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Employment discrimination is sex-blind.

America's workforce is changing rapidly, and by the year 2000:

* only one-eighth of the net workers will be white men;

* almost two-thirds of the net new workers will be women;

* almost one-thirds will be non-whites, primarily black women; and

* the average age of workers will rise to a new high.[1l.

In short, the workforce is becoming more diverse, creating a greater potential for employment discrimination. Discrimination adversely affects the individual, the co-workers, the organization, and ultimately the delivery of products and services to consumers.

Many believe discrimination to be a problem of women and minorities, and that is the focus most often presented by the media. While women do file more discrimination complaints than men, our research findings reveal that men and women have nearly the same discrimination experiences. This article discusses the legal concepts of employment discrimination, sources and patterns of claims, and strategies for confronting and preventing discrimination within a business organization.

What is Employment Discrimination

The primary defining legislation is Title VII of the Civil Rights Act of 1964. Title VII mandates equal employment opportunity by providing that:

It shall be an unlawful employment practice for an employer: (a) to fail or refuse to hire or discharge any individual, or otherwise 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. [Emphasis added.]

Each basis has been broadly interpreted; for example, "sex" applies to both men and women. In the authors' study, a male machine operator was fired after four months on the job. His female supervisor told the other 18 operators, all women, that, "I will get rid of him because I do not want any males in our department." The male operator had never missed work and had met all production standards.

By amendment, Title VII prohibits discrimination because of pregnancy (Pregnancy Discrimination Act, 1979). By court interpretation, sexual harassment and sexual stereotyping have also been included as illegal sex discrimination. The Act also prohibits retaliation against an employee who formally or informally claims employment discrimination. For example, an executive secretary in the study had worked for a V.P. for a short time. He fired her when he discovered that she had filed a discrimination claim against her former employer. The V.P. said, "I do not want a secretary who charges her boss with discrimination."

Three additional federal laws protect against age and disability discrimination. The Age Discrimination in Employment Act mirrors Title VII and extends the same protections to employees 40 years of age or older. The Vocational Rehabilitation Act (1973) only covers discrimination by federal contractors against employees with disabilities. To fill the gap, all the states have enacted statutes that protect most employees with disabilities. The newly enacted Americans with Disabilities Act (July 1992) extends Title VII-type protections to all workers with disabilities.

The theme of all anti-discrimination laws is that individuals are entitled to equal employment opportunities from recruitment to termination. These are dynamic, evolving legal concepts. Many employers and employees are uncertain about what policies or practices may violate these laws. Some guidance comes from court applications of anti-discrimination statutes to specific cases. During the 1988-89 U.S. Supreme Court term, the Court decided a series of cases that substantially reduced employers' vulnerability to discrimination lawsuits by making it more difficult for complainants to prevail. However, in November 1991, President Bush signed the Civil Rights Act of 1991, essentially reversing that series of Court decisions. Few cases ever reach the Supreme Court.

The Equal Employment Opportunity Commission (EEOC) is the primary federal agency charged with enforcing the federal anti-discrimination laws. The EEOC has delegated much of its responsibilities to state agencies, called "706 agencies." It is within the state agencies that most formal claims are filed, investigated, and resolved.

When deciding claims, both the agencies and the courts focus on the outcomes experienced by individuals or groups of employees, not on employers' motives or intentions. Two terms are commonly used to describe discriminatory outcomes. The first is "disparate treatment," which occurs when individuals or groups are treated differently under organizational policies or procedures. For example, a 50-year-old staff nurse applied for a promotion that was given to a 27-year-old nurse. The older nurse had substantially more experience, similar educational credentials, and was fully qualified. She said that her hospital had "double standards," i.e., higher for older and lower for younger.

The second term is "disparate impact." This type of discrimination occurs when employers consistently apply policies or procedures to all employees, but one group is adversely affected. For example, assume a retailer asks all job applicants about past experimentation with illegal drugs. A "disparate impact" would result if there is statistical evidence that in the relevant labor market men are more likely to have experimented than women.

The Discrimination Study

Seventy-eight percent of working Americans believe that employers discriminate, 25% experience discrimination, yet only 2.5% file claims against their employers.[2] One-third of employers admit that discrimination continues as a problem in their organizations.[3] To understand the current level and characteristics of employment discrimination, the authors examined 2,405 claims of employment discrimination closed by the Ohio Civil Rights Commission during the last six years. The claims were randomly drawn from approximately 36,000 cases closed during that time. The claims were filed under federal (85%) and state (15%) laws, against all types and sizes of employers, from micro-businesses to Fortune 500 firms. The employees held jobs in over 300 of the standard occupational classifications. Based upon a comparison of sample claimants to the work forces of both Ohio and the U.S., the results of this research are generalized to those work force populations. Women filed 52% of the sample claims, about 10% more than their representation in the two work forces, and men filed 48% of the claims, about 10% fewer than their representation in the two work forces. Cross tabulation analyses, chi square tests for significance, and analysis of variance were used to analyze the data.

The Discrimination Claims Filed By Men

and Women

Industries and Jobs

Each claimant's industry was classified using two-digit standard industry codes,[4] as shown on Table 1. Although men's claims were most prevalent in manufacturing, and women's claims were most common in services, there were no statistically significant differences between men and women among all industries.

Standard occupational codes were used to classify the claimants' jobs, resulting in over 300 different job,[5] ranging from CEOs, presidents, vice presidents, and other top managers to general laborers. These were then collapsed into the nine umbrella classifications presented in Table 1. The most significant difference was in administrative support/clerical jobs, traditionally held by women. The other two significant differences occurred in production and in transportation/labor jobs, where have traditionally dominated. Clear, no jobs are safe from discrimination claims.[6]
Table 1. Industry & Job (In Percents)

Industry Men Women
Manufacturing 32 19
Service 21 32
Retail 14 16
Public Administration 9 9
Transportation/Utilities 9 6
Fin., Ins., & Real Est. 4 7
Construction 3 2
Wholesale 1 1
Agriculture, For., Fish. 1 1
Other 6 7
Totals 100 100

Job Class Men Women
Production 23(**) 11(**)
Service 19 20
Transp. & Labor 19(**) 6(**)
Exec. & Mgr. 14 10
Admin./Clerical 8(*) 27(*)
Prof. Spec. 6 7
Sales 6 10
Technicians 3 4
Others 2 5
Totals 100 100

(*) p <.01
(**) p <.05


Years of Employment

The claimants' years of employment with the employer charged with discrimination ranged from a few days to 44 years. Men averaged 6 years 5 months, and women averaged 5 years 4 months. The most senior employee was a woman with 44 years of continuous service, who was discharged from her department store clerking position with one hour's notice. A male purchasing manager with 42 years of service, who was terminated, noted that, "In the past, reductions in force followed seniority. I had the most seniority in the company. My younger, subordinate employees in Purchasing were retained. Of the ten employees cut, all were over 40."

Basis of Discrimination

Men and women most frequently based their discrimination claims on race, as shown in Table 2. This is a serious concern for employers. Consider the case of the only black manager for a regional food chain, who was paid less than all the white managers. One week after he complained to the vice president, his position was the only one eliminated in a "reorganization." Another example of race discrimination is illustrated in the situation of the secretary, the only black staff member, who was placed on a "trial" status when she was hired. After successfully completing the trial period, she learned that newly hired white secretaries did not have this requirement. The employers in both cases had "double standards," i.e., one for whites and one for blacks, resulting in "disparate treatment" of the blacks.
Table 2. Bases of Charges & Discriminatory Actions (In Percents)

Bases Men Women
Race 42 33
Disability 16 8
Age 14 10
Retaliation 10 9
Sex 7(*) 31(*)
National Origin 2 1
Religion 1 1
None 8 7
Totals 100 100

Discriminatory Actions Men Women
Discharged 47 44
Not Hired 11 6
Not Promoted 8 10
Suspended 5 3
Laid-off 4 4
Not Ret./Layoff 3 1
Constr. Discharged 3 6
Demoted 3 2
Not Ret./Med. Lv. 2 3
Harassed 2 5
Others 12 16
Totals 100 100

(*) p <.0l


Disability was the second most frequent basis of discrimination claimed by men. This is understandable, since workers with disabilities are the largest unemployed minority in the U.S. Proper recognition for workers with disabilities should increase with the implementation of the Americans with Disabilities Act in 1992. Consider the plight of a young company officer who was demoted after suffering his partial disability. "I was severely injured in a plane crash while traveling on company business. They said that I could no longer perform my duties 100%." Employees should properly be held to reasonable performance standards, but employers should only require necessary and reasonable standards appropriate for the job and the organization

To increase competitiveness, many businesses are tempted to lower salary, pension, and health costs by reducing the number of older workers. These actions risk violations of the Age Discrimination in Employment Act. Age was the third most frequently claimed basis by both men and, women. Three months before a 59-year-old V.P. of a Fortune 500 company was fired, his younger boss told him that, "You are old and the world has passed you by." The V.P. also noted that his employer had fired many older employees, called the "old gang." This male V.P.'s experience was very similar to that of a 57-year-old female director of human resources. She had consistently received high performance ratings during her 17 years of service. Suddenly, she received a marginal review. During her appraisal interview, the president told her, "It's time for you to retire, or we'll find something else for you to do around here." Age claims will undoubtedly increase as the work force grows older.

The most significant difference between the discrimination experiences of men and women was in the frequency of sex-based claims. Women filed nearly four-and one-half times more sex discrimination claims than men. There are three types of sex discrimination claims: (1) gender-based differences in employment conditions; (2) pregnancy-related claims; and (3) sexual harassment. A current example of the first type is the "glass ceiling," where there is a dearth of women upper management levels.[7]

Almost one-fourth of the sex claims filed by women were pregnancy-related. Many reported that after their employers learned of their condition they received poor evaluations, were assigned different duties, and were badgered concerning their job commitment. Others described their employers' efforts to force them to resign. Finally, pregnancy claimants were ten times less likely to be reinstated from a medical leave than were other women who took medical leaves for other reasons[8] Stereotypes about the incompatibility of motherhood and careers must be overcome because approximately 85% of working women will become pregnant during their careers.[9]

Sex discrimination based on harassment was brought to the public's attention during the last U.S. Supreme Court confirmation hearings. In the authors' study, sexual harassment charges accounted for about one-fourth of the sex-based claims filed by women. Courts have often considered the power relationship between a boss and a subordinate when hearing sexual harassment cases. While lower-level female employees are vulnerable, so are women in management. For example, a vice president had to push the president away in her office on many occasions and was subsequently fired when she refused to date him. While women filed eight times more harassment charges than men, men are not immune from such experiences. Consider the male staff accountant who was taken to lunch by his female manager. After several drinks, and after declining her solicitations, they returned to the office, where she fired him for being intoxicated.

Sex-based claims represent the biggest difference between the men and women in the authors' study. However, the significance of this difference substantially decreased when the pregnancy and sexual harassment claims were removed from the sex-based claims. Thus, the first type of sex discrimination claims, i.e., gender-based differences in employment conditions, are common to both men and women. As women in the work force dramatically increase, it is likely that these experiences of men and women will become more similar.

Sources of Harmful Actions

The similarities between the men and women in the study are further illustrated when considering the sources of the harmful actions and the actions that prompted them to file their claims.

* Three-fourths of all claimants named their boss as the source.

* One-eighth identified a company policy as the source.

* One-eighth said that the human resource department was the source.

These results suggest that programs to minimize discrimination should focus on those responsible for managing subordinates. The harmful actions are listed in Table 2. Men have a slightly higher rate of "no hire" claims, suggesting that employers are hiring more women. Women have a slightly higher rate of "not promoted" claims, which is consistent with the glass ceiling problem. Yet, even with these two minor variations, there were no statistically significant differences between men and women and the harmful actions they experienced.

Discharge was the primary action that resulted in claims by the men and women. In fact, termination actions, e.g., discharge, layoff, constructive discharge, etc., prompted almost 60% of the filings. These findings should alert employers of their vulnerability when taking a termination action. Anti-discrimination programs should focus on the policies and practices used for all types of termination decisions.

The authors' study confirms the claims of men and women that they have experienced employment discrimination. Now, what can be done?

Strategies for Prevention

It must be recognized that all aspects of an organization's activities are the responsibility of management. In this light, all managers must realize that sex discrimination is illegal. The enlightened manager knows that preventing sex discrimination also increases profitability. Employees in firms that prohibit sex discrimination are more productive, have higher morale, and are more loyal. These attributes promote organizational effectiveness in increasingly competitive markets. The following steps can be used to create an environment free of sex discrimination:

Step 1. Awareness

Everyone has values, biases, and prejudices that may influence the selection, evaluation, promotion, and day-to-day managing of subordinates. Every organization, as well as every person within the organization, is vulnerable to sex discrimination. Therefore, each organization must provide a process that facilitates an understanding of the nature, cost, and ramification of such attitudes. This process begins by talking about sex discrimination. Every person in the organization must be included in these discussions and be assured by top management that participation will not carry any stigma.

Step 2. Policies

Top management must formally state that no form of sex discrimination will be condoned, tolerated, or permitted within the firm. This policy must be communicated to all employees, and practiced by everyone from the chief executive officer on down.

Step 3. Performance Appraisals

Performance appraisals provide a mechanism to implement and evaluate the effectiveness of policies. Senior management must insure that an objective and job-related performance appraisal system is developed that will provide early detection of problems and a long-term record of performance. The appraisal system must focus on performance, not personal attributes, and be protected-class neutral. All significant employment decisions must be based on the performance appraisal. If a job action is considered, it must be based upon appropriate comparisons of employee performance to job-related criteria.

Step 4. Training

Organizations can not expect employees to know the firm's policies and to practice the established procedures without training. A variety of training methods are available depending upon the circumstances to be addressed. For supervisors, a formal presentation may be necessary, e.g., classroom, role play, or simulations. At a minimum, the training must include the following topics:

1. Supervisors' responsibilities as agents of the firm.

2. Why sex discrimination is not appropriate.

3. The consequences of their inappropriate actions and those of their subordinates.

4. Tools to help others change their behavior.

5. Primary and alternate reporting channels.

Step 5. Remedial Actions

It is critical that employment policies and procedures are consistently interpreted and applied throughout the organization. A common complaint made by both men and women was that their employers disciplined them without an opportunity to respond to the allegations. Performance standards and remedies for deficiencies are necessary. The benchmark, however, should be due process. Due process includes reasonable rules, notice of a problem, fair inquiry, an opportunity to present one's side, and a decision made by an impartial person, all tempered with equal treatment. A fair, internal grievance procedure will usually keep discrimination claims within the organization, rather than having them filed with a public agency.

The tensions caused by employment discrimination must be released. If these tensions are not resolved within the organization, employees file claims. Not all claims of employment discrimination are meritorious, but all are important. They are real to the individual and have negative effects on that employee, co-workers, managers, and the organization, regardless of who ultimately prevails. These negative effects reduce job satisfaction, promote turnover, and ultimately increase costs. Only top management can create a goal and commitment to equal employment opportunity, giving access to jobs and promotions to all persons based solely on their qualifications.

References

[1.] Hudson Institute, Workforce 2000: Work and Workers for the 21st Century (Washington, D.C.: U.S. Government Printing Office, 1987). [2.] R. Samborn, "Many Americans find bias at work," The National Law Journal. July 16, 1990, pp. 1, 25. [3.] Towers Perrin & Hudson Institute, Workforce 2000: Competing in a Seller's Market: Is Corporate America Prepared? (New York: Towers Perrin, 1990). [4.] Executive Office of the President, Office of Management and Budget. (1972). Standard Industrial Classification Manual. Washington, DC: U.S. Government Printing Office. [5.] U.S. Department of Commerce, Standard Occupational Classification Manual (Washington, DC: U.S. Government Printing Office, 1980). [6.] Authors, "No Job is Safe From Discrimination," HR Magazine, October 1991, pp. 69-72. [7.] U.S. Department of Labor, A Report on the Glass Ceiling Initiative (Washington, DC: U.S. Government Printing Office, 1991). [8.] Authors, "Pregnancy Discrimination: An Empirical Analysis of a Continuing Problem," Labor Law Journal, June 1991, pp. 343-350. [9.] Sheila B. Kamerman, Alfred J. Kahn, and Paul Kingston, Maternity Policies and Working Women (New York: Columbia University Press, 1983).
COPYRIGHT 1993 Society for the Advancement of Management
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993 Gale, Cengage Learning. All rights reserved.

Article Details
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Author:Wendt, Ann C.; Slonaker, William M.; Coleman, Joseph W.
Publication:SAM Advanced Management Journal
Date:Mar 22, 1993
Words:3260
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