App-B Chapter Exercises-CH-3-4

This document contains Chapters 3 to 4 CHAPTER 3 – CHAPTER EXERCISES Chapter Exercise 3.1 Zimpfer v. Palm Beach County Objectives. The purpose of this exercise is to introduce the student to types of evidence, which are considered in an age discrimination case, and to provide a framework for evaluating the organization’s reactions to this claim. An actual case is presented and the student must take a position on the alleged violation of the ADEA and the position the organization should take in the matter. Description. This case cuts to the heart of the ADEA. The author of the textbook (Bernardin) served as the expert witness in this case for the plaintiff. The analysis presented in Exhibit 3.1.3 is the actual data presented in the case. This is an excellent group exercise since there will be considerable disagreement as to whether there is clear evidence of age discrimination and what steps the organization should take. Table 3.1.1 presents the results and implications of the case. The key question in this case is whether age was a determinative factor in the decision not to hire Mr. Zimpfer. While the industrial psychologist’s resume analysis seemed to indicate that Mr. Zimpfer may have been more qualified for the position than Mr. Merriman, there was no evidence presented which indicated that age was related to the decision or that age was the determinative factor. The ADEA is not a law about good or bad personnel decisions per se. It is a law about age discrimination. It is the plaintiff’s job (Mr. Zimpfer, in this case) to show that age was the “determinative factor” in the personnel decision. Mr. Zimpfer presented no such evidence and thus lost the case. The resume analysis was not sufficient to establish prima facie evidence. Form 3.1.1 1. Was Mr. Zimpfer a victim of illegal age discrimination according to ADEA and case law? Explain your position. Cite relevant court cases to justify your position. If you are undecided, explain why. The short answer to the question is no. The sine qua non of age discrimination cases is whether age was the determinative factor in the personnel decision. While the data compiled in Exhibit 3.1.3 made a case that poor personnel decisions may have been made, nothing is presented which indicates age discrimination. In ADEA cases, the burden remains with the plaintiff to show that age was a determinative factor in the decision. Mr. Zimpfer must prove that he was not selected because of his age. (See Mastie v. Great Lakes Steel.) The resume analysis does not necesarily indicate age discrimination. The resume analysis, which was actually done by Dr. Bernardin in this actual case, was not sufficient to establish prima facie evidence. PAGE 73- “The second condition is the biggest challenge for the plaintiff and is usually the one where the plaintiff falls short in establishing a prima facie case due to the usual subjectivity in comparing individuals. Expert witnesses are often used who present evidence that the plaintiff is more qualified than the person (or persons) hired (or retained). Of course, a defendant can rebut all such claims based on other data or critiques of the plaintiff’s evidence and expert testimony.” 2. What (if any) further information should be ascertained before the county fully understands the legal implications of its actions? The missing ingredient in this case is the performance data on Mr. Zimpfer. The attorney representing the defending county asked the expert if Mr. Zimpfer’s performance on the various relevant tasks was a factor that could and should be considered by the county and, of course, the expert answered in the affirmative. If the performance data in areas relevant to the job were all very positive, Mr. Zimpfer might have a more persuasive case although he still must show that age was the determinative factor in the ultimate decision. The county should also ensure that the major decision makers expressed no prejudice against Mr. Zimpfer because of his age (no “smoking guns” where decision- makers made ageist remarks). 3. Who has the ultimate burden in proving age discrimination in this case and what is that burden? The burden is on the plaintiff (Zimpfer) who must prove that age was the determinative factor in the decision. See page s 73 and 74 and the discussion of Mastie v. Great Lakes decision. 4. What policies should the county adopt to reduce the possibility of age discrimination suits in the future? A process of selection such as that adopted by the expert but which incorporates any actual job performance data into the equation would make the selection system more objective. An internal system for handling complaints of all types (age, race, sex, national origin) would also increase the fairness of the decision and (hopefully) reduce the probability of litigation. 5. Could Palm Beach County be vuilnerable to a future ADEA lawsuit using using “disparate impact” theory? If so, who would have the ultimate burden in such a case and what would the burden be? What critical Supreme Court ruling is relevant to this question? Palm Beach county could be vulnerable to ADEA lawsuits based on disparate impact due to the 2005 Supreme Court decision in Smith v. Jackson. In addition to Smith v. City of Jackson (03-1160) 544 U.S. 228 (2005). In 2008, in Meacham v. Knolls Atomic Power Laboratory (No. 06-1505) 461 F. 3d 134, the Supreme Court, held that an “employer defending a disparate-impact claim under the ADEA bears both the burden of production and the burden of persuasion for the “reasonable factors other than age” (RFOA) affirmative defense under §623(f)(1). Pp. 5–17. See page 74. Chapter Exercise 3.2 Goebel et al. v. Frank Clothiers Objectives. The purpose of Exercise 3.2 is to illustrate the role of statistics in Title VII cases and to show the issues involved in cases involving adverse impact and paper and pencil testing. The exercise deals with the very difficult issue of racial differences on paper and pencil tests, tests which research generally indicates to be valid. Description. This is a case that focuses on the findings of the Supreme Court ruling in Connecticut v. Teal (p.66) . The so-called “bottom line” defense (i.e., who was actually hired (or promoted)) favored the plaintiffs (16 out of 36 positions were filled with African-Americans). Connecticut also made final decisions that were quite favorable to blacks. However, as in Connecticut v. Teal, the adverse impact analysis established a prima facie case of discrimination against Mr. Goebel and others at the first hurdle in the selection process. Using the four-fifths rule at this step, adverse impact was found against blacks. From page 66- “The Supreme Court declared that the job-relatedness argument must be applied to all steps of a multiple-hurdle selection procedure.10 Winnie Teal had been denied promotion to a supervisory position because of a low score on a written exam that was the first hurdle of the promotion process. When the final promotion decisions were made, the “bottom line” decisions (i.e., who was actually promoted) actually favored African-Americans. But the Supreme Court ruled in Connecticut v. Teal (1982) that the “bottom line” is not an acceptable legal defense in such a case. Rather, the “job relatedness” argument must be made for any step where “prima facie” evidence is presented. Thus, in Connecticut v. Teal, the burden was on the defendant to prove the test was “job related” even though the state had actually promoted a proportional number of African-Americans. “ The burden of proof then shifts to Frank Clothiers; Frank must show the intelligence test is “job related.” The key questions with regard to the “job relatedness” of the test are as follows: 1. Is there a job analysis that can justify the use of the test? 2. Is there any evidence of content or empirically- based validity for the test from either this particular setting or somewhere else where a similar job is performed? The answers to these questions are critical for determining the appropriate action the organization should take (these issues are examined in great detail in Chapter 6). Table 3.2.1 presents recommended answers for each of the questions on Form 3.2.1. Table 3.2.1 Form 3.2.1 Answers 1. Were Mr. Goebel and other African-American applicants victims of racial discrimination because of the hiring policies of Frank Clothiers? Explain your position and cite all relevant Supreme Court decisions. If you cannot take a definitive position, explain what information you require to be able to take a position. The data presented indicates prima facie evidence of discrimination at the step in which Mr. Goebel was eliminated from consideration based on his test score (See Connecticut v. Teal). Frank still has an opportunity to prove that the test is “job related” or valid (i.e., performance on the test is related to performance on the job). The information presented in the case does not allow the student to make clear an assessment of the test’s validity or job relatedness. Griggs v. Duke Power, Albemarle v. Moody, and Connecticut v. Teal are the major cases. 2. Is there evidence of disparate impact against African Americans in the decisions that were made? Illustrate how the “80 percent rule” can be used with the data in Exhibit 3.2.1 and whether there was a violation of this rule. There is a clear violation of the four-fifths rule at Step 1 of the selection process. While 49% of the African-Americans passed the exam, 72% of the whites passed. Since 49% is less than 58% (.80 of .72), there is a violation of the 80% rule and, therefore, prima facie evidence of discrimination. From page 67- A superior statistic also used in numerous EEO cases to examine and define “prima facie” evidence of discrimination is the Fisher’s Exact Test (for a demonstration go to: http://www.langsrud.com/fisher.htm). The Fisher test can be used to test whether there is any relation between two categorical variables (e.g., males and females) and two levels (e.g., promoted/not promoted). 3. If disparate impact is evident, what step should the defendant take next? Provide specific recommendations. The defendant must either develop an argument (hopefully based on the data) that the test is valid or endeavor to settle the case. Since the plaintiff will follow this line, a study is needed which explores the use of alternative methods of selection that are “job related” and either as valid or more valid, but which do not result in as much (if any) adverse impact. The need for the particular cut-off score, which resulted in a violation of the four-fifths rule should also be examined. Could the cut-off score be lowered to eliminate the adverse impact? From page 66- “Evidence of a significant correlation between test scores and job performance is considered ideal to support an argument of job relatedness. HRM specialists conduct such studies routinely to evaluate the use of a test or selection procedure.” From page 65- “Remember that these statistical data establish only prima facie evidence of discrimination. The employer still has the opportunity to prove “job relatedness” and/or “business necessity” for the practice or procedure. Such statistical analysis can also be used in disparate treatment cases to buttress a claim of intentional discrimination and a “pattern and practice” of such discrimination.” From page 66- “Could the company “borrow” a validity study based on data collected in several other organizations? Called validity generalization (VG) studies and based on meta-analytic research, there are now many studies based on the correct assumption that the mean of several correlational studies is probably a strong basis for concluding that there is a valid relationship between test scores and job performance for similar job situations. However, the most recent review on this issue concludes that the courts have not been that impressed with VG evidence. In order to “borrow” validity in this manner, the organization needs to demonstrate that the job connected to the lawsuit is similar to the jobs under study in the VG study. In addition, the VG study should present sufficient detail on the individual studies that led to the inference that the test was valid. Even with solid VG evidence, however, it is unclear whether the exclusive use of “borrowed” validity in the form of a VG study will meet the “job relatedness” burden for organizations.” 4. An associate of the Personnel Department proposes that Frank should continue to use the examination but that the test scores should be interpreted by the ethnic classification of the test taker. For example, raw scores on the exam would be converted to percentages within ethnic classification. With such a procedure, African-Americans taking the test who receive the exact raw score as whites would receive a higher percentage score on the exam because of the within-ethnic interpretation. He argues that this procedure would enable Frank to continue using a valid and useful test while avoiding adverse impact (Mr. Goebel would have advanced to the interview with this approach). Take a position on this recommendation. From page 65- “The practice of race (and gender) norming was outlawed by the Civil Rights Act of 1991. Title VII now states that “It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.” 5. Gordon Howe, a white male, scored 48 on the WPT and was interviewed but not hired. Does Mr. Howe have a possible Title VII lawsuit? Could whites who were interviewed but not hired file a Title VII class-action lawsuit? Mr. Howe may have a case. The process of making final decisions should be analyzed since the 80% rule works both ways. The data seem to indicate an 80% rule violation at the interview stage. The gender makeup of the applicants and their scores should also be analyzed in view of the disparate impact regarding the African-American applicants. A class-action lawsuit brought by whites is possible. So-called “reverse discrimination” claims are possible under Title VII, and the Teal decision applies regardless of race or gender. Hispanic rate of passing is right at 80% of whites. 6. Can “disparate impact” theory be used in cases involving subjective selection processes like interviews? What Supreme court case supports your position? Subjective selection processes such as interviews are subject to “disparate impact” theory lawsuits (Watson v. Ft. Worth Bank & Trust, 1988). See page 68. “This decision is of course critical for many class-action cases, including Dukes v. Wal-Mart, where women maintain that the “subjective” method of selecting and promoting managers was discriminatory. “ The Supreme Court heard oral arguments in Ricci v. DeStefano in April, 2009, a critical “reverse discrimination case that will be decided in June, 2009. See the reference to the “equal protection clause” on page 72. The Equal Protection Clause of the 14th Amendment-prohibits states from denying any person within its jurisdiction the equal protection of the laws. Chapter Exercise 3.3 A Case of Illegal Sexual Harassment? * Jennifer Collins Objective. The purpose of Exercise 3.3 is to provide a definition of sexual harassment, to illustrate the basis of a sexual harassment claim, and to identify the implications for organizations. Description. Accepting a theory presented at a lower court in Bundy v. Jackson, the Supreme Court ruling in Meritor Savings v. Vinson is applicable to this case. If Ms. Smith can establish that her work environment was hostile or otherwise unfavorable due to the sexual harassment, such a situation in and of itself can constitute a violation of Title VII. It is not necessary to establish a connection between the sexual harassment and some personnel action (e.g., the female was fired or not promoted because she refused to submit to the harassment). In addition, the Supreme Court established that the organization is liable when it is aware of the harassment and takes no action. Thus, since the complaint was filed, presumably the organization may be considered liable for the actions of its employees. The most recent cases decided by the Supreme Court apply to this case. The “affirmative defense” established by Faragher does not help the employer in this case since the policy is flawed. From page 67- “Sexual harassment is one form of such illegal harassment. There were over 27,000 charges of illegal harassment in 2007 not including sexual harassment. In a much publicized case, the EEOC settled a harassment case in 2008 with Tavern on the Green, a landmark restaurant located in Central Park in New York City. The settlement was for over $2 million but also entailed substantial remedial relief and carful court scrutiny in the future. The EEOC alleged that the restaurant’s managers and others engaged in severe and pervasive sexual, racial, and national origin harassment of female, black, and Hispanic employees and then retaliated against employees who complained. The harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” From page 67- “Sexual harassment filings in 2007 totaled 12,510, a 4 percent increase from the prior fiscal year. Under Title VII, sexual harassment, like racial and ethnic harassment, is illegal since it constitutes discrimination with respect to a person’s conditions of employment. These conditions can refer to psychological and emotional workplace conditions that are coercive or insulting to an individual. The EEOC has published Guidelines for employers dealing with sexual harassment issues (go to www.eeoc.gov). According to these Guidelines, sexual harassment is defined as follows: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. A growing number of sexual harassment complaints are filed by males (16 percent in 2007). However, harassment of an employee because of sexual orientation does not constitute illegal harassment under Title VII (it probably does under applicable state or local laws prohibiting discrimination based on sexual orientation).” Table 3.3.1 Answers to Form 3.3.1 1. Does the alleged sexual harassment in Bowman constitute a violation of Title VII? Explain your answer. If you are not ready to take a definitive position, explain what information you require. From page 68- “Two 1998 Supreme Court decisions provided clarification on employer liability for sexual harassment by supervisors. In Burlington Industries, Inc. v. Ellerth and in Faragher v. City of Boca Raton, the Court said that the employer is always liable when a hostile environment is created by a supervisor that results in a tangible employment action (e.g., termination). However, the employer may not be liable when there is no tangible employment action if it can be shown that the employer exercised “reasonable care” in preventing and correcting the harassing behavior and the plaintiff failed to take advantage of corrective opportunities that were available. This so-called affirmative defense clearly indicates that organizations should have sexual harassment policies in place and communicated to all employees. Figure 3-7 presents a summary of employer liability for all forms of harassment by supervisors. “ The basis for sexual harassment is unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when the advances either submitting or rejecting them, affects the terms, conditions, or decisions of employment, or interferes with an individual’s work performance. The propositions made by McKenna on several occasions in private and in public probably created a hostile, intimidating offensive working environment for Ms. Smith. 2. Do the alleged charges brought against Putnam County constitute a violation of Title VII? Is the County liable? Explain your answer. What changes, if any, should the County make to their sexual harassment policy? As with Question #1, the basis for sexual harassment is unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when the advances either submitting or rejecting them, affects the terms, conditions, or decisions of employment, or interferes with an individual’s work performance. 3. Do Nixon and Whitman have legitimate discrimination claims? Mr. Nixon claims he was fired because of his relationship with Mr. Whitman, not because of his alleged harassment by Commissioner Richards. The harassment could not therefore be associated with the actual termination. Mr. Nixon may have a case if state law prohibits employment discrimination based on sexual preference. However harassment during Mr. Nixon’s tenure may be admissible, per Meritor Savings Bank v. Vinson (1986), and Burlington Industries, Inc. v. Ellerth, but only if he can prove that the relationship was not mutual. This is unlikely since he had a romantic relationship with Commissioner Richards prior to working for her. If harassment is found to have occurred, then the county is liable. Burlington Industries, Inc. v. Ellerth applies here as well, where an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions. In addition, under the EEOC Guidelines, "an employer is liable for sexual harassment by its supervisors regardless of whether the employer knew or should have known about the harassment." Mr. Kaline’s knowledge of possible harassment and lack of action makes the city culpable. The basis of Mr.Whitman’s claim is unclear but he is protected from retaliation should he testify. Changes the city should make include: 1. Have a clear understanding of charges - interview the plaintiff, witnesses, and the manager. Get all statements in writing. Get details of claim. 2. Reply immediately in writing to the charges (see below for a probable position). 3. Change policy against sexual harassment of employees to allow other avenues for complaints. The county should probably fight the claims due to the prior relationship between the Commissioner and Mr. Nixon. 4. For both cases: Could (or should) the organizations institute a no-dating policy that would explicitly prohibit dating between supervisors and subordinates? Is such a policy legal? The organizations can impose such a policy. Many organizations have adopted such policies. A federal court of appeals, following the national trend, has ruled that an employer may enforce a no-dating policy by terminating employees involved in a romantic relationship. McCavitt v. Swiss Reinsurance America Corp., (2d Cir. 2001). Some State laws prohibit an employer from terminating workers for non-work related conduct, but the court in this instance, like most courts, held that such laws do not protect dating. Despite this case, employers should exercise caution in this area. For example, if the employer chooses which employee is to be dismissed, the employer could face charges of sex discrimination. 5. In both cases, what if the plaintiffs were contingent or leased employees? Would the city and county still be liable for Title VII violations? The city and county may still be liable even if the plaintiffs are leased employees. Part-time employees are covered by all EEO laws. EEOC has developed guidelines for contingent or leased employees, Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms. In this document, the EEOC states that there is a joint liability in any harassment in which they participate. Each case is individual in defending the joint liability. In Riesgo v. Hedelberg Harris, Inc. the court ruled that the agency treated the employee’s complaint correctly and therefore had no liability in the claim. The EEOC offers these guidelines for the agencies to avoid joint liability. The agency must notify the client of the alleged harassment. Assert the agency’s commitment to protect employees from illegal harassment. Demand or lead a prompt investigation. Demand the client organization take corrective measures. In addition, the agency should provide a different job assignment for the alleged victim and discontinue hiring for the client organization until the corrective measures have been adopted. Chapter Exercise 3.4 Reverse Discrimination or Legal Affirmative Action? Objectives. The purpose of Exercise 3.4 is to explore the controversial issues related to policies of “affirmative action” and to provide some guidelines for students to follow with regard to the relationship of affirmative action to personnel decisions, the “equal protection clause” of the U.S. Constitution and Title VII of the Civil Rights Act. See the discussion on pages 71 and 72. Description. The first case is actually the Supreme Court case Johnson v. Santa Clara County (1987) that is described on page 71. Keep in mind there may be a more recent Supreme Court rulings on affirmative action which may contradict the discussion presented in Chapter 3 and the implications of the Johnson and Weber cases. The Position A statement is from the majority opinion in Johnson. Position B, written by Judge Scalia, is the minority opinion. The Supreme Court itself has been deeply divided by the politics of race lately. Chief Justice John Roberts has repeatedly expressed overt hostility to what he has called the "sordid business" of "divvying us up by race." Be certain to get the Supreme Court 2009 opinion in Ricci v. DeStefano. The second case is the Piscataway v. New Jersey, which was settled in 1997, a few weeks before the Supreme Court heard it. Title VII prohibits preferential treatment. Most experts predicted that Ms. Taxman would have prevailed in this case and that the Supreme Court would have provided a more conservative direction to the state of affirmative action. Roger Clegg, general counsel for the Center for Equal Opportunity, referred to the $433,500 settlement as “hush money.” (See Greenhouse, L. Nov. 22, 1997. “Settlement ends high court case on preferences.” New York Times, A1, A12.). In this case, there was no evidence of “manifest imbalance,” and the percentage of African-Americans on the faculty exceeded that in the population of the area in question. The decision of which teacher to lay-off should have been random (a drawing or a lottery), or based on performance or some other “job-related” assessment. Table 3.4.1 Answers to Form 3.4.1 What position do you support? (A or B). What is the basis for your answer (e.g., a court decision, the language of Title VII, EEOC Guidelines)? The Position A statement is from the majority opinion written by Justice Brennan in Johnson v. Transportation agency of Santa Clara County. 480 US 616 (1987). Position B, written by Judge Scalia, is the minority opinion. Page 71- “According to the court, organizations may adopt voluntary programs to hire and promote qualified minorities and women to correct a “manifest imbalance” in their representation in various job categories, even when there is no evidence of past discrimination. This was the first time that the Supreme Court explicitly ruled that women as well as blacks and other minorities can receive preferential treatment. The decision also affects the most common employment situation in the United States today: work situations where it is difficult or impossible to prove past discrimination, but a statistical disparity exists in the number of females and minorities in certain occupations relative to population statistics. Even that decision emphasized that “manifest imbalance” meant substantial, inexplicable differences in workforce representation. The decision also emphasized that preferential treatment may only be granted when job candidates are judged to be “equally qualified.” Thus, race or gender may be considered to essentially break a tie under a condition at “manifest imbalance.” While the majority of the Supreme Court decisions have favored affirmative action and “Manifest imbalance,” reflecting substantial under-representation of women or minorities in traditionally segregated job categories, allows an employer to voluntarily adopt an affirmative action plan that can take race or sex into consideration without violating Title VII. An employer need not point to its prior discriminatory practices, but only to “conspicuous imbalance in traditionally segregated job categories.” The Court also made several references to the fact that Ms. Diane Joyce (the person promoted) and Mr. Paul Johnson were both judged to be “well qualified” for the job. Most experts believe that this judgment of equality was a necessary condition for the decision. In other words, gender classification could not outweigh a nondiscriminatory, job-related assessment of potential. Candidates must be considered equally qualified. 2. Given the actual wording in Section 703J of Title VII (see Figure 33, page 42), which seems to explicitly prohibit preferential treatment, how can an organization show preference to women as in this case? Doesn’t position B seem more compatible with Section 703J? Section 703J (page 58) states that “nothing should be interpreted in this title to require...” but it does not prohibit such consideration. Section 703(j) was cited by Judge Scalia (who wrote Position B) and the Northern District Court of California in Johnson as the basis for the rejection of the affirmative action plan (see text) and the judgment of “reverse discrimination.” But the interpretation of laws is made in the context of the Congressional intent for the law. The majority members of the Supreme Court cited the intent of the law to be to correct “manifest imbalances” which translated into economic imbalances. Affirmative action plans designed to correct such imbalances are thus legal according to the majority of the Court in 1987. The Court, however, also put severe restrictions on the use of affirmative action programs that take race or sex into consideration. The assessment of the legality of the Agency’s affirmative action plan in Johnson was guided by the Supreme Court’s decision in United Steelworkers v. Weber (see page 79). In Weber, the Court upheld the employer’s decision to select less senior black applicants over white respondents because taking race into account was consistent with Title VII’s objective of “breaking down old patterns of racial segregation and hierarchy.” As stated in the decision: “It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustices and intended to improve the lot of those who had ‘been excluded from the American dream for so long’ constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.” Title VII was intended as a “catalyst” for employer efforts to eliminate vestiges of discrimination. 3. To what extent did you take into consideration the great disparity in the number of male and female dispatchers? What conditions are necessary for an organization to show preferential treatment based on a protected class characteristic? The Supreme Court made several references to the “manifest imbalance” if no female and 238 male road dispatchers. Given this disparity, it is not difficult to discern the parameters of “manifest imbalance.” For example, would an affirmative action that takes sex or race into consideration be legal if the imbalance were not so great? The Supreme Court has not addressed this issue since the 1987 decision, but the increased conservatism of the Court along with the language throughout the Johnson decision makes it clear that substantial “underrepresentation” (after considering qualifications) must exist. The statistical disparities, which led to the Weber precedent, were also substantial (1.8% of skilled craft workers were black while 39% of the work force in the area was black). “Manifest imbalance” clearly represents a disparity greater than the 80% rule. 4. To what extent did you consider the qualifications of the candidates in taking your position? Did they have to be equally qualified? What if Jones had an interview score that was 10 points higher than Harrison? Because the certified cut-off score was 70, an assumption that the performance of the individuals above that score had no perceptual differences was made. This can be verified with the statistics on the certification of the specifications. As long as the individuals were within the pool of qualified candidates, any of those qualified should be considered “equally” qualified. A 10 point difference could be interpreted as superior qualifications. 5. Would you have a different opinion in this case if the defendant was a public agency in the state of California? Could the Michigan State Police take race or gender into consideration after defining a pool of qualified candidates as a part of their voluntary affirmative action programs? Explain your answers. California’s Proposition 209 banned preferential hiring and recruiting by state agencies to achieve social parity. In April, 2009, California Atty. Gen. Jerry Brown told the California Supreme Court that Proposition 209, the anti-affirmative action measure passed by voters in 1996, violates the U.S. Constitution. Mr. Brown argued in a letter to the court that Proposition 209, a state constitutional amendment, "closes a door to race- and gender-conscious programs that the 14th Amendment allows." In 2009, the California Supreme Court was considering a challenge to a San Francisco law that gave minorities and women an advantage in bidding for contracts. Similar laws now exist in Nebraska, Washington State and Michigan. Proposition 2, passed in Michigan in 2006 in response to the University of Michigan cases, bans race and gender preferences in public education, employment and contracting. The amendment passed by 58 percent to 42 percent despite strong opposition from government, business, labor, education and religious leaders in the state (see page 72). Table 3.4.2 Answers to Form 3.4.2 1. Was Ms. Taxman a victim of discrimination under Title VII? Explain your answer, citing pertinent cases and discussion. This case is not like United Steelworkers v. Weber or Johnson v. Santa Clara County since at no time was there any discriminatory practice nor were black teachers “underrepresented or underutilized.” Since the percentages for black faculty exceeded that of the area’s workforce black population, there was no reason to institute a voluntary affirmative action plan. This is a case of race being taken into consideration for preferential treatment and therefore in violation of Title VII. Laying off Ms. Taxman unnecessarily trammeled her interest. 2. What does the term “manifest imbalance” mean to you? Is there “manifest imbalance” in this case? The majority members of the Supreme Court cited the intent of the law to be to correct “manifest imbalances” which translated into economic imbalances. Affirmative action plans designed to correct such imbalances are thus legal according to the majority of the Court in 1987. The Court, however, also put severe restrictions on the use of affirmative action programs that take race or sex into consideration. The use of “diversity” as a basis for taking a protected class characteristic into consideration is controversial regardless of other circumstances. Many conservatives argue that a protected class characteristic should never be considered to promote “diversity.” The use of preferential treatment where a protected class characteristic is taken into consideration when making a decision is probably only legally safe when there is a “manifest imbalance” as in Johnson or when the organization is attempting to abide by a court order after an out-of-court settlement or a court-imposed quota following a trial. Go over 703J in class to discern the ambiguity that (apparently) allows some “disparate treatment.” 3. What is the most important Supreme Court case that justifies your position? Section 703(j) was cited by Judge Scalia and the Northern District Court of California in Johnson v. Santa Clara County as the basis for the rejection of the affirmative action plan (see text) and the judgment of “reverse discrimination.” But the interpretation of laws is made in the context of the Congressional intent for the law. The majority members of the Supreme Court cited the intent of the law to be to correct “manifest imbalances” which translated into economic imbalances. Affirmative action plans designed to correct such imbalances are thus legal according to the majority of the Court in 1987. The Court, however, also put severe restrictions on the use of affirmative action programs that take race or sex into consideration. To allow the use of a protected class characteristic to break ties at the end of a decision-making process could promote ties in the process. This gets to the heart of the difficulties in the discourse on affirmative action and preferential treatment. For example, some politicians have stated they are against quotas and discrimination but favor affirmative action but only for those fully qualified. The term “fully qualified” may allow for a process where there is a “tie” among the “fully qualified” and the “tie” is then broken using a protected class characteristic, such as race. 4. If you decide for Ms. Taxman, what do you propose as the remedy? If Ms. Taxman had been awarded the job, would Ms. Williams have redress through Title VII? Explain your answer, citing applicable case law. Recommendation on remedy for Ms. Taxman is as follows: Reinstated with full seniority rights restored and compensated for the loss of pay with interest. If the same process yielded Ms. Taxman keeping her job and Ms. Williams losing hers, the same redress would have been available for Ms. Williams. If Ms. Williams lost her job because of her race, or rather Ms. Taxman retained her job because of her race, preferential treatment was given and Title VII was violated. There is no evidence of manifest imbalance as in Johnson v. Santa Clara County or the righting of a previous wrong as in United Steelworkers v. Weber. 5. Should Universities be allowed to take race into consideration in admission decisions in order to foster a more diverse student body? Explain you answer. In Gratz v. Bollinger (2004) and Grutter v. Bollinger (2004), the Supreme Court ruled that race can be a factor in college admissions since a social value may be derived from greater “diversity” in the classroom (Grutter v. Bollinger). However, race cannot be an “overriding” factor in admissions decisions (Gratz v. Bollinger). While these twin decisions only directly applied to public universities, the decisions could have implications for private schools, other governmental decisions-making and perhaps the business world. From page 72- “The Court ruled that race can be a factor in college admissions since a social value ay be derived from greater “diversity” in the classroom. However, race cannot be an “overriding” factor in admissions decisions. While these twin decisions only directly applied to public universities, the decisions are likely to have implications for private schools, other governmental decision making, and perhaps the business world. The impact of both decisions is that schools have dropped fixed or rigid, point-based systems for admission. Justice Sandra Day O’Connor, writing for the majority in the law school admissions case (Grutter), stated that the Constitution “does not prohibit the law school’s narrowly tailoring use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”22 Justice O’Connor retired in 2006. The Supreme Court is likely to revisit this issue soon. In reaction to the Supreme Court’s decision in Grutter favoring a form of affirmative action where race can be a factor in decision making, the state of Michigan amended their Constitution in 2006 with Proposition 2, banning race and gender preferences in public education, employment, and contracting.” The Supreme Court has been deeply divided by the politics of race. Chief Justice John Roberts has repeatedly expressed overt hostility to what he has called the "sordid business" of "divvying us up by race." Be certain to get the Supreme Court 2009 opinion in Ricci v. DeStefano and be sure to track the California challenge to Proposition 209 (The case is Coral Construction vs. San Francisco, S152934). Chapter Exercise 3.5 Joseph Garcia v. Hooters Cameron v. La Vielle Maison Objectives. The purpose of exercise 3.5 is to evaluate the concept of a bonafide occupational qualification (BFOQ) in the context of customer preferences and business necessity. Two actual cases are presented for discussion. See page 62- “What if a company had data showing customers clearly prefer employees with certain protected class characteristics? Pan American Airways tried this argument in Diaz v. Pan America. They presented data showing the vast majority of their customers (overwhelmingly male) preferred female flight attendants. The Supreme Court said that customer preference was not a legally defensible reason to discriminate.” Description. The two cases presented provide an excellent forum for discussion of the role of customer preference and business strategy as justification for BFOQs. Table 3.5.1 presents recommended answers for Form 3.5.1. Table 3.5.1 Answers to Form 3.5.1 Was Mr. Garcia a victim of sex discrimination? Explain your answer in some detail based on your understanding of BFOQs. Although Hooters settled a similar lawsuit in 1997, Mr. Garcia was not a victim of sex discrimination. While he could establish a prima facie case for discrimination, Hooters would provide an explanation based on business necessity, arguing that Hooters was specifically catering to a male clientele with attractive women and sports. The essence of the business was thus related to the all-female wait staff. The case is thus different from Pan American v. Diaz where the essence of the business was flying people from one place to another and the all-female staff of flight attendants had nothing to do with the essence of the business. Hooters had a legitimate business reason for hiring females because the “essence of their business” was appealing to males through provocatively dressed women. There were no alternative nondiscriminatory procedures that could have achieved the same goals of the company. The court has upheld this stance. Section 703(a) of Title VII states, “Where sex is a bonafide occupational qualification, reasonably necessary to the normal operation of the business, it would not be unlawful to discriminate on the basis of sex.” The Hooters case is a lawful BFOQ. Eric Matusewitch, an EEO specialist, drew the following conclusions from his review of EEO cases related to provocative attire: Employer dress and appearance requirements are legal if they are: 1. Related directly to the business needs of the company. 2. Consistently enforced; and 3. Reasonable --- do not involve offensive or demeaning sexual stereotypes (see Personnel Journal, A Nikolai Grushevski, a Texas A&M student, filed a complaint against Hooters of America in January, 2009 alleging its Corpus Christi franchisee would not hire him as a waiter because the position was being limited to females by an employer "who merely wishes to exploit female sexuality as a marketing tool to attract customers and insure profitability." Hooters argued a “bona-fide occupational qualification” defense, which applies when the “essence of the business operation would be undermined if the business eliminated its discriminatory policy,” according to Onpointnews.com. “If we lose this go around, you can next expect hairy-legged guys in the Rockettes to line up and male models in the Sports Illustrated swimsuit issue." Hooters' vice president of marketing said, according to Onpointnews.com. But the website reported that court records show that Grushevski and Hooters reached a confidential settlement on April 13, 2009. Grushevski was suing on behalf of “all males across the country who applied for the position of waiter at a Hooters restaurant and were denied,” and suggested all Hooters franchisees be certified as defendants. In the "About Us" section of its website, for example, the company notes its legal battles regarding the hiring policy. “A group of men in Chicago and a group in Maryland brought forth class action lawsuits challenging the Hooters restaurant chain's right to hire only women in front-of-house positions,” the company says on its website. “On November 25, 1997, federal magistrate Morton Denlow in Chicago approved a settlement of these class actions. Under the parties' agreement, Hooters will continue to be allowed to hire only women for the job of Hooters Girl.” Hooters has argued that they are in the “vicarious sexual recreation” business and that female sexuality was thus a legal BFOQ. In 1995, the Equal Employment Opportunity Commission investigated the company, but the investigation never resulted in an EEOC lawsuit. At the time, the company waged a public relations campaign to keep its policy. The company often cites the Rockettes as another example of when women are the only candidates hired for positions. The company says: “The element of female sex appeal is prevalent in the restaurants, and the company believes the Hooters Girl is as socially acceptable as a Dallas Cowboy cheerleader, Sports Illustrated swimsuit model, or a Radio City Rockette.” 2. Was Ms. Cameron a victim of sex discrimination? In Pan American v. Diaz, the Supreme Court stated “discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.” Since this 1971 ruling, the courts have not allowed customer preference to support a BFOQ. La Vielle Maison’s argument that the finest French restaurants only employ male waiters and, in fact, customers prefer male waiters did not survive the scrutiny of the courts in an actual case involving a five-star restaurant in Pittsburgh, PA (Lavendos v. Stern Entertainment, USDC, WPenn, 1989, FEP Cases 1763). The court found the restaurant guilty of sex discrimination because of its policy of only hiring male waiters. The restaurant made the argument that “high class” restaurants only employ male waiters because men wearing tuxedos present a better appearance. The court ruled that sex was not a BFOQ, even in “classy restaurants,” and that such an opinion or practice would frustrate the anti-sex discrimination statute. Attorney General Elliott Spitzer integrated exclusive New York restaurants in 2000. Thomas Kelly, a retired Cornell foodservice professor and industry consultant, explained that hiring men only for service staffs is a dying remnant of a controversial cultural tradition that began benignly enough in Europe and came to America with immigration at the end of World War II. As servers, primarily Italians, left their war-ravaged nations to pursue their profession in America, Thomas said, they brought with them years of training, much of it acquired in culinary and service academies that had no counterpart in the United States. Some had even worked for wealthy families or in the cruise-ship industry, he noted. 3. In principle, do you see these cases as the same in terms of your interpretation of legal BFOQs, business necessity, “essence of the business,” or “job relatedness?” The cases are different in the sense that Hooters illustrates a successful “essence of business” defense while La Vielle Maison fails in that regard. The financial difference in the two situations may be important. While males turned down for employment can find numerous employment opportunities in other types of restaurants at similar rates of pay, the male only policy of the five-star restaurants essentially eliminates women from the highest paying jobs in the industry. This is an unprecedented paradox in U.S. employment/compensation practice. For all other female-dominated jobs (e.g., secretary, teacher, nurse), the highest paid positions are not restricted to men. For the same reasons business necessity may also be argued in Hooter’s case, since the theme of the restaurant includes attractive women. While La Vielle Maison 5-star French restaurants traditionally only employ waiters, the argument is not based on the business model but instead on custom, which may not hold under our law. Furthermore, “tradition” does not mean that women have not been hired at 5-star French restaurants; it just means that it is not normally the case. Therefore using a blanket rule of not hiring females violates EEO law. Finally, job relatedness is generally reserved for statistical connections between job performance and hiring practices. Therefore in these cases neither company could make a claim of job relatedness as a defense (Griggs v. Duke Power, 1971). 4. What if, in doing a background check on Ms. Cameron, it is discovered that Ms. Cameron had quit a previous employer complaining that she had developed carpal tunnel syndrome. Could management use this information and reject Ms. Cameron on this basis? Management can ask why she quit that employer. Management can also ask if she can perform the functions of the job with or without reasonable accommodation. Management cannot reject her based on the evidence of carpal tunnel syndrome unless they could substantiate that persons with carpal tunnel syndrome cannot do the essential duties of the job. Such a decision could be a violation of the ADA (See Figure 3-8, page 75 ). Chapter Exercise 3.6 lHiring a Bank Teller Lori Spina Objectives. Exercise 3.6 gives students an opportunity to examine the relevance of the Americans with Disabilities Act for a specific situation. The purpose is for students to consider appropriate and inappropriate questions in regards to an employment interview and what in the background information of the applicant can be taken into account in the selection process. Page 77- “The ADA provides that qualified individuals with disabilities may not be discriminated against by a private-sector organization or a department or agency of a state or local government employing 15 or more employees, if the individual can perform the essential functions of the job with or without reasonable accommodation.” Take note and make reference to Figure 3-8 regarding the ADA Amendments Act. Description. This is a short case involving determining what are the “essential functions” of a job and what is “reasonable accommodation.” The Individual Analysis portion of the exercise is estimated to take 30 minutes of out of class preparation (provided Chapter 3 has already been read). Students should be given 10-15 minutes for the Group Analysis. Class discussion should focus on the “essential functions” of the bank teller’s job and if the bank would be required to make “reasonable accommodations.” Students may discuss missing information regarding the cost of the accommodations and whether the cost would present a hardship on the business. Table 3.6.1 Answers for Form 3.6.1 1. Does Anna have a case here? What are the critical variables? Anna probably does have a case. Dave correctly did not attempt to discuss Anna’s disability. He also made no mention of her wheelchair. However, Anna may have a case since Dave’s considerations were essentially based on her disability and how it would affect workflow at the bank. In addition, reasonable accommodation seems simple. Anna was the best candidate due to her ability to speak fluent Spanish. The definition of "essential functions" is pertinent to this case and it seems that Anna can perform those essential functions with (or without) reasonable accommodation. 2. Under the ADA, what is a qualified individual with a disability? If Anna filed lawsuit, who would have the burden of proving that Anna was (or was not) a qualified employee with a disability? Is it Anna or the Bank?
As stated in Question #1, a qualified individual is a person who can perform the essential functions of the job with or without reasonable accommodation. Dave would have to establish that Anna could not perform the essential functions even after providing reasonable accommodation in order to eliminate her from consideration for the position. The Americans with Disabilities Act Amendments Act of 2008 makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. While retaining the basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, the new law changes the way that these terms should be interpreted. In addition to directing the EEOC to revise its regulations defining the term “substantially limits, the 2008 Amendment emphasizes that the definition of “disability” should be interpreted broadly. (go to EEOC.gov for new information on ADA-related action pursuant to this new law. The ADA Amendments Act expands the definition of “major life activities” by including those activities that the EEOC had recognized (e.g., walking) and adding other activities that EEOC had not specifically recognized (e.g., reading, bending, and communicating). In addition, a second list is stipulated in the amendment that includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions). The ADA Amendment also states that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability” and that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 3. What critical terms related to the ADA must be considered in evaluating the legal implications of Dave’s decision? How do they apply in this case? • Essential functions of the teller job; what are they? • Reasonable accommodation – Critical question: Can she perform the essential functions of the job effectively with (or without) “reasonable accommodation”? ADA states that the essential functions must be performed “with reasonable accommodation.” Dave would have to establish that Anna could not perform the essential functions even after providing reasonable accommodation in order to eliminate her for consideration for the position. 4. Can expense or cost be a variable when considering “reasonable accommodation”? Yes; see the EEOC guidelines on “undue hardship” (page 58) /size of the business, type of operation and the nature and cost of accommodation may be considered. Page 77- “Reasonable accommodations are determined on a case-by-case basis and may include reassignment, part-time work, and flexible schedules. They also may include providing readers, interpreters, assistants, or attendants. No accommodation is required if an individual is not otherwise qualified for the position. The EEOC Policy Guidance on Reasonable Accommodation Under ADA suggests the following process for assessing “reasonable accommodation”: 1. Look at the particular job involved; determine its purpose and its essential functions; 2. Consult with the individual with the disability to identify potential accommodations; and, . 3. If several accommodations are available, preference should be given to the individual’s preferences. 5. What about Carl’s point that multiple sclerosis is a progressive disease and that Anna will most certainly get worse, creating potential problems of absenteeism and health-care costs. Can Dave consider this issue in his decisions? NO, ADA and the Amendments Act prohibits the use of medical prognosis or inquiries. 6. Could Dave ask Anna about the nature or severity of her disability? Could he ask her about the ability to perform certain job functions? According to ADA guidelines, “the guiding principle is that while employers may ask applicants about the ability to perform job functions, they may not ask applicants about disability.” 7. Based on Carl’s comments regarding the probability of Anna’s MS worsening, could Dave require Anna to submit to and share genetic testing results as a condition of employment? Could Carl use such information? No; See Figure 3-9. The Genetic Information Nondiscrimination ACT of 2008 (GINA) prohibits an employer from discriminating against an individual in the hiring, firing, compensation, terms, or privileges of employment on the basis of genetic information of the individual or family member of the individual. An employer would also be prohibited from limiting, segregating, or classifying an employee in any fashion that would deprive the employee of any employment opportunities or adversely affect the status of the employee because of the employee’s genetic information (or the genetic information of the family member of the individual). CHAPTER 4 – CHAPTER EXERCISES Chapter Exercise 4.1 Writing a Position Description Objectives. The purpose of Exercise 4.1 is to give the student experience in writing a position description (PD) and to consider the usefulness of the information gathered. The discussion regarding the exercise is to consider the purposes to be served by the completed position description and, in particular, the legal implications of personnel actions that are linked in some way to the data in the position description. Description. The exercise is very straightforward in terms of student responsibilities. However, the quality of the completed position descriptions will vary. The estimated out of class preparation for the Individual Analysis (Part A) is two hours. Students should be given about 30 minutes for the Group Analysis (Part B). Discussion should focus on the purposes for job analysis. The assignment makes specific reference to job specifications and their potential legal trouble. The instructor could focus attention on the 1990 Americans with Disabilities Act, discussed in Chapter 3, since many companies have been conducting job analysis and writing new job descriptions based on the requirements of the new ADA in order to identify the "essential functions" of the job and to make "reasonable accommodation" to the disabled. The ADA provides that the PD will be used as evidence to determine the "essential functions" of the job. Student pairs could critique their position descriptions in the context of this mandate from the ADA and determine to what extent their PD provides data relevant to these requirements. If the students concluded that they are unable to define or identify "essential functions" pursuant to ADA or to provide parameters for "reasonable accommodation," what changes in the PD could be made to provide the necessary information required by the law? Since companies are now very concerned about issues related to the ADA, discussion with regard to the job analysis results and the provisions from the law should be pursued. A good discussion question in this context is to consider how each student's job could be altered to provide "reasonable accommodation" for a particular type of disability. You could present a description of a particular disability and have the student consider "reasonable accommodation" in that context. For example, if a person was in a wheelchair, could that person perform the "essential functions" of the job and, if not, could the job be changed in some manner so as to provide "reasonable accommodation?" Reasonable accommodation requires the employer to recognize the abilities and skills of an individual (applicant or employee) and to make "reasonable" modifications to the job that would allow the person to perform the work. The cost of the "reasonable accommodation" must not impose an "undue financial or administrative burden" on the organization. Do any of the jobs establish BFOQs of any kind? The instructor can explore this issue in the context of the discussion of BFOQs presented in Chapter 3. Does the student believe that job specifications, which derive from the student’s job analysis, screen a disproportionate number of African Americans, women, or disabled persons? Most of the jobs, which are the focus of this assignment, will have few job specifications that may result in adverse impact because the focus is on the jobs that students typically have (e.g., restaurant work, retail sales, customer service). If you prefer a more concentrated exploration of the issue of job specifications, you may want to ask students to analyze a job which requires a college degree or some other explicit qualification. The second general area for discussion has to do with use of the new PD to redesign or restructure the job with a focus on internal and external customers and the competitive advantages of the organization. This is an area where students often provide valuable insights into changing the jobs students typically have so that there is more focus on critical customer requirements. Exercise 4.1 Assessment Questions 1. Could you use this job analysis to determine essential functions on the job? How could this be done? If done according to directions, the essential job functions should be fairly evident especially after gathering the position information. The essential functions are those to which the majority of time has been allocated, that are identified as the most important service or product provided and to which the KASOCs describe. 2. When preparing the job description, why is it important to list the critical customers for the products or services and the major tasks and duties of the job? Are there tasks that could be excluded with little or no effect on critical customers? The identification of the critical customers for each job puts the job in the proper perspective. Tasks should not be performed simply because a supervisor stipulated that they should be performed. The clear linkage between each task and the requirements of the customers should be established. If tasks cannot be linked to critical customers, a study should determine whether the task should be performed at all. The major tasks and duties to be performed should be listed because such a determination will foster a clearer understanding of the job requirements by the incumbent and the list can be used for several other products of job analysis (e.g., performance appraisal, job design). The ADA requires the determination of "essential functions," a term shown by research to be equivalent to "major tasks and duties." Don’t forget that customers can be “internal” co-workers who require your work products or services. 3. How often should a position description be updated? Explain your response. Employees should probably review their PDs at least once a year depending on the extent to which the job changes over time. The major tasks, the percent, rating, and any job specifications should be reviewed very carefully. The PD should also be updated immediately prior to (1) a compensation study in which the PD is used as the basis for assigning a dollar value to a job based on the external market for such jobs; and (2) advertising to fill a position. The PD should also be coordinated with the method and basis of performance appraisal. 4. Explain how your job description could be used to evaluate your performance or to develop methods for hiring people for the position? Do you think having a highly detailed job description is actually counterproductive for certain jobs? Explain your answer. The tasks identified in the job description could be used on a task based rating scale in which raters are asked to indicate the extent to which the tasks are performed effectively. The particular raters (i.e., customers) who could provide ratings on the major tasks could also be determined from the information. The redesign of the job could be done most efficiently by looking at the PDs for all interacting jobs for purposes of identifying unnecessary redundancy in tasks and the requirements of the various internal customers. Job related questions for employment interviews and paper and pencil tests that assess important KASOCs could be derived from the PD (the instructor could pursue this application after the students have read Chapter 6). There is no "correct" answer to the productivity of a highly detailed job description, but discussion about the possible implications of a highly specific PD should be explored. Many students believe, for example, that such detail will lead to an "it's not my job" mentality such that if a task is not written in a PD, the incumbent does not have to perform it. Of course, the coordination across jobs and the need to cover all critical tasks at the work unit level can be emphasized in PDs within the context of work products and customer requirements. 5. How could the O*Net be used for developing job descriptions? O*Net has job descriptions for all of the jobs in its database. Since the O*Net jobs approximate nearly all jobs requiring a job description, this is an excellent source for HR managers. 6. You are assigned the task of writing a position description for a personnel recruiter. How would you proceed? Start by searching the O*Net database for the position of personnel recruiter. From there the job description may be refined by interviewing job incumbents and immediate supervisors. Chapter Exercise 4.2 The Use of the Critical Incident Technique To Analyze the Job of University Professor Objectives. The purpose of Exercise 4.2 is to give the student hands on experience with the critical incident technique, a popular method of job analysis. Students will learn how to write useful incidents and how to use the data to produce specific work products of job analysis. Description. Chapter 4 discusses the critical incident technique as a good job analysis method for the development of performance appraisal systems. This exercise follows the steps typically used in the development of "behaviorally anchored rating scales," a format for performance appraisal, which is discussed in Chapter 7. Students should have at least read the section in Chapter 4 on the critical incident method and the criteria for useful incidents (p. 73). The Individual Analysis (writing five incidents) should take the student from 30 to 45 minutes out of class. The Group Analysis (Part B) should be conducted in the context of the criteria for useful incidents. These criteria are repeated in Table 4.2.1. Part B, Step 1 should take no longer than 20 minutes. Step 2 of Part B calls for groups of six to conduct a "content analysis" for purposes of deriving the underlying functions of the incidents. Table 4.2.2 presents some suggested functions that have been identified in previous research using the critical incident technique to analyze the job of professor. To save time, the instructor can skip Steps 2 and 3 of Part B and go directly to Step 4 using the functions presented in Table 4.2.2. Another alternative is to use the functions in Table 4.2.2 and have the students identify additional functions based on the incidents written in their group that do not fit within the functions in Table 4.2.2. Table 4.2.3 also provides a list of critical incidents that can be used to either replace or augment those which are developed by the class. The list can also be critiqued for the extent to which they subscribe to the criteria presented in Table 4.2.1. If the instructor chooses to follow all steps in the exercise as described in the text, allow at least 30 minutes for Step 2 and another 20 minutes for Step 3. The process of developing a common set of functions can be expedited by assigning common sets of functions to the groups and asking each group to generate a function name and definition from those that are similar. In other words, it is likely all groups will identify and define a function called something like "testing and grading." The instructor could assign all of these similar functions to a particular group (assembled for Step 2) and charge that group with agreeing to a common function label and definition. Step 4 is a "retranslation" step that is designed to determine whether the work functions identified and defined in previous steps now adequately represent all incidents. The incidents should be divided evenly among the group members and the instructor should make certain each incident has one "final function label." Table 4.2.1 Criteria For Useful Critical Incidents 1. Incident must be specific in nature. 2. Focus on observable behaviors that have been exhibited on the job. 3. Describe the context in which the behavior was exhibited. 4. Indicate the outcomes or consequences of the behavior. Table 4.2.2 Examples of Functions Representing Critical Incidents What is a function? A function is a category of incidents that fits together conceptually.
SAMPLE FUNCTIONS DEFINITIONS

LECTURE ORGANIZATION EXTENT TO WHICH LECTURES ARE ORGANIZED
COURSE RELATED ADVISING AND FEEDBACK EXTENT TO WHICH ADVICE AND FEEDBACK IS GIVEN IN THE COURSE
GRADING AND TESTING ASSESSES STUDENT PERFORMANCE BASED ON COURSE REQUIREMENTS
CLASSROOM INTERACTION EXTENT TO WHICH CLASS SESSIONS ARE CONDUCTED IN A MANNER CONDUCIVE TO LEARNING
COMMUNICATION SKILLS EXTENT TO WHICH UNDERSTANDING IS ENHANCED BY CLASSROOM LECTURE AND DISCUSSION
Table 4.2.3 Examples of Critical Incidents The professor: 1. Was specific when referring to a situation and used qualified examples that the students could easily relate to such as beer and pizza. This resulted in retention of information. 2. Showed lack of preparation; for example, class lectures not pertinent to assignment required. Students were not able to achieve end result effectively. 3. Was not able to provide any classroom stimulation; for example, used no imagination in organization of lecture --- read from the textbook. This resulted in class boredom. 4. Showed lack of organization and preparation of course material, did not adhere to course outlines, and class lectures were not relevant to course. The result was classroom confusion. 5. Did not give a thorough presentation of concept students were quizzed on; for example, material on quiz was unfamiliar resulting in half the class failing the quiz. 6. Was an organized lecturer; lectured from outline which allowed students to follow instructor easily resulting in students maintaining a thorough grasp of material presented and being able to solve cases accurately. 7. Presented a unique exercise that showed students the importance of planning and communication. 8. Utilized a personal profile to study student's behavioral patterns. When interpreted by the instructor, students were able to determine their management style. 9. Used little imagination in presenting class material: relied totally on overhead transparencies. Students found this boring. 10. Forgot to bring exams to class resulting in students having to be tested orally. 11. Broke his chalk while writing on the chalkboard. Students took notes as he lectured on but the learning environment had been effected by the chalk breakage. 12. Relied on intimidation to control the class. By lashing out at the students, the instructor created an environment not conducive to free exchange of ideas and to learning. 13. Taught on a level far above the comprehension level of the class. The students did not do well on the exams and they did not grasp the material that was being presented. 14. Motivated students by being prepared, allowing students to ask questions, providing answers to those questions, and offering extra help to those students who needed it. Students had no difficulty retaining material. 15. Expected assignments to be completed prior to class. Only two people had read the assigned chapters so instructor left class. Students responded by being prepared for remainder of the term. 16. Used an outside lecturer. Upon entering the classroom, the instructor provided each student a question to ask the lecturer. This enabled the students to learn about the ECC firsthand from the chairman of the EEC and it stimulated student interest. 17. Lectured on material that was not pertinent to the course; spoke too fast, making it difficult for the students to take adequate notes. Results were jumbled notes that were difficult to decipher. 18. Used personal experiences in the lecture. The teaching method appeared to cause confusion when point was not made clear. 19. Had each student select a job from the classified ads and develop a budget from the expected salary. Demonstrates a common sense approach to real life situations, which results in a valuable learning experience for the student. 20. Used slides to enhance lecture as well as invite student observations of slides. Provided a stimulating learning environment. 21. Stressed practiced procedures and techniques used in the business world and provided the students with examples in order to teach these techniques. This allowed students to see how practical applications would work in business. 22. Questioned students in class by using name cards. After each question, cards were reshuffled so students never knew when they would be questioned again. This resulted in student attentiveness and preparedness. 23. Came to class unprepared and unable to answer questions asked by students. This produced an ineffective learning environment. 24. Answered student's question quickly and concisely. He made sure the student understood the response before moving on with the lecture resulting in the student having a clear understanding of the material. 25. Was ineffective in transferring knowledge to the student. A complaint was made to the dean of the college about the professor, which marked a decided change in his attitude, and the way the material was presented. 26. Was able to keep the attention of the student by interjecting a few jokes in the lecture. 27. Asked the student for a date. Because of the unethical nature of the incident, he/she did not make any comments on how this incident affected his/her class performance. 28. Gave examples of equations that would appear on the exam. This enabled the student to have the opportunity to work the examples and familiarize himself with the equations. 29. Varied the lecture by using experiments, movies, and case studies. The student felt stimulated by the various techniques used in presenting the class material. 30. Suppressed student opinions by not allowing freedom of expression. Hindered student learning by not providing a conducive atmosphere for such. 31. Provided no follow-up on exams. Students felt confused on mid-term due to lack of feedback on previous exams. 32. Read exclusively from the textbook. Lack of preparation resulted in student boredom and missed classes. 33. Did not allow freedom of expression resulting in students feeling intimidated. 34. Provided a variety of essay topics for students to select from. Variety produced interesting class discussions and provided an ideal setting for learning. 35. Used videotaped recordings of a previous class to teach calculus and statistics and relied on teaching assistants to answer students' questions. Students experienced difficulty grasping material resulting in failure for many of them. 36. Used scare tactics during the core course resulting in his/her being viewed as an adversary. 37. Inadequately prepared to answer student's questions. Consequently only 25% of the students passed the state certification test. 38. Mixed lecture with student presentations occurring at strategic times during the course. By breaking up a lengthy class, this improved class attention. 39. Did not establish rapport with the class; instead read from prepared notes that followed textbook. Results were poor attendance and poor retention. 40. Turned a student's lack of confidence in math to one of meeting his shortcoming head-on. Result was math becoming one of his best subjects. 41. Showed empathy in helping the student overcome his lack of confidence in math. Student registered for math classes and felt more confident. 42. Was unable to maintain class discipline. Threatened consequences if noise didn't cease, but no action ensued. 43. Gave the students a list of historical figures and relevant dates they would be tested on. Everyone received an "A." Teaching the test? 44. Marked a question incorrectly and refused to change the test grade. Student realized it was hopeless to have a divergent point of view. 45. Took the class textbook on the first day of class, threw it at a student, injuring him. Drastic measure in maintaining class control. 46. Was well versed in his subject as well as enthusiastic in his teaching methods. His enthusiasm provided a fun learning environment. 47. Was not very responsive to the student’s questions and problems. Student retention was limited at best. 48. Failed to provide the student with the answers on how to arrive at the solution to a problem resulting in confusion and limited understanding. 49. Reviewed his lecture notes continuously with the class resulting in understanding as well as retaining the material. 50. Was unclear on grading procedures; leaned heavily on explanation rather than working the problems. This resulted in student having to retake the class. Exercise 4.2 Assessment Questions 1. How could the critical incidents be used to prepare professors for teaching assignments? The CIT can be used to compile a training manual that describes the behaviors exhibited by effective and ineffective professors. Many universities now require graduate students to take a course in pedagogy prior to their classroom assignments. A manual of critical incidents would give these students an excellent perspective on what students perceive to be effective behaviors. Of course, the CIT could also be used with college professors who would generate the incidents. The CIT has been used to derive training material for numerous occupations (e.g., pilots, police officers, administrators). 2. The book describes the critical incident method as one of the best for developing performance-appraisal systems. How do you propose to get from the incidents and job functions to an actual performance-appraisal system for evaluating professors? The instructor can explain that Exercise 4.2 follows the procedure that is used in the development of BARS, a popular rating format. Figure 7.6 in the text (p. 150) presents an example of one rating scale derived using the methods the students followed in the exercise. The incidents and functions could also be used to develop other rating formats in addition to BARS. Two such methods are known as behavioral observation scales (BOS) and behavioral discrimination scales (BDS). These rating formats are also discussed in detail in Chapter 7. 3. Why are results or outcomes requested with CIT? What could be done with these data? This requirement is designed to focus the job analysis on customer requirements through exhibited outcomes. The outcomes can also be related to the goals of the unit or the individual. The requirement to describe the context for the incident along with the outcomes also provide more of a systems perspective on the work product so that hypotheses regarding the cause of effective or ineffective outcomes can be determined by examining the individual in the job and the circumstances of the incident which may have facilitated the outcome. A focus on outcomes also leads to more effective PA systems. Chapter Exercise 4.3 Job Analysis at CompTech Objectives. The purpose of Exercise 4.3 is to familiarize students with job analysis and the legal and practical purposes in the products of the job analysis. Students are also asked to select the best methods to obtain job specifications and to develop training programs. This exercise illustrates the importance of the KASOCs matching the job outcomes and how the specifications can hinder or help the process of retention. This gives the students experience with the “nuts-and-bolts” of Human Resource Management. Description. The use of measurement in HRM is highlighted in this case. Statistics regarding the managers’ performance correlated with the specification of either the MBA requirement or the three years of previous store manager experience is needed to determine whether or not to keep these criteria. Discussion should center on how to obtain the data and which data is crucial for the analysis. Individual analysis requires approximately 30 minutes of outside class preparation provided Chapter 4 has been read. Allow 20-30 minutes for group discussion. Table 4.3.1 Answers to Form 4.3.1 1. What are the current job specifications for the store manager job? Based on the information you have (or could have), how would you assess the validity of these specifications? What approaches or methods would you use? (You can propose particular statistical analysis, particular job analysis methods, or both; be specific.) Current job specs are the MBA degree and the number of years experience required. The best method would be to investigate the relationship between manager performance and the job specifications. Students should request data on incumbent MBAs and managers who have had three years experience or historical data, which would enable the analyst to study the performance of managers with MBAs and/or three years experience. Are managers with MBAs better performers? Are managers hired with three years previous experience more effective than managers hired with no experience? The answer to both questions is apparently no since an MBA and three (or more) years previous experience are not correlated with performance. The most relevant discussion in Chapter 4 are on pages 95 and 96. From page 95 and 96- “Job specifications often are contested in court because they have adverse impact against groups protected by EEO laws. Certainly job specifications that result in adverse impact against groups covered by EEO legislation should be derived from a thorough analysis. Where data are available in company records that shed light on the relationship between a given job specification and some measure of effectiveness, these data should certainly be used. A regional manager of a 500-store clothing retailer proposed that all assistant managers in his region should have college degrees. However, research from the HR Department indicated there was no correlation between having or not having a college degree and performance as an assistant store manager. In addition, HR determined the College degree specification caused recruiting problems and 80 percent rule adverse impact against minorities. The manager was persuaded to change his mind about requiring the degree for the job. Unnecessary job specifications can also translate into higher labor costs.” See the discussion on page 96 regarding the state of Maryland study by Booz Allen. 2. What hypotheses or proposals do you have so far regarding CompTech’s strategic position? What do you regard as the critical strengths and weaknesses based on the data you have? The data in Exhibit 4.3.1 indicates a problem in hiring store managers at a time when CompTech is planning a major expansion (30 vacancies). Although they have only 12 openings for Associate Managers, they are losing many associate managers who go to other retailers and have been promoting assistant managers to associate posts. There is possible adverse impact against women and minorities in promotions from associate to store manager. Given their expansion plans, a critical Weakness and Threat is the shortage of store managers and the difficulty in expanding given this shortage. 3. Carlyle is giving strong consideration to hiring a full-time Compensation Manager for Comptech (CompTech has never employed such a specialist) How should she proceed as she considers this action?
The O*NET is a great place to start since a job description and salary information are available. 4. Carlyle has the job description for Store Manager that is copied in Exhibit 4.3.2. There is apparently no job description for the assistant and associate positions. How should she proceed? Again check O*NET and then proceed by interviewing store managers to determine essential functions, duties, responsibilities and KASOCs. 5. Carlyle is partial to the use of The ability to fill store manager positions and the vacancy time is to some extent a function of geographical area. Carlyle is not sure the standard annual salary that Comptech pays the store manager is competitive. How could she proceed with a study of salary for store manager and its relationship to recruitment, vacancies and turnover? The most efficient approach is to retrieve geographical salary data from the O*NET and to compare the job description related to the O*NET salary data with the for the pertinent job descriptions for CompTech. She could investigate company turnover and vacancy rate data as a function of geographical area in the context of the O*NET salary data. 6. Given Carlyle’s interest in the training program and the “job-related” selection tests, what job analysis method should be used for the development of these HR products? The use of the critical incident technique combined with the MPDQ should give Carlyle the necessary information for the development of these products. O*NET would also be very helpful. 7. Could Carlyle use the O*Net to address any issues? If so, what could she learn? In addition to the answers above regarding job descriptions and salary, O*Net data would be invaluable for Carlyle’s interest in training information and the development of “job-related” tests and interview questions. 8. Do you see any potential EEO issues that should be considered at CompTech? Explain your answer with as much detail as possible. There are potential EEO problems with the movement of people into managerial positions with a focus on the credentials, especially with the advanced degrees and previous experience. CompTech may have to prove job relatedness for credentials , which may be difficult. Solution Manual for Human Resource Management John H. Bernardin, Joyce E. A. Russell 9780078029165, 9780071326186