-
357 Managing Hospitality Human
Resources
Chapter 1 -
Employment Laws and Applications
Outline
Defining
Discrimination
?
?
?
?
Equal
Employment Opportunity Commission
Equal Employment Opportunity and
Affirmative Action
Recent
Interest in Affirmative Action
The Myths of Affirmative
Action
Evolution of EEO
Legislation
?
?
?
?
?
?
?
?
?
?
?
?
The Equal Pay
Act of 1963
Title VII of
the Civil Rights Act of 1964
Age Discrimination in Employment Act of
1967
Vocational
Rehabilitation Act of 1973
Acts Affecting Veterans
Pregnancy Discrimination Act of
1978
Retirement Equity Act
of 1984
Immigration Reform
and Control Act of 1986
Employee Polygraph Protection Act of
1988
Drug Free Workplace
Act of 1988
The Civil
Rights Act of 1991
Family
and Medical Leave Act of 1993
Other Employment Laws and Court
Interpretations
?
?
?
Executive Orders and Affirmative
Action
Major Cases and
Interpretations
State
Employment Laws
Major Areas
of Abuse and Litigation in Hospitality
Operations
?
?
?
?
?
?
?
?
Recruitment and
Selection
Age
Discrimination
Reverse
Discrimination
Employee
Benefits and Sex Discrimination
Religious Discrimination
Seniority
Recruitment Advertising
Wrongful Discharge
Issues in a
Social Context
?
?
?
Women in the Hospitality Work
Force
The Aging Work
Force
Employment Practices
Liability Insurance
Americans with Disabilities
Act
?
?
?
?
Background
Defining Disability
Qualifying for Work
ADA: The First Ten Years
? 2003 Educational
Institute
Managing Hospitality Human
Resources
Chapter 1 -
Competency 1:
Describe the EEOC and
distinguish between EEO laws and affirmative
action.
Employment Laws and
Applications
Before the
1960s, discrimination in the workplace was
widespread in the United States. In fact,
only government employees and union
members had any type of protection at all. This
does
not mean, of course, that all
employers abused their employees; it does mean,
however, that
employers could do so
with impunity.
Because there
was almost no regulation of human resource
policies, widespread employment
discrimination was often the rule,
especially for some groups. For instance, women
were
relegated to positions
traditionally viewed as
employment
opportunities. The same was true for minorities.
These rampant inequities
eventually led to social unrest. Finally, sweeping
legislation was
passed during the
administration of President Lyndon Johnson that
radically affected the
American work
force. The
Civil Rights Act of
1964
, which prohibits discrimination on
the
basis of race, color, religion,
sex, or national origin, became the cornerstone of
change.
Title
VII
of this act ensures fair employment standards.
This single act is generally credited for
initiating the
Equal Employment Opportunity (EEO) environment
that exists in the United
States today.
Understanding and following the various EEO laws
and regulations support a
strong human
resources focus, which helps an organization
succeed.
Defining
Discrimination
Human
resources management is the practice of
legal
discrimination. There
is a difference
between legal and
illegal discrimination. From a technical
standpoint, selection, training, and
appraisals are discriminatory
practices, since they all involve choosing one
individual over
another based on
discernible differences. However, discrimination
that follows the guidelines,
laws, and
regulations of the
Equal Employment
Opportunity Commission (EEOC)
is both
moral and legal. Practices that do not
follow the law are considered illegal. They may
also be
very costly. Job bias lawsuits
are up 286 percent since 1997. Fifty-eight percent
of plaintiffs
win lawsuits for
discrimination and harassment. The median jury
award for discrimination and
sexual
harassment rose from $$64, 750 in 1996 to $$250,000
in 1997, to $$375,000 in 1999.
[
endnote
1
]
Equal
Employment Opportunity Commission
The Equal Employment Opportunity
Commission is the federal commission created by
the
Civil Rights Act of 1964 to
establish and monitor employment standards in the
United States.
This independent agency
interprets and enforces Title VII. The EEOC is
made up of five
members appointed by
the president of the United States for a term of
five years each.
The EEOC
plays three principal roles. First, it oversees
the administration of existing EEO
laws
and regulations, referring charges of violation to
state or local equal employment
opportunity agencies. Someone filing a
complaint in Michigan, for instance, would have
his or
her case referred to the
Michigan Civil Rights Department.
Exhibit 1
is an example of a
charge filed with the EEOC. When an employee files
a charge, the
employer receives a copy
of the paperwork. Regardless of whether the charge
is filed with the
EEOC or a state
enforcement agency, the charge can still be heard
in state or federal court.
Even if the
EEOC or state agency finds that the employer has
not discriminated, the person
filing
the charge can still sue the employer.
The second responsibility of the EEOC
is to issue guidelines for Title VII compliance.
These
guidelines are interpretations of
the statute written by Congress. While not
technically laws,
EEOC regulations have
been given the force of law by the courts, and
have been viewed by
the Supreme Court
as important to the effective administration of
EEOC operations.
The third
role of the EEOC is to gather information. Each
organization in the United States with
100 or more employees must annually
file an EEO-1 report to a regional EEOC office.
This
report outlines the number of
women and minorities employed in nine different
job categories
within the company. The
EEOC analyzes these reports to statistically
determine patterns of
compliance and
discrimination in the United States. If patterns
of discrimination are found, the
EEOC has the added
responsibility of filing class action lawsuits to
counteract such events.
Exhibit
2
shows an EEO-1 form that employers
use to report employee information.
Equal Employment Opportunity and
Affirmative Action
Equal
Employment Opportunity and
affirmative
action
are not the same. Equal
Employment
Opportunity refers to the
laws and regulations that protect the rights of an
identified group or
class. Affirmative
action represents an obligation employers have to
hire members of protected
groups to
overcome past discriminatory practices. All
employers are required to abide by EEO
laws and regulations. However, only
employers holding federal (and sometimes state)
contracts are required to have
affirmative action programs. An example of
affirmative action
would be a program
designed to recruit, hire, or promote qualified
members of a protected
group, such as
women, minorities, Vietnam-era veterans, or people
with disabilities.
Affirmative action programs are
acceptable only when they consider applicants on
an
individual basis and do not set
rigid quotas that prevent people who are not in
protected
groups from competing
equally. This key point stems from the famous
Bakke
v.
the
Regents of
the University of
California
case decided by the Supreme
Court in 1978. In that case, the
medical school at the University of
California at Davis set aside 16 of its 100 places
for
incoming students for minorities
only. As a result, Bakke--a white male--could only
compete for
84 spaces in the incoming
class, while minorities could compete for the
entire 100. Since this
policy
represented a formal, quota-based system in which
one group was favored over another,
it
was ruled
reverse
discrimination
and was overturned.
The Myths of Affirmative
Action
Affirmative action
was debated more intensely in the 1990s than at
any other time during its
35-year
history. In some states, the debate led to ballot
measures designed to overturn many
aspects of affirmative action. In
California, for instance, a referendum to end
affirmative action
in state and local
government was passed by a 54 percent vote in the
1996 elections.
Those who
favor affirmative action and those who oppose it
both offer strong arguments.
Those who
oppose affirmative action allege that it uses
reverse discrimination to solve the
problem of discrimination. While
affirmative action does not require an employer to
hire
unqualified applicants, it can
lead an employer to hire applicants in protected
groups who are
less qualified than some
nonprotected applicants, who in turn often resent
being passed over.
This argument
suggests that using affirmative action to reward
one group over another fosters
resentment and can perpetuate
prejudice. In addition, those who oppose
affirmative action
argue that employees
hired under affirmative action policies always
bear the stigma of not
being the most
qualified, but simply the best pick from a limited
minority group. Finally, the
government
encourages affirmative action through tax breaks,
rebates, and contracts. To
follow
through on these incentives, the government must
establish quotas, which leads
employers
to use reverse discrimination to qualify for
incentives.
Those who support affirmative action
also offer strong arguments. These arguments are
summarized succinctly by social
psychologist Stephen Plous, who presents and then
refutes
ten common arguments--or myths,
as he calls them--against affirmative action.
[
endnote
2
]
Myth #1: The
only way to create a color-blind society is to
adopt colorblind policies.
Although this assertion sounds logical,
colorblind policies often put racial minorities at
a
disadvantage. For instance, all else
being equal, colorblind seniority systems tend to
protect
white workers against job
layoffs because senior employees are usually
white.
Myth #2: Affirmative
action has not succeeded in increasing female and
minority
representation.
Several studies have documented important gains in
racial and sex equality
as a direct
result of affirmative action. For example,
according to a report from the U.S.
Department of Labor, affirmative action
has helped five million minority members and six
million white and minority women move
up in the work force.
Myth
#3: Affirmative action may have been necessary 30
years ago, but the playing field
is
fairly level today.
Despite the
progress that has been made, the playing field is
far from
level. Women earn 75 cents for
every male-earned dollar.
[
endnote
3
]
African Americans
continue to have twice the unemployment
rate of whites, half the median family income, and
half the proportion who attend four
years or more of college.
Myth #4: The public doesn't support
affirmative action anymore.
This myth
is based
largely on public opinion
polls that offer an all-or-none choice between
affirmative action as it
currently
exists and no affirmative action whatsoever. When
intermediate choices are added,
surveys
show that most people want to maintain some form
of affirmative action. Most
members of
the public oppose extreme forms of affirmative
action that violate notions of
procedural justice; they do not oppose
affirmative action itself.
Myth #5: A large percentage of white
workers will lose out if affirmative action is
continued.
Government
statistics do not support this myth. According to
the U. S. Commerce
Department, there
are fewer than two million unemployed African
American civilians and more
than 100
million employed white civilians. Thus, even if
every unemployed African American
worker displaced a white worker, less
than two percent of the white work force would be
affected.
Myth
#6: If European and Asian immigrants can rapidly
advance economically, African
Americans
should be able to do the same.
This
comparison ignores the unique history of
discrimination against African
Americans in America. As historian Roger Wilkins
has pointed
out, African Americans have
a 380-year history on this continent--245
involving slavery, 100
involving
legalized discrimination, and only 35 involving
anything else.
[
endnote
4
]
Europeans
and
Asians, on the other hand, have immigrated to
North America often as doctors, lawyers,
professors, entrepreneurs, and so
forth. To expect African Americans to show the
same
upward mobility is to deny the
historical and social reality that African
Americans face.
Myth #7: You can't cure discrimination
with discrimination.
The problem with
this myth is
that it uses
discrimination
to describe
two very different things. Job discrimination is
grounded
in prejudice and exclusion,
whereas affirmative action is an effort to
overcome prejudicial
treatment through
inclusion. The most effective way to cure society
of exclusionary practices is
to make
special efforts at inclusion, which is exactly
what affirmative action does.
Myth #8: Affirmative action tends to
undermine the self-esteem of women and racial
minorities.
Although
affirmative action may have this effect in some
cases, interview studies
and public
opinion surveys suggest that such reactions are
rare. In many cases, affirmative
action
may actually raise the self-esteem of women and
minorities by providing them with
employment and opportunities for
advancement. There is also evidence that
affirmative action
policies increase
job satisfaction and organizational commitment
among those who benefit
from the
policy.
Myth #9: Affirmative
action is nothing more than an attempt at social
engineering by
liberal
Democrats.
Affirmative action programs
have spanned the presidential administrations
of five Republicans and three
Democrats. President Johnson, a Democrat, signed
the
originating document of affirmative
action in 1965. The intent of Johnson's Executive
Order
11246 was to strengthen
affirmative action by increasing the number of
minorities employed
by federal
contractors. The policy was significantly expanded
in 1969 by Republican President
Nixon.
Republican President George Bush enthusiastically
signed the Civil Rights Act of 1991,
which formally endorsed the principle
of affirmative action. Thus, despite the current
split along
party lines, affirmative
action has traditionally enjoyed the support of
Republicans as well as
Democrats.
Myth
#10: Support for affirmative action means support
for preferential selection
procedures
that favor unqualified candidates over qualified
candidates.
Actually, most
supporters of affirmative action oppose
this type of preferential selection. Affirmative
action
selection procedures can be
ordered along the following continuum:
?
Selection among
equally qualified candidates. The mildest form of
affirmative action
selection occurs
when a female or minority candidate is chosen from
a pool of equally
qualified applicants.
The public typically does not see this type of
affirmative action as
discriminatory.
?
Selection among
comparable candidates. A somewhat stronger form
occurs when
female or minority
candidates are roughly comparable to other
candidates.
?
Selection among unequal candidates. A
still stronger form of affirmative action occurs
when qualified female or minority
candidates are chosen over candidates whose
records are better by a substantial
amount.
?
Selection among qualified and
unqualified candidates. The strongest form of
affirmative action occurs when
unqualified female or minority members are chosen
over other candidates who are
qualified.
Although these selection procedures
sometimes blend into one another (due in part to
the
difficulty of comparing unlike
records), a few general observations can be made.
First, of the
four different
procedures, the selection of women and minority
members among equal or
roughly
comparable candidates has the greatest public
support. Second, the selection of
women
and minority members among unequal candidates--
used routinely in college
admissions--
has deeply divided the nation. And finally, the
hiring and promotion of unqualified
candidates is usually condemned. By
distinguishing among these four different
selection
procedures, it becomes clear
that opposition to stronger forms of affirmative
action need not
imply opposition to
milder forms.
?
2003 Educational Institute
Managing
Hospitality Human Resources
Chapter 1 - Competency 2:
Describe the evolution of EEO
legislation from the 1960s through
today.
Evolution of EEO
Legislation
The evolution
of EEO laws follows a pattern. The first set of
EEO laws emphasized personnel
policies.
The second set targeted unequal treatment, while
the third targeted perpetuation of
the
effects of past discrimination. The fourth and, to
date, final stage of laws and regulations
emphasize the
adverse
impact
on protected groups.
Adverse impact
relates to
those laws
designed to reverse the
effect of past employment practices.
The major EEO laws, regulations, and
their principal impact are presented in
Exhibit 3
. This
exhibit addresses the EEO laws and
regulations that relate directly to the issue of
discrimination in the private
sector.
The Equal Pay Act of
1963
Some feel that the
passage of the
Equal Pay Act of
1963
marked the evolutionary starting
point of the Equal Employment
Opportunity movement in the United States. This
act was
passed as an amendment to the
Fair Labor Standards Act of 1938; it requires that
men and
women working for the same
organization be paid the same rate of pay for work
that is
substantially equal. Because of
continuing disparities in pay between the sexes,
this issue is
the focus of many court
cases and employment discrimination charges.
Title VII of the Civil Rights Act of
1964
Title VII of the Civil
Rights Act of 1964 applies to employers with 15 or
more employees and
prohibits unfair
employment discrimination based on race, color,
sex, religion, and national
origin.
Employers with fewer than 15 employees may still
be subject to state antidiscrimination
laws that are similar to the federal
Civil Rights Act.
There are
two possible defenses for charges of
discrimination brought under the Civil Rights
Act of 1964: business necessity and
bona fide occupational qualifications
(BFOQs).
The
business necessity
defense
is very limited and narrow. To succeed, the
employer must
show that the practice is
essential to its business. For example, an airline
that prohibited
pregnant flight
attendants from flying probably would not be
violating Title VII if it could show
that grounding the attendants was
essential to its business. The business of an
airline is to
transport passengers
safely. If the airline could show that the
pregnant employees were a
safety hazard
because premature, sudden, or unexpected labor or
birth could endanger the
flight, it
would probably have a successful business
necessity defense.
Bona fide
occupational qualifications (BFOQs)
permit some legal discrimination and are
based on the need to hire certain types
of people for specific jobs. Under this provision,
discrimination based on sex, religion,
and national origin is acceptable if a bona fide
occupational qualification makes it
necessary. Examples of bona fide occupational
qualifications include:
?
?
?
?
Female attendants in a women's locker
room
Male models for a
men's clothing line
Native-
Hawaiian performers for a Hawaiian luau
Roman Catholic employee to take care of
the altar at a Roman Catholic church
In each of these cases, bona fide
occupational qualifications are based on the
assumption that
the qualification is
truly mandatory. One exception would invalidate
the entire BFOQ defense.
For instance,
it would be acceptable for a French restaurant to
require that all of its
guest-contact
personnel speak French. However, if a single
employee is hired for a
guest-contact
position who does
not
speak
French, the BFOQ status is lost. In that sense,
the
burden of proof that a BFOQ is
required rests with the employer.
Seniority systems and seniority are
also permitted under Title VII, as are systems
based on
merit or incentive--as long as
differences are not the result of an intention to
discriminate. In a
seniority system,
for example, employees with more seniority would
retain their jobs while
others with
less seniority in the same position would be laid
off. In a merit-based system,
raises or
other pay increases are contingent on employee
performance.
Pre-employment inquiries involving
matters that might be construed as discriminatory
(sex,
national origin, and religion)
are acceptable as long as they can be shown to be
job-related.
Acceptable examples would
include those we used to illustrate BFOQs. For
instance, asking
applicants to indicate
their sex on an employment application is
acceptable if the position is for
a
female attendant in a women's locker
room.
Testing of ability is
allowed if it can be shown that the test is truly
required--and if it is not used
to
discriminate unfairly. For example, it could be
allowable to require applicants for a cook's
position to perform a cooking test, to
ask applicants for a typist position to take a
typing test,
and to require applicants
to take computer or other equipment familiarity
tests if knowledge of
such equipment is
mandatory for the job.
Veterans preference rights and national
security clearances relate only to public employee
environments and are not discussed
here.
Finally, employers are
not required to extend preferential treatment to
individuals or groups on
the basis of
race, color, national origin, sex, or religion.
They also do not have to give special
treatment to such groups to correct the
imbalances of past practices. Some preferential
treatment provisions
are
mandated under
affirmative action guidelines for public employers
(state and federal government) or for
companies with federal contracts.
Violations of Title VII.
There are two theories of discrimination under
Title VII: disparate
treatment and
disparate impact. If an employer treats one
individual differently from others
because of the person's race, sex,
color, religion, national origin, or other
protected
characteristic, that is
disparate treatment
. If an
employer doesn't intend to discriminate, but
does something that disadvantages more
members of one group than another, then that
employer may be guilty of
disparate impact
. For
example, consider what might happen if a
restaurant requires dishwashers to have
a college degree. By enforcing this standard, the
restaurant excludes a larger proportion
of African American applicants than white
applicants.
Furthermore, having a
college degree is not really necessary to perform
the job. In this case,
the restaurant
might be guilty of violating Title VII under the
disparate impact theory of
discrimination. On the other hand, if
an employer hires white applicants who do not have
a
high school education but does not
hire African Americans with the same or higher
qualifications, the employer is guilty
of disparate treatment.
Policies intended to perpetuate an
image are generally seen as overtly
discriminatory, even
though a company
deems them necessary. For instance, a restaurant
that hires only young
people because it
wants to create a youthful image is guilty of
discrimination; there is no bona
fide
occupational qualification that prevents older
employees from working in the
restaurant.
The uniforms
that some hospitality companies require their
employees to wear may constitute
a
violation of the Civil Rights Act. For instance,
requiring female servers to wear revealing
costumes could be a violation since
male servers are not required to wear the same
attire.
Such a policy can even be
viewed as reinforcing an environment conducive to
sexual
harassment if the uniforms
consistently lead to unwanted advances. The
argument does not
end here. Uniforms do not have to be
skimpy or suggestive to be considered
discriminatory.
For instance, some
religions prohibit their members from wearing
slacks or certain types of
clothing.
Hospitality companies cannot require a female
employee to wear slacks if the
employee's religion prohibits such
attire; to do so would be viewed as religious
discrimination.
Age
Discrimination in Employment Act of 1967
The
Age
Discrimination in Employment Act (ADEA)
prohibits employment discrimination on
the basis of age against people 40
years old or older. As a result, the EEOC views
employees
who are 40 or older as a
protected group. All employment actions--hiring,
recruiting, appraisals,
promotions,
advertising, and so on--affecting employees who
are 40 or older are subject to
scrutiny
under the ADEA. All private employers with 20 or
more employees and all unions with
25
or more members must comply.
Examples of age discrimination include
passing employees over for promotion for reasons
other than ability, providing different
benefit programs for different age groups of
employees,
and forcing older employees
to retire. The ADEA will affect hospitality
companies more and
more in the future
as a result of the overall aging of the work force
and the industry's
increasing reliance
on older workers.
Vocational Rehabilitation Act of
1973
The
Vocational Rehabilitation Act of
1973
requires all employers holding
federal contracts
of $$25,000 or more to
employ
accommodations
also
file a written affirmative action report annually
with the EEOC that outlines its program of
compliance with this act.
According to the provisions of the act,
a person is considered to have a disability if he
or she
has either a physical or mental
impairment, has a record of such impairment,
and/or is viewed
by others as having
such an impairment. This law stipulates that an
employer cannot refuse to
hire or
otherwise discriminate against such employees or
applicants simply because the
company
lacks the proper facilities to accommodate the
individual's impairment.
The
Americans with Disabilities Act
(ADA)
has a much wider impact on the
hospitality
industry. The ADA covers
hiring and providing for individuals with
disabilities much more
extensively than
does the Vocational Rehabilitation Act. A more
thorough discussion of this act
is
provided later in this chapter.
Acts Affecting Veterans
The
Vietnam Veterans
Readjustment Act of 1974
was designed
to provide Vietnam
veterans with
protected group status for a period of four years
after their discharge. Under this
act,
employers with $$10,000 or more in federal
contracts are required to take affirmative action
to employ
qualified Vietnam-era veterans. To qualify, a
veteran must have served in the Armed
Forces--not exclusive to Vietnam--
between August 5, 1964, and May 7,
1975.
Hospitality managers
must also meet the guidelines of the
Veterans Reemployment Act of
1942
. The act requires
employers to rehire veterans--within 90 days of
reapplication and with
no loss of
seniority--who leave a job for military service
and then apply for reemployment upon
completion of service. This act also
requires employers to give employees time off,
without pay,
to maintain active reserve
status. This time off is in addition to normal
vacation time. The act
also protects
veterans who saw either active or reserve duty
during the Gulf War in the Middle
East
during 1990 and 1991.
Pregnancy Discrimination Act of
1978
Before the enactment of
the
Pregnancy Discrimination Act of
1978
, an employer could
require an employee to take pregnancy
leave for a stipulated period or at a specific
time in her
pregnancy. This is no
longer the case. Under this act, employers cannot
stipulate the
beginning and ending
dates of a pregnant employee's maternity leave. In
addition, this act
prohibits employers
from refusing to hire pregnant applicants as long
as they can perform the
major functions
of the job. The act does not force employers to
provide health and disability
programs
if none previously existed, nor does it require
employers to provide health coverage
for abortions except in cases where the
life of the mother is endangered. It does,
however,
prohibit employers from
providing health insurance that does not cover
pregnancy or that
imposes high costs
for this type of coverage.
Other forms of discrimination are also
prohibited, including limiting pregnancy benefits
to
married workers and discriminating
between men and women regarding employee benefits.
Employers who provide pregnancy
benefits are required to provide the same benefits
to
spouses of employees. In 1993,
Congress enacted the Family and Medical Leave Act,
intended to establish a national leave
policy.
Such programs are
also mandated by state law in at least 21 states.
In some cases, state laws
are even more
stringent than the federal law. Some states have
passed laws that require
employers to
provide unpaid leaves of absence to women for
pregnancy or childbirth. This has
caused an equal treatment/special
treatment debate because some states do not
require
employers to provide the same
leaves to men. In the 1987 case
Geduldig
v.
Aiello
, the
Supreme Court upheld a California law
requiring maternal leaves on the basis of
reasoning
upheld the
California law again in the same year in
California Federal Savings and Loan
Association
v.
Guerra
. In this case, the
court found that Title VII of the Civil Rights Act
of 1964
as amended by the Pregnancy
Discrimination Act of 1978 did not preempt a state
statute, and
that the narrowly defined
leave policy served the goal of sex equality. The
California law in
question requires
that pregnancy leaves be granted for as long as
four months.
This act
substantially affects the hospitality industry,
whose workforce is predominantly female.
In addition to increasing the cost of
employer-controlled health benefits, the act
specifically
prohibits employers from discriminating
against pregnant women on the basis that these
women may not fit the image the company
wants to project. As a result, a hospitality
employer
cannot require an employee to
take a leave of absence simply because her
appearance no
longer reflects the
company image. At the same time, employers cannot
force a pregnant
employee to perform
duties other than those which she normally does.
For instance, a hotel
could not
reassign a front desk clerk to a back-of-the-house
position during her pregnancy.
One provision that the Pregnancy
Discrimination Act of 1978 does not cover is the
right of
employers to bar pregnant or
potentially pregnant applicants from jobs in which
hazards could
potentially harm a fetus.
In March 1991, the U.S. Supreme Court ruled in
Auto Workers
v.
Johnson Controls
that an
employer can lawfully keep a woman out of a job
only when
reproductive potential
prevents her from performing the duties of the
job,
becomes physically unable to do the
job because of her pregnancy. This case came about
because Johnson Controls had prevented
women from working in their battery plants for
fear
that lead poisoning might pose a
health threat to a fetus if an employee became
pregnant. The
court ruled, however,
that parents alone are responsible for making
decisions about the
welfare of their
future children. Employers, on the other hand, are
responsible for making
employees aware
of the potential hazards.
Retirement Equity Act of
1984
The
Retirement Equity Act of
1984
requires companies to count all
service since the age of
18 in
determining vesting in retirement benefits, plus
all earnings since age 21, even if there
are breaks in service of up to five
years. This act is considered a milestone for
women since
they typically start work
at younger ages than men and often interrupt their
careers to raise
children. However,
like other employment laws, this act applies to
both sexes. As a result, both
men and
women will accrue larger benefits. This law also
states that pension benefits may be
considered a joint asset in divorce
settlements and that employers must provide
survivor
benefits to spouses of fully
vested employees who die before reaching the
minimum retirement
age.
Immigration Reform and Control Act of
1986
The
Immigration Reform and Control Act of
1986 (IRCA)
was designed to regulate
the
employment of aliens in the United
States. Under this act, employers with four or
more
employees are prohibited from
discriminating against applicants on the basis of
citizenship or
nationality. The act
mandates that employers must verify citizenship
status on all employees
hired after
November 6, 1986. Aliens who were hired before the
enactment of the IRCA are not
affected
by the act.
[
endnote
5
]
This places the burden on
employers for ensuring that aliens work
lawfully in the United States. All
employers--no matter how small--must verify that
applicants
are authorized to work in
the United States. This verification must take
place within three days
after hire by
completing the Employment Eligibility Verification
Form--commonly called the
I-9
form
. A sample I-9 form is
shown in
Exhibit
4
.
Under the act and under regulation of
the Immigration and Naturalization Service,
employers
may rely on several documents
to establish an employee's identity and
authorization to work.
An applicant can
verify his or her citizenship status by showing
such items as a US passport,
certificate of nationalization, birth
certificate, or a Social Security card.
Applicants also may be
eligible to work if they possess a valid foreign
passport and a US
employment
authorization or receipt from an alien
registration form. This receipt is commonly
referred to as a green card. Employers
who fail to verify an alien's authorization to
work in the
United States are subject
to both civil and criminal penalties.
While the IRCA does not permit
employers to discriminate, it does permit
employers to choose
or show preference
to US citizens or nationals over aliens. However,
discharges and layoffs
cannot be based
on these preferences.
In
addition, this act requires that employers provide
a working environment that prohibits
ethnic slurs and verbal or physical
abuse related to an individual's national origin.
As is the
case with sexual harassment,
the employer is responsible for providing a
workplace free of
such acts by
supervisors, other employees, and
nonemployees.
Employee
Polygraph Protection Act of 1988
In the past, it was fairly common for
employers to require employees and all applicants
to
submit to polygraph tests in a
number of situations. The
Employee
Polygraph Protection Act
of
1988
prohibits the use of polygraphs in
about 85 percent of the employment situations in
which they were previously used. Under
this law, employees are protected from dismissal,
discipline, and discrimination solely
on the basis of their refusal to submit to a
polygraph exam.
Employers can request
polygraph tests under a very narrow exception.
This exception permits
employers to use
polygraph tests to investigate economic loss or
injury when they have reason
to believe
an employee was involved, and if they afford the
employee other protection. Federal,
state, and local governments and firms
that perform sensitive work for the US Department
of
Defense, FBI, or CIA are exempt from
this law.
Drug-Free
Workplace Act of 1988
Drug
and alcohol abuse cost American businesses
approximately $$176 billion dollars in lost
productivity, health claims, and
compensation in 1995 alone, according to the US
Chamber of
Commerce. While many
employers believe that this problem does not
affect them, this is
probably not the
case. A 1996 study illustrates how pervasive the
drug problem has become.
The study
determined that if drug use in New York City were
reduced by just 20 percent, the
city
would save $$520 million in inpatient hospital
costs, 670 fewer New Yorkers would die of
AIDS annually, 400,000 days of hospital
care and 1,100 beds could be eliminated, and there
would be approximately 7,600 fewer
cases of child abuse. In total, substance abuse
was found
to cost New York City $$20
billion annually, or 21 cents out of every tax
dollar, or nine percent of
the entire
city product. Similar conditions exist in other
cities.
[
endnote
6
]
The problem has continued
to grow since that time. In 1995, it was reported
that the United
States, which has about
five percent of the world's population, consumes
60 percent of the
world's illegal
drugs.
[
endnote
7
]
Although there is no
evidence to prove substantial drug abuse in
the hospitality industry, there are
indications of its likelihood. For instance, the
ages of typical
hospitality employees
correspond to the age groups most likely to
experiment with or use
drugs. The
working hours demanded by typical hospitality jobs
also provide employees with
few after-
work alternatives for entertainment or relaxation.
If for no other reason, hospitality
employers should be concerned about
drug and alcohol abuse because of their potential
liability for negligent hiring
practices. For example, an employer may be liable
for damages
done by an employee who is
using drugs or alcohol if the damages were a
result of the
employee's drug or
alcohol use.
The
Drug-free Workplace Act of
1988
does not mandate a drug-free work
environment for all
private employers.
It does, however, require that federal contractors
establish policies and
procedures to
prohibit drug abuse and make a good faith effort
to sustain drug-free working
environments. Federal contractors must
publish company rules about drug possession and
use of controlled substances, the
establishment of drug awareness programs, and the
administration of appropriate
discipline for employees convicted under drug
statutes.
The Civil Rights
Act of 1991
The
Civil Rights Act of 1991
brought sweeping changes to employment law, but
not because
it expanded the scope of
protection. Instead, the act precipitated changes
in the area of costs
and litigation.
Prior to this law, employees could receive only
back pay and equitable relief.
Employees are now able to sue for
damage awards. More specifically, the act permits
individuals to request a trial by jury
if they believe they have been discriminated
against. If
intentional discrimination
is found, punitive and other damages can be
assessed.
Another aspect of
the act addresses
hiring decisions must
be
necessity.
damages, except
in cases of intentional discrimination.
Family and Medical Leave
Act of 1993
After eight
years of debate, Congress passed the
Family and Medical Leave Act
(FMLA)
in
1993. The act
requires employers with 50 or more employees
within a 75-mile radius to offer
up to
12 weeks of unpaid (but job-protected) leave
during a 12-month period for birth; adoption;
care for an ill parent, spouse, or
child; or medical treatment. To be eligible, a
worker must have
been employed for at
least 12 months and have worked 1,250 hours (or
about 25 hours per
week). Employers are
not required to provide these benefits to the
highest paid 10 percent of
executives.
The
right to take leave applies to males and females
equally. Employers who employ both
husband and wife can limit their
total
to 12 weeks annually.
Intermittent leave cannot be taken
for birth or adoption, but
is available for illness. Employers must continue
health care coverage
while employees
are on leave. Penalties for violation are severe
for employers: up to 100
percent of
lost wages and benefits, plus attorney fees and
various court-related costs.
[
endnote
8
]
Since the
act's passage, 24 million Americans have taken
advantage of its provisions.
Statistics
from the FMLA provide interesting facts about
where the law is headed:
[
endnote 9
],
[
endnote
10
]
?
?
?
29 percent of all FMLA leaves are to
care for family members, primarily aging
parents.
The median leave
has been two months.
Several
states offer longer leave periods, specifically
for
Twenty percent of the FMLA leaves
to date are taken for this purpose.
Research on those who have taken FMLA
leaves shows:
?
?
?
Leave-takers are 18 percent less likely
to be promoted than their peers.
Leave-takers receive eight percent less
in salary increases.
There
is a correlation between the length of leave and
the decrease in raises and
promotions
awarded to leave-takers.
?
Leave-takers
have gotten lower performance evaluation
scores.
Moonlighting while
on FMLA leave is apparently not illegal. Company
policies may specifically
prohibit
this, but most don't. There are no regulations
about exactly how much time an
employee
must spend daily working with their child or ill
parent, and many have taken
moonlighting jobs to help pay costs.
[
endnote
11
]
Other
Employment Laws and Court Interpretations
Not all the legislation
affecting employer-employee relations is directly
addressed in the major
federal
employment acts.
Executive
orders
, issued by the president of the
United States, and
rulings in court
cases have also helped to shape the order of
employer-employee relations
over the
past 35 years. The following section outlines
important executive orders and court
rulings.
Executive Orders and Affirmative
Action
Thousands of
companies have contracts with the federal
government. Companies doing
business
with the US government must obey the mandates of
various employer-employee
laws and the
requirements of numerous presidential executive
orders. Several executive
orders
require employers to hire, recruit, and promote
women and minorities on an affirmative
action basis.
Exhibit
5
outlines sample steps toward
establishing an affirmative action
plan.
Let's consider
Executive
Order 11246
, issued by President
Johnson in 1965. This order
paralleled
Title VII of the Civil Rights Law of 1964 by
prohibiting discrimination on the basis of
race, color, religion, or national
origin. However, the executive order goes beyond
Title VII and
requires employers with
U. S. government contracts of $$10,000 or more
annually to engage in
affirmative
action; it requires those with 50 or more
employees and $$50,000 in contracts to
develop affirmative action plans. These
plans must include a set of specific, results-
oriented
goals designed to correct past
discrimination against women and minorities in the
workplace.
Executive Order
11375
issued in 1967 set the same
guidelines--based on gender--for federal
contractors.
In
1969, President Nixon extended the issue of civil
rights in the workplace by issuing
Executive Order 11478
. This
order mandated that all US government agencies and
contractors base employment policies on
merit and fitness, rather than gender, race,
color, or
national origin. Other
executive orders issued in the late 1970s apply to
veterans, citizenship
requirements, and
federal employees with disabilities.
Executive orders are administered by
the Department of Labor through its Office of
Federal
Contract Compliance Programs
(OFCCP). This office is charged with monitoring
the
employer-employee workplace actions
of federal contractors through annual reports
filed by
contractors. The OFCCP is also
charged with gaining compliance through
conciliation
agreements or, if
necessary, through action by the US Department of
Justice. Failure to
adhere to
affirmative action provisions outlined in
executive orders can result in loss of
government contracts, ineligibility for
future contracts, and fines or penalties.
Major Cases and
Interpretations
In
Griggs
v.
Duke
Power Company
, 1971, the US Supreme
Court found that, by requiring a
high
school education or successful completion of an
intelligence test as a condition of
employment, the employer had unlawfully
discriminated against African Americans. Since
that
ruling, educational and testing
practices have been increasingly scrutinized for
discriminatory
elements.
Subsequent court actions increased the
employer's responsibility. For instance, in
Steelworkers
v.
Weber
, 1979, the Supreme
Court ruled that companies and unions could
establish quotas to eliminate racial
imbalance in the workplace. This was later
modified by two
more rulings.
Firefighters Union No. 1784
v.
Stotts, et al.
, 1984,
ruled that a company could not
interfere with an established seniority
system to protect the rights of newly hired
employees. In
1989, the
Martin
v.
Wilks
finding enabled
employees adversely affected by affirmative action
to
sue on the basis of alleged
discrimination. The Civil Rights Act of 1991
substantially modified
Martin
by strictly limiting
circumstances under which plaintiffs can challenge
affirmative action
programs long after
they have been established. (The Civil Rights Act
overturned several 1989
decisions by
the US Supreme Court that had made it difficult to
prove discrimination. The 1991
version
also increased protection for women and
minorities, including individuals with
disabilities, against job
discrimination and sexual harassment.)
Other
significant cases that have affected the balance
of employer-employee relations in the
workplace include the 1983
Newport News Shipbuilding and Drydock
Co.
v.
EEOC
. In
this
case, the court ruled that
employers must treat male and female employees
equally when
providing health benefit
coverage for spouses. Also in 1983,
Arizona
v.
Norris
found that
employer-sponsored retirement plans
must pay equal benefits to men and women--despite
actuarial tables which showed that
women were likely to live longer than men and,
thus, cost
more in benefits. In 1987,
the courts ruled through
Johnson
v.
Transportation Agency
that
employers can implement affirmative
action policies to correct gender discrimination.
While none of the major
cases was based in a hospitality industry setting,
the rulings apply to
hospitality
companies.
State Employment
Laws
Nearly all states and
many localities have EEO laws. In many cases these
laws provide much
broader protection
than federal EEO legislation, which often limits
coverage to companies with
specific
size payrolls. Companies of all sizes are
generally required to follow state EEO
regulations.
Many
states and municipalities have enacted laws that
protect groups not included in the
federal protection plan. For instance,
some states protect the rights of homosexuals. In
fact,
discrimination based
on physical appearance, political affiliation,
contagious diseases, and so
on. Because
these provisions can change so radically from
state to state, employers should
not
assume that compliance with federal law is enough.
Instead, employers should conduct a
careful review of state and local EEO
laws before establishing a business in any
locale.
? 2003
Educational Institute
Managing
Hospitality Human Resources
Chapter 1 - Competency 3:
List major areas of EEO abuse and
litigation, and identify critical EEO issues
regarding
women and older
workers.
Major Areas of
Abuse and Litigation in Hospitality Operations
Some describe the hospitality industry
as a hotbed for EEO abuse, although few major
court
cases have alleged discrimination
on the part of hospitality companies. The
potential for such
problems exists in
the hospitality industry for several
reasons:
?
The hospitality industry is the largest
employer of minimum-wage employees in the
United States.
?
While the
hospitality industry has long provided employment
for a large number of
women, many
hospitality companies have relatively poor records
of promoting women
to top-level
management positions. This raises a
discrimination.
?
The large
number of female employees working for male
managers creates situations
conducive
to sexual harassment charges.
?
In the past,
some segments of the hospitality industry have
emphasized appearance
as a condition of
employment. As a result, these companies could be
subject to
charges of preferential
selection, which involves hiring candidates on the
basis of
personal characteristics, such
as appearance. Preferential selection constitutes
illegal
discrimination.
?
The hospitality
industry has a high incidence of illegal
discrimination in recruitment
advertising.
?
Historically,
the hospitality industry has placed sex
designations on some jobs. Some
companies have specifically prohibited
individuals from performing specific jobs based
on their sex.
Exhibit 6
highlights some of
the major areas of EEO abuse and litigation in the
hospitality
industry.
Sexual Harassment:
Preventing and Resolving Workplace
Complaints
Sexual harassment
takes many forms, some easier to distinguish than
others. More and
more managers and
supervisors are learning that a wide range of
activities can be labeled
as sexual
harassment. With sexual harassment, the single
biggest mistake a manager or
supervisor
can make is to fail to take every complaint
seriously. All complaints must be
carefully considered and
investigated.
Basically,
sexual harassment can occur when:
?
Employment
decisions are made based on an individual's
acceptance or rejection
of sexual
conduct.
?
?
A person's job performance is adversely
affected by sexual conduct.
Sexual conduct creates an intimidating,
hostile, or offensive work environment for
an individual.
?
An employee is
subject to unwanted sexual conduct from
nonemployees and the
employer fails to
exercise control over the work environment to stop
the improper
behavior.
As this list reveals, sexual harassment
does not necessarily involve sexual contact or
overt
sexual advances or suggestions.
Harassment can occur when one employee stares
provocatively at another, makes off-
color remarks or jokes, or for many other reasons.
In
fact, sexual harassment can occur
even when victims appear to be willing
participants. For
instance, an employee
can participate in telling off-color jokes and
later successfully claim
that he or she
was sexually harassed. The defense would be that
the others involved
expected the
employee to participate in the joke-telling and
that his or her failure to do so
would
result in workplace hostility. Courts have also
considered pinups, calendars, graffiti,
vulgar statements, abusive language,
innuendoes, and references to sexual activity to
be
aspects of sexual
harassment.
The basic point
is that unwanted, abusive conduct toward one
gender and not the other
can constitute
sexual harassment in the workplace. Sexual
harassment that creates a
hostile or
offensive work environment for one gender is
considered a barrier to sexual
equality. Sexual harassment is
essentially sex discrimination and is thereby
prohibited by
Title VII of the Civil
Rights Act of 1964. As such, sexual harassment
charges are filed by
employees with the
Equal Employment Opportunity Commission (EEOC),
the government
agency that enforces
Title VII.
Companies wishing
to establish strong policies against sexual
harassment should follow
these
guidelines:
?
?
?
?
Issue a strong
policy statement against sexual
harassment.
Make it easy for
employees to file harassment charges.
Take every complaint
seriously.
Do not allow the
person who makes a sexual harassment charge to
walk away
frustrated.
?
Take remedial
action to correct past sexual
harassment.
When conducting
a sexual harassment investigation, a company
should:
?
Take every complaint seriously. Failure
to do so can lead complainants to take
action outside the company
and can send a message to employees that the
company does not care.
?
?
?
?
?
?
Conduct the investigation
promptly.
Set a professional
tone for each interview that is part of the
investigation.
Treat each
allegation as a separate incident.
Keep the facts and other information
concerning the issue private.
Obtain statements from the accuser and
the accused regarding what took place.
Clearly identify the relationship
between the accuser and the accused, and
determine whether or not this
relationship had a bearing on the alleged
harassment. For instance, determine if
the harassment involved a supervisor and
employee and if work responsibility
issues could have been involved.
?
?
Gather facts. Do not
prejudge.
Get detailed
answers to the who, what, when, where, and how
questions that are
specific to the
investigation. The company should follow up on
these questions
and answers until all
the facts are clearly established.
?
Interview
witnesses and obtain statements from each
regarding their knowledge of
what took
place.
The EEOC may become
involved if the incident cannot be resolved by the
company. When
the EEOC intervenes in a
sexual harassment charge, the following sequence
of actions
and events will likely take
place:
?
Filing the Charge.
The
individual will file charges with the EEOC by
mail, by
telephone, or by visiting an
EEOC office. In most cases, the time limit on EEOC
charges is 180 days from the date of
harassment.
?
Serving the Charge.
Within
10 days after receiving the charge, the EEOC will
contact the employer by serving a copy
of the charge. At this time, the EEOC will
request that the employer reply, in
writing, about the alleged incident. Employers
generally have from 10 to 30 days to
respond.
?
Conducting a Fact-Finding
Hearing.
The EEOC will plan an on-site
visit or
require the employer to attend
a fact-finding hearing in which the employee
charging harassment meets face-to-face
with the employer. If an onsite visit
occurs, an EEOC investigator will visit
the workplace and collect information
regarding the event.
?
Arranging a Negotiated
Settlement.
In many cases, the EEOC
assists the
parties involved in
negotiating a settlement. Employers typically
agree to provide
the employee with
relief appropriate to the charge. This relief
could include
reprimanding or removing
the harasser, reinforcing the company's sexual
harassment policy, or providing for
back pay, front pay, and attorney's
fees.
?
Issuing a Letter of
Determination.
If a negotiated
settlement is not reached, the
EEOC
will issue its findings through a letter of
determination. This letter notifies
the
complainant of his or her right to sue. The same
information is provided to the
employer. The right to sue gives the
complainant notice that he or she has 90 days
in which to engage a lawsuit in federal
district court.
____________
Adapted by the
Educational Institute of the American Hotel &
Lodging Association from the
Sexual
Harassment Manual
For Managers and
Supervisors
, 1991, printed and
copyrighted by Commerce Clearing House, Inc., 4025
West Peterson
Avenue, Chicago, Illinois
60646.
Recruitment and
Selection
Managers in the
hospitality industry may be tempted to recruit and
hire under-qualified
candidates simply
to fill vacancies.
Most
managers already realize that such decisions can
yield unproductive employees. What
many
managers may not know is that such hiring
practices can be construed as discriminatory.
For instance, if a restaurant has
posted a job description for a server that
specifically calls for
employer can be viewed as
practicing discrimination if an applicant is
turned down later on for
lacking
experience.
As noted
earlier, business necessity is a narrow defense
against a charge of discrimination
under Title VII. To date, most
successful cases have involved safety issues, such
as special
training and experience for
airline pilots, bus drivers, and so on. A hotel
operator's desire to
project a certain
image to hotel guests by employing only certain
age groups or races would
not be
considered a business necessity. The government
deems such hiring practices as
inconvenience or annoyance issues.
Failing to hire female employees due to a lack of
locker
rooms, restrooms, or other
appropriate facilities would also be considered an
inconvenience
issue. Other policies
that would not be considered business necessities
include:
?
?
Refusing to
hire women as hotel stewards because they cannot
lift heavy objects
Hiring
only pretty or young employees as greeters in a
restaurant because the
company likes
the impression they make on its guests
?
Hiring only
male servers because management views the image as
more
Hospitality managers should
also know about what the EEOC calls
four-fifths rule
was
established by the Uniform Guidelines on Employee
Selection
Procedures in 1978. Under
this rule, also known as the 80 percent rule, the
selection of any
racial, ethnic, or
gender group at a rate that is less than 80
percent of the group with the
highest
selection rate is regarded as strong evidence of
adverse impact.
To
illustrate this rule, suppose a new hotel opens
and hires 60 of 120 white applicants and only
20 of 60 African American applicants.
The white applicant hire rate is 60 out of 120, or
50
percent; the African American
applicant hire rate is 20 out of 60, or 33
percent. The African
American hire rate
is only 66 percent of the white hire rate. These
numbers fall short of the
four-fifths
rule and may indicate that the hotel's hiring
practices have an adverse impact on
African American applicants.
Applicant testing is a common area of
selection discrimination.
Griggs
v.
Duke
Power Co.
ruled
that only
those tests that test job-related ability are
acceptable as bona fide occupational
qualifications. This means that
selection tests are considered illegal if they
measure issues not
related to job
specifications. In
Washington
v.
Davis
, the Supreme Court
ruled that job-related
tests were
acceptable as screening devices even if they
result in adverse impact. In this case,
the Washington, D.C., police department
used a verbal skills test to evaluate applicants
for
police positions. The verbal skills
were deemed necessary for the job and, therefore,
allowable.
Discrimination in selection can also
occur when recruitment is based on employee
referrals.
For instance, the case could
be made that such referrals among an all-white
staff could
discriminate against other
races.
Selection based on
arrest records can also be problematic; being
accused of a crime is much
different
from committing a crime. Employers can
discriminate on the basis of an applicant's
criminal conviction record, but not on
the basis of accusations. However, even this is
not an
absolute. For instance, unless
the conviction is directly related to the type of
work, a manager
might be guilty of
discrimination if he or she refuses to hire
someone based on a conviction
record.
Age
Discrimination
As the
overall age of baby boomers increases, so will the
overall age of the work force. It
stands to reason, then, that the number
of age discrimination cases will
increase.
As we discussed
earlier, the ADEA regards both applicants and
current employees 40 years of
age or
older as a protected group. The ADEA specifically
prohibits discrimination against this
group in all employment conditions:
hiring, discharge, compensation, and so on. Some
provisions are made for business
necessities, particularly in lines of work where
health and
safety are paramount, such
as police work and air travel. For the most part,
image is not
considered a business
necessity.
While many hospitality companies have
made great strides in overcoming the perception of
hiring only young, attractive
employees, others have not. As a result, these
companies are
more likely to find
themselves involved in age discrimination cases as
the working population
gets older.
Refusing to put older workers in training
programs, not promoting older employees,
and forcing older employees to retire
or to move to less desirable positions all
represent age
discrimination according
to the provisions of the ADEA.
Reverse Discrimination
Reverse discrimination generally occurs
when an employer attempts to rectify past human
resources practices by hiring or
promoting applicants or employees from a protected
group
over those who do not fit this
description. In the past, granting preferential
treatment to such
groups has been
considered reverse discrimination. However, since
Steelworkers
v.
Weber
in
1979,
preferential treatment can be given to members of
protected groups to eliminate what
the
Supreme Court termed
No quotas are
allowed. Preference is allowed based on race,
gender, or some other protected
characteristic if the intent is to
attain a certain percentage of employees with that
characteristic--but only if that
preference is one factor among many. On the other
hand,
employers can follow seniority on
such issues as layoffs and promotions, even when
there is
an adverse impact on recently
hired or promoted minorities or women.
Employee Benefits and Sex
Discrimination
In the past,
employers sometimes offered one plan to men
(deemed heads of the household)
and
another to women. Such practice was ruled illegal
by the Pregnancy Discrimination Act of
1978. As a result, employers cannot
discriminate on medical benefits, hospitalization,
accident
and life insurance, retirement
plans, and so on.
As a
result of the Pregnancy Discrimination Act,
employers cannot discriminate against
women because of pregnancy. As
mentioned earlier, this act protects pregnant
women
regarding such issues as
eligibility for employment and
promotion.
Religious
Discrimination
Title VII of
the Civil Rights Act makes it illegal to refuse to
hire someone simply because of his
or
her religious beliefs. It is illegal to refuse to
hire individuals whose religious beliefs might
prevent them from working at certain
times. However, a company can refuse to hire
someone
because of his or her religious
beliefs if it can prove that the company will
incur undue hardship
when the employee
takes time off for religious reasons; the company
must also show that the
job cannot be
performed by anyone else during such times.
Hospitality companies may face
other
issues involving religious beliefs such as
appearance, dress codes, and work schedules.
In addition, employers must keep the
workplace free from religious bias or intimidation
by
employees who attempt to impose
their religious beliefs on others. The EEOC has
issued
religious discrimination
guidelines to help employers comply with
regulations regarding
religious
beliefs.
Seniority
Seniority has often been tested in
court as it relates to Title VII and subsequent
nondiscrimination acts. The seniority
debate often revolves around promotions and other
benefits based on seniority systems,
which may be inherently biased due to exclusionary
hiring practices before the passage of
Title VII. The U.S. Supreme Court has ruled that
seniority systems are legal as long as
they do not discriminate on the basis of race,
color,
religion, national origin, or
sex. However, if it can be demonstrated that a
seniority system has
an adverse impact
on women or minorities, it will be subject to
challenge under Title VII.
What this ruling means for hospitality
is that employers or unions can legally
discriminate on
the basis of seniority.
According to the ruling by the Supreme Court, it
is discriminatory to lay
off employees
with seniority simply to protect the jobs of
recent hires who belong to protected
groups.
Recruitment Advertising
Unfortunately, hospitality companies
are guilty of breaking discrimination laws in
their
employment advertising more often
than employers in any other industry. Ads that
specify sex
or age are still the most
common abuses. As in other discrimination cases,
the burden of proof
lies with the
employer, not with the applicant.
Hospitality firms can be forced to
prove that their advertising is not
discriminatory. This process
can be
both costly and time-consuming. Sex discrimination
occurs in advertising when
sex-specific
terms such as
generic terms such as
discrimination is used in ads that
specify or imply certain ages, such as
for college student
they
discourage applicants in other age groups. A
sample comparison of discriminatory versus
nondiscriminatory advertising is
presented in
Exhibit 7
.
Wrongful
Discharge
Most
discrimination charges arise over the dismissal of
employees. Employers are often
uninformed about legal standards
regarding
wrongful discharge
and how to protect
themselves from such
charges.
Wrongful discharge
is not the same as dismissal resulting from
discrimination. Whereas Title
VII
applies only to employers of 15 or more employees,
an employer of any size can be the
target of a wrongful discharge suit.
Also, discrimination suits must be based on race,
sex, or
some other protected
characteristic, whereas wrongful discharge suits
can be filed whenever
an employee is
dismissed for any reason.
There are two basic categories of
wrongful discharge: contract theory and public
policy theory.
In contract theory, the
employee might claim that a personnel manual, for
instance, created a
contract and that he or she was
dismissed in violation of this
theory,
the employee might claim that he or she was
dismissed either for refusing to break the
law or for insisting on obeying the
law.
Fortunately, most
employers can protect themselves from wrongful
discharge complaints and
lawsuits
simply by establishing a discharge policy and
sticking to its guidelines. Employers can
follow one of two basic policies:
employment at will and dismissal for just cause.
Employment
at
will
allows an employer to terminate
employees with or without notice at any time for
any
reason. A
just
cause
policy emphasizes fair and equal
treatment and progressive discipline.
Employers can follow a set of
relatively simple techniques to prevent charges of
wrongful
discharge:
[
endnote
12
]
1.
Specify the rules.
o
Clearly
identify whether your company follows an
employment at will or just
cause
policy. Failure to stick to the policy can result
in a wrongful discharge
suit.
o
Do not promise
more than you are willing to deliver. Some courts
have even
viewed lengthy duration of
employment as an
employment.
o
If you adopt an
employment at will policy, state up front in clear
and
conspicuous language that
employment is
2.
Be candid with employees.
o
In periodic
evaluations, tell the truth about performance. Too
many employers
fail to note poor
performance over a long period of time because
they do not
want to confront an
employee.
o
Be specific about areas in which the
employee needs to improve.
3.
Put employees
on notice.
o
If you opt for dismissals based on a
just cause only policy, establish and follow
a progressive discipline
program.
o
Be sure to document and ask employees
to sign any warnings or other
disciplinary actions. However, don't
force employees to sign anything. If an
employee refuses to sign a document,
simply indicate that fact in the file.
4.
Consider the
options.
o
Discharge is rarely the only solution.
Consider counseling, training, or
returning employees to previous
positions in which they performed well.
o
Assist in outplacement whenever
possible, or provide other benefits in
exchange for a written release of
claims against the company.
Title VII of the Civil Rights Act of
1964, the Immigration Reform and Control Act of
1986, the
Age Discrimination Act of
1967, and the
Employee Retirement
Income Security Act (ERISA)
all protect employees against wrongful
discharge actions by employers, as do several
state
EEO regulations.
Issues in a Social Context
Even though Title VII and subsequent
legislation made it illegal to discriminate in the
workplace, it is wrong to assume that
equality has been attained. This is especially
true
regarding two groups in the work
force: women and senior citizens. Hospitality
companies
have made significant
progress in their treatment of women and seniors.
However, many feel
there is still room
for improvement.
Women in
the Hospitality Work Force
Even though women fill a majority of
the positions in many service industries, most
hold what
have commonly been referred
to as
and room attendants.
On the average, jobs dominated by women
pay less than those dominated by men. The
hospitality industry has taken great
strides toward correcting these abuses since the
passage
of Title VII, but there are
still more steps to take. The hospitality industry
continues to be one in
which men
typically supervise women.
The Aging Work Force
In the hospitality industry, employees
have typically been young. Hospitality has the
reputation
of being an industry that
employees
see this as evidence that the
hospitality industry has failed to develop a
career ladder for its
employees, which,
in turn, has created a negative image of the
industry. However, in some
cases, the
industry has simply been responding to the demands
of its guests.
In observance
of discrimination laws, the hospitality industry
is no longer able to use this
rationalization for favoring younger
workers. This presents real problems for
hospitality
managers torn between
taking ethical and moral actions and responding to
the demands of
guests. For example,
consider the dilemma of managers in an
institutional food service
environment
where the clients ask the food service contractor
to staff an executive dining room
with
youthful, female employees. Even though the food
service manager might like to respond
to the request of the client, and feels
a need to do so in order to retain the contract,
he or she
can't legally honor the
request because of the ADEA.
The impact of
EEO legislation on the hospitality industry will
be magnified by the aging of the
baby
boom generation (born between 1946 and 1964). As
baby boomers retire in large
numbers
during the next 10 to 20 years, the hospitality
industry will face a new problem: how
to cope with fewer experienced
managerial personnel.
[
endnote
13
]
Hospitality will face an
additional need: increased reliance on
aging baby boomers to fill part-time positions.
Not only
will baby boomers retire in
large numbers, but many will reenter the work
force as part-time
employees to
supplement their pensions.
Employment Practices Liability
Insurance
The evolution of
employment practices liability insurance (EPLI)
offers another example of
industry
adaptation.
[
endnote
14
]
In 1991, EPLI was
offered by only five carries in the US and it
focused only on large employers. By
2000, 70 companies offered such policies. What
does an
EPLI cover? The contract
provides defense and indemnity protection against
claims arising
from the employer-
employee relationship. It provides coverage for
wrongful employment acts,
wrongful
termination, sexual harassment, or discrimination.
Coverage is provided for the
business
entity itself as well as for senior officers and
directors. Deductibles range from $$2,500
to $$25,000. When selecting an insurer
for these policies, a business should ask the
following
questions:
?
?
?
?
?
What is the
carrier's EPLI experience?
How will the insurer manage a
claim?
What is the scope of
the coverage?
What services
does the insurer provide?
What overseas coverage is
provided?
?
2003 Educational Institute
Managing
Hospitality Human Resources
Chapter 1 - Competency 4:
Define
disability
, and describe the
Americans with Disabilities Act (ADA) and its
implications for human resource
managers at hospitality operations.
Americans with
Disabilities Act
On July
26, 1992, the Americans with Disabilities Act went
into effect for many employers. This
wide-ranging law dramatically affects
the way hospitality companies relate to guests and
employees. It also has a great impact
on human resources management within the
industry.
Background
President George Bush signed the
Americans with Disabilities Act (ADA) in July
1990. This
law forbids discrimination
against people with disabilities. Many legal
authorities see the ADA
as the most
sweeping piece of civil rights legislation since
Title VII of the Civil Rights Act of
1964.
The ADA has
five titles (or parts), as follows:
Title I Employment
Title II Public Services
Title III Public Accommodations and
Services Operated by Private Entities
Title IV Telecommunications
Title V Miscellaneous
Our discussion will focus primarily on
Title I. Under the provisions of this title, it is
unlawful to
discriminate against people
with disabilities in all employment and
employment-related
practices, such
as:
?
?
?
?
?
?
?
?
?
?
Recruitment
Hiring
Promotion
Training
Layoff
Pay
Termination
Job
assignments
Leave
Benefits
As a result of the ADA, protected group
status is legally designated for approximately 43
million citizens with disabilities in
the United States. Two-thirds of the individuals
in this group
are between the ages of
16 and 64 and are considered chronically
unemployed.
[
endnote
15
]
Many of these
citizens have said that they cannot find work
because of discrimination.
There are 52.6 million Americans who
qualify as being disabled under the ADA. This is
19.7
percent of the total population.
Of those, 52.5 percent are 55 and older, 18.7
percent are 15 to
54 years old, and 9.1
percent are younger. The largest number of claims
for ADA come from
the oldest group. As
a result, claims could go up.
[
endnote
16
]
Other civil
rights regulations have provided certain
protection for people with disabilities. The
Vocational Rehabilitation Act of 1973
requires employers receiving more than $$25,000 in
federal contracts to actively recruit
and accommodate people with disabilities. However,
until
the ADA, people with disabilities
were not recognized as a protected class. Under
the ADA, all
employers, public or
private, that employ 15 or more employees for each
workday in each of
20 or more calendar
weeks in the current or preceding year must adhere
to the law.
Exhibit 8
compares the Vocational Rehabilitation
Act and the ADA.
The EEOC is
the designated enforcement agency for the ADA.
Charges of discrimination must
be filed
with the EEOC within 180 days of occurrence
(except in states with approved
enforcement agencies where charges may
be filed up to 300 days later). After a complaint
is
filed, the EEOC has up to 180 more
days to investigate the charge and either sue the
employer or issue a right-to-sue letter
to the complainant. Finally, after receiving such
a letter,
the complainant has up to 90
days to file a lawsuit. Depending on the
circumstances and the
state, an
employee can file suit against a current or former
employer for an event that
happened up
to 570 days (or more than 18 months) earlier. The
same guidelines apply when a
person is
discriminated against by potential
employers.
Companies that
fail to comply with the ADA are subject to
stringent penalties. For instance, the
court can assess civil penalties
against any employer to a maximum of $$50,000 for a
first
violation and up to $$100,000 for
subsequent violations of the rights of individuals
with
disabilities. The ADA also
provides for equitable remedies in job
discrimination lawsuits; this
includes
job reinstatement, back pay, and even front pay
for employees with disabilities who
experience discrimination by an
employer or potential employer. The Civil Rights
Act of 1991
allows for recovery of
compensatory and punitive damages up to $$300, 000
(depending on the
number of workers
employed) for intentional
discrimination.
Much like
Title VII, an employer is considered in violation
of the ADA if employment practices
are
used that discriminate against people with
disabilities regardless of whether the
discrimination is intended. This
resembles the adverse impact aspect of Title VII,
which has
provided the grounds for many
of the discrimination suits filed since 1964.
According to this
provision, even
employment practices that appear neutral can be
considered discriminatory if
they
adversely affect people with disabilities. For
example, adverse impact occurs under Title
VII if the selection rate for a
specific protected group is lower than 80 percent
of the selection
rate for the group with the highest
selection rate, even if the employer does not
intentionally
discriminate.
Exhibit 9
highlights some of
the major points of the ADA.
Defining Disability
Under the ADA, an individual is
considered to have a disability when he or she:
(1) has a
physical or mental impairment
that substantially limits one or more major life
activities, (2) has
a record of such an
impairment, or (3) is regarded as having such an
impairment. Major life
activities
include seeing, hearing, speaking, walking,
breathing, performing manual tasks,
learning, caring for oneself, and
working.
The ADA protects
people with disabilities that involve speech,
vision, and hearing, as well as
disabilities caused by mental
retardation, a specific learning impediment, and
mental illness. In
addition, people
with diseases such as cancer, heart disease,
cerebral palsy, epilepsy,
multiple
sclerosis, arthritis, asthma, and diabetes are
protected, as are people with HIV and
AIDS. Drug and alcohol addiction is
considered a disability if a person participates
in a
supervised rehabilitation program
or has undergone rehabilitation and is not
currently using
drugs or alcohol. The
ADA also protects people who are regarded as
having a substantially
limiting
disability. For instance, the ADA would protect a
severely disfigured person from being
denied employment because the employer
feared the
conditions covered under the
ADA include autism, Alzheimer's disease, head
injury, brain
injury, and cancer. The
act also encompasses general categories of
impairment such as
orthopedic,
neurological, psychological, and respiratory
disorders.
[
endnote
17
]
Qualifying
for Work
Under the ADA,
people with disabilities are considered qualified
if they can perform the
essential
functions of the job
with or without
reasonable accommodation
.
These two
issues are critical for
employers to understand.
fundamental.
For instance, cooking skills would be considered
fundamental for a cook.
However, the
ability to hear orders called by servers to a cook
might not be considered
fundamental,
since other means exist for communicating orders.
As a result, an operation
might be
required to make reasonable accommodation so that
cooking positions are open to
people
with auditory disabilities.
accessible to people with
disabilities. As a general rule, employers are
required to
accommodate people with
disabilities unless doing so imposes an
undue hardship
on the
employer. The EEOC believed that
approximately 50 percent of people with
disabilities would
not require
reasonable accommodation to be made by employers.
Recent research conducted
by the Matrix
Research Institute in Philadelphia has found that,
on average, accommodations
cost less
than $$500, or far less than the cost of replacing
an employee.
[
endnote
18
]
The following
efforts are considered reasonable accommodations
by the EEOC unless
particular issues in
a specific case deem them otherwise:
1.
Making facilities accessible--
constructing wheelchair ramps, widening aisles,
raising a
cashier station on blocks for
a person in a wheelchair, etc.
2.
Restructuring
jobs to eliminate nonessential
functions.
3.
Reassigning a person to a vacant job--
moving someone to another job if he or she
becomes unable to perform in an
existing job.
4.
Modifying work schedules to allow for
medical and other related appointments.
5.
Modifying or
acquiring equipment--this may include special
equipment that a person
with a
disability needs to perform essential job
functions.
6.
Providing readers or interpreters for
people who cannot read or have visual
impairments.
The
provisions for reasonable accommodations basically
stipulate that employers must make
the
workplace accessible and barrier-free so that
employees with disabilities can be hired and
can access their work stations.
Physical barriers such as stairs, curbs,
escalators, and narrow
doorways have to
be modified to accommodate employees with
disabilities. Elevators must
have audio
cues and Braille buttons for people with visual
impairments.
Under the ADA,
employers are prohibited from discriminating
against employees and job
applicants
because of disability only if employers are aware
that the disability exists. This
means
that employers are not liable for conditions they
are unaware of. However, employers
must
anticipate issues of reasonable accommodation
because cases will arise in which
employees contend that their employer
should have known that they needed such
accommodations.
ADA: The First Ten Years
The ADA has led to changes in many
areas of hospitality management. For instance, the
U.S.
Department of Justice is currently
inspecting hotel construction projects for
compliance with
the ADA. Why? Because
hotels commit the same errors again and again. The
first example of
failure to comply is
in hotel entrance doors. To comply, doors must
have a 32-inch-wide
clearance. The same
is true for most other doorways, including
guestrooms, bathrooms,
kitchens,
connecting rooms, and so on. With the door opened
at a 90-degree angle, there
must be 32
inches of clearance from the face of the door to
the door jamb. The second
common error
is that accessible rooms are not dispersed among
the different types of hotel
rooms.
Hotels and motels must offer accessible rooms
among various types--standard rooms,
suites, ocean-front, and so on. In
addition, there must be connecting rooms as well
as smoking
and non-smoking rooms.
Hotels with 50 or more rooms often lack accessible
rooms with roll-in
showers. The number
required increases with the number of overall
rooms.
Also, many hotels are
not building rooms with accessible alarms. People
with hearing
disabilities cannot hear
fire alarms, ringing phones, knocking at doors,
and so on. Hotels must
provide accessible rooms with visual
strobe alarms connected to the hotel's fire alarm
system
as well as visual alarms to let
guests know when the phone is ringing.
Many faucets, lamps, drapery controls,
air conditioning controls, heating controls, and
similar
devices fail to meet ADA
standards. These are inaccessible primarily
because they require
tight grasping or
pinching. To test the accessibility, use the
closed fist test. If you can operate
the mechanism with a closed fist, it's
accessible. Some signage is also in violation. To
be
accessible, signs must be clear and
contrasting (black on white, or white on black)
and Braille
signs must also be
provided.
[
endnote
19
]
In some cases, the hospitality industry
is affected by the ADA in unique ways. For
instance,
hospitality has long relied
on employing people with pleasant appearances. In
the past, some
states enacted
legislation that allowed hospitality companies to
hire
Prior to passage of the ADA, for
example, employers in Tennessee could seek people
with
pleasant or pleasing appearances
if the employees were to engage in meeting the
public.
Under the conditions of the
ADA, such
discriminatory.
Another example of the direct impact of
the ADA on hospitality involves the treatment of
employees who are infected with the HIV
virus or who have AIDS. Hospitality leaders
lobbied
for an amendment to the ADA to
permit operators to assign employees with
contagious
diseases to nonfood handling
jobs. This amendment was defeated, primarily
because there is
no evidence that AIDS
can be transmitted via food handling or casual
contact.
? 2003
Educational Institute
Managing
Hospitality Human Resources
Chapter 1 - Key Terms
adverse
impact
--A possible result of selection
or employment practices in which members of
one group or class are much more
negatively affected by the practice than members
of
another group or class.
affirmative action
--Policy
that establishes obligation for federal employers
or federal
contractors to take positive
steps to ensure that members of a protected group
or class receive
treatment that will
help overcome past discriminatory
practices.
Age Discrimination in Employment Act of
1967 (ADEA)
--Legislation that made it
illegal to
discriminate on the basis of
age. U.S. citizens age 40 and over are protected
by this act.
Americans With
Disabilities Act (ADA)
--Legislation
that requires commercial operations
both to remove barriers to persons with
disabilities in the workplace and to provide
facilities for
customers with
disabilities. Called the
prohibits job
discrimination against people with
disabilities.
bona fide
occupational qualifications
(BFOQs)
--Qualifications on which
employers are
allowed to legally
discriminate during selection and
promotion.
business
necessity
--Discrimination allowed by
Title VII of the Civil Rights Act of 1964 as a
legal reason for choosing one employee
over another. To date, most of the acceptable
cases
have involved job-related safety
issues such as special training or
experience.
Civil Rights Act
of 1964
--Legislation that established
the Equal Employment Opportunity
Commission and provides regulations
against discrimination in the
workplace.
Civil Rights Act
of 1991
--Legislation that provides for
both compensatory and punitive
damages
to those discriminated against.
disparate impact
--An
employer does not intentionally discriminate yet
does something that
gives one group an
advantage over another.
Disparate treatment
--An
employer treats one individual differently from
others because of
that person's race,
sex, color, religion, national origin, or other
protected characteristic.
Drug Free Workplace Act of
1988
--Legislation that requires federal
contractors to establish
policies and
procedures that prohibit drug abuse and to make a
good faith effort to sustain a
drug-
free working environment.
Employee Polygraph Protection Act of
1988
--Legislation that protects
employees from
dismissal, discipline,
or discrimination solely on the basis of their
refusal to submit to a
polygraph
exam.
Employee Retirement
Income Security Act (ERISA) of
1974
--Legislation that establishes
reporting requirements, fiduciary
responsibilities, and guidelines for
participation, vesting, and
funding for
retirement and pension plans.
employment at will
--An
employer may terminate an employee with or without
notice, at any
time, for any
reason.
Equal
Employment Opportunity Commission
(EEOC)
--Created by the Civil Rights Act
of
1964, this federal commission is
responsible for enforcing non-discrimination laws
in the
United States.
Equal Pay Act
of 1963
--Legislation that establishes
federal policy of equal pay for both men
and women who do the same job with the
same employer.
essential
functions of a job
--Language in the
Americans with Disabilities Act which specifies
that people with disabilities must not
be barred from work if they can perform the
functions of the job.
executive order
--Method by
which equal employment opportunity provisions have
been
added to existing laws. Executive
orders are made by the President of the United
States.
Family and Medical
Leave Act of 1993
--Legislation that
requires employers with 50 or more
employees to provide 12 weeks of unpaid
leave for employees after the birth or adoption of
a
child; to care for a seriously ill
child, spouse, or parent; or in the case of the
employee's own
serious
illness.
four-fifths
rule
--Rule established by the Uniform
Guidelines on Employee Selection
Procedures in 1978 that states
selection or promotion of any racial, ethnic, or
sex group must
occur at a rate of at
least 80 percent (four-fifths) of the rate of the
group with the highest
selection rate.
Immigration Reform and
Control Act of 1986
--Legislation
designed to regulate the
employment of
aliens in the United States, and to protect
employees from discrimination on
the
basis of citizenship or nationality.
I-9 forms
--Forms used to
verify citizenship of applicants and employees as
required by the
Immigration Reform and
Control Act of 1986.
just
cause
--A policy that focuses on fair
and equal treatment, and progressive
discipline.
Pregnancy Discrimination Act of
1978
--Civil rights legislation that
prohibits discrimination by
the
employer on the basis of pregnancy.
reasonable
accommodation
--Language in the
Americans with Disabilities Act which defines
the workplace changes that must be made
to satisfy the requirements of the act. Reasonable
accommodations include such items as
widening work aisles, lowering countertops, and
installing ramps.
Retirement Equity Act of
1984
--Legislation that requires
companies to count all of an
employee's
service since the age of 18 in determining vesting
in retirement benefits, and all
earning
since age 21 - even if the employee has breaks in
service of up to five years. Other
provisions of the act are that pension
benefits are considered a joint asset in divorce
settlements, and employers must provide
survivor benefits to spouses of fully-vested
employees who die before reaching the
minimum retirement age.
reverse
discrimination
--Discrimination against
a member of a majority group in favor of a
minority solely on the basis of race,
color, religion, sex, age, disability status, or
national origin.
Title VII
(of the Civil Rights Act of
1964)
--Legislation that prohibits
discrimination on the
basis of race,
color, religion, sex, or national
origin.
Veterans Re-
Employment Act of 1942
--Legislation
that requires employers to rehire
veterans who left for military service
within 90 days with no loss of seniority, if the
veteran
reapplies. The act also
requires employers to give employees time off,
without pay, to meet
active reserve
status.
Vietnam Veterans
Readjustment Act of 1974
--Legislation
that made Vietnam veterans a
protected
group for a period of four years upon their return
to the private sector. This
legislation
also provided guidelines for employers regarding
treatment of veterans from all
wars.
Vocational
Rehabilitation Act of 1973
--Legislation
that made it illegal for public sector
employers to discriminate against
individuals with disabilities. Legislation also
applies to
companies that hold federal
contracts.
wrongful
discharge
--Charge brought against an
employer for terminating employees without
due process or without substantial
efforts to first call an employee's attention to
improper work
habits and to help the
employee change; terminating an employee's
employment without
sufficient
reason.
? 2003
Educational Institute
Managing
Hospitality Human Resources
Chapter 1 - Web Links
For more information, visit the
following Internet sites. Remember that Internet
addresses can change without notice. If the site
is no longer there, you can use a
search engine to look for additional
sites.
Americans with
Disabilities Act
/crt/ada/
Equal
Employment Opportunity Commission (EEOC)
Immigration Reform and Control Act of
1986
/35th/thelaw/
Occupational Safety and Health
Administration (OSHA)
Pregnancy Discrimination Act of 1978
/35th/thelaw/pregnancy_
Sexual Harassment Hotline Resource List
/911/
Society for
Human Resource Management
Title VII of the Civil Rights Act of
1964
/laws/
U.S.
Department of Labor
? 2003 Educational
Institute
Managing Hospitality Human
Resources
Chapter 1 - Case
Study
Old-Timer
Makes Waves
Caleb, the human
resources manager at the Edgeway Hotel, scowled as
his phone rang for
the third time in
ten minutes.
performance
evaluations.
Caleb
immediately focused his attention on the call from
corporate headquarters - if the senior
vice president of operations had a
letter for him to look at, then these evaluations
would have
to wait.
president in the good old
days when he was a front desk clerk - has a
complaint,
explained.
sent it
directly to her `old buddy' Mr. Alvarez. He's
asked me to pass it on to you to take care of.
Let me know what happens.
Sally, Caleb mused, I know her; she's
been here forever and a day. In fact, next month
will be
her 20th anniversary with the
hotel. Caleb opened up the file cabinet and pulled
Sally's thick
folder. He opened her
file and reviewed the past several years. After a
quick reading, his notes
highlighted
key items in Sally's file:
1995
(Performance scale: 1 Probationary; 2
Below
Standards; 3 Meets Standards; 4
Exceeds
Standards; 5
Outstanding)
September
Performance review, 5.0 average
December
Named
employee of the year
1996
May
1997
February
Medical leave for hip surgery, out
three months
September
Performance review, 4.0
average
Complimentary
letter from a guest
September
Performance review, 3.85
average
1998
March
August
Medical leave, out seven
weeks
New
supervisor
September
Performance review, 3.33
average
December
Sally reprimanded for sleeping on the
job
1999
October
New
supervisor
September
Performance review, 3
average
2000
January
March
Customer
complaint about gruffness
Three customer complaints about
service
September
Performance review, 2.8
average
November
Transferred to night shift
2001
January
New
supervisor
Caleb's secretary
brought in the fax from Jenna. He sighed as he
read the letter and then put
in a call
to Francine, the new rooms division manager, and
asked her to meet him as soon as
possible. Within a half hour, Francine
arrived.
this take long?
day. It's about Sally
Fenders.
the
counseling process with her. We can't carry folks
like her - not and stay competitive. She
refuses to change. She thinks we can
treat a meeting planner who's bringing in $$400,000
worth of business the same way you
treat the little old lady who stays here once a
year with a
Discovery
coupon!
letter:
Dear Mr. Alvarez:
Last year, the company threw a big
party celebrating my 50th birthday and now it's
trying to force me out. I've been transferred
to night hours and I have a manager
that complains about everything I do. He's
constantly watching me and writing up
everything I do. I think he wants to
hire someone younger that he could pay less.
Normally I'd wait him out--these front desk
managers change every few years anyway
--but I think he's trying to get rid of me.
I'm not the only one who
feels this way. While I don't speak for everyone,
there are quite a few of us old-timers who just
don't
know what's going on in this
hotel. We used to know everything - customers,
prices, and service levels. I don't know any of
that anymore. I want to do the right
thing, but I can't figure out what it
is.
I'm not doing anything
differently than I have for the past 20 years, but
all of a sudden I'm not any good. How is it that
I'm
Employee of the Year in 1995, but
now I'm worthless? I went to the awards dinner you
held last year and was recognized as
the employee with the longest service
record. You said that I was a positive example and
that the hotel celebrated the type of
commitment and dedication that I
had.
I remember when you
were just a front desk clerk and I taught you how
to use a room rack. I've never asked you for
anything
before, but I will now. Please
stop this harassment. I have two kids in college
and a sick husband. I still have a lot of good
years in me. I've given my life to this
hotel, and I shouldn't be pushed out because some
hotshot manager wants to get cheap
labor in.
I know I can count on you.
I'd hate to hire a lawyer when I've been loyal to
the company for 20 years.
Sincerely,
Sally
Fenders
Francine
put the letter down in disgust,
is she?
Notice how she neglects to mention that she's
gruff with the customers, or that we've
caught her dozing off on the night
shift several times. I can't believe that she'd
just go over my
head like this. Sydney
and I have put in a lot of time and effort with
this lady. We've coached
her, worked
with her, given her extra training and support. It
angers me that she'd send a letter
like
this. If I could get away with it, I'd fire her
for that.
with everyone else, that we
have a new market segment and are taking on guests
who
demand a higher level of service.
She hasn't been willing to make that change with
us. The
`same old' doesn't cut it
anymore. We've tried to get her to change. I even
had Sydney send
her to training.
Nothing has worked.
know how to do? Did Sydney
follow up with her so that she knew what she was
supposed to
learn?
carry employees indefinitely
and she's become a high-maintenance employee. This
isn't age
discrimination - it's
attitude discrimination. She doesn't have the
right attitude for today's
business.
Discussion Questions
1.
What recent
changes at the Edgeway Hotel precipitated the
problem with Sally?
2.
Is it an issue
that Sally didn't follow the chain of
command?
3.
What are the roles and responsibilities
of the management team in dealing with this
situation?
4.
Does Sally's
length of service and past performance warrant
special treatment by
management in
handling her current situation?
The following industry
experts helped generate and develop this case:
Philip J. Bresson,
Director of Human
Resources, Renaissance New York Hotel, New York,
New York; and Jerry
Fay, Human
Resources Director, ARAMARK Corporation, Atlanta,
Georgia
.
? 2003 Educational
Institute
Managing Hospitality Human
Resources
Chapter 1 - Review
Questions
1.
The equal employment opportunity laws
enacted by the U.S. Congress since 1964
have focused on what four
areas?
2.
How do affirmative action and equal
employment opportunity laws differ?
3.
What is meant
by bona fide occupational
qualifications?
4.
What is the
four-fifths rule? How might it apply to
hospitality companies?
5.
What is meant
by adverse impact? How might this apply to
hospitality companies?
6.
Why is
wrongful discharge such a sensitive employment
issue?
7.
Griggs v. Duke Power Co. is often cited
as a critical case in the legal history of equal
employment. Why?
8.
Companies can
be exempted from some employment laws by utilizing
a defense
known as business necessity.
Describe what this means, using a hospitality
company
as an example.
9.
Many people
say that EEO laws have affected the hospitality
industry more than many
others. Would
you agree with this statement? Why or why
not?
10.
What are
the central features of the ADA? How might the act
influence the way
hospitality companies
select employees?
? 2003 Educational Institute
357
Managing Hospitality Human Resources
Chapter 2 - Job Analysis and Job Design
Chapter 2 - Outline
Job Analysis
?
?
?
?
?
?
Select Jobs for Analysis
Determine What Information to
Collect
Determine How to
Collect the Information
Determine Who Collects the
Information
Process the
Information
Write Job
Descriptions and Specifications
Job Design
Staffing Guides
?
?
?
?
?
Set
Productivity Standards
Determine Total Anticipated Sales and
Guest Volume
Determine
Number of Employees Required
Determine Total Labor Hours
Estimate Labor Expense
Forecasting Sales Volume
?
?
?
?
Trend Line Forecasting
Moving Average Forecasting
Seasonality
Other Methods of Forecasting
? 2003 Educational
Institute
Chapter 2 - Competency 1:
Explain the importance of job analysis
and how to analyze jobs in the hospitality
industry.
Job
Analysis and Job Design
Imagine that you've been selected to
open the first hotel for a new company. Among your
earliest assignments is designing the
jobs that people will do. You've had some
experience in
this area and know that
before you can identify jobs, you have to identify
some basics of hotel
operation. Sitting
down with a pen and paper, you start writing out
questions you'll need to
answer:
?
?
?
?
?
?
What is the content of each
job?
How many jobs are
needed?
How will the jobs
fit together so that two people don't end up doing
the same thing?
What
qualifications will people need in each
job?
What should each person
be trained to do in each job?
How will you know when people are doing
a good job? How should you measure their
performance?
?
How much should
you pay people for doing each job?
What you've just done as an imaginary
consultant is to draw up questions you could
answer
through
job
analysis
and
job
design
. Job analysis is the process of
determining what will be
done in a
job.
The process takes some
time and effort, and, when completed, job analyses
are rarely used in
their entire form.
[
endnote
1
]
Given these factors, many
hospitality companies make the mistake
of not completing a job analysis for
each position. What these companies don't know is
that,
while the analysis itself is
rarely used, the information the analysis contains
has a variety of
uses. Job analysis
reveals the tasks, behaviors, and personal
characteristics needed to do a
job. In
many cases, it tells a company
why
specific abilities and
skills are required for a job.
While job analysis determines
what
will be done on a job,
job design determines
how
the job
will be done. Job design
involves defining the combination of tasks and
responsibilities
associated with a
job.
The importance of job
analysis and job design should not be
underestimated. Training
programs, job
evaluation and compensation planning, and
performance appraisals all depend
on a
complete and comprehensive job analysis. The
results of job analysis can be used in
human resource planning, recruitment,
selection, placement, promotion, career path
planning,
and
safety issues related to jobs. Job analysis can
also be a company's frontline defense
against charges brought by the Equal
Employment Opportunity Commission. Job analysis
may reveal that the business has a bona
fide legal reason for certain types of
discrimination in
selection and
promotion decisions.
Exhibit
1
illustrates many uses for job
analysis.
Some managers
believe that once a job is designed and described
in an employee manual, it
never
changes. Good hospitality managers know that
analyzing and designing jobs is a
continual process.
Job Analysis
As
Exhibit 2
shows, managers
must make several decisions in completing a job
analysis. Each
of these decisions will
be discussed in the following sections.
Select Jobs for Analysis
A new hotel or restaurant requires a
complete analysis of each job. But in an
established
operation, that might not
be the case. Selecting which jobs to analyze is
the first step in
completing a thorough
job analysis. Some companies analyze each job in
the organization
once per year; others
use a rotation system and analyze each job every
three years. How
often the job is
analyzed depends primarily on the degree of change
associated with the
position.
Both
internal and external factors can affect the
frequency of analysis. For instance, managers
may need to analyze cooking jobs each
time new items are added to a menu to ensure that
no
cook is overburdened. Adding or
assigning new duties to a job or individual may
also call for a
thorough job analysis.
A good manager will analyze the
are
equitably distributed and that productivity does
not decline.
Assigning new
duties is not the only internal factor that
affects the frequency of job analysis.
New technology in the workplace likely
will require job analysis. For instance, automated
check-in and check-out systems require
that front desk positions be thoroughly analyzed
to
ensure the even distribution of work
and efficient use of employees. Job analysis may
even be
required when a new employee
comes on board. Consider the impact of hiring a
new night
auditor. If the auditor has
substantial experience, the hotel could assign
additional
responsibilities to this
position and redesign other duties. The opposite
would be true if the
night auditor has
limited experience. Properties may wish to compare
the skills of the new
night auditor
with those of previous night auditors.
External factors also create situations
that require analysis of jobs. Increases and
decreases in
customer demand,
seasonality (discussed later in this chapter), and
new competition are
examples of
external factors that would require a hospitality
operation to reanalyze its jobs.
Determine What Information to
Collect
American corporations have a poor
history of job design. Most managers think that
it's a good
idea to break jobs down
into their smallest components to understand them.
However, this is
probably a function of
their desire for control over jobs and their
employees more than an
understanding of
job analysis or design. Breaking a job down to
understand what goes on and
how it can
be improved is much different than simply breaking
it down in order to control
employee
behavior.
[
endnote
2
]
The different
kinds of information collected in job analysis
serve different functions. The types
of
information that need to be collected
are:
?
?
?
?
?
?
Actual work
activities
Tools, equipment,
and other needed work aids
Job context
Personal characteristics
Behavior requirements
Performance standards
The kind of information collected
depends on the ultimate use of the data, the time
allowed for
collection, and the budget.
For instance, if information from the job analysis
will be used to
write new or updated
job descriptions, the information gathered should
focus on one of the first
three
categories: work activities, equipment used, or
job context. If the information will be used
to create job specifications, the focus
should be on personal characteristics.
Determine How to Collect the
Information
Several methods
of collecting information are available and widely
used. Some are more
useful for specific
purposes. The matrix in
Exhibit
3
suggests the most useful methods for
certain areas.
Since hospitality jobs vary
considerably from the front of the house to the
back of the house
and from property to
property, managers will want to use several
different methods of data
collection.
The following sections discuss each method as well
as its advantages and
disadvantages.
Observation.
The simplest
and least expensive method of collecting job
analysis information
is observation.
With this method, managers simply watch employees
at work and make
detailed notes of the
tasks and behaviors each performs. However, the
observation method
does not come
problem-free. For instance, it is difficult to
observe
since employees typically
perform better when they know they are being
watched.
This result--or, as some consider it,
phenomenon--is known in management research
circles
as the
Hawthorne
Effect
. The Hawthorne Effect got its
name from a study conducted at the
Westinghouse Hawthorne Relay Assembly
Works Plant in Chicago. In this study, researchers
observed employees at work to determine
(among other things) whether changing lighting
levels would improve productivity.
Researchers found that productivity improved when
the
lighting level was increased. To
their surprise, however, they detected similar
improvements in
productivity when the
lighting was dimmed. After much research, the
observers concluded that
the
improvements in productivity were related to the
fact that someone was paying close
attention to the employees.
The observation method has other
problems. For one, an observer may harbor certain
biases
toward specific employees.
Second, observers may experience difficulty
watching employees
work without being
obtrusive or getting in the way. Observers may
also have problems
selecting which
employees to observe. For instance, should they
watch the best, the worst, or
the
average employee? Finally, observers may find
themselves in a quandary when deciding
how to observe work that is not task
oriented. The observation method is not very
useful when
analyzing a manager's job,
simply because much of a manager's time is spent
thinking and
solving problems--areas
difficult to observe. If observation is used, it
is very important to watch
several
employees to arrive at an average of the work
performed. The method is often
improved
when the person collecting the information
actually does the job at some point to get
a personal feel for what the work
entails.
The ADA, Job
Analysis, and Job Design
In
the past, many people would picture a person with
a disability as someone who
used a
wheelchair, walker, or cane. Today, many people
realize that disabilities
cover a wide
spectrum and may not be noticeable to a casual
observer. The
Americans with
Disabilities Act
is making people more
aware of what constitutes
a disability
and what the rights of a person with a disability
are.
This sidebar will look
at the ADA in relationship to job analysis and job
design.
* * *
Under the ADA, people with disabilities
are considered qualified for a position if they
can perform the
essential
functions of a job
with or without
reasonable
accommodation
. Essential
functions are tasks that are fundamental to the
position.
For instance, cooking skills
would be considered fundamental for a cook.
However,
the ability of a cook to hear
orders called by servers (for a person with a
hearing
impairment) or of a room
attendant to read written room cleaning
assignments (for a
person with a
developmental or cognitive disability) might not
be fundamental. In
such cases,
operators must make reasonable accommodations to
ensure that
cooking and room attendant
positions are open to people with such
disabilities.
From a job analysis standpoint,
employers need to identify the essential and
non-essential activities of each job.
Applicants who can perform the essential
functions cannot be discriminated
against because they cannot perform the
non-essential functions. In addition,
the ADA stipulates that employers may have to
restructure jobs to eliminate the non-
essential functions for these
employees.
Unless it imposes
an undue hardship, employers will also be required
to make
reasonable accommodations so
that the workplace is accessible to people with
disabilities. Among the accommodations
considered reasonable by the Equal
Employment Opportunity Commission are
constructing wheelchair ramps, widening
aisles, raising cashier stands, and
modifying work schedules and equipment.
Both the essential functions provision
and the reasonable accommodations
provision of the ADA will dramatically
affect how jobs are designed in some
operations. For instance, employers may
be required to rethink how work is done.
Consider how a bellperson's position
often involves carrying heavy bags to rooms for
eight or more hours per day. That could
change under the ADA. For example, hotels
may be required to provide carts so
that employees with disabilities would not be
required to carry bags for long
distances. In addition, frequent breaks for bell
staff
who cannot work for eight hours
at a time may be viewed as a reasonable
accommodation.
Managers need to take a number of
actions to meet ADA requirements. At a
minimum, managers should:
1.
Review their
methods of job analysis to ensure that essential
and
non-essential functions are
appropriately designated.
2.
Review job
descriptions; specify essential and non-essential
aspects of each
position.
3.
Review job
specifications to ensure that applicants are not
being excluded
on the basis of non-
essential functions.
4.
Maintain
records of accommodations made to comply with the
ADA.
5.
Create and maintain records of people
with disabilities currently on staff to
ensure that reasonable accommodations
are made for these people.
6.
Review the
application process-especially portions that
include medical
exams or other issues
that may infringe on the rights of people with
disabilities.
7.
Revise
application forms to exclude generic questions
about disabilities and
health issues.
Many application forms commonly used in the past
are not
acceptable under the ADA.
8.
Create and
maintain records of personnel with disabilities
employed both
before and after the ADA
goes into effect; records should include the
accommodations made for these
individuals in compliance with the ADA.
9.
Post
compliance statements in prominent
locations
Interviews.
Another popular
method of compiling job analysis information is
interviewing the
employees who do the
job. Many researchers swear by interviews. They
say that no one can
know a job better
than the person who does it. However, the
employee's own view of the job
can bias
this method of gathering information. For
instance, people naturally tend to overstate
the importance of their work and their
qualifications. And when interviewed, most people
are
susceptible to what is known as the
Heisenberg Effect
, which
describes the tendency of
people to
subconsciously give answers they think the
interviewers want to hear. Interviewers
can reduce the impact of overstatement
and the Heisenberg Effect by simply being aware
that
these problems exist and
conducting interviews more carefully. Interviewers
will find a second
safeguard in
collecting interview information from several
employees.
Questionnaires
and Checklists.
Questionnaires and
checklists often ask employees to rate
their work on a predetermined scale.
These scales are generally designed to evaluate
the
difficulty, frequency, and
importance of the job and the relationship of one
job to another. The
ratings provide a
useful method of quantifying jobs if the
questionnaire is completed by a large
group of employees who do the same job.
The
position analysis questionnaire
(PAQ)
is a
structured
questionnaire that quantifies job elements. It is
completed by employees familiar
with
the job being examined and then is studied by a
job analyst. The PAQ consists of a
checklist of 194 job elements divided
into six job dimensions:
?
?
?
?
?
Information
input (the employee gets information on how to do
the job)
Mental processes
(reasoning, planning, and problem solving involved
in the job)
Work output
(physical activities associated with the
job)
Interpersonal
activities (relationships with other
persons)
Work situation and
job context (physical working conditions and
social aspects that
affect the
job)
?
Miscellaneous
characteristics
There are
several questionnaires designed to help managers
develop job descriptions using
standardized questionnaires. One is the
management position description
questionnaire
(MPDQ)
, which
collects information about management work in 13
different categories. A
second is the
Minnesota job
description questionnaire (MJDQ)
, one
of the more popular
one-size-fits-all
job design systems. A study on the practical
applicability of this multi-method
questionnaire has shown that the MJDQ
does not do a very good job. The likely reason for
this,
and the reason most off-the-shelf
systems fail, is that jobs, like the people who do
them, are
unique. This explains why
transferring the requirements from a job at one
company to a similar,
but not exactly
the same, job at another company does not work.
Complete, thorough, and
effective job
analysis and design requires a company to consider
itself and its jobs unique, and
to
analyze each appropriately. While this may take
longer than using a standardized
questionnaire, the results are much
better.
[
endnote
3
]
The federal government
designed a new
system called the
Occupational Information Network database (or
O*NET) to help employers
with
recruitment, training, and other workforce
development programs. Information on the
O*NET is available online at
/.
Critical
Incidents.
The
critical
incident
method involves observing and
recording actual
events. A critical
incident might read like this:
On June 27, 2001, Mr. Jones, a
bellperson, observed a guest fretting over how to
get through a strong rain to his car, parked
in a lot several hundred yards away.
Without hesitation, Mr. Jones provided the guest
with his own umbrella.
Over
time, a large enough number of such critical
incidents can form a fairly clear picture of a
job's actual requirements. The
disadvantage of this method is that it takes a
considerable
amount of time to compile
the critical incidents needed to draw a complete
picture of the job.
The advantage is
that this method is an excellent way to develop
training materials that show
employees
how services should be provided.
Performance Evaluations.
Performance evaluations are an excellent
opportunity to collect
job analysis
information. For instance, a manager conducting a
performance evaluation with a
room
attendant might learn that the work could be
completed more effectively if the employee
were given the chance to clean the same
rooms each day. Most performance evaluation
methods include open-ended discussions
between managers and the employee being
evaluated. The discussion should be
two-sided. Managers should give the employee
feedback
on his or her performance and
should listen to the employee's suggestions for
improvement.
Suggested improvements may
relate to personal behavior or to the way a job is
done.
Diaries.
Some companies compile job analysis information by
asking their employees to keep
a diary
or daily log of their activities during a specific
period. This method is a cost-effective,
comprehensive way to gather
information. Diaries also encourage employees to
think about
the work they do and,
therefore, to do a better job. However, this
method requires employees
to dedicate a
substantial amount of time to writing the events
in their journals. Employees may
also
try to bias their supervisor's view of them by
writing about incidents or actions that did not
take place. Some employees may not read
or write well enough to keep a diary. Finally, job
analysts must spend a substantial
amount of time reading each journal and gathering
information to completely portray the
job.
Determine Who Collects
the Information
The purpose, time constraints, and
budget generally will determine who collects job
analysis
information. A trained
professional is usually the best choice if the
purpose is to design job
specifications
that will withstand close investigation by the
EEOC. This professional can be
from
either inside or outside the company. Sometimes it
is better to employ a third party since:
(1) this person can often be more
objective about the positions analyzed, and (2)
the
objectivity shown by an outsider
can be important when presenting unusual or narrow
job
specifications to the EEOC. A
disadvantage of using an outside consultant is
that he or she
may be unfamiliar with
the job requirements.
There
are advantages to using current or past
supervisors or current employees to conduct a
job analysis. Current supervisors and
employees have the most insight into what actually
goes
on in the job. As a result, their
analysis may include subtle tasks and skills that
others overlook.
Using in-house
personnel is usually more cost-effective than
hiring outside analysts. One
disadvantage of using either current
supervisors or employees is that the opportunity
for bias
increases. Also, employees
sometimes refrain from reporting certain tasks so
that they won't
be required to perform
those tasks when new job descriptions are
written.
By using former
supervisors, the company may avoid the personal or
job related bias that
sometimes is
evident in analyses performed by people close to
the job. Because a former
supervisor is
no longer responsible for employee promotions,
performance appraisals, and
disciplinary action, there is less
reason to suspect that personal issues might cloud
his or her
analysis.
Many organizations have begun using
teams to analyze jobs. Such teams comprise
employees who work in the position
under analysis (or in lateral positions) and
supervisors.
This approach often
provides the best overall view of a position.
Before using teams for this
purpose, it
is likely you will need help developing the team.
Chain operations have one more
element
to consider: Consistency in job descriptions and
specifications from unit to unit. As a
general rule, a job analysis conducted
by current supervisors or employees reflects local
operational considerations. Such an
analysis is less standardized and thus less useful
to other
operations in a
chain.
One caution to
managers before engaging in job analysis and
design: Unions are often
opposed to any
job analysis and design programs. One of the main
reasons for this is that
redesign is
often accompanied by changes in compensation.
Another reason is that job
analysis
breaks the job down into the smallest components
for analysis, and this threatens the
unions' ability to negotiate and/or
control what each job consists of. However, union
opposition
to job analysis is often
only a case of fearing the unknown. Making it
known in advance that the
objective is
not reducing compensation or taking control from
the unions--but rather, helping
workers
and unions identify the important elements of a
job and what exactly should be done
in
it--usually eliminates the opposition. In fact,
unions may realize that completed job analyses
and descriptions actually help by
clearly establishing between management and
employees
exactly what work is to be
done.
[
endnote
4
]
Job elimination is one aspect of job
analysis that managers often fail to empower their
employees to do when asking them to
analyze a job. At their heart, job analysis and
design
both strive to eliminate
unnecessary parts of an employee's job. Asking job
analysts to
consider this while
conducting the evaluation will often lead to
better results.
[
endnote
5
]
Process the
Information
Data collection
often yields more data than necessary. Using
several different methods of data
collection doesn't mean you'll get
different information; sometimes you simply get
the same or
similar information from
different sources. In addition, data collection
can yield data that is
peripheral to
the actual job. As a result, managers need to
process
information after it
is
collected.
Information processing is a simple but
time-consuming task. The goal is to identify data
that
will be most useful in defining
and describing the work and how to do the job.
Content
analysis--or the process of
identifying topics and arranging information found
in collected
data--is one of the most
effective methods of processing information. A
thorough content
analysis can be
completed by first reading through the collected
data and identifying important
topics,
then arranging this data in appropriate
categories. Content analysis can help eliminate
repetition of tasks or
responsibilities.
? 2003 Educational Institute
Managing Hospitality Human
Resources
Chapter 2 -
Competency 2:
Describe how the results
of job analysis are used in job descriptions and
job
specifications.
Write Job Descriptions and
Specifications
Job analyses
are rarely used in their completed form. Instead,
information contained in the job
analysis is used to create other
management tools used regularly in hotels and
restaurants.
The two
managerial tools most commonly derived from a job
analysis are
job
descriptions
and
job specifications
. Job
descriptions summarize the duties,
responsibilities, working