justice.gov/crt/about/edu/types.php (retrieved May
24, 2017)
http://www.eeoc.gov/policy/docs/factemployment_procedures.ht
ml (retrieved May 24, 2017)
McDonald, M.L. & Westphal, J.D. (2013) Access denied: Low
mentoring of women and minority first-time directors and its
negative effects on appointments to additional boards. Academy
of Management Journal, 56, 1169–1198.
Disparate (adverse) impact. Disparate impact occurs when an
officially neutral employment practice disproportionately
excludes the members of a protected group; it is generally
considered to be unintentional, but intent is irrelevant. For there
to be discrimination under disparate treatment, there has to be
intentional discrimination. Under disparate impact, intent does
not matter.
As an example, some characteristics (e.g., height and strength)
are not distributed equally across race and gender groups, and in
some jobs, these characteristics may be related to successful
performance in the job. Therefore, disparate impact is not
necessarily illegal. The important question is whether the
characteristic is related to successful performance on the job,
meaning whether it has job relatedness. Disparate impact is
generally judged by use of the Four-Fifths Rule that we
discussed earlier. Both the Department of Labor (through their
Uniform Guidelines on Employee Selection Procedures) and the
EEOC have expressed a preference for using the Four-Fifths
Rule to determine disparate impact. If the four-fifths
requirement is not satisfied, discrimination is considered to

have occurred but illegal discrimination has not necessarily
occurred.
http://www.eeoc.gov/policy/docs/factemployment_procedures.ht
ml (retrieved May 24, 2017)
http://www.eeoc.gov/policy/docs/qanda_clarify_procedures.htm
l (retrieved May 24, 2017)
Pattern or practice. Pattern or practice discrimination occurs
when a person or group engages in a sequence of actions over a
significant period of time that is intended to deny the rights
provided by Title VII of the 1964 CRA to a member of a
protected class. If there is reasonable cause to believe that any
organization is engaging in a pattern or practice that denies the
rights provided by Title VII, the U.S. Attorney General may
bring a federal lawsuit against it. In general, no individual can
directly bring a pattern-or-practice lawsuit against an
organization. As with the disparate treatment concept, it must
be proven that the employer intended to discriminate against a
particular class of individuals and did so over a protracted
period of time.
http://www.eeoc.gov/laws/statutes/titlevii.cfm (retrieved May
24, 2017)
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Pattern or Practice Landmark Lawsuit
Paving the way for fair treatment.
The Alabama state troopers long symbolized systematic
oppression in the South and, as late as 1972, remained an all-
white institution.
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Organizational Defenses to Illegal Discrimination Charges
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The Age Discrimination in Employment Act of 1967 (ADEA)
Prohibits discrimination against employees age 40 or older in
organizations that have 20 or more workers.
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Vietnam Era Veterans Readjustment Assistance Act of 1974
(VEVRAA)
Employers with federal contracts/subcontracts of US$100,000
or more must provide equal opportunity and affirmative action
for Vietnam era veterans, special disabled veterans, and
veterans who served on active duty during a war, campaign, or
expedition.
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Pregnancy Discrimination Act of 1978 (PDA)
Under Title VII, this act requires employers to treat pregnant
women the same as they treat any employee with a medical
condition with respect to employment-related purposes.
Pregnancy is not unlike any other form of disability.
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Americans with Disabilities Act (ADA) of 1990 as Amended in
2008
Prohibits discrimination based on disability. Requires
employers to make "reasonable accommodation" to individuals
with disability, if they are otherwise qualified to perform the
“essential functions” of the job, unless it imposes an “undue
hardship” on the organization.
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Civil Rights Act of 1991
Corrects major omissions of the 1964 CRA and overturns
several U.S. court decisions.
Allows compensatory and punitive damages when intentional or
reckless discrimination is proven.
Prohibits “discriminatory use,” also called race-norming, of test
scores.
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The Uniformed Services Employment and Reemployment Rights
Act of 1994
Ensures civilian reemployment rights of military members who
were called away from their non-military jobs by U.S.
government orders.
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The Veteran’s Benefits Improvement Act of 2004 (VBIA)
Extends employers’ requirement to maintain health care
coverage for up to two years for employees serving on active
duty and requires employers to post a notice of benefits, duties,
and rights under USERRA/VBIA.
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Title II of the Genetic Information Nondiscrimination Act of
2008
Prohibits use of genetic information in employment and
intentional acquisition of genetic information about applicants
and employees and imposes strict confidentiality requirements.
Enacted to prevent employers from using results of genetic
tests to discriminate against applicants and employees when
their test results indicate they may contract a certain disease or
disorder in the future.
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Lilly Ledbetter Fair Pay Act of 2009 (LLFPA)
Extends period of time in which an employee is allowed to file
a compensation discrimination lawsuit to within 180 days after
“any application” of a discriminatory compensation decision.
This includes every time an individual is paid as long as the
discrimination is continuing.
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The Immigration and Nationality Act of 1952 (INA)
Allows employment of immigrant workers in certain specialty
occupations, such as engineers, teachers, computer
programmers, medical doctors, and physical therapists.
Specifies requirements to apply for such employment and
annual limits to the number of employees who can apply for
work visas in these specialty occupations.
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The Immigration Reform and Control Act of 1986 (IRCA)
Requires that employers only hire individuals who are
authorized to work legally in the U.S.
Prohibits employers from knowingly hiring undocumented
workers and requires employers to verify each employee's
eligibility for employment.

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The Equal Employment Opportunity Commission (EEOC)
Investigate and resolve discrimination complaints through either
conciliation or litigation.
Gather and compile statistical information on such complaints.
Provide education and outreach programs on what constitutes
illegal discrimination.
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Reminder: State and Local EEO Laws May Be Different
As with any introductory textbook, we can’t tell you all of the
laws that would apply in the various locations across the United
States, and we certainly can’t go into all the labor laws in other
countries around the world. We can only cover the major laws
that affect virtually everyone in each of the United States. Each
state, as well as many cities, has its own equal opportunity laws
that employers within that state must follow. It’s up to the HR
manager to keep up to date on the local and state laws and
regulations concerning equal opportunity, as well as following
federal laws.
Equal Employment Opportunity Commission (EEOC)
The various federal equal employment opportunity (EEO) laws
are enforced by the Equal Employment Opportunity Commission
(EEOC). The EEOC was created by the 1964 CRA as an
enforcement arm for the act. It is a federal agency that has
significant power over employers in the process of investigating
complaints of illegal discrimination based on “race, color,

religion, sex (including pregnancy), national origin, age (40 or
older), disability, or genetic information.”
http://eeoc.gov/eeoc/ (retrieved May 24, 2017)
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Employee Rights Under EEOC
To bring discrimination complaints against an employer by
filing a complaint with the EEOC.
To participate in an EEOC investigation, hearing or other
proceeding without threat of retaliation.
To the arbitration and settlement of the complaint.
To sue the employer directly.
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Retaliation is a situation where the organization takes an
“adverse employment action” against an employee because the
employee brought discrimination charges against the
organization or supported someone who brought discrimination
charges against the company. An adverse employment action is
any action such as firings, demotions, schedule reductions, or
changes that would harm the individual employee.
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Employee Rights Under EEOC
All employees who work in the U.S. or its territories are
protected by EEOC laws whether they work for a U.S. or
foreign employer.
U.S. citizens employed outside the U.S. by a U.S. employer or a

foreign company controlled by an U.S. employer are protected
by Title VII, ADEA, and ADA unless adherence violates a law
of the country where the workplace is located.
When U.S. citizens are employed by a foreign company in a
country other than the U.S., the laws of that country apply.
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Foreign Corrupt Practices Act of 1977 (FCPA)
Enacted for the purpose of making it unlawful for certain
classes of persons and entities to make payments to foreign
government officials to assist in obtaining or retaining business.
The anti-bribery provisions prohibit the willful use of the mails
or any means of instrumentality of interstate commerce
corruptly in furtherance of any offer, payment, promise to pay,
or authorization of the payment of money or anything of value
to any person, while knowing that all or a portion of such
money or thing of value will be offered, given or promised,
directly or indirectly, to a foreign official to influence the
foreign official in his or her official capacity, induce the
foreign official to do or omit to do an act in violation of his or
her lawful duty, or to secure any improper advantage in order to
assist in obtaining or retaining business for or with, or directing
business to, any person.
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Employer Prohibitions Under EEOC
To retaliate against employees who participate in an EEOC
action.
To create a hostile work environment that results in the

employee quitting or resigning from the company because
continued employment becomes intolerable (constructive
discharge).
Affirmative Action: a series of policies, programs, and
initiatives designed to give preference in the hiring of
individuals in protected groups, in certain circumstances as an
attempt to mitigate past discriminatory practices.
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Equal Employment Opportunity, Affirmative Action, and
Diversity
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As a manager, you need to understand the terms equal
employment opportunity (EEO), affirmative action, and
diversity. These are significantly different concepts, but many
employees and employers, and even some educators, tend to use
them interchangeably. EEO is the term that deals with a series
of laws and regulations put in place at the federal and state
government level over the last 45 years. As such, EEO is very
specific and narrowly defined within federal and state laws.
On the other hand, affirmative action was created in the 1960s
through a series of policies at the presidential and legislative
levels in the United States. Affirmative action, except in a few
circumstances, does not have the effect of law. We will discuss
those circumstances in the next section. Therefore, affirmative
action is a much broader concept based on policies and
executive orders (orders from the president); EEO is more

narrowly based on law.
Finally, diversity is not law, nor necessarily even policy within
organizations. Diversity is a very broad set of concepts that deal
with the differences among people within organizations.
Today’s organizations view diversity as a valuable part of their
human resources makeup. However, there are no specific laws
that create requirements for diversity within organizations,
beyond the EEO laws that specifically identify protected class
members and require that organizations deal with those
protected class members in an equal way when compared to all
other members of the organization.
https://www.gpo.gov/fdsys/pkg/CFR-2009-title29-
vol4/pdf/CFR-2009-title29-vol4-part1608.pdf retrieved May 24,
2017
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The Office of Federal Contract Compliance Programs (OFCCP)
Monitors and enforces Executive Order (EO) 11246, Section
503 of the 1973 Rehabilitation Act, and 974 VEVRAA.
EO 11246 and Rehab Act require federal contractors who
receive more than a certain dollar value in contracts from the
federal government per year to provide equal opportunity and
take affirmative action toward protected class individuals.
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The OFCCP is in charge of monitoring and enforcing Executive
Order (EO) 11246, Section 503 of the 1973 Rehabilitation Act,
and the 1974 VEVRAA. We have already discussed VEVRAA
above, so let’s take a look at EO 11246 and the Rehabilitation
Act as they relate to the OFCCP.
The OFCCP is in charge of federal contract compliance, and

both EO 11246 and the Rehab Act require that federal
contractors who receive more than a certain dollar value per
year in contracts from the federal government provide equal
opportunity and take affirmative action toward protected class
individuals. In the case of EO 11246, those groups are based on
race, color, religion, sex, and national origin, and in the case of
the Rehab Act, the designated group is disabled individuals.
There is currently some discussion on merging the OFCCP into
the EEOC, but it is considered unlikely to happen. Even so,
anyone planning on becoming a manager should be aware that
this is a possibility.
http://www.dol.gov/ofccp/aboutof.html (retrieved May 24,
2014)
https://www.bna.com/merger-eeoc-contractor-n73014450764/
(retrieved May 23, 2017)
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Diversity in the Workforce
Diversity is the existence of differences.
Diversity fosters creativity and innovation through divergent
thinking, so to exclude qualified people because they are
“different” is counterproductive to business success.
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What are the advantages of a diverse workforce? The primary
advantages of a diverse workforce come from the ability to
stimulate and provide more creative and innovative solutions to
organizational problems. How does a more diverse workforce
add to the creativity and innovation in an organization?
Creativity is a basic ability to think in unique and different

ways and apply those thought processes to existing problems,
and innovation is the act of creating useful processes or
products based on creative thought processes.
Harvey, S. (2014). Creative synthesis: Exploring the process of
extraordinary group creativity. Academy of Management
Review, 39(3), 324–343.
Are there any challenges to diversity? Of course there are.
There are several things that can cause diversity to break down
the organization instead of allowing it to become better and
more creative. The first issue is conflict. Conflict is simply the
act of being opposed to another. Conflict occurs in all
interactions between individuals. There are many reasons for
conflict. However conflict is typically greater when people are
significantly different from each other, which means that if we
create a more diverse workforce, there’s a greater likelihood for
more significant conflict.
Tekleab, A. G., & Quigley, N. R. (2014). Team deep-level
diversity, relationship conflict, and team members' affective
reactions: A cross-level investigation. Journal of Business
Research, 67(3), 394–402.
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Managing Diversity
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Diversity affects bottom-line profits, but so do some of the
challenges associated with diversity, like conflict and reduced
cohesiveness. In other words, if our diverse employees don’t
work well together, the organization does not work well.

Creating a cohesive, operational, and highly successful diverse
workforce doesn’t just happen. Management has to work to
create success with diversity. Managing diversity so that we
gain the benefits available is one of the most critical jobs of a
21st century manager. Diversity can be managed successfully
only in an organizational culture that values diversity. While
the details of a diversity management program are a topic for
discussion in another course, we can briefly review what
managers need to be concerned with. Okoro, E.A., &
Washington, M.C. (2012) Workforce diversity and
organizational communication: Analysis of human capital
performance and productivity. Journal of Diversity
Management, 7(1), 57–62.
Sidle, S.D. (2009). Building a committed global workforce:
does what employees want depend on culture? Academy of
Management Perspectives, 23(1), 79–80.
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Sexual Harassment
“Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature constitutes
sexual harassment when submission to or rejection of this
conduct explicitly or implicitly affects an individual's
employment, unreasonably interferes with an individual's work
performance or creates an intimidating, hostile or offensive
work environment.” – EEOC
Two types
Quid Pro Quo
Hostile Work Environment
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Sexual harassment is a special type of discrimination identified

as part of the 1964 CRA (the prohibition of discrimination
based on sex), but it is one of the two items we mentioned
earlier in the chapter that was not specifically recognized as a
separate type of discrimination until federal courts started
hearing cases on the act. In the case of sexual harassment, it
was a Supreme Court decision in the 1980s that finally
identified such harassment as specifically violating the CRA.
The case was Meritor Savings Bank v. Vinson, and it confirmed
the intent of the 1964 CRA that sexual harassment was
specifically prohibited by the act. Sexual harassment is a
pervasive issue in organizations, and as managers, we need to
understand what it is and how to avoid creating a situation
where it can occur at work.
https://www.jstor.org/stable/pdf/1122590.pdf? (retrieved May
25, 2017)
Quid pro quo harassment. Literally, quid pro quo means “This
for that.” Quid pro quo harassment is harassment that occurs
when some type of benefit or punishment is made contingent
upon the employee submitting to sexual advances. “If you do
something for me, I will do something for you, or conversely if
you refuse to do something for me, I will harm you.” Quid pro
quo is a direct form of harassment aimed at an individual and is
most commonly seen in supervisor-subordinate relationships,
although this is not always the case. It is, however, based on the
power of one individual over another. If the harasser has no
power to reward or punish the individual who is the object of
the harassment, then it is difficult for quid pro quo harassment
to exist. In the case of coworkers where one is pressuring the
other concerning a relationship, the situation would more likely
be considered to be a hostile work environment. An excellent
recent example of allegations of quid pro quo harassment was
the case of Roger Ailes, the Chairman of Fox News. Ailes was
accused of coercing a number of women who worked for--or
wanted to work for--Fox to have sexual relationships with him.
Just one of the claims was settled with Fox News personality

Gretchen Carlson was settled for US$20 million.
Quid pro quo harassment Harassment that occurs when some
type of benefit or punishment is made contingent upon the
employee submitting to sexual advances
Hostile work environment. Hostile work environment is a very
specific legal term in HRM meaning harassment that occurs
when someone’s behavior at work creates an environment that is
sexual in nature and that makes it difficult for someone of a
particular sex to work in that environment. Hostile work
environment sexual harassment happens when a “reasonable
person” determines that the behavior in question goes beyond
normal human interaction and the jokes and kidding that
accompany such interaction, instead rising to a level that such a
reasonable person would consider the act or acts to be both
harassing and sexual in nature. For the purposes of the law, a
reasonable person is the “average” person who would look at
the situation and its intensity to determine whether the accused
person was wrong in their actions.
http://www.cnn.com/2016/09/06/opinions/gretchen-carlson-
settlement-roger-ailes-robbins/ (retrieved May 23, 2017)
http://www.eeoc.gov/policy/docs/currentissues.html (retrieved
May 24, 2017)
32
Religious Discrimination
Employers need to make reasonable accommodation of
employees’ religion-based requests that are not in keeping with
the normal workday practices of the organization, unless the
requests prevent the employee from carrying out the essential
functions of his/her job or create an undue hardship.
33
Publications, 2019.

Religion-based discrimination and the ability of employers to
create work rules that may affect religious freedom continue to
be an issue in the workplace. For instance, the issue of
standards of dress in a number of religions, most notably
Islam’s standards for women’s attire in public (including the
hijab or niqab), has become a point of contention in some
workplaces. If an employer sees the niqab as a symbol of
repression, can the employer deny the right to wear such head
coverings and use the antidiscrimination statutes concerning
gender as justification? Can an employer require drivers that
work for them to deliver alcohol to customer warehouses when
the drivers may have a religious opposition to drinking alcohol?
There are many religious freedom questions that we are dealing
with in companies today, and there are certainly no easy
answers.
Remember, the federal courts have determined that religious
discrimination is a violation of the 1964 CRA because it
identifies religion as a protected class. Because religion was
specifically identified in the CRA, we can’t use it as a factor in
making “any employment decision” with our employees.
Religion is a less obvious characteristic than gender or race, so
it is usually not a characteristic on which we base decisions.
However, if a person’s religion requires a certain type of dress
or observation of religious holidays or days of worship that is
not in keeping with the normal workday practices of the
organization, and if the individual requests accommodation for
these religious beliefs, then we generally would need to make
every reasonable effort to accommodate such requests.
https://www.shrm.org/resourcesandtools/tools-and-
samples/toolkits/pages/employeedressandappearance.aspx
(retrieved May 25, 20170)
Ibid.
33

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