Managing Unfair Discrimination - Assignment Example

?I.A. What is unfair discrimination? Explain and provide specific examples It is an unfair labor practice that includes any unfair act or omission that arises between the employer and employee, involving unfair discrimination, whether directly or indirectly, against an employee. This includes any employer’s policy or practice showing favor, prejudice or bias for or against employees in terms of any arbitrary ground including, but not limited to: race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, color, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth, and which is not fair can be deemed to be unfair discrimination (Labour Protect, 2010).   For example an employer follows a remuneration policy that wherein a female employee gets less salary compare to a male employee simply because she is a woman, this is an unfair discrimination by sex. A beauty salon does not hire non-gay stylists is an example of unfair discrimination by gender. 1.B. What is fair discrimination?Explain and provide specific example Fair discrimination is a legal form of discrimination based on these ground but not limited to (Labour Protect, 2010): a. Discrimination based on affirmative action Affirmative action measures are designed to promote employment equity (fairness in favor of the designated groups – blacks, women and disabled persons). Discrimination based on affirmative action aims to reach equality at work without sacrificing and or lowering the standards and without excessively limiting the prospects of existing employees. A very good example of this is getting rid of discrimination in company policies, procedures and practices. Its main aim is generally to ensure that the previously disadvantaged groups are fairly represented in the workforce of a particular employer. b. Discrimination based on the inherent requirements of a job Any discrimination based on the inherent requirement of the particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job and required qualifications. If such requirements can be shown, discrimination will be fair, for example a person with extremely poor eyesight cannot be employed as an airline pilot. c. Fair compulsory discrimination by law The law does not allow the employer to employ children under the age of 15 years, or pregnant women four weeks before confinement and six weeks after birth. Thus any person under 15 years old who will apply can be rejected by a company and this can be characterized as a fair discrimination by law. d. Discrimination based on productivity For any employer who discriminates on the basis of productivity such that when giving promotions or merit increase is fair based on law. But this action is dependent on the fairness of the criteria employed for evaluating performance and productivity. An employee can be rejected or not allowed to be promoted if his or her performance did not meet the criteria. 2.A. What is the distinction between EEOC and OFCCP? Explain which agency has oversight for which employers. The U.S. Equal Employment Opportunity Commission (EEOC) is an independent federal law enforcement agency that enforces laws against workplace discrimination. It is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information (U.S. Equal Employment Oppurtunity Commission, 2011). It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. EEOC has oversight with most employers not under any federal contract or subcontract however if the complaint alleges that a Federal contractor discriminated against an individual, OFCCP will refer the complaint to the Equal Employment Opportunity Commission (EEOC) for processing (U.S. Equal Employment Opportunity Commission, 2011). OFCCP or Office of Federal Contract Compliance Programs conducts compliance evaluations to determine whether a federal contractor is complying with its obligation to maintain nondiscriminatory employment practices (United States Department of Labor, 2011). OFCCP also investigates complaints filed against a Federal contractor that suggest discrimination against a group of individuals or discrimination that is systemic in nature. If the complaint alleges that a Federal contractor discriminated against an individual, OFCCP will refer the complaint to the Equal Employment Opportunity Commission (EEOC) for processing. OFCCP has oversight over federal contractors and subcontractors (United States Department of Labor, 2011). 2.b. Are US companies that operate outside the US obligated to comply with the standards established by the EEOC or OFCCP? U.S. Companies that operate outside the United States are obligated to comply with the standards established by the EEOC. Those citizens by the United States who are employed outside the United States by a U.S. employer or a foreign company controlled by a U.S. employer are protected by EEOC by Title VII, the ADEA and the ADA processing (U.S. Equal Employment Opportunity Commission, 2011). An employer will be considered a U.S. employer if it is incorporated or based in the United States or if it has sufficient connections with the United States. Several factors help determine whether a company has sufficient connections with the U.S., including the company's principal place of business and the nationality of its dominant shareholders and management (U.S. Equal Employment Opportunity Commission, 2011). The interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control of the two entities will be the bases if a foreign company is considered to be controlled by a U.S. employer (U.S. Equal Employment Opportunity Commission, 2011). 3.A. What is hostile work environment? In general, a hostile work environment develops when there is discriminatory conduct or behavior in the place of work that is unwelcome and offensive to an employee or group of employees based on a protected class status (Hostile Work Environment, 2007). In litigation, the complainant must be a member of a protected class under that state’s law (women, disabled, and a specific race) and the complaint should pertain directly to perceived discrimination that specifically targets that class (Hostile Work Environment, 2007). A good example is when a boss who yells all the time may cause an intimidating or stressful work environment but as long as he does this in a general manner and refrains from making any discriminatory statements about a particular protected class, then he is not subject to harassment suits but he may be held liable for inflicting emotional distress or any other case. However, it is important to note further that the conduct or behavior must be pervasive and constitute a pattern rather than consist of one or two isolated incidents (Hostile Work Environment, 2011) .Another requirement is that the pattern of behavior has to be of a degree severe enough to cause disruption beyond a reasonable degree in the work of the targeted employee such as when he becomes disturbed because of intimidation or due to fear of loss of employment. The complainant must have reason to believe that such behavior patterns are likely to continue indefinitely (Hostile Work Environment, 2011). The rule elaborates that the conduct may be verbal or physical in nature (Hostile Work Environment, 2011). 3.B. What is hostile work harassment? Hostile work harassment is an incident caused by discriminatory workplace harassment based on race, color, religion, national origin, disability, genetics, age or sex; or it must be caused by retaliation in violation of a discrimination law (Hostile Work Environment, 2011). 4. If an employee is not meeting performance expectations as set by his/her supervisor and the supervisor talks to the employee on several occasions, and then places the employee on a Performance Improvement Plan, stating that if the employees performance does not improve within 30 days the employee will lose their job, is this considered hostile work harassment? Why or why not? -Explain and give your basis for your position. This case is not considered hostile work harassment due to the fact that it does not violate the discrimination law (Labour Protect, 2010). The basis for the employer decision was in context of the employee's performance on his work, and not on any arbitrary grounds of prejudice or bias. Basing from the definition of fair harassment which is legal in nature, the employer is in accordance with the discrimination based on productivity. It should be noted however that criteria and evaluation methods used on the employee performance and productivity is anchored on fairness agreed by both parties (Labour Protect, 2010). 5. When is it acceptable for an employer to give individuals within a minority group preferential treatment in hiring, job assignment, promotions, compensation, etc.? Preferential treatment by an employer is acceptable on grounds of Discrimination by Affirmative Action which is legal under the federal law. Affirmative Action refers to policies that take factors including "race, color, religion, gender, or national origin", as stated on Executive Order 11246--Equal employment opportunity", into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination (Labour Protect, 2010). SOURCES: Cascio, Wayne. Managing Human Resources. 8th ed. New York: McGraw-Hill Higher Education, 2010 “Hostile Work Environment.” www.hostileworkenvironmentguide.com, 2007. Web. 2 July 2011 “Labour Protect.” Bridge Marketing, www.labourprotect.co.za, 2010. Web. 2 July 2011 “United States Department of Labor.” www.dol.gov, 2011. Web. 2 July 2011 “U.S. Equal Employment Oppurtunity Commission.” www.eeoc.gov, (2011). Web. 2 July 2011 Read More