Chapter III

Fair Employment Practices

Perhaps the foremost social responsibility levied upon private and public organizations in recent decades is the adoption of fair and just employment practices. This responsibility is being increasingly codified in law and various governmental orders. Its influence is becoming increasingly pervasive through a constant series of federal court decisions as well as steady enlargement in the size and scope of administering agencies. The modern personnel manager must have a fundamental understanding of laws affecting employment, guidelines issued by governmental agencies involved, and a seemingly endless number of reports that demonstrate that responsibilities are being met.

In this chapter, we shall briefly survey four major pieces of federal legislation and two Executive orders that bear upon fair employment practices. We shall indicate their impact upon the multiple protected employee groups in our society minority races, religions, nationalities, female employees, handicapped personnel, and older workers. That some change has been effected is indicated in the annual reports of the Equal Employment Opportunity Commission. In 1966, for example, 9.5 percent of managerial jobs were filled by females and 1.9 percent by various minorities. Nine years later, these percentages had been increased to 13.1 percent and 5.1 percent, respectively. There is still plenty of room to grow inasmuch as females constitute about 40 percent of the total workforce with minorities comprising approximately 18 percent. Females are overly represented in office and clerical occupations (80 percent), while minorities account for excessive proportions of labor and service jobs (31 percent). Minorities hold 46 percent of the jobs in grade 1 of the federal government 18-grade structure for white-collar jobs and about 30 percent of jobs in both grades 2 and 3.

FEDERAL LEGISLATION AND EXECUTIVE ORDERS

Though the first law governing fair employment practices was passed by the state of New York in 1945, it was not until the middle 1960s that major federal legislation was passed. As outlined in Figure 3-1, the first landmark legislation was the Civil Rights Act of 1964. Its amendment, the Equal Employment Opportunity Act of 1972, empowered the administering agency, Equal Employment Opportunity Commission (EEOC), to undertake direct court action against alleged offenders. The Civil Service Commission is charged with the responsibility in this area for all federal employees. In brief, the act prohibits discrimination in hiring, firing, pay, or other conditions of employment because of race, color, religion, sex, or national origin. The law does not require affirmative action programs, but a federal court may impose one upon employers found guilty of discrimination.

In general, there are three main types of discrimination: (1) disparate treatment, (2) disparate effect, and (3) present effects of past discrimination. Disparate treatment is the most easily understood type of discrimination. If persons of one race, sex, or ethnic group receive different treatment from persons of another race, sex, or ethnic group who are otherwise similarly situated, this constitutes discrimination. For example, a black employee with five unexcused absences is discharged, while a white with five unexcused absences is retained on the job. Disparate effect occurs when any particular practice has an adverse impact upon a protected group. For example, requiring a high school degree for employment will rule out more blacks than whites, or refusing to hire employees who have been arrested will rule out more minorities than whites. If any practice results in disparate effects, the employer must prove that it is job related. An organization can continue to require a high school degree if it can prove that those with the degree are more effective employees than those without. In the absence of such proof, the practice is discriminatory.

In the case of National Educational Association vs. South Carolina, the Supreme Court in 1978 upheld South Carolina's use of a teacher-testing system that disqualified 83 percent of black applicants but only 17.5 percent of the whites. The court maintained that tests administered had been validated to establish a rational relationship between high scores and professional skills. In the Griggs v. Duke Power Company, the Supreme Court in 1971 declared a high school diploma minimum hiring requirement to be illegal because of its disparate effect on blacks accompanied by an unproved relationship between the diploma and job performance.

In reference to present effects of past practices, a basic principle issuing from the Griggs case was that procedures and practices, neutral on their face, cannot be maintained if they operate to freeze prior discrimination into the present situation. This concept was most frequently applied to seniority systems that served to keep minorities and females in less desirable positions. In some cases, lower federal courts ordered overturn of existing seniority systems that perpetuated past discrimination. In 1977, however, in Teamsters v. U.S. and United Airlines Inc. v. Evans, the Supreme Court exempted seniority systems from this principle if they were established before the Civil Rights Act took effect, and if the organization did not intend to discriminate through the system. The EEOC, however, has issued a set of guidelines that will make it easier to prove employer intent to discriminate, but such rules of evidence have not, as yet, been subject to court tests.

Executive Orders No. 11246 and No. 11375 go further than the Civil Rights Act. Not only is equal opportunity protected, but contractors with the federal government must develop an affirmative action program whereby percentages of employed females and minorities are to be increased. A written program of employment goals for hiring, training, and promotion must be filed with the Office of Federal Contract Compliance Programs (OFCCP) by contractors with fifty or more employees possessing contracts with values in excess of $50,000. Those with contracts ranging from $10,000 to $50,000 must have a program but it need not be filed. The content of such programs will be discussed in a later section in this chapter.

The Age Discrimination Act was passed in 1968 and proposes to reduce discrimination against older employees. An amendment in 1978 extended the range of protection from ages 40-65 to 40-70. Objection to mandatory retirement at age 65 was the major force that led to passage of the amendment. The law applies to firms that are involved in interstate commerce as defined under the Fair Labor Standards Act.

In 1974, action was undertaken to give protection against discrimination to another group, the handicapped. Like the setup for Executive orders, this law pertains only to federal agencies and government contractors with contract values in excess of $2500. Finally, the EEOC administers an act designed to effect equal pay for equal work. The passage of the Equal Pay Act was in response to data that steadily show that female employees on the average receive about 60 percent of the pay given to males. In the following sections, we shall consider discriminatory practices with regard to each of the protected groups.

MINORITY RACES

Because of the energy with which their leaders have attacked the problem of employment discrimination, blacks would constitute a good single illustration of a special racial group. This high degree of activity is stimulated by employment statistics that show that black unemployment is typically twice that of whites, and black employees are overly represented in the lower paying positions in most organizations. The EEOC requires that employment records be maintained for blacks, American Indians, Asians, and Hispanics.

Since the 1960s, there have been many suits won on behalf of blacks. For example, the Ablemarle Paper Company and the United Paperworkers and Papermakers Union recently agreed to pay $205,000 in back wages to 144 black workers who filed a discrimination suit 11 years ago. The black employees contended that they were not promoted in the same manner as whites and that the firm's job qualification tests discriminated against blacks.

Much of the major legal activity with regard to blacks has been in reference to the adverse effects of perpetuating seniority systems. Though the recent court decision exempted systems created prior to passage of the Civil Rights Act, this decision in no way affected the operations of the OFCCP that administers Executive orders. Employers can still be ordered to alter seniority systems to open up greater, opportunity for minorities and females.

Some companies have been required to use plant-wide seniority rather than narrower job or department seniority in making promotion decisions. Others have been ordered to administer layoffs in such a manner as to preserve the gains in employment percentages of protected groups. The basic thrust has been based on the principle of restoring such employees to their "rightful place" had such a discriminatory practice never been in effect. In many instances this has involved back wages and increased seniority levels. As indicated previously, the EEOC is still sympathetic to this position and is attempting to overcome the court's decision through issuance of guidelines. Consequently, a state of confusion exists among many employers and unions’ concerning what is and is not likely to be legal in the eyes of the EEOC, OFCCP, and the various federal courts. Such confusion is leading industry to seek other ways of softening the impact of layoffs through work sharing, shorter workweeks, and earlier retirements, suspending operations for limited periods, and encouraging voluntary leaves of absence.

When a management wishes to introduce a special racial group into the enterprise, it is wise to be aware of possible human relations difficulties. However, studies have indicated that most management is overly fearful of the reactions of the white majority, and that careful advance planning and preparation can do much to smooth the transition.

The first essential of such an introductory program is the adoption of a definite policy by top management. This serves the same purpose for the firm as law does for the community. If trouble does arise, supervisors are given more confidence by the existence of an explicit directive from top management. If persuasion fails, they can use the policy to force at least a minimum degree of acceptance.

The communication of the policy is of central importance. All managers must understand that the policy exists. As has been suggested previously, attitude changes are effected more readily through processes of discussion and conference than through orders and commands. The philosophy and techniques of group dynamics can serve to develop supervisory understanding and acceptance of minority-group members. Willing acceptance is always preferable to forced obedience. However, subordinate managers must be assured that top management mean what they have said and promulgated. Employment agencies and the union must also be informed and convinced. As usual, actions in hiring and upgrading will mean far more than a planned publicity campaign alone.

If the firm is serious about improving significantly the percentages of blacks employed, special efforts such as the following will have to be forthcoming in the area of recruitment: (1) Pacific Telephone and Telegraph Company uses walking employment offices—Spanish and black recruiters go to people's homes, barbershops, poolrooms, and bars; (2) Michigan Bell sends recruiting trailers to the ghetto areas; (3) Westinghouse Electric provides 1 day plant orientation sessions for students from predominantly black high schools; and (4) General Electric took legal steps to open up housing for a newly hired black engineer.

In the placement process, application blanks will have to be altered to eliminate questions bearing upon race, religion, and nationality, and interviewers will have to be retrained to assure equal treatment of all applicants. If the black applicant must be rejected on the basis of inadequate qualifications, frankness is important. Acceptance of such rejections is facilitated if it is realized that other blacks have already been hired successfully by the firm. The black is sensitive because of past discrimination, and any rejection must be handled skillfully. At the least, careful rejection records must be kept.

Concerning introduction and orientation of the new black employee, the supervisor is of utmost importance. Certainly, the new employees must be carefully oriented. Though technically qualified, the new black employees may need help in adjusting not only to the industrial environment, but also to the probable "cold" initial acceptance by the majority. They should be placed in departments where supervisors are both sympathetic to the company policy and respected by present subordinates. Supervisors should speak frankly of possible prejudice and the necessity for patience and good performance. They should indicate that they and the company will not tolerate fellow employee actions when they definitely interfere with work processes or when they make it too uncomfortable for the new employees to carry on. If overt resistance is encountered, firm action in consonance with the policy is an absolute necessity. In regard to the employee himself or herself, the manager should expect acceptable levels of job performance, criticize constructively when necessary, and handle disciplinary problems in the same manner that would be employed for those of majority members.

FEMALE EMPLOYEES

In the last two decades, the proportion of the work force that is female has been increasing at a rapid pace. In 1960, approximately 33 percent of the labor force was female; currently, the percentage is somewhat in excess of 40 percent and still growing. Some of this increase can be attributed to changes in cultural beliefs and norms; yet the assurance of greater opportunities through the civil rights legislation has also contributed to these increased numbers.

Since 1964 there have been numerous major federal court decisions regarding the employment of females. Among the illegalities discovered are: (1) refusal to hire women, but not men, with young children; (2) refusal to hire married women; (3) refusal to hire a female because she might become pregnant; (4) discharging an unmarried pregnant female; (5) requiring pregnant employees to take leave without regard to ability to perform the job; (6) refusal to hire females because heavy weights must be lifted; and (7) taking away seniority rights after pregnancy leave. On the other hand, the Supreme Court decision in the General Electric Co. v. Gilbert case held that exclusion of pregnancy from the risks covered by an employer's disability benefits plan does riot violate the Civil Rights Act. This ruling was nullified by Congress during an all-night session leading to adjournment on October 15, 1978. An amendment to the Civil Rights Act made it clear that prohibitions against sex discrimination covered by the Act include employment based on pregnancy, childbirth, or related medical conditions. Pregnant workers are to be treated the same as others, including receipt of benefits under fringe-benefit programs.

The Civil Rights Act specifically provides for the possibility of a bona fide occupational qualification (BFOQ) in regard to sex. For example, one may specify hiring a male or female for the job of actor or actress. In the case of Dothard v. Rawlinson, a female applicant for a job of correctional counselor in an Alabama state prison was turned down because she could not meet the state's 5'2", 120-pound minimum requirement. It was shown that these minimums excluded 41 percent of the female population of the United States while excluding less than 1 percent of the males. The court determined that there was little evidence that these minimums were required to perform the job adequately. However, the court went on to specify that sex, rather than height and weight, was a BFOQ because of the "jungle" nature of state prisons. It was determined that a female's ability to maintain order in a male, maximum security penitentiary would be directly reduced by her womanhood.

Despite the law and many specific legal decisions, it is true that equal opportunity is denied to female employees in many subtle ways on a daily basis. When identical scenarios are provided research subjects, the mere change of a name from "John" to "Joan" revealed significantly different attitudes toward hiring females for traveling sales jobs, sending females to management training programs, transferring females to positions in other states, and expecting the female spouse to support the male's occupational career and not vice versa. Employment interviewers may describe the same job differently to females than males, in the one case emphasizing congenial colleagues and in the other pointing out the developmental opportunities. A supervisor may give a female a rather superficial performance appraisal on the immediate job with no diffusion of career advancement. When a man is found on the market that a firm really wants, the job may be redesigned to suit; but in self-consciously seeking a female, the job may be designed with such detailed care that the "perfect" female candidate surprisingly cannot be found.

When an employer is desirous of providing truly equal opportunity for females, such practices as the following are recommended: (1) remove sex labels from all jobs; (2) formulate a policy statement of firm declaration of intent regarding treatment of females; (3) establish company-wide posting of job openings; (4) make available educational and training programs to females, with emphasis upon developmental experiences on the job, such as "assistant-to" positions, internships, and temporary assignments; (5) establish a procedure where career-ambitious females can have contact with higher-level executives to pose questions, suggest actions, and define problems; (6) provide for reinforcement contacts among similarly career-ambitious female employees, and (7) provide more flexibility in work times through flextime, sharing jobs, and leaves of absence. The government will provide surveillance over the statistics of hiring and promotion; only management can provide surveillance over the activities that really count in providing truly equal opportunity.

THE OLDER EMPLOYEE

The original Age Discrimination in Employment Act passed in 1967 prohibited discrimination in employment based upon age with respect to individuals who were at least 40 years of age but less than 65 years. The practices included were failure to hire, denial of opportunities, discharge, and discrimination in regard to conditions of employment. In 1978, the act was amended to prohibit mandatory retirement for those under the age of 70. The act applies to private employers who employ at least 20 workers, and to state and local governments. Specific exemptions include certain high-risk jobs such as police officers and fire fighters, and high-paid private employees who could retire with very liberal pensions. Other temporary exemptions were specified in the case of college and university faculty members; mandatory retirement under 70 is permitted until July 1, 1982. The amendment also defers the age 70 ceiling if lower ages are contained in retirement benefit plans or seniority systems provided by collective bargaining agreements; the delay in this case is until January 1, 1980 or until the termination of such an agreement. In regard to federal government employees, mandatory retirement is prohibited at any age.

Much of the court activity under this act has been in reference to discharge and forced retirement. Recently, Exxon Research and Engineering Company were found guilty in U.S. District Court of pressuring a research chemist to retire at the age of 60. The chemist had been assigned to menial tasks when he refused to retire voluntarily. In another instance, three supervisors, ages 57 to 59, were discharged for failure to get the work out. When the company immediately ran recruitment advertisements seeking supervisors aged 30 to 35 years, the dis-charged supervisors sued for damages and won. The act does not prevent discharge of older workers who are unable to perform satisfactorily. In another instance, a court upheld the discharge of a 52 year old sales manager when evidence was provided of lower sales for him in combination with continuation of a number of older managers with higher sales. In 1974, there were 3,040 complaints filed and 1,648 older employees awarded damages of over $6 million.

The law also provides for the possibility of age being a BFOQ in hiring. Greyhound Lines, Inc. specifies that new hires cannot be older than 35 years of age. When evidence was produced proving that the safest intercity bus driver is between ages 50 and 55 with 16 to 20 years of experience, age was approved as a bona fide occupational qualification for hiring. Similarly, the Federal Aviation Agency regulation which establishes the age of 60 as the maximum for airline pilots is a BFOQ.

As in the case of females, a stereotype of the typical older employee exists in the minds of many managers. Older employees are often considered to be inflexible, resistant to change, less creative, and unable to deal with crisis situations. When treated in this fashion, it may well become a self-fulfilling prophesy. When given equal opportunity, studies show that they are the equal of the younger in terms of quantity and quality of output. In addition, they offer maturity derived from experience. Older workers are less prone to accidents than the younger; caution and experience may compensate for loss in agility and dexterity. They are also usually superior in terms of turnover inasmuch as they are, ironically, fully aware of the discrimination that exists and thus more appreciative of the job they now hold.

RELIGIONS AND NATIONALITIES

There have been relatively few cases involving charges of discrimination on the basis of religion. Though the original Civil Rights Act prohibited discrimination on a religious basis, there was little elaboration of its meaning. The 1972 amendment to the act indicated that not only religious beliefs, but religious observances and practices were to be protected. In addition, contrary to all other protected groups under the act, employers are required to "accommodate to the religious needs of employees" when such accommodation can be made without serious inconvenience to the firm. The argument is that a requirement that impacts only on one religious group has a disparate effect, and cannot be legal unless justified by business necessity.

As an example of employer problems in this area, Trans World Airlines operates its stores department 24 hours a day, 365 days per year. Saturday and Sunday assignments are generally undesirable and a skeleton crew is operated. One employee, a member of the Worldwide Church, observed his Sabbath on Saturday. Assignment to weekend work was made on a seniority basis. The company has tried to find the employee another job and attempted to persuade the union to arrange swaps with other employees. The Circuit Court ruled that TWA had not made sufficient effort to accommodate the employee's religious practices. It suggested that the employee could work a 4-day week with another employee taking his place, or other personnel could have filled in on Saturday with overtime pay. This ruling was overturned by the Supreme Court which maintained that TWA had made a good attempt to accommodate, that an agreed upon seniority system must not give way to accommodate religious observances, and that anything more than a minimum cost to accommodate is an undue hardship on the company. The rights of the many should not be sacrificed for the rights of a few.

There are also relatively few charges of discrimination on the basis of national origin. EEOC guidelines suggest that possible discrimination on this basis could be involved in language requirements, height and weight requirements, membership in organizations promoting rights of particular groups, and having a surname indicative of a particular national origin. In one case involving the County of Los Angeles, it was charged that requiring a minimum height of 5'7" for fire-fighters excluded 45 percent of otherwise eligible Mexican-American applicants. The County failed to show that the requirement was job related, though the Chief, who stands 5'8" himself, said that he believed that a smaller person might have difficulty in working with taller persons in removing long ladders.

THE HANDICAPPED

The Vocational Rehabilitation Act of 1973 requires firms receiving 52,500 or more annually in federal contracts to (1) take affirmative action to employ and advance in employment qualified handicapped persons, and (2) make a reasonable accommodation to the physical and mental limitations of handicapped employees. It is estimated that there are over 20 million handicapped people in this country, of which some 7 million are employed. A handicapped person is one who has a physical or mental impairment that substantially limits one or more of life's major activities or one who has a record of such impairment or is regarded as having impairment. Thus, one who had been in a mental hospital, but is now mentally sound, might still be regarded by some employers as handicapped because of the record of mental illness. According to current guidelines, rehabilitated alcoholics and drug addicts are regarded as handicapped under the law. To be covered by the law, individuals must have their handicaps certified by an agency of the Department of Labor.

As of 1977, the OFCCP in the Department of Labor has received approximately 2,000 complaints from the handicapped. About half have been closed with 200 settled in favor of the complainant. Over $100,000 in back pay has been collected in compensation for discrimination against such handicaps as epilepsy, back injury, hearing loss, emotional illness, diabetes, heart disorder, and previous mental illness. To date, all settlements have been made by the OFCCP with no case having gone to court.

Most of the above cases could have been avoided by sound personnel practices. Job descriptions could be reviewed to find, out where a specific individual could best fit. In some instances, one with a handicap is often more suited to a particular job than the so-called normal person. DuPont studied 1,452 employees with a variety of handicaps and discovered that 96 percent rated average or better in safety records both on and off the job, 79 percent had average or better attendance, and 91 percent had average or better job performance. This is certainly one area where a little affirmative effort on the part of firms will pay good dividends to both the organization and the handicapped person.

The second requirement of the act is to accommodate the handicapped in terms of work access and facilities. Rather than requiring unlimited expenditures for special equipment, the DuPont study showed that relatively few disabled workers required unusual work arrangements. Accommodations such as raised hallway signs to assist the blind, telephone amplifiers to help the hearing-impaired, and curb cuts to help the wheelchair-bound employees cost relatively little. As one manager stated, "It's peanuts when you compare the job performance and loyalty of these people.

ORGANIZATION AND PROCEDURES

As indicated in Figure 3-1, there are a number of different agencies in the federal government that are involved with administering fair employment practices legislation and orders. Often they issue conflicting instructions, e.g., detailing different requirements for validating selection devices. A reorganization plan has been submitted whereby the EEOC would become the "super agency," taking over first the Civil Service Commission's civil rights authority over government workers, then equal pay and age discrimination programs from the Department of Labor, and finally the functions of the OFCCP in monitoring government contractors. The EEOC consists of five commissioners and a general counsel appointed by the President and confirmed by the Senate. It has responsibility for processing individual charges of discrimination and stipulating various rules and guidelines in the interpretation of the Civil Rights Act.

Organizations covered by the Civil Rights Act must maintain records which reflect the composition of their work forces as well as those pertaining to the normal course of business, e.g., hiring’s, transfers, promotions, and layoffs. All organizations with 100 or more employees must file an annual information report showing the relationship of minority and female workers to both the total labor force and for the following job categories: officials and managers, professionals, technicians, sales workers, office and clerical, craft workers, operatives, laborers, and service workers. No one person can be counted in more than one race-ethnic category. These data are compiled and integrated on a geographic and industrial basis to reflect trends in employment.

Concerning the individual or group charge procedure, one must be filed at an EEOC district office within 180 days after occurrence, or 300 days if the alleged offence took place in a state with its own fair employment practices agency. If in such a state, the charge must be referred to the state agency first. If not settled by the state within 60 days, the EEOC can assume jurisdiction. Once the charge is accepted, notice must be served upon the employing organization concerned within 10 days.

There then follows an investigation of the charge to determine whether it has reasonable cause. The Commission is empowered to issue subpoenas, require attendance, and take testimony. Field investigators obtain affidavits from the charging party, respondent, and witnesses on both sides. On the basis of the evidence, the Commission will reach a decision. If it concludes that discrimination has taken place, it will then enter into a process of conference, conciliation and persuasion with the organization in the hope of working out some settlement that will remedy the situation. If one is developed, it becomes a tripartite agreement signed by the EEOC, charging party, and respondent. If one is not developed, the EEOC has the option of litigation in the federal courts. Should they elect not to sue, and relatively few cases are brought to court, the charging party will be given the statutory right to sue. This must be done within 90 days of receiving such authorization.

Because of the formidable backlog of unprocessed charges, the EEOC is experimenting with a faster and more informal procedure. In a few model offices, EEOC specialists are turning from making charges automatically to putting the accuser and accused together on a face-to-face basis as quickly as possible. In these experimental districts, the number of formal charges has dropped about 40 percent. In one instance, a black truck driver complained that his employer had discriminated against him by requiring a road test when it made no such requirement for white drivers. The quick, informal investigation revealed that other black drivers took no such test, but they required one of him since he had experienced two accidents and received a speeding ticket in the first few weeks on the job. No charge letter was written. In another case, a real estate company explained its rejection of a woman by claiming that she lacked training and a real estate license. When she whipped out her license, the company agreed to give her a job on the spot.

AFFIRMATIVE ACTION PROGRAMS

In contrast to the equal opportunity policy of the Civil Rights Act, laws and Executive orders enforced by the OFCCP require affirmative action programs for covered government contractors. An affirmative action program would encompass the following elements: (1) analysis of the firm's current utilization of females and minorities; (2) comparing ethnic and sexual composition of the firm with the availability of qualified females and minorities in the relevant recruiting area; (3) establishing goals and hiring rates to correct discrepancies; (4) development of action-oriented programs in recruitment, training, and promotion to enable goal accomplishment; and (5) constant auditing of applicant flow and personnel records to insure steady progress toward goals.

In the first Supreme Court case that pertained directly to the constitutionality of affirmative action programs, the court ruled in Regents of the University of California v. Bakke that quotas for university admission based entirely on race, in situations where no previous discrimination had been found, are flatly illegal. In the 5 to 4 decision, the court, however, authorized consideration of race as one factor among many in making the admission decision. As Justice Lewis Powell stated, "in such an admission program, race or ethnic background may be deemed a 'plus' in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats." Whether the 16 of 100 seats reserved at the university for blacks, Hispanics and Asian-Americans were called "quotas" or "goals," the court prohibited drawing a line solely on the basis of race and ethnic status.

Thus, flexible affirmative action programs which require managers to consider race, ethnic background, or sex in making admission or hiring decisions are supported by the decision. Because of the closeness of the vote and complex nature of the decision, it is not as yet clear to what degree an enterprise can establish numerical or subjective goals to improve the percentage of minorities and females in the work force. As a consequence, it is predicted that the impact of the decision upon current affirmative action programs is not likely to be great.

Written affirmative action programs are required of all government vendors with fifty or more employees and $50,000 or more in contract value. Though such programs cannot be ordered under the Civil Rights Act, the EEOC has announced that such activity is probably necessary to be fully in compliance with the act. And of course, should a firm be found guilty of discrimination in litigation under the Civil Rights Act, the court may specify its own affirmative action program to redress the situation.

The first step in developing an affirmative action program is to compute how many minorities and females are currently employed in each major job classification. A hypothetical situation is detailed in Figure 3-2 and shows percentage utilization in seven job categories. For example, of all managerial jobs, 4 percent are held by females and 6 percent by minorities. On the other hand, 98 percent of all secretarial and clerical jobs are held by females, 12 percent by minorities.

The second step is perhaps the most difficult. One must determine the number of available qualified personnel in the market area for each job category. The market area for a management job is likely to be broader than one for an operative or security job. In making this determination, the OFCCP requires consideration of such factors as the following: (1) minority population in the labor area surrounding the firm; (2) amount of minority/female unemployment in the area; (3) percentage of minority/female work force as compared with total work force in the area; (4) general availability of minorities/females with requisite skills, both within the firm through promotion processes and externally for recruitment purposes; and (5) the existence of training institutions capable of developing the requisite skills. In Figure 3-2, it has been determined that there is under utilization of females in managerial positions. Some 20 percent of the available qualified work force is female. In the case of secretarial and clerical positions, we have over utilization; 98 percent of XYZ's clerks and secretaries are females. Though the qualified market is predominantly female, 95 percent, the XYZ Corporation plans no additional hiring goals in excess of 504percent. No one will be dismissed, but the firm plans to encourage more males to enter these types of positions. For AT&T, such a program resulted in a net decrease in the number of females in the entire organization. With respect to minorities, the worker market in managerial jobs is estimated at 10 percent, with the firm's utilization percentage at 6 percent; in the clerical jobs, the figures are 20'percent and 12 percent, respectively.

In establishing employment goals, the upper limit would be the percentage of such personnel in the total population of the appropriate area. The more practical ultimate goal would be the percentage of qualified personnel in the work force population. Goals for lower-skilled jobs may be met fairly quickly if the firm is growing. Goals for the professions will often consume longer periods of time. When the firm is stable or contracting in size, the task of more equitable utilization is a formidable one. Courts have ruled that existing bona fide seniority systems for layoff cannot be circumvented in order to retain newly hired females and minorities. Returning to the XYZ firm, the company plans to increase the percentage utilization of females in managerial positions to 6 percent after 1 year and 12 percent after 5 years. This would still not meet the estimated worker market percentage. For minorities in these same managerial jobs, the XYZ Corporation has established the market percentage as its target at the end of 5 years. Concerning the secretarial and clerical positions, the firm will make no special effort to hire females, but will strive to meet the market percentage of 20 percent in the case of minority personnel.

There has been much discussion concerning whether these goals are in reality "quotas" which result in reverse discrimination for the white male majority. A white male filed suit against the affirmative action plans in the aluminum industry. One plan provision ended the industry practice of hiring craft employees with previous experience, and substituted in-house training programs for such skilled jobs as electrician and instrument repair person. For a time, an equal number of blacks and whites would be admitted to the training courses. Both a federal district and a circuit court of appeals found that the plan violated the Civil Rights Act by making race a factor in employment decisions. Yet the plan was developed under the rules of Executive Order No. 11246. As one lawyer stated, whatever the firms do, they are going to be sued, "but courts usually treat you better if it is white males you are discriminating against.”

Minorities and females cannot be preferred simply because they are minorities and female. And white males cannot be rejected solely because they are in that category. However, it has been suggested that the whole person should be evaluated which would require consideration of the handicaps which have been overcome. "In short, in evaluating a black and a white candidate, whether for hire or promotion, both of whom are qualified, it is proper to give consideration to the distance which each has traveled and the handicaps which each has overcome in achieving the personal characteristics and abilities which each has at the particular point in time." Such a policy has been termed by some as utilizing "soft goals." Preference for the minority or female, who meets minimum job requirements, when superior white males are available, would fall into the category of "hard goals." It is the latter practice that risks the charge of making race or sex a prime determining factor in employment decisions. When targets are not met and the government accepts good faith efforts in their stead, this suggests they are truly goals and not quotas.

Despite the great concern about goals, the meat of an affirmative action program lies in all the activities necessary to make the plan work. An equal employment opportunity policy must be formulated and announced in the policy manual, company newspaper, bulletin board, and communications with recruiting sources and company vendors. A specific executive should be appointed as director of the program and given top management, support and staffing. Recommended specific activities would include: (1) broadened recruitment efforts in areas where females and minorities are likely to be found; (2) formal career counseling programs to include attitude development, education aid, and job rotation; (3) possible child-care, housing and transportation programs designed to improve employment opportunities; and (4) including equal employment opportunity efforts in the performance appraisal of all supervisors.

In 1973, the American Telephone and Telegraph Company signed an agreement with EEOC to undertake a massive affirmative action program. To implement the agreement, AT&T has set up a miniature EEOC within its own company, staffed with 750 people with an annual salary cost of $15 million. In some categories, the employment goal was established as 38 percent since in 1972 this was the percentage of females in the workforce. Most of these have been met. A target of 19 percent female was placed on skilled outside technical jobs like cable splicer; here, however, less than 2 percent have been placed. For semiskilled inside craft jobs, current utilization is 32 percent female as compared with a goal of 38 percent. Ironically, one result of the program has been to reduce the overall number of females in the firm by some 29,000. This has been caused by placing men in jobs which were formerly exclusively female, e.g., telephone operator, typists, etc. Despite some problems and unmet goals, the AT&T program is regarded as a model by many government officials.”

THE CULTURALLY DISADVANTAGED

Though no national laws require that currently unqualified personnel be hired and utilized by private business firms, the federal government has attempted to encourage help for the culturally disadvantaged through various forms of subsidies. There are in our society a number of persons whose consideration for employment on the basis of current qualifications would lead to their exclusion with little hope for change in the future. Perhaps the more commonly used label for this group would be the "hard-core unemployed." In one group of ninety-eight so identified by the Lockheed Aircraft Corporation, all were male, most were single, three-fourths were black, two-thirds were 20 years old or younger, and two-thirds were school dropouts. For these persons to enter the typical business firm, regular hiring standards must be relaxed.

The Civil Rights Act of 1964 would not prohibit the exclusion of a hard-core unemployed applicant on the basis of lack of job skills. In many instances, the formal education level possessed is no higher than fourth or fifth grade. Consequently, the federal government has become involved on a promotional basis and has appropriated money to subsidize unusual costs of training, personal counseling, and transportation to and from work. This program is labeled "Job Opportunities in Business Sector" (JOBS) and is administered through a voluntary organization of business executives, the National Alliance of Businessmen.

The NAB encourages employer participation in assisting the culturally disadvantaged through either contracts that compensate for unusual expenses or a signed pledge in voluntary recognition of a social responsibility. Examples of such expenses sometimes include serving breakfast to create regular eating habits, education in personal hygiene, transportation door-to-door for the first week, provision of specialized counselors, and even purchasing alarm clocks to re-regulate sleeping and working hours. In a survey of 350 corporations, it was discovered that the retention rate (a crucial success factor) of firms collaborating with JOBS programs averaged 57 percent. This compared with an average of 39 percent for those without formal affiliation with the program. The retention rate is of great importance because of the necessity to convert the culture of the hard-core unemployed to that deemed necessary by the hiring organization in regard to dress, work habits, punctuality, attendance, and so on.

In a study of practices of five large organizations (Boeing, Eastman Kodak, Westinghouse, UAL, Inc., and Bankers Trust Company), it was concluded that an extensive and special effort is necessary to implement a successful hard-core unemployment program. Key elements of the program include top management commitment which gets through to "majority" members; pretraining preparation of the trainee, considerable support while in training, clear linkages of training with the future job, and follow-up activities after the employee assumes the regular job. This and other studies emphasize the very crucial nature of the support activities. The assignment of a specialized counselor is one of the most effective means of increasing successful trainee adaptation. Successful programs also require committed and understanding supervisors who are willing to work in an empathic and counseling manner.

Review of over a decade of experience with employing the culturally disadvantaged has resulted in a number of general conclusions. The most basic one was emphasized in the preceding paragraph the more supportive the environment and the closer the training linkage to an actual job, the more successful the program. The greater top management's support of the program and the more skilled the supervisors in interpersonal relations, the higher the retention of culturally disadvantaged employees. In terms of what not to do, the more the firm relies on conventional recruiting sources and traditional screening practices, the more likely those potentially qualified personnel will be missed. When the disadvantaged employee is present at work, the quantity and quality of output are comparable with other employees. The major difficulty lies in the higher rates of tardiness and absenteeism of such trainees. Of 81 employers studied in one survey, 31 percent relaxed their rules on absenteeism and 12 percent on tardiness. In correlating these practices with retention rates, an inverse relationship was found. Supportiveness should not be translated into permissiveness.

SUMMARY

The federal government's administration of fair employment practices ranks right along with labor union growth as a force causing revolutionary changes in personnel management. Major pieces of legislation and executive orders include: (1) the Civil Rights Act of 1964 which calls for equal opportunity; (2) Executive Orders No. 11246 and No. 11375 which call for equal opportunity and affirmative action for employees of government contractors; (3) Age Discrimination Act of 1967 which prohibits discrimination against the older employee; (4) Vocational Rehabilitation Act of 1973 which calls for equal opportunity and affirmative action for the handicapped; and (5) the Equal Pay Act of 1963 which requires equal pay for equal work.

Groupings of citizens that receive special protection in their civil rights in employment include (1) minority races, (2) minority nationalities, (3) religious groups, (4) females, (5) those aged 40-69, and (6) handicapped personnel. This protection develops through either assuring equal opportunity in covered firms or special affirmative action programs to enlarge the pool of qualified minorities and