Equal opportunity and Diversity management in global context

Emerging from the USA during the late 1980s, the ‘diversity approach’ began to be discussed as a means of providing both a business and social-justice incentive to drive equality within organisations. Unlike equal opportunities approaches, which aim for workplaces where an individual’s sex and race is of no greater significance than the colour of their eyes in determining the treatment they receive, the core idea behind managing diversity seems to be to encourage organizations to recognize differences.

Managing diversity is generally seen as “proactively capitalizing on the different skills, qualities and viewpoints that a diverse workforce has to offer”. Managing Diversity is about the realization of the potential of all employees where certain group based equal opportunities need to be seriously questioned, in particular affirmative action and targets. Diversity approaches that encourage managers to ignore the realities of inequality and discrimination will mean that the status quo is maintained.

Differences exist between people, and in line with the diversity approach are seen as important issues for management to respond to. However, these differences are not seen as distributed thoroughly as such, while the intention of such an approach is an environment in which everybody feels valued, social group equality is not being given any specific significance as an objective of organizational policies. Instead diversity issues are said to “exceed beyond obvious physical differences and include communication styles, problem solving, professional expertise, management level, training and education, and work principles”. Managing diversity policies attempt to discover individual needs and desires which would help people work more effectively and respond through, for example, career management or benefit schemes.

Globalization has affected the area of EEO in terms of formal applicability of one country’s EEO laws to persons working in another country and in terms of expectations about the extent to which equal employment opportunity should be a societal or organizational norm.

In some instances, for example, discrimination is prohibited against the citizens of the native country but explicitly permitted when it comes to immigrants, especially illegal immigrants. There is currently debate in the U.S. as to what rights immigrants—both legal and illegal—should have in terms of EEO. The right to work in a foreign country is subject to that country’s immigration laws, which vary widely from country to country.

Theories of Employment Discrimination

Since the enactment of Title VII of the Civil Rights Act, four theories of employment discrimination have emerged under U.S. law: disparate treatment, disparate impact, harassment and retaliation.

Disparate treatment

Disparate treatment discrimination occurs when an employer intentionally takes an employee’s protected status into consideration when taking an adverse employment action, such as a termination or layoff decision. An example of intentional discrimination is an employer that learns of an employee’s pregnancy and, based at least in part on that knowledge, selects the pregnant employee for layoff rather than a less-qualified employee who is not pregnant. See What are disparate impact and disparate treatment?

Disparate impact

Disparate impact discrimination, also known as adverse impact discrimination, occurs when an employer adopts a policy or practice that seems neutral and nondiscriminatory on its surface but has a disproportionately negative effect on members of a protected class. Practices that have been found to have a disparate impact on protected groups include:

Minimum height requirements. These have been found to disproportionately affect women, Hispanics and Asians.

Physical agility tests. These can have a disparate impact on women.

Clean-shaven requirements. These have been found to adversely affect African-American men who are disproportionately affected by a skin condition that is aggravated by shaving.

In a court proceeding, once disparate impact is established, the employer must demonstrate that the challenged requirement is job related for the position in question and consistent with business necessity. If the employee can point to a less discriminatory way to satisfy the business needs, the employer may be obligated to adopt that alternative. See Avoiding Adverse Impact in Employment Decisions.

Harassment

Harassment is a form of disparate treatment (i.e., intentional) discrimination. The theory has its roots in sexual harassment cases under Title VII, but courts have applied the same reasoning to harassment on the basis of other protected characteristics, such as race or religion. Sexual harassment can occur in two forms: by the opposite sex or by the same sex.

Quid pro quo harassment. This type of harassment involves unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of employment, or when submission to or rejection of such conduct by an employee is used as the basis for employment decisions, including termination.

Hostile environment harassment. A hostile work environment exists when conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating  an intimidating, hostile or offensive work environment. For a hostile environment to be unlawful, it must be so pervasive and severe that it effectively alters the terms of employment. The environment must be such that a reasonable person would find it hostile or abusive.

Retaliation

Most U.S. laws that prohibit employment discrimination also prohibit retaliation against an employee because the employee has exercised rights under the statute at issue.

For example, Title VII of the Civil Rights Act makes it illegal for an employer to discriminate against an employee because that employee opposed any discriminatory practice; made a charge of discrimination; or testified, assisted or participated in any manner in an investigation, proceeding or hearing. The individual employee who claims to be the victim of discrimination can also claim to be the victim of retaliation for complaining about it.

Lawsuits based on retaliation can be even more difficult for employers to defeat than lawsuits based on direct discrimination. Employers must exercise caution not to attempt, or appear to attempt, to “get even” when conducting disciplinary terminations or layoffs in which the affected employees have participated in protected activities. See Retaliation Prevention Questionnaire  

Preventing Violations and Managing Risk

Just as violations of EEO laws can be systemic, adherence to EEO requirements is most effective when systemic. Employers can take many actions to prevent EEO violations and charges of discrimination, including:

• Adopting an organizational philosophy that treats employees as individuals entitled to respect and fair treatment, not as commodities.
• Establishing clear written policies and practices that genuinely reflect the employer’s EEO values, and then sticking to them and creating thorough documentation of human resource decisions.
• Emphasizing the employer’s EEO values, policies and procedures in new-employee onboarding and training. See EEO Policy Statement.
• Providing ongoing training at all levels about the employer’s EEO values, policies and procedures.
• Creating an EEO conflict resolution process that is truly open-door.
• Designating and empowering a responsible individual to address EEO issues: an ethics officer, EEO officer, affirmative action officer, diversity officer, ombudsman or director of human resources.
• Investigating employee complaints thoroughly and consistently.

In addition to the steps described above, employers also manage their EEO risk through:

• Internal dispute resolution programs, such as grievance procedures, mediation and arbitration.
• Employer practices liability insurance.
• Using releases of claims as part of a severance pay plan or ad hoc settlement of EEO claims.
• Ongoing management of EEO issues.

Enforcement

In the United States, EEO laws are enforced both by public agencies and private lawsuits.

Administrative agencies

Federal EEO laws are generally administered by the U.S. Equal Employment Opportunity Commission (EEOC). See EEOC Coordination of Federal Government Equal Opportunity.

Most state governments have one or more civil rights enforcement counterparts to the EEOC, referred to by the EEOC as Fair Employment Practice Agencies. State civil rights agencies usually have concurrent jurisdiction with the EEOC to investigate charges of discrimination under the laws administered by the EEOC, as well as exclusive jurisdiction to administer their own laws.

Charge of discrimination

Employees or other persons who believe their rights to equal employment opportunity have been violated may file a Charge of Discrimination with the EEOC, with the appropriate state agency or with both. A discrimination charge filed with the EEOC is a sworn statement outlining in very general terms why the charging party believes his or her EEO rights have been violated. The EEOC will assist the charging party in the preparation of this form based on an interview with the charging party. The discrimination charge is often accompanied by a more detailed sworn statement, or affidavit, especially if the charging party has legal counsel.

Agency investigation

The EEOC or state counterpart will notify the employer or other party being charged—the respondent—of the allegations made by the charging party and request that the respondent provide a written response to the allegations and copies of pertinent documents such as policies, performance evaluations and documentation of any disciplinary actions. In some instances, the investigating agency will also request information about workforce demographics.

Responding to EEO Complaints

An employer’s obligations in the face of an EEO complaint are to do the following:

• Conduct an investigation that is prompt, fair and thorough.
• Take appropriate remedial measures.

Conciliation efforts

Before or after the respondent submits its response to the charge of discrimination and agency request for information, the agency typically offers to assist the parties in reaching a negotiated resolution. Sometimes the agency investigator facilitates conciliation; sometimes the agency provides an experienced mediator and facilities for the parties to meet and to attempt to negotiate a resolution satisfactory to both sides.

Agency determination

If the parties do not agree to a negotiated resolution, the agency will proceed to make a determination about whether it believes there is probable cause to believe the respondent violated the charging party’s EEO rights. Although the situation under state laws may be different, a determination that discrimination either did or did not occur is nonbinding and is probably not admissible in court proceedings.

The right to sue

The agency charged with administering the particular EEO law must be given the first opportunity to address the issue (i.e., a charging party cannot bypass the agency and immediately file a lawsuit). At the end of the investigation and issuance of its charge determination, the agency will notify the charging party in a right-to-sue letter that he or she may now proceed to file a lawsuit, if desired, and will also state how much time the charging party has to do so, typically 90 days.

Private and agency lawsuits

Under the laws administered by the EEOC, the issuance of the right-to-sue letter starts the clock running for an aggrieved person to file a complaint with an appropriate court of law. This process ordinarily requires hiring an attorney on a contingent-fee basis. In certain circumstances, though, the agency will file a lawsuit on the charging party’s behalf, thereby providing the employee with expert government-paid legal counsel.

Factors in the EEOC’s decision to file suit on an employee’s behalf include:

• The number of employees affected (especially if a class action).
• The type of violation alleged.
• The agency’s desire to flesh out unanswered questions under the law or to further the public interest in targeting certain high-priority fields or industries.

Managing Cultural Diversity in the Workplace

Developing cultural competence results in an ability to understand, communicate with, and effectively interact with people across cultures, and work with varying cultural beliefs and schedules. While there are myriad cultural variations, here are some essential to the workplace:

1. Communication: Providing information accurately and promptly is critical to effective work and team performance. This is particularly important when a project is troubled and needs immediate corrective actions. However, people from different cultures vary in how, for example, they relate to bad news. People from some Asian cultures are reluctant to give supervisors bad news – while those from other cultures may exaggerate it.
2. Team-Building: Some cultures – like the United States – are individualistic, and people want to go it alone. Other cultures value cooperation within or among other teams. Team-building issues can become more problematic as teams are comprised of people from a mix of these cultural types. Effective cross-cultural team-building is essential to benefiting from the potential advantages of cultural diversity in the workplace
3. Time: Cultures differ in how they view time. For example, they differ in the balance between work and family life, and the workplace mix between work and social behavior. Other differences include the perception of overtime, or even the exact meaning of a deadline. Different perceptions of time can cause a great misunderstanding and mishap in the workplace, especially with scheduling and deadlines. Perceptions of time underscore the importance of cultural diversity in the workplace, and how it can impact everyday work.
4. Schedules: Work can be impact by cultural and religious events affecting the workplace. The business world generally runs on the western secular year, beginning with January 1 and ending with December 31. But some cultures use wildly different calendars to determine New Years or specific holy days. For example, Eastern Orthodox Christians celebrate Christmas on a different day from western Christians. For Muslims, Friday is a day for prayer. Jews observe holidays ranging from Rosh Hashanah to Yom Kippur. These variations affect the workplace as people require time off to observe their holidays.

To develop cultural competence, training should focus on the following areas:

1. Cultural Awareness is the skill to understand one’s reactions to people who are different, and how our behavior might interfere with effective working relationships. We need to learn to overcome stereotypes? We need to see people as individuals and focus on actual behavior, rather than our preconceived and often biased notions.
2. This is the companion skill to awareness. Attitude enables people to examine their values and beliefs about cultural differences, and understand their origins. It is important that to focus on facts, rather than judgment. Also, note that suggesting that some people are more biased and prejudiced than others can quickly sabotage cultural training.  The goal is managing cultural diversity in the workplace, and creating effective working relationships – not to make converts.
3. Knowledge Social science research indicates that our values and beliefs about equality may be inconsistent with behavior. Ironically, we are often unaware of this. Knowledge about our own behavior – and how it relates to fairness and workforce effectiveness – is an essential skill.  It’s also essential to be knowledgeable about other cultures, from communication styles to holidays and religious events.  The minimum objective is tolerance, which is essential for effective teamwork. Differences are what make tolerance necessary, and tolerance is what makes differences possible.
4. Skills The goal of training – in awareness, attitude, and knowledge – should be skills that allow organizational leaders and employees to make cultural competence a seamless part of the workplace. The new work environment is defined by understanding, communicating, cooperating, and providing leadership across cultures.  Managing cultural diversity in the workplace is also the challenge for organizations that want to profit from a competitive advantage in the 21st century economy.