Magazine article Supervisory Management

Discrimination and the Law: What Supervisors Should Know

Magazine article Supervisory Management

Discrimination and the Law: What Supervisors Should Know

Article excerpt

In the past six years, the U. S. Supreme Court has made several rulings on issues of discrimination that are of particular importance to supervisors and to "equal opportunity" officials. Currently, four key areas are receiving a considerable amount of attention, both through the courts and through the Equal Employment Opportunity Commission (EEOC) administrative complaint processes. This month, we examine the issues of sexual harassment and statistical hiring, and point out some of the pitfalls supervisors should watch for.

Sexual Harassment

In 1986, the U.S. Supreme court issued a landmark decision in Meritor Savings Bank v. Vinson. This case decided that sexual harassment is a form of sex discrimination in violation of the 1964 Civil Rights Act, and in fact established a new definition of sexual harassment. This sort of harassment is defined as "any behavior or conduct of sexual/gender-based nature that is demeaning, ridiculing, or derisive, and results in a hostile, abusive, or unwelcome work environment." The behavior does not have to be explicitly sexual, but if it would not have occurred with someone of the opposite sex it becomes sexual harassment.

There are four levels of sexual harassment that carry liability:

1. Sex role stereotyping that is demeaning. This can include running errands for a male boss (including getting coffee), having to take notes during staff meetings, or being ignored in meetings (only to hear males make identical points and receive praise). In one case, a woman was denied a position as employee relations manager because there was union trouble and the company's senior managers believed there was "no way a woman could stand up to the union."

2. Visual or verbal abuse. This can include displaying demeaning cartoons and pornographic material in the workplace or making offensive jokes. It can be as seemingly innocuous as the male supervisor who calls female employees "girls," or who refers to them as "honey" and "dear."

3. Individually targeted physical or visual abuse. This includes offensive sexual comments, jokes, or cartoons about a particular individual, nonsexual touching (such as hugs, an arm around the shoulders, or squeezing the neck or arm), or other nonsexual adverse acts done only because of the person's gender. In one case, mechanics ignored complaints from women that exhaust fumes were leaking into their trucks but acted immediately when men made similar complaints.

4. Criminal touching. This involves touching beyond a woman's arms and shoulders, unwanted grabbing and kissing, sexual assault, and attempted or actual rape.

In the Meritor case, it was determined that a company seeking to avoid liability in a sexual harassment case would have to be proactive with adequate policies against sexual harassment. This involves, for example, having a grievance system in place that not only requires the victim not to confront the harasser but also prohibits the alleged harasser from confronting the complainant. It also involves implementing training programs for all employees on sexual harassment and its consequences, as well as enforcing anti-harassment policies. Failure to adhere to these steps could leave the company liable in the event of a lawsuit. For example, supervisors or managers who know of sexual harassment but who do nothing can be found guilty of "guilty acquiescence" and held liable in a lawsuit.

Statistical Hiring

Lawyers argue three different theories of discrimination that depend heavily on statistics:

Disparate impact--the adverse impact on a group from a seemingly neutral policy or practice by an employer; disparate treatment--in which statistics help establish an inference of intentional discrimination toward a particular employee even though it appears to be the result of apparently neutral practices; and mixed motive--in which both discriminatory and non-discriminatory motives affect an employment decision affecting a particular employee. …

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