Academic journal article Forum on Public Policy: A Journal of the Oxford Round Table

Walking the Diversity Compliance Tightrope: Maintaining the Balance between Enforcement and Equity

Academic journal article Forum on Public Policy: A Journal of the Oxford Round Table

Walking the Diversity Compliance Tightrope: Maintaining the Balance between Enforcement and Equity

Article excerpt

Abstract

Many federal laws, such as Title VII of the Civil Rights Act of 1964, have enabled women and minorities access to the workplace. These same laws have mandated that employers prevent discrimination against women and minorities, yet when employers utilize various strategies for eliminating discrimination in the workplace, they have found themselves faced with litigation for their efforts. For example, human resource managers have been struggling with finding ways to prevent and eliminate sexual harassment and one solution has been to require their employees to sign no-fraternization agreements. Unfortunately, rather than solving the problem, the employer has compounded the problem since it is quite common for employers to punish female violators of the policy while no action is taken against male violators. This paper will examine some unique diversity compliance issues and problems that have arisen in the workplace and how human resource managers should respond to these situations. Particular issues, such as sexual harassment in e-mail, religious "witnessing", and transgender issues will be highlighted.

Introduction

Employers have often felt that they are walking a dangerous tightrope--dangerously teetering between compliance with the various employment laws and the unexpected problems that arise from the employer's effort to comply. Various laws like Title VII of the Civil Rights Act require that the employer keep a workplace free of discrimination. Employers are very anxious to avoid costly litigation and avoid the great amount of time that is involved in defending their various employment practices. However, in their zeal to comply with the law, employers may unwittingly create additional problems associated with their compliance solutions. In fact, some of the "solutions" to various legal issues may produce even greater legal headaches than the ones they were originally trying to resolve. Case law provides useful examples of compliance problems and provides guidance for human resource managers as to what kind of problems might arise.

Sexual Harassment

Sexual harassment is one of the most frequently litigated employment issues and costs the employer hundreds of thousands of dollars in attorney fees, court fees and lost productivity time. The U.S. Merit Systems Protection Board conducted surveys amongst government employees in 1981 and 1988 and found that the government spent $267 million dollars in turnover and loss of productivity costs resulting from sexual harassment. (1) Litigation costs for the private employer in 1998 ran on average of $80,000 and peaked at $200,000. (2,3) The average jury award for cases going to trial was $181,847. (4) Obviously, these figures don't begin to represent the thousands of dollars that have been offered in settlement agreements nor the awards that have been paid out in unreported cases. Preventative costs can be just as high with costs totaling 6.7 million dollars for a typical Fortune 500, (5) making for an estimated of $282.53 per employee. (6)

It is no wonder that employers feel a great pressure to eliminate sexual harassment in the workplace. One type of preventative measure that has been used is to control or prohibit dating relationships at the workplace. There are two general approaches that are used by employers to curtail romantic relationships at work--a "no dating" or "no fraternization" policy.

"No Dating" or "No-Fraternization" Policies. Some companies are trying to prevent sexual harassment from occurring is by adopting no-fraternization policies or other contractual arrangements where the parties either promise not to engage in any relationships with fellow employees other than a work relationship. Efforts to enforce the contracts have resulted in unexpected litigation over the no-dating policies such as bias in enforcement (where women are disciplined for violations of a no-fraternization policy more so than men); worker complaints of the employer's interference with personal relationships; and concerns over violations of freedom of association and invasion of privacy. …

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