Employee Management for Small Business. Lin Grensing-Pophal
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to receive and investigate discrimination complaints filed by individuals and EEOC commissioners, and to remedy any discriminatory practices encountered. If mediation and conciliation fail, the EEOC can file suit against private employers on behalf of the charging party. The Justice Department may file suit against public sector employers.
There are three ways in which allegations of discrimination may come to the EEOC:
(a) Individuals may file complaints.
(b) EEOC Commissioners may file on behalf of an individual.
(c) Class action suits may be filed against both the public and the private sectors.
Penalties that may be imposed include the following:
• Cease and desist orders to stop all hiring.
• Reimbursement of back pay.
• Reinstatement of employees who have been terminated due to discrimination.
• Institutional change in personnel systems.
• Establishment of quota hiring systems.
• Development of affirmative action plans.
• Elimination of artificial barriers to employment that tend to screen out groups protected by Title VII of the Civil Rights Act of 1964.
For employers, recognizing the possibility of bias in selection is the first step toward correcting the problem. Decision makers should make efforts to quantitatively specify the work-related criteria that will be used in the selection process and then make their judgments based solely on these criteria.
2.2 Improving recruiting efforts
The EEOC has listed six major guidelines for employers to follow in establishing fair recruitment practices:
(a) Analyzing current recruitment procedures to eliminate such discriminatory barriers as word-of-mouth or walk-in sources of employees.
(b) Establishing objective measures to monitor the female applicant pool in the recruitment process (e.g., enabling the employer to identify how many candidates were females and/or minorities).
(c) Training recruiters so that they use only fair objectives and job-related criteria.
(d) Maintaining files on minority and female applicants not hired for one job who may be contacted in future recruiting, and making full use of women and minorities who are already on the staff as recruiters, sources of information, and interviewers.
(e) Publicizing vacancies by means of advertising directed toward recruiting as many minorities and women as possible, including the use of the suggested phrase, “Equal Opportunity Employer M/F.” (Avoid references to age, sex, race, national origin, and marital status. Minimum qualifications needed to perform the job should be stated.)
(f) Making full use of community resources, including educational institutions, women’s and minorities’ organizations, employment services, and public training programs, and placing ads in newspapers that are likely to be read by minority groups.
2.3 Fine-tuning the selection process
Discrimination in hiring practices does occur — as many discover to their dismay and frustration. The EEOC has found that the selection process itself contains more possibility for discrimination than any other area of hiring practice.
In an effort to deal with these problems, the EEOC has set up guidelines that employers are expected to follow:
• Selection procedures must be based on job-related standards. Criteria used to select employees must be demonstrably related to job performance. Only when gender is a “Bona Fide Occupational Qualification” (BFOQ) can it be used as a determinant in hiring.
• If discrimination in hiring is indicated, employers must be able to prove that they have, indeed, used valid hiring standards.
• Jobs cannot be classified by sex or any other discriminatory means, nor can there be separate sex-based lines of progression or seniority lists.
• Job opportunities must be advertised without indicating preference, limitation, specification, or discrimination because of sex or any other discriminatory measure unless there is a bona fide occupational qualification.
• In regard to pre-employment inquiries, all personnel involved in employment decisions are prohibited from asking questions that express a limitation, specification, or discrimination as to sex. An applicant may be asked to indicate his or her sex, provided the question is put in good faith that the information will not be used for discriminatory purposes.
2.4 Avoiding nonessential inquiries
When interviewing candidates for a position, ask yourself these questions:
• Does this question result in the screening out of women and minorities?
• Is this question necessary to judge competence in job performance?
• Are there other nondiscriminatory ways to obtain this information?
Court decisions and the EEOC have found many common pre-employment inquiries to disproportionately reject minorities and females. Some of these questions have been expressly prohibited by the courts. These include questions referring to the following areas.
2.4a Race, religion, and national origin
Though employers are not expressly prohibited from recording this information in personnel files for affirmative action purposes, these inquiries are explicitly prohibited in many states. In the event of discrimination charges, information of this nature recorded in the personnel files will be examined carefully.
2.4b Education
Requirements for education that are not specifically needed for the job in question may be placed under examination in discrimination suits. Inflated education requirements can result in higher turnover due to overqualified employees and can serve to eliminate certain minorities from the job force.
2.4c Arrest and conviction records
These questions are unlawful as the basis for employment unless the employer can demonstrate a “business necessity.”
2.4d Sex, marital, and family status
The Supreme Court has ruled that an employer may not have different hiring practices for men and women with preschool children. In addition, any questions related to marital or family status, if asked of female candidates, must also be asked of male candidates. This information is needed for Social Security and tax records, but it can be obtained after employment. Although many personnel officials may argue this point, the best approach is always to remain focused on the specific job-related skills necessary for the particular job.
2.4e Physical requirements
Requirements related to such things as height and weight should be obtained when necessary for the performance of a particular job. An employer must be able to show that these requirements are reasonably related to job performance.
2.4f Age
The Age Discrimination section in the Employment Act of 1967, amended in 1978, prohibits discrimination against workers between 40 and 70 years of age. Its stated purpose is “to promote the employment of older persons based on their ability rather than their age.”
2.4g Maintenance of records
Even if you can honestly say that your employment methods are fair and you have never had any problems with grievances, you must still maintain records of your employment