Aetna medicare advantage esa ppo united airlines

About the American Hotel & Lodging Association (AH&LA) Founded in 1910, AH&LA is the trade association representing the lodging industry in the United States. AH&LA is a federation of state lodging associations throughout the United States with 11,000 lodging properties worldwide as members. The association

- tions, marketing, hospitality operations, training and education, technology issues, and more. For information, call 202-289-3100.

LODGING,

About the American Hotel & Lodging Educational Institute (EI)

-

About the American Hotel & Lodging Educational Foundation (AH&LEF)

-

of dollars in scholarship funds for students pursuing higher education in hospitality

practices in the U.S. lodging industry. For more information, go to www.ahlef.org.

Keep this book. You will need it and use it throughout your career.

www.ahlef.org
This page intentionally left blank

MANAGING HOSPITALITY HUMAN RESOURCES

UNIFORM SYSTEM OF ACCOUNTS FOR THE LODGING INDUSTRY Tenth Revised Edition wORLD OF RESORTS: FROM DEVELOPMENT TO MANAGEMENT Third Edition Chuck Yim Gee PLANNING AND CONTROL FOR FOOD AND BEVERAGE OPERATIONS Seventh Edition Jack D. Ninemeier UNDERSTANDING HOSPITALITY LAw Fifth Edition Jack P. Jefferies/Banks Brown SUPERVISION IN THE HOSPITALITY INDUSTRY Fourth Edition Raphael R. Kavanaugh/Jack D. Ninemeier MANAGEMENT OF FOOD AND BEVERAGE OPERATIONS Fifth Edition Jack D. Ninemeier MANAGING FRONT OFFICE OPERATIONS Eighth Edition Michael L. Kasavana/Richard M. Brooks MANAGING SERVICE IN FOOD AND BEVERAGE OPERATIONS Fourth Edition Ronald F. Cichy/Philip J. Hickey, Jr. THE LODGING AND FOOD SERVICE INDUSTRY Seventh Edition Gerald W. Lattin SECURITY AND LOSS PREVENTION MANAGEMENT Second Edition Raymond C. Ellis, Jr./David M. Stipanuk HOSPITALITY INDUSTRY MANAGERIAL ACCOUNTING Seventh Edition Raymond S. Schmidgall PURCHASING FOR FOOD SERVICE OPERATIONS Ronald F. Cichy/Jeffery D Elsworth MANAGING TECHNOLOGY IN THE HOSPITALITY INDUSTRY Sixth Edition Michael L. Kasavana HOTEL AND RESTAURANT ACCOUNTING Seventh Edition Raymond Cote ACCOUNTING FOR HOSPITALITY MANAGERS Fifth Edition Raymond Cote CONVENTION MANAGEMENT AND SERVICE Eighth Edition Milton T. Astroff/James R. Abbey HOSPITALITY SALES AND MARKETING Fifth Edition James R. Abbey MANAGING HOUSEKEEPING OPERATIONS Revised Third Edition Aleta A. Nitschke/William D. Frye HOSPITALITY TODAY: AN INTRODUCTION Seventh Edition Rocco M. Angelo/Andrew N. Vladimir HOSPITALITY FACILITIES MANAGEMENT AND DESIGN Third Edition David M. Stipanuk

Educational Institute Books

11/11

MANAGING HOSPITALITY HUMAN RESOURCES Fifth Edition Robert H. Woods, Misty M. Johanson, and Michael P. Sciarini RETAIL MANAGEMENT FOR SPAS HOSPITALITY INDUSTRY FINANCIAL ACCOUNTING Third Edition Raymond S. Schmidgall/James W. Damitio INTERNATIONAL HOTELS: DEVELOPMENT & MANAGEMENT Second Edition Chuck Yim Gee QUALITY SANITATION MANAGEMENT Ronald F. Cichy HOTEL INVESTMENTS: ISSUES & PERSPECTIVES Fourth Edition Edited by Lori E. Raleigh and Rachel J. Roginsky LEADERSHIP AND MANAGEMENT IN THE HOSPITALITY INDUSTRY Third Edition Robert H. Woods/Judy Z. King MARKETING IN THE HOSPITALITY INDUSTRY Fifth Edition Ronald A. Nykiel UNIFORM SYSTEM OF ACCOUNTS FOR THE HEALTH, RACQUET AND SPORTSCLUB INDUSTRY CONTEMPORARY CLUB MANAGEMENT Second Edition Edited by Joe Perdue for the Club Managers Association of America RESORT CONDOMINIUM AND VACATION OwNERSHIP MANAGEMENT: A HOSPITALITY PERSPECTIVE Robert A. Gentry/Pedro Mandoki/Jack Rush ACCOUNTING FOR CLUB OPERATIONS Raymond S. Schmidgall/James W. Damitio TRAINING AND DEVELOPMENT FOR THE HOSPITALITY INDUSTRY Debra F. Cannon/Catherine M. Gustafson UNIFORM SYSTEM OF FINANCIAL REPORTING FOR CLUBS Sixth Revised Edition HOTEL ASSET MANAGEMENT: PRINCIPLES & PRACTICES Second Edition Edited by Greg Denton, Lori E. Raleigh, and A. J. Singh MANAGING BEVERAGE OPERATIONS Second Edition Ronald F. Cichy/Lendal H. Kotschevar FOOD SAFETY: MANAGING wITH THE HACCP SYSTEM Second Edition Ronald F. Cichy UNIFORM SYSTEM OF FINANCIAL REPORTING FOR SPAS FUNDAMENTALS OF DESTINATION MANAGEMENT AND MARKETING Edited by Rich Harrill ETHICS IN THE HOSPITALITY AND TOURISM INDUSTRY Second Edition Karen Lieberman/Bruce Nissen SPA: A COMPREHENSIVE INTRODUCTION Elizabeth M. Johnson/Bridgette M. Redman HOSPITALITY 2015: THE FUTURE OF HOSPITALITY AND TRAVEL Marvin Cetron/Fred DeMicco/Owen Davies REVENUE MANAGEMENT: MAxIMIzING REVENUE IN HOSPITALITY OPERATIONS Gabor Forgacs FINANCIAL MANAGEMENT FOR SPAS Raymond S. Schmidgall/John R. Korpi

MANAGING HOSPITALITY HUMAN RESOURCES

Fifth Edition

Robert H. Woods, Misty M. Johanson, and Michael P. Sciarini

Disclaimer

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the ser- vices of a competent professional person should be sought. — From the Declaration of Principles jointly adopted by the American Bar Association and a Committee of

Publishers and Associations

The authors, Robert H. Woods, Misty M. Johanson, and Michael P. Sciarini, are solely responsible for the contents of this publication. All views expressed herein are solely those of the authors and do not necessarily reflect the views of the American Hotel & Lodging Educational Institute (the Institute) or the American Hotel & Lodging Association (AH&LA).

Nothing contained in this publication shall constitute a standard, an endorsement, or a recommenda- tion of the Institute or AH&LA. The Institute and AH&LA disclaim any liability with respect to the use of any information, procedure, or product, or reliance thereon by any member of the hospitality industry.

©2012 By the AMERICAN HOTEL & LODGING EDUCATIONAL INSTITUTE 2113 N. High Street Lansing, Michigan 48906-4221

The American Hotel & Lodging Educational Institute is a nonprofit educational foundation.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means—electronic, mechanical, photocopying, recording, or otherwise—without prior permission of the publisher.

Printed in the United States of America 1 2 3 4 5 6 7 8 9 10 16 15 14 13 12 11

ISBN 978-0-86612-396-9

Editor: Jim Purvis

Preface ................................................................................................. xiii

About the Authors ................................................................................ xv

Part I: Employment Laws, Planning, and Staffing .............................. 1

1 Employment Laws and Applications ....................................... 3

Defining Discrimination ........................................................................ 3 Equal Employment Opportunity Commission • Departments of Labor and Homeland Security • Equal Employment Opportunity and Affirmative Action • The Pros and Cons of Affirmative Action

Evolution of EEO Legislation ................................................................ 13 The Equal Pay Act of 1963 • Title VII of the Civil Rights Act of 1964 • Age Discrimination in Employment Act of 1967 • Vocational Rehabilitation Act of 1973 • Acts Affecting Veterans • Pregnancy Discrimination Act of 1978 • Retirement Equity Act of 1984 • Immigration Reform and Control Act of 1986 • Employee Polygraph Protection Act of 1988 • Drug-Free Workplace Act of 1988 • The Civil Rights Act of 1991 • Family and Medical Leave Act of 1993

Other Employment Laws and Court Interpretations ........................ 23 Executive Orders and Affirmative Action • Major Cases and Interpretations • State Employment Laws

Major Areas of Abuse and Litigation in Hospitality Operations ..... 25 Recruitment and Selection • Age Discrimination • Reverse Discrimination • Employee Benefits and Sex Discrimination • Religious Discrimination • Seniority • Recruitment Advertising • Wrongful Discharge

Issues in a Social Context ....................................................................... 33 Women in the Hospitality Work Force • Overtime Work Laws • Impact of Unethical Business • The Aging Work Force • Employment Practices Liability Insurance • Continuing Education • Avoiding Lawsuits (and Unionization) • Using Credit Reports as Employment Checks

Americans with Disabilities Act ........................................................... 37 Background • Defining Disability • Qualifying for Work • The ADA's Impact on the Hospitality Industry • Communicable Diseases

Contents

vi Contents Endnotes, Key Terms, Review Questions, Internet Sites,

Mini Case Studies, Case Study ........................................................ 43

2 Job Analysis and Job Design ................................................... 55

Job Analysis ............................................................................................. 57 Select Jobs for Analysis • Determine What Information to Collect • Determine How to Collect the Information • Determine Who Collects the Information • Process the Information • Write Job Descriptions and Specifications

Job Design ................................................................................................ 65 Legal Issues

Classifications of Employees ................................................................. 69 Staffing Guides ........................................................................................ 72

Set Productivity Standards • Determine the Total Anticipated Sales and Guest Volume • Determine the Number of Employees Required • Determine the Total Labor Hours • Estimate the Labor Expense

Forecasting Sales Volume ...................................................................... 76 Trend Line Forecasting • Moving Average Forecasting • Seasonality • Other Methods of Forecasting

Endnotes, Key Terms, Review Questions, Internet Sites, Mini Case Study ................................................................................ 80

3 Planning and Recruiting ......................................................... 85

Planning Human Resources .................................................................. 85 External and Internal Factors Influencing Supply of and Demand for Employees

Forecasting Demand ............................................................................... 87 Trend Analysis

Forecasting Supply ................................................................................. 90 The Internal Supply • Skills Inventories • Promotions, Layoffs, and Retirements • Replacement and Succession Charts • Succession Planning

Recruitment ............................................................................................. 92 The Pre-Recruitment Process • Internal Recruiting • External Recruiting

Recruitment Sources ............................................................................... 98 Internal Sources • External Sources • Creative Recruiting Tactics • Online Recruiting • Advertising • Evaluating Recruitment Methods

Contents vii Recruiting from the Applicant’s Viewpoint ........................................ 102

What Recruiters Look For • Preparing for Recruitment Interviews • What Recruiters Ask • Applicants Are Doing Their Homework, Too

Human Resource Information Systems (HRISs) ................................ 108 System Errors

Endnotes, Key Terms, Review Questions, Internet Sites, Mini Case Study ................................................................................ 110

4 Selection ................................................................................ 117

Does Selection Really Work? ................................................................. 117 Reliability • Validity • A Reminder

Selection Steps ......................................................................................... 120 Multiple Hurdles Strategy • Compensatory Strategy • Necessary vs. Sufficient Qualifications

Selection Techniques .............................................................................. 123 Application Blanks • Pre-Employment Tests

Reference Checks and Recommendations .......................................... 130 What Type of Information to Release • Credit Reference Checks • Third-Party Reference Checks • Negligent Hiring • Methods of Collecting Reference Information • The Right to Privacy

Employment Interviews ........................................................................ 137 Problems with Interviews • Preparing for Interviews • Types of Interviews • Approaches to Interviewing • Making the Right Impression

Endnotes, Key Terms, Review Questions, Internet Sites, Case Study .......................................................................................... 147

Chapter Appendix: Interview Questions: What You Can and Cannot Ask ......................................................................................... 157

Part II: Human Resources Development ............................................ 161

5 Orientation, Socialization, and Culture ................................. 163

Orientation Planning and Goals ........................................................... 163 Orientation Programs ............................................................................. 164

General Property Orientation • Specific Job Orientation • Approaches to Take • Approaches to Avoid • Orientation Follow-Up

Socialization and Culture ...................................................................... 171 Planning Socialization and Culture Programs • Approaches to Socialization and Culture • Who Should Socialize Newcomers?

Endnotes, Key Terms, Review Questions, Mini Case Study ............ 176

viii Contents 6 Training and Development ..................................................... 183

Training Expenditures Today ................................................................ 183 The Training Cycle .................................................................................. 184 Developing Needs Assessments ........................................................... 185

Organizational Analysis • Task and Behavior Analysis • Individual Analysis

Conducting Needs Assessments........................................................... 187 Advisory Committee • Job Descriptions and Job Specifications • Work Sampling • Job Performance Measurements • Attitude Surveys • Performance Appraisals • Skills Tests • Performance Documents • Guest Feedback • Questionnaires • Exit Interviews • Critical Incidents

Designing the Training Program .......................................................... 192 Establishing Training Objectives • Establishing Training Criteria • Selecting Trainees • Pretesting Trainees

Choosing Training Methods .................................................................. 194 Training for Managers • Training for Nonmanagers • Training for All Employee Levels

Implementing the Training Program ................................................... 203 Anticipate Resistance to Change

Evaluating Training ................................................................................ 204 Measuring Change • Identifying the Cause • Troubleshooting Program Failures • The Training Payoff

Career Development for Managers ...................................................... 207 Endnotes, Key Terms, Review Questions, Internet Sites,

Case Study .......................................................................................... 208

7 Evaluating Employee Performance ......................................... 219

Functions of Performance Appraisals .................................................. 220 Performance Feedback • Employee Training and Development • Decision-Making Tool • Evaluation of Training, Policies, or Programs • Validation of the Selection Process

Potential Problems with Performance Appraisals ............................. 225 Validity and Reliability Problems • Bias • Other Reasons for Inaccurate Appraisals

Principal Appraisal Rating Systems ..................................................... 229 Trait-Based Ratings • Behavior-Based Ratings • Results-Based Ratings

Contents ix Methods of Appraising Performance ................................................... 230

Ranking Methods • Forced Distribution • Graphic Rating Scale • Behaviorally Anchored Rating Scales (BARS) • Behavioral Observation Scales (BOS) • Narrative Essays • Critical Incidents • Management by Objectives (MBO)

Who Should Evaluate Performance?.................................................... 238 Peer Evaluations • Staff Evaluations of Managers • Self-Appraisal • Guest Appraisals • Multiple Rater Evaluation Systems

Performance Appraisal Training .......................................................... 242 Special Training Considerations

Frequency of Performance Appraisals ................................................. 245 Appraisals and the Law ......................................................................... 246 Final Thoughts on Evaluating Employee Performance ..................... 248 Endnotes, Key Terms, Review Questions, Internet Sites,

Case Study .......................................................................................... 249

Part III: Compensation and Labor Issues ............................................. 257

8 Compensation Administration ................................................ 259

Major Influences on Compensation Plans ........................................... 260 Cost of Living • Labor Market Influences • Union Influences • Government Influences

Motivating Employees ........................................................................... 263 Content Theories • Process Theories

Determining Job Worth .......................................................................... 272 External and Internal Equity • Job Evaluation Methods

Establishing Pay Structures ................................................................... 277 Competitive Pay Policies • Pay Grades • Determining Pay Within Grades • Two-Tier Wage System • Skill-Based Pay • On-Call Pay • Team-Based Pay

Current Issues in Compensation Administration .............................. 282 Pay Secrecy • Wage Compression and Expansion • Comparable Worth • Wage and Hour Audits

Endnotes, Key Terms, Review Questions, Internet Sites, Mini Case Study ................................................................................ 287

9 Incentive and Benefits Administration ................................... 295

Effective Incentive Programs ................................................................ 295 Advantages of Incentive Programs • Individual vs. Group Systems

x Contents Individual Incentive Programs ............................................................. 298

Piecework Incentive Programs • Standard Hour Programs • Commissions • Bonus Plans • Pay for Knowledge • Merit Pay • Disadvantages of Individual Incentive Programs

Group Incentive Programs .................................................................... 300

Cost-Saving Plans • Profit-Sharing Plans • Employee Stock Ownership Plans • Which Works Best: Money or Merchandise? • Disadvantages of Group Incentive Plans

Employee Benefits................................................................................... 306

Mandatory Benefits • Voluntary Benefits • Pension and Retirement Benefits • Other Benefits

Endnotes, Key Terms, Review Questions, Internet Sites, Mini Case Study ................................................................................ 319

10 Labor Unions ......................................................................... 327

Statistics and Trends ............................................................................... 327 Legislation Affecting Labor Relations .................................................. 329

Wagner Act of 1935 • Taft-Hartley Act of 1947 • Landrum- Griffin Act of 1959 • Civil Service Reform Act of 1978 • Worker Adjustment and Retraining Notification Act of 1991

Union Structures and Organization ..................................................... 336

Organizing Drive • Elections • Decertification • Employer Strategies

The Future of Unions ............................................................................. 342 Endnotes, Key Terms, Review Questions, Internet Sites,

Mini Case Study ................................................................................ 344

11 Negotiation and Collective Bargaining ................................... 351

Issues in Bargaining ................................................................................ 351

Mandatory Issues • Voluntary Issues • Illegal Issues

Reasons Behind Bargaining ................................................................... 353 Preparing for Negotiation ..................................................................... 354 Choosing a Negotiation Team ............................................................... 356 Negotiation Strategies ............................................................................ 357

Distributive Bargaining • Integrative Bargaining • Attitudinal Structuring • Intraorganizational Bargaining • Boulwarism

Mediation and Arbitration .................................................................... 358

Mediation • Arbitration • Mediation-Arbitration

Contents xi Strikes ....................................................................................................... 359

Types of Strikes • Management Approaches During Strikes • Strikes in the United States and Around the World

Grievances ................................................................................................ 361 Sources of Grievances • The Grievance Procedure • Preventing Grievances

Concerns of Non-Union Properties ...................................................... 368 Establishing Non-Union-Property Grievance Procedures

Endnotes, Key Terms, Review Questions, Internet Sites, Mini Case Study ................................................................................ 369

Part IV: Safety, Discipline, and Ethics ................................................. 373

12 Health, Safety, and EAPs ........................................................ 375

Occupational Safety and Health Act of 1970 ...................................... 375 OSHA Coverage and Scope • Enforcement of OSHA Standards • Employee Rights Under OSHA • Hospitality and OSHA • Measuring Health and Safety

Employee Stress and Emotional Health .............................................. 383 Sources of Stress • Stress Scores of Hotel Managers • Consequences of Stress • Stress Reduction

Employee Assistance Programs ............................................................ 388 Setting Up EAPs • Costs Saved by EAPs

Other Issues in Safety and Health ........................................................ 391 Acquired Immune Deficiency Syndrome • Depression Among Employees • Wellness Programs • Smoking in the Workplace • Work Life/Home Life Issues

Endnotes, Key Terms, Review Questions, Internet Sites, Mini Case Study ................................................................................ 399

13 Turnover, Discipline, and Exits ............................................... 407

The Turnover Problem ........................................................................... 407 Determining Turnover Rates • Major Findings of the AH&LEF Study on Turnover • The Costs of Turnover • Causes of Turnover • Retention Programs: Turnover Remedies • The Impact of Diversity on Turnover

The Use of Discipline ............................................................................. 423 Laying the Groundwork • Approaches to Administering Discipline • Appeals Mechanisms

xii Contents Discharge: A Last Resort ........................................................................ 427

Wrongful Discharge • Employment at Will • Public Policy • Discharge Interviews

Exit Interviews ........................................................................................ 432 Guidelines for Conducting Exit Interviews • What You Should Say In an Exit Interview

Endnotes, Key Terms, Review Questions, Internet Sites, Case Study ................................................................................................... 435

14 Social Responsibility and Ethics ............................................. 445

Philosophical Perspectives on the Social Responsibility of Business .............................................................................................. 445 Traditional Philosophy • Stakeholder Philosophy • Affirmative Philosophy

Business Responses to the Call for Social Responsibility ................. 448 The Pros of Social Responsibility • The Cons of Social Responsibility

Social Responsibility and the Hospitality Industry ........................... 452 Conducting a Social Responsibility Audit

Ethical Issues in Business ...................................................................... 457 Assessing Ethical Behavior in Organizations • Recent Ethical Issues in American Business • Ethical Issues in Human Resources Management

Endnotes, Key Terms, Review Questions, Internet Sites, Mini Case Studies .............................................................................. 463

Index ................................................................................................... 469

Preface

HUMAN RESOURCES is an ever-changing field. Keeping up with it is mandatory for hospitality business leaders for a variety of reasons, including remaining in compliance with government regulations and developing an effective hospitality service organization.

When the first edition of Managing Hospitality Human Resources came out in 1994, there were real reasons for the hospitality industry to worry about having enough employees in the future. During the 1990s, hospitality suffered from a shortage of employees, high turnover rates, and image issues in some areas. By the late 2000s the turnover issue had been mostly addressed, although the potential for recurrence of the problem still persists. Hospitality’s image has been greatly repaired from the days of the Resolution Trust Corporation in 1989 and similarly troubled organizations in the years after, when many hotels were auctioned off after hundreds of savings and loan organizations failed. The industry became much leaner, and stayed lean due in part to the Great Recession, which officially began in December of 2007. Hospitality organizations today are pretty savvy. As a general rule, they stay on top of human resources issues and have developed many new HR programs to improve the hospitality workplace and help end the impression that a hospitality job is a way station in life—an image that has per- sisted for much of the industry’s modern existence.

Managing Hospitality Human Resources is divided into four major parts. Part I examines employment laws, planning, and staffing. This section includes a com- prehensive overview of the various laws affecting the management of hospitality human resources. Readers will find a thorough description of the Americans with Disabilities Act, the Family and Medical Leave Act, and other major employment laws enacted in recent years, in addition to practical guidelines for complying with these laws and discussions about recent court cases pertaining to them. Critical issues such as job analysis and design, selection, and human resources planning and recruiting are also thoroughly covered.

Part II details useful information on human resources development activi- ties such as staff orientation, socialization, training, and evaluation. Readers will discover concrete recommendations for these important functions and become acquainted with various approaches to orienting, motivating and evaluating employee performance.

Part III focuses on compensation and labor issues. These chapters examine alternative methods of planning, developing, and implementing compensation and benefits programs, as well as the legal ramifications of compensation and benefits legislation. Labor relations and collective bargaining are explored in two chapters. These two chapters on labor relations include information on approaches used by unions to organize as well as methods used by management to discourage union organization.

Part IV considers safety, discipline, and ethical concerns within the hospital- ity workplace. Readers will find in-depth coverage of health and safety issues,

xiv Preface employee assistance programs, turnover, employee discipline, and organizational exits. Our final chapter examines some of the complex ethical and social responsi- bility questions facing the modern hospitality manager.

Each chapter includes discussion questions, key terms with definitions, a list of Internet sites that readers can access for more information, and either a case study or one or more mini case studies that reinforce and apply the concepts pre- sented in the chapter.

This project would not have become a book at all without the help of many people. The professional staff of the American Hotel & Lodging Educational Insti- tute was instrumental in developing what appears on these pages; the book would be considerably less worthwhile without the tremendous help of these wonderful people. A special thanks is due to Writer/Editor Jim Purvis, who spent many hours bringing this project to fruition. I would also like to thank George Glazer at the Educational Institute for having the faith to renew this project. Thanks, too, to all the great educators and industry managers and executives who have helped to make this the best-selling human resources book for the hospitality industry over the past seventeen years.

Robert H. Woods, Ph.D., CHRE Las Vegas, Nevada

About the Authors

Robert H. Woods, Ph.D., CHRE, ISHC, is a Professor in the William F. Harrah College of Hotel Administration at the University of Nevada, Las Vegas. He is a specialist in human resources and management issues, and regularly consults with hospitality organizations and clubs on management, strategic management, service management, human resources, timeshare management, and corporate culture issues. Dr. Woods is co-author of the textbook Leadership and Management in the Hospitality Industry and of The Job Description Handbook. He has written more than 150 refereed articles and has written chapters for various books, includ- ing Ethics in Hospitality Management and Contemporary Club Management. Dr. Woods received his master’s and doctoral degrees from the Hotel School at Cornell University and is a former Chair of the Hotel Management Department at UNLV. Before returning to academia, he owned and operated a successful chain of restau- rants and a hospitality consulting firm.

Misty M. Johanson, Ph.D., earned her bachelor’s, master’s, and doctoral degrees in Hospitality Business and Tourism at Michigan State University. Currently, she serves Chicago’s DePaul University’s College of Commerce as the Associate Dean for Academic Quality, and is an Associate Professor within the College’s School of Hospitality Leadership. Her hospitality industry experience includes management and training positions in resort hotels and restaurants in the United States, the Caribbean, and Asia. She has contributed to the industry as a consultant to many international hospitality organizations, including Starwood, Marriott, Hilton, Dis- ney, the RARE Hospitality Group, and NAMA. For more than twelve years, Dr. Johanson has actively served as a member of ICHRIE—the International Council for Hotel, Restaurant, and Institutional Education. She currently is the Director of Education for one of ICHRIE’s U.S. federations and serves as the association’s Executive Editor for its top-ranking publication, the Journal of Hospitality & Tour- ism Education. Dr. Johanson has produced more than fifty refereed, scholarly pub- lications and has been recognized and awarded internationally for her research in the hospitality field.

Michael P. Sciarini, Ph.D., is an Associate Professor in the Department of Hos- pitality and Tourism Management at Grand Valley State University in Allendale, Michigan. He was ranked among the top fifty scholars most cited by hospitality management education faculty from 1989–2004, and has authored or co-authored more than thirty articles in journals such as the Cornell Hospitality Quarterly, the Journal of Hospitality & Tourism Research, and the Journal of Hospitality & Tour- ism Education. Dr. Sciarini has also written chapters for various books, including Quality Leadership and Management and Supervision in the Hospitality Industry, and is a member of the editorial review board of the Journal of Human Resources in

xvi About the Authors

Hospitality & Tourism. Dr. Sciarini received his bachelor’s, master’s, and doctoral degrees from Michigan State University. Before entering the world of academia, he worked in lodging operations and marketing management positions with Westin Hotels, Winegardner & Hammons, and Michigan North Properties.

Part I Employment Laws,

Planning, and Staffing

Chapter 1 Outline

Defining Discrimination Equal Employment Opportunity

Commission Departments of Labor and Homeland

Security Equal Employment Opportunity and

Affirmative Action The Pros and Cons of Affirmative Action

Evolution of EEO Legislation The Equal Pay Act of 1963 Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act

of 1967 Vocational Rehabilitation Act of 1973 Acts Affecting Veterans Pregnancy Discrimination Act of 1978 Retirement Equity Act of 1984 Immigration Reform and Control Act of

1986 Employee Polygraph Protection Act of 1988 Drug-Free Workplace Act of 1988 The Civil Rights Act of 1991 Family and Medical Leave Act of 1993

Other Employment Laws and Court Interpretations

Executive Orders and Affirmative Action Major Cases and Interpretations State Employment Laws

Major Areas of Abuse and Litigation in Hospitality Operations

Recruitment and Selection Age Discrimination Reverse Discrimination Employee Benefits and Sex Discrimination Religious Discrimination Seniority Recruitment Advertising Wrongful Discharge

Issues in a Social Context Women in the Hospitality Work Force Overtime Work Laws Impact of Unethical Business The Aging Work Force Employment Practices Liability Insurance Continuing Education Avoiding Lawsuits (and Unionization) Using Credit Reports as Employment

Checks Americans with Disabilities Act

Background Defining Disability Qualifying for Work The ADA’s Impact on the Hospitality Industry Communicable Diseases

Competencies

1. Describe the EEOC and distinguish between EEO laws and affirmative action. (pp. 3–13)

2. Describe the evolution of EEO legislation from the 1960s through today. (pp. 13–25)

3. List major areas of EEO abuse and litigation, and identify various critical EEO issues. (pp. 25–37)

4. Define disability, and describe the Americans with Disabilities Act (ADA) and its implications for human resource managers at hospitality operations. (pp. 37–43)

3

BEFORE THE 1960S, DISCRIMInATIOn in the workplace was widespread in the United States. In fact, only government employees and union members had any type of protection at all. This does not mean, of course, that all employers discriminated against their employees; it does mean, however, that employers could do so with impunity. Because there was almost no regulation of human resource policies, widespread employment discrimination was often the rule, especially for some groups. For instance, women were relegated to positions traditionally viewed as “women’s work” and were barred from many employment opportunities. The same was true for minorities.

These rampant inequities eventually led to social unrest. During the civil rights movement of the 1950s and 1960s, various groups engaged in primarily nonviolent civil disobedience and protests that helped lead to the Civil Rights Act of 1964. This legislation radically affected the American work force. The act prohibited discrimination on the basis of race, color, religion, sex, or national ori- gin and became the cornerstone for workplace change. Title VII of the act ensures fair employment standards. This single act is generally credited for initiating the equal employment opportunity (EEO) environment that exists in the United States today. Understanding and following the various EEO laws and regulations requires strong human resources knowledge and focus.

Defining Discrimination Human resources management is the practice of legal discrimination. There is a difference between legal and illegal discrimination. From a technical standpoint, selection, training, and appraisals are all discriminatory practices, since they all involve choosing one individual over another based on discernible differences. However, only discrimination that follows the guidelines, laws, and regulations of the Equal Employment Opportunity Commission (EEOC) is legal. Practices that do not follow the law are illegal. They may also be very costly.

In 2008, the median jury award for employment-practices liability claims in the United States was $326,000.1 In recent years, we have seen significant increases in EEOC filings. According to the EEOC:

1 Employment Laws

and Applications

4 Chapter 1 • The number of workplace discrimination charges filed with the agency

increased 15 percent in 2008 to the unprecedented total of 95,402. The EEOC is experiencing the highest level of charge filings since its creation in 1965.

• In 2008, 24,582 age discrimination charges were received by the EEOC, rep- resenting a 28.7 percent increase over 2007. The EEOC filed 290 lawsuits, resolved 339 lawsuits, and resolved 81,081 private-sector charges in 2008, according to the agency.

• In 2009 the EEOC filed 93,277 charges by individuals alleging illegal discrimi- nation actions by employers. Race discrimination accounted for 36 percent of charges; sex, 30 percent; national origin, 11.9 percent; religion, 3.6 percent; retaliation, 36 percent; age, 24.4 percent; disability, 23 percent; Equal Pay Act, 1 percent. (Because persons file charges under multiple categories, these per- centages exceed 100 percent.)

• Through its combined enforcement, mediation, and litigation programs, the EEOC recovered approximately $376 million in monetary relief for thou- sands of discrimination victims and obtained significant remedial relief from employers to promote inclusive and discrimination-free workplaces.2

Some awards are extremely large. For instance, in Zubulake v. UBS, a female employee sued for sex bias and was awarded $9.1 million in actual damages and $20.1 million in punitive damages.3 Valentino Las Vegas, an Italian fine-dining res- taurant operated in The Venetian Resort Hotel and Casino by Los Angeles–based Valentino Restaurant Group, reportedly agreed to a $600,000 settlement of a sexual harassment lawsuit involving at least five female employees.4

Equal Employment Opportunity Commission The EEOC is the federal commission created by the Civil Rights Act of 1964 to establish and monitor employment standards in the United States. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (forty or older), disability, or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most employers with at least fifteen employees are covered by EEOC laws (twenty employees in age dis- crimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promo- tions, harassment, training, wages, and benefits.5

This independent agency interprets and enforces Title VII, among other laws (see Exhibit 1). The EEOC is made up of five members appointed by the president of the United States for a term of five years each.

The EEOC plays three principal roles. First, it oversees the administration of existing EEO laws and regulations, referring charges of violation to state or local equal employment opportunity agencies. Someone filing a complaint in Michi- gan, for instance, would have his or her case referred to the Michigan Civil Rights Department.

Employment Laws and Applications 5

The Equal Pay Act of 1963

This law makes it illegal to pay different wages to men and women if they perform equal work in the same workplace. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Title VII of the Civil Rights Act of 1964

This law makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious beliefs and practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

The Age Discrimination in Employment Act of 1967

This law protects people who are forty or older from discrimination because of age. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Sections 501 and 505 of the Rehabilitation Act of 1973

This law makes it illegal to discriminate against a qualified person with a disability in the federal government. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.

The Pregnancy Discrimination Act of 1978

This law amended Title VII of the Civil Rights Act to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Exhibit 1 Laws Enforced by the EEOC

(continued)

6 Chapter 1

Immigration Reform and Control Act of 1986

This law prohibits the recruiting and hiring of aliens not eligible for U.S. employment.

Title I of the Americans with Disabilities Act of 1990

This law makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.

Sections 102 and 103 of the Civil Rights Act of 1991

Among other things, this law amends Title VII of the Civil Rights Act and the ADA to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases.

Family and Medical Leave Act of 1993

This law provides the opportunity for employees to take up to twelve weeks of unpaid leave for the birth or adoption of a child; for caring for elderly parents or an ill parent, spouse, or child; or for undergoing medical treatment. Applies to employers with fifty or more employees.

The Genetic Information Nondiscrimination Act of 2008

This law makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e., an individual’s family medical history). The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Exhibit 1 (continued)

Source: Adapted from the U.S. EEOC website, http://eeoc.gov/laws/statutes/ index.cfm.

Exhibit 2 is an example of a charge filed with the EEOC. When an employee files a charge, the employer receives a copy of the paperwork. Regardless of whether the charge is filed with the EEOC or a state enforcement agency, the

http://eeoc.gov/laws/statutes/index.cfm
Employment Laws and Applications 7 ������ ��������� ���� �� � �������������� ������

�����������

10/31/96 10/31/96

01/24/97

������� � Exhibit 2 Sample Documents Used in a Discrimination Charge

8 Chapter 1 ������� � �����������

������� ����� ���������� ����������� ����������� �������� ���������

10/31/96

I was employed as a cocktail waitress at the Lion’s Den. From

September 1996 until my discharge, I was required to work in a

sexually degrading environment and was subjected to unwelcome

sexual advances from customers. On October 31, 1996, I was

fired in retaliation for complaining about the sexual harassment

aspects of my job. Other female cocktail waitresses were also

adversely affected by the sexually degrading environment and

unwelcome sexual advances from customers.

Exhibit 2 (continued)

Employment Laws and Applications 9 charge can still be heard in state or federal court. Even if the EEOC or state agency finds that the employer has not discriminated, the person filing the charge can still sue the employer.

The second responsibility of the EEOC is to issue guidelines for Title VII com- pliance. These guidelines are interpretations of the statute written by Congress. While not technically laws, EEOC regulations have been given the force of law by the courts, and have been viewed by the Supreme Court as important to the effec- tive administration of EEOC operations.

The third role of the EEOC is to gather information. Each organization in the United States with one hundred or more employees must annually file an EEO-1 report to a regional EEOC office. This report outlines the number of women and minorities employed in nine different job categories within the company. The EEOC analyzes these reports to statistically determine patterns of compliance and discrimination in the United States. If patterns of discrimination are found, the EEOC has the added responsibility of filing class action lawsuits to counteract such events. Exhibit 3 shows an EEO-1 form that employers use to report employee information.

Departments of Labor and Homeland Security The U.S. Department of Labor (DOL) also plays a significant role in the interpreta- tion of labor laws. For instance, the DOL Wage and Hour Division issues opinion letters interpreting the Fair Labor Standards Act (FLSA). The letters address a broad spectrum of issues under the FLSA, including the recent fair-pay regulations. On December 16, 2004, the DOL issued new regulations governing child labor. Under these regulations, 14- and 15-year-olds are allowed to perform kitchen work and other work involved in preparing and serving food and beverages, including oper- ating machines and other devices used in performing such work.

In other regulatory developments, the Department of Homeland Security has expanded its Basic Pilot Employment Verification Program nationwide. The pro- gram is a new, voluntary web-based system through which employers can verify the immigration status and employment eligibility of new hires.6

Equal Employment Opportunity and Affirmative Action EEO and affirmative action are not the same. “EEO” refers to the laws and regu- lations that protect the rights of an identified group or class. Affirmative action represents an obligation employers have to hire members of protected groups to overcome past discriminatory practices. All employers are required to abide by EEO laws and regulations. However, only employers holding federal (and some- times state) contracts are required to have affirmative action programs. An exam- ple of affirmative action would be a program designed to recruit, hire, or promote qualified members of a protected group, such as women, minorities, Vietnam-era veterans, or people with disabilities.

Affirmative action programs are acceptable only when they consider applicants on an individual basis and do not set rigid quotas that prevent people who are not in protected groups from competing equally. This key point stems from the famous Regents of the University of California v. Bakke case decided by the Supreme Court in

10 Chapter 1 ������� � ����� ������

�����������

Exhibit 3 EEO-1 Report

Employment Laws and Applications 11 ������� � �����������

������� ����� ���������� ����������� ����������� ����������� ����

Exhibit 3 (continued)

12 Chapter 1 1978. In that case, the medical school at the University of California at Davis set aside sixteen of its one hundred places for incoming students for minorities only. As a result, Bakke—a white male—could compete for only eighty-four spaces in the incoming class, while minorities could compete for the entire one hundred. Since this policy represented a formal, quota-based system in which one group was favored over another, it was ruled reverse discrimination and was overturned.

In recent years the courts have been active in re-interpreting the Bakke case. For instance, in 2003 the U.S. Supreme Court ruled 6-3 in Gratz v. Bollinger that an affir- mative action program used by the University of Michigan regarding undergradu- ate admissions was too mechanistic, and therefore unconstitutional. At issue in the case was the University of Michigan’s admissions evaluation policy. The University of Michigan used a 150-point scale to rank applicants, with 100 points needed to guarantee admission. The university gave under-represented ethnic groups, includ- ing African-Americans, Hispanics, and native Americans, an automatic 20-point bonus on this scale, while a perfect SAT score was worth 12 points. Gratz and Ham- acher, two white residents of Michigan, applied for admission to the university’s College of Literature, Science and Arts. Gratz applied for admission in the fall of 1995 and Hamacher in the fall of 1997. Both were subsequently denied admission to the university. The Center for Individual Rights filed a lawsuit on their behalf in October 1997. Their class-action lawsuit alleged “violations and threatened viola- tions of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment ... and for racial discrimination.”7

Then, in 2009, the Supreme Court ruled again on reverse discrimination in the Ricci v. DeStefano case. This case arose from a lawsuit brought against the City of new Haven, Connecticut, by nineteen firefighters alleging that the city discrimi- nated against them with regard to promotions. In november and December of 2003, the new Haven Fire Department administered exams to those interested in promotion to captain. A total of 118 firefighters took the exams. Twenty-two firefighters passed the test. Sixty-four percent (16) of the applicants who passed the test were white, 38 percent (3 of 8) were black, and 38 percent (2 of 8) were Hispanic. Therefore, the pass rate for black applicants was approximately half of that of white applicants. Similar scores resulted from tests to become lieutenants in the department. City of new Haven officials invalidated the test results because none of the black firefighters who passed the exam had scored high enough (70 percent correct) to be considered for the positions, so the officials feared a lawsuit over the test’s disparate impact on a protected minority. The complainants claimed they were denied promotions because of their race—a form of racial discrimina- tion.8 The Supreme Court voted 5-4 that the city’s action in discarding the tests was a violation of Title VII of the Civil Rights Act of 1964.9

The Pros and Cons of Affirmative Action

Affirmative action was debated more intensely in the 1990s than at any other time during its history. In some states, the debate led to ballot measures designed to overturn many aspects of affirmative action. In California, for instance, a refer- endum to end affirmative action in state and local government was passed by a 54 percent vote in the 1996 elections. Those who favor affirmative action and

Employment Laws and Applications 13

those who oppose it both offer strong arguments (see Exhibit 4). Those who favor affirmative action believe that it is necessary in order to right wrongs suffered by minority groups and others who have been discriminated against in the past; those who oppose affirmative action allege that it uses reverse discrimination to solve the problem of discrimination, which can foster resentment and perpetuate prejudice.

Evolution of EEO Legislation The evolution of EEO laws follows a pattern. The first set of EEO laws emphasized personnel policies. The second set targeted unequal treatment, while the third tar- geted perpetuation of the effects of past discrimination. The fourth and, to date, final stage of laws and regulations emphasize the adverse impact on protected groups. Adverse impact relates to those laws designed to reverse the negative effect of past employment practices. We will take a look at some of the major EEO laws in the following sections.

The Equal Pay Act of 1963 Some feel that the passage of the Equal Pay Act of 1963 marked the evolutionary starting point of the EEO movement in the United States. This act was passed as

Reasons some people give for supporting affirmative action:

• Diversity is desirable and will not always occur by chance.

• Those starting at a disadvantage need help.

• Affirmative action draws people to fields of work and study that they might otherwise not consider.

• Some stereotypes cannot be broken without affirmative action.

• Affirmative action is needed to compensate minorities for centuries of slavery and other unfair treatment.

• It’s the law.

Reasons some people give for opposing affirmative action:

• Affirmative action leads to reverse discrimination sometimes.

• Affirmative action lowers standards of accountability and performance.

• Sometimes people are not prepared for the jobs they receive through affirma- tive action.

• Elimination of the policy would lead to a truly color-blind society.

• It is condescending to say that minorities need help.

• The policy demeans minorities by labeling them as successful only because of affirmative action.

Exhibit 4 Pros and Cons of Affirmative Action

14 Chapter 1 an amendment to the Fair Labor Standards Act of 1938; it requires that men and women working for the same organization be paid the same rate of pay for work that is substantially equal. Because of continuing disparities in pay between the sexes, this issue is the focus of many court cases and employment discrimination charges.

Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 applies to employers with fifteen or more employees and prohibits unfair employment discrimination based on race, color, sex, religion, and national origin. Employers with fewer than fifteen employees may still be subject to state antidiscrimination laws that are similar to the federal Civil Rights Act.

There are two possible defenses for charges of discrimination brought under the Civil Rights Act of 1964: business necessity and bona fide occupational quali- fications (BFOQs).

The business necessity defense is very limited and narrow. To succeed, the employer must show that the practice is essential to its business. For example, an airline that prohibited pregnant flight attendants from flying probably would not be violating Title VII if it could show that grounding the attendants was essential to its business. The business of an airline is to transport passengers safely. If the airline could show that the pregnant employees were a safety hazard because pre- mature, sudden, or unexpected labor or birth could endanger the flight, it would probably have a successful business necessity defense.

Bona fide occupational qualifications (BFOQs) permit some legal discrimi- nation and are based on the need to hire certain types of people for specific jobs. Under this provision, discrimination based on sex, religion, and national origin is acceptable if a bona fide occupational qualification makes it necessary. Examples of bona fide occupational qualifications include the following: • Mandatory retirement ages for public bus drivers and airline pilots • Female attendants in a women’s locker room • Male models for male clothing • native-Hawaiian performers for a Hawaiian luau • Roman Catholic employees to take care of the altar at a Roman Catholic church

In each of these cases, bona fide occupational qualifications are based on the assumption that the qualification is truly mandatory. One exception would invali- date the entire BFOQ defense. For instance, it would be acceptable for a French restaurant to require that all of its guest-contact personnel speak French. How- ever, if a single employee is hired for a guest-contact position who does not speak French, the BFOQ status is lost. The burden of proof that a BFOQ is required rests with the employer.

Seniority systems and seniority are also permitted under Title VII, as are systems based on merit or incentive—as long as differences are not the result of an intention to discriminate. In a seniority system, for example, employees with more seniority would retain their jobs while others with less seniority in the same

Employment Laws and Applications 15 position would be laid off. In a merit-based system, raises or other pay increases are contingent on employee performance.

Pre-employment inquiries involving matters that might be construed as dis- criminatory (sex, national origin, and religion) are acceptable as long as they can be shown to be job-related. Acceptable examples would include those we used to illustrate BFOQs. For instance, asking applicants to indicate their sex on an employment application is acceptable if the position is for a female attendant in a women’s locker room.

Testing of ability is allowed if it can be shown that the test is truly required— and if it is not used to discriminate unfairly. For example, it is allowable to require applicants for a cook’s position to perform a cooking test, to ask applicants for a typist position to take a typing test, and to require applicants to take computer or other equipment familiarity tests if knowledge of such equipment is mandatory for the job.

Veterans’ preference rights and national security clearances relate only to public employee environments and are not discussed here.

Finally, employers are not required to extend preferential treatment to indi- viduals or groups on the basis of race, color, national origin, sex, or religion. They also do not have to give special treatment to such groups to correct the imbalances of past practices. Some preferential treatment provisions are mandated under affir- mative action guidelines for public employers (state and federal government) or for companies with federal contracts.

Violations of Title VII. There are two theories of discrimination under Title VII: disparate treatment and disparate impact. If an employer treats one individual differently from others because of the person’s race, sex, color, religion, national origin, or other protected characteristic, that is disparate treatment. If an employer doesn’t intend to discriminate, but does something that disadvantages more mem- bers of one group than another, that employer may be guilty of disparate impact. The Supreme Court first described this term in its 1971 decision in Griggs v. Duke Power Co. as “practices that are fair in form, but discriminatory in operation.” For example, consider what might happen if a restaurant requires dishwashers to have a college degree. By enforcing this standard, the restaurant excludes a larger pro- portion of African American applicants than white applicants. Furthermore, hav- ing a college degree is not really necessary to perform the job. In this case, the restaurant might be guilty of violating Title VII under the disparate impact theory of discrimination. On the other hand, if an employer hires white applicants who do not have a high school education but does not hire African Americans with the same or higher qualifications, the employer is guilty of disparate treatment.

A recent legal case in Mississippi illustrates how convoluted decisions over such issues can become. In this case, an employee of Barden Mississippi Gam- ing filed a lawsuit claiming that he lost his job at a casino in Tunica, Mississippi, because he was white. The employee alleged, and the court held, that the company had replaced him, a white human resources employee, with an African Ameri- can employee who had less human resources experience. The court ruled in the employee’s favor and required the company to pay $312,000 in damages to him.10

Policies intended to perpetuate an image are generally seen as overtly dis- criminatory, even though a company deems them necessary. For instance, a

16 Chapter 1 restaurant that hires only young people because it wants to create a youthful image is guilty of discrimination; there is no bona fide occupational qualification that prevents older employees from working in the restaurant.

The uniforms that some hospitality companies require their employees to wear may constitute a violation of the Civil Rights Act. For instance, requiring female servers to wear revealing costumes could be a violation, since male serv- ers are not required to wear the same attire. Such a policy can even be viewed as reinforcing an environment conducive to sexual harassment if the uniforms consistently lead to unwanted advances. The argument does not end here. Uni- forms do not have to be skimpy or suggestive to be considered discriminatory. For instance, some religions prohibit their members from wearing slacks or cer- tain types of clothing. Hospitality companies cannot require a female employee to wear slacks if the employee’s religion prohibits such attire; to do so would be viewed as religious discrimination.

Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of age against people forty years old or older. As a result, the EEOC views employees who are forty or older as a protected group. All employment actions—hiring, recruiting, appraisals, promotions, advertising, and so on—affecting employees who are forty or older are subject to scrutiny under the ADEA. All private employers with twenty or more employees and all unions with twenty-five or more members must comply.

Examples of age discrimination include passing employees over for promotion for reasons other than ability, providing different benefit programs for different age groups of employees, and forcing older employees to retire. The ADEA will affect hospitality companies more and more in the future as a result of the overall aging of the work force and the industry’s increasing reliance on older workers.

Vocational Rehabilitation Act of 1973

The Vocational Rehabilitation Act of 1973 requires all employers holding federal contracts of $25,000 or more to employ “qualified” individuals with disabilities and to make “reasonable accommodations” as needed. If a company holds federal contracts of $50,000 or more, it must also file a written affirmative action report annually with the EEOC that outlines its program of compliance with this act.

According to the provisions of the act, a person is considered to have a dis- ability if he or she has either a physical or mental impairment, has a record of such impairment, and/or is viewed by others as having such an impairment. This law stipulates that an employer cannot refuse to hire or otherwise discriminate against such employees or applicants simply because the company lacks the proper facili- ties to accommodate the individual’s impairment.

The Americans with Disabilities Act (ADA) has a much wider impact on the hospitality industry. The ADA covers hiring and providing for individuals with disabilities much more extensively than does the Vocational Rehabilitation Act. A more thorough discussion of the ADA is provided later in the chapter.

Employment Laws and Applications 17

Acts Affecting Veterans The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 was designed to provide Vietnam veterans with protected group status for a period of four years after their discharge. Under this act, employers with $10,000 or more in federal contracts are required to take affirmative action to employ qualified Vietnam-era veterans. To qualify, a veteran must have served in the Armed Forces—not exclu- sive to Vietnam—between August 5, 1964, and May 7, 1975.

Hospitality managers must also meet the guidelines of the Selective Training and Service Act of 1940. The act requires employers to rehire veterans—within ninety days of reapplication and with no loss of seniority—who leave a job for military service and then apply for reemployment upon completion of service. This act also requires employers to give employees time off, without pay, to main- tain active reserve status. This time off is in addition to normal vacation time. The act also protects veterans who saw either active or reserve duty during the Gulf War in the Middle East during 1990 and 1991.

In December 2004, President G. W. Bush signed into law the Veterans Ben- efits Improvement Act of 2005, which made two main revisions to the Uniformed Services Employment and Reemployment Rights Act of 1994. One of the changes requires all employers to notify employees of their rights and responsibilities under USERRA.11

Pregnancy Discrimination Act of 1978 Before the enactment of the Pregnancy Discrimination Act of 1978, an employer could require an employee to take pregnancy leave for a stipulated period or at a specific time in her pregnancy. This is no longer the case. Under this act, employers cannot stipulate the beginning and ending dates of a pregnant employee’s mater- nity leave. In addition, this act prohibits employers from refusing to hire pregnant applicants as long as they can perform the major functions of the job. The act does not force employers to provide health and disability programs if none previously existed, nor does it require employers to provide health coverage for abortions except in cases where the life of the mother is endangered. It does, however, pro- hibit employers from providing health insurance that does not cover pregnancy or that imposes high costs for this type of coverage.

Other forms of discrimination are also prohibited, including limiting pregnancy benefits to married workers and discriminating between men and women regarding employee benefits. Employers who provide pregnancy benefits are required to pro- vide the same benefits to spouses of employees. In 1993, Congress enacted the Fam- ily and Medical Leave Act, intended to establish a national leave policy.

Such programs are also mandated by state law in at least twenty-one states. In some cases, state laws are even more stringent than the federal law. Some states have passed laws that require employers to provide unpaid leaves of absence to women for pregnancy or childbirth. This has caused an equal treatment/special treatment debate, because some states do not require employers to provide the same leaves to men. In the 1987 case Geduldig v. Aiello, the Supreme Court upheld a California law requiring maternal leaves on the basis of “biologistic reasoning”— meaning that pregnancy was a unique physical condition. The Supreme Court

18 Chapter 1 upheld the California law again in the same year in California Federal Savings and Loan Association v. Guerra. In this case, the court found that Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978 did not preempt a state statute, and that the narrowly defined leave policy served the goal of sex equality. The California law in question requires that pregnancy leaves be granted for as long as four months.

This act substantially affects the hospitality industry, whose work force is pre- dominantly female. In addition to increasing the cost of employer-controlled health benefits, the act specifically prohibits employers from discriminating against preg- nant women on the basis that these women may not fit the image the company wants to project. As a result, a hospitality employer cannot require an employee to take a leave of absence simply because her appearance no longer reflects the com- pany image. At the same time, employers cannot force a pregnant employee to per- form duties other than those that she normally does. For instance, a hotel could not reassign a front desk clerk to a back-of-the-house position during her pregnancy.

One provision that the Pregnancy Discrimination Act of 1978 does not cover is the right of employers to bar pregnant or potentially pregnant applicants from jobs in which hazards could potentially harm a fetus. In March 1991, the U.S. Supreme Court ruled in Auto Workers v. Johnson Controls that an employer can law- fully keep a woman out of a job only when “her reproductive potential prevents her from performing the duties of the job,” or when a woman becomes physically unable to do the job because of her pregnancy. This case came about because John- son Controls had prevented women from working in their battery plants for fear that lead poisoning might pose a health threat to a fetus if an employee became pregnant. The court ruled, however, that parents alone are responsible for making decisions about the welfare of their future children. Employers, on the other hand, are responsible for making employees aware of the potential hazards.

Companies still seem neither to completely understand nor equally apply the provisions of this law. For instance, a lawsuit filed in Texas by hotel man- ager Laura Taylor, employed with Bigelow Management, Inc., alleged that she was twice demoted after becoming pregnant. The company originally sought to dismiss the case, but the U.S. District Court, northern District of Texas, denied that motion, citing the inappropriate comments made by Taylor’s supervisor when he learned about her pregnancy. In the ruling, the court wrote, “Stray remarks may be sufficient evidence of discrimination in the event comments are related to the protected class of persons [to which] the employee belongs, close in time to the adverse employment action, made by an individual with authority, and related to the employment decision.” This case shows how stray comments can directly affect the outcome of a case against an organization. Advice for managers, then, would be to curb their tongues before speaking.12

Retirement Equity Act of 1984 The Retirement Equity Act of 1984 requires companies to count all service since the age of eighteen in determining vesting in retirement benefits, plus all earnings since age twenty-one, even if there are breaks in service of up to five years. This act is considered a milestone for women, since they typically start work at younger

Employment Laws and Applications 19 ages than men and often interrupt their careers to raise children. However, like other employment laws, this act applies to both sexes. As a result, both men and women will accrue larger benefits. This law also states that pension benefits may be considered a joint asset in divorce settlements and that employers must provide survivor benefits to spouses of fully vested employees who die before reaching the minimum retirement age.

Immigration Reform and Control Act of 1986 The Immigration Reform and Control Act of 1986 (IRCA) was designed to regu- late the employment of aliens in the United States. Under this act, employers with four or more employees are prohibited from discriminating against applicants on the basis of citizenship or nationality. The act mandates that employers must verify citizenship status on all employees hired after november 6, 1986. Aliens who were hired before the enactment of the IRCA are not affected by the act.13 This places the burden on employers for ensuring that aliens work lawfully in the United States. All employers—no matter how small—must verify that applicants are authorized to work in the United States. This verification must take place within three days after hire by completing the Employment Eligibility Verification Form—com- monly called the I-9 form. A sample I-9 form is shown in Exhibit 5.

Illegal workers tend to work in fields that require relatively few skills. In some cases, this includes hospitality positions. Approximately 31 percent of illegal immi- grants in the United States work in the hospitality industry. Illegal workers most commonly hold positions as dishwashers, housekeepers, and cooks, in which 23 per- cent, 22 percent, and 20 percent, respectively, of all workers are illegal immigrants.14

The impact of illegal immigrant employment on the hospitality industry over- all has not been evaluated. However, a recent study of restaurants in Oklahoma, where a new law was passed making it extremely difficult to hire illegal immi- grants, suggests that, while restaurants sometimes hire such workers, elimination of this labor pool would not result in many restaurant closings.15

Under the IRCA and under regulation of the Department of Homeland Secu- rity, employers may rely on several documents to establish an employee’s identity and authorization to work. An applicant can verify his or her citizenship status by showing such items as a U.S. passport, certificate of nationalization, birth certifi- cate, or a Social Security card.

Applicants also may be eligible to work if they possess a valid foreign pass- port and a U.S. employment authorization or receipt from an alien registration form. This receipt is commonly referred to as a green card. Employers who fail to verify an alien’s authorization to work in the United States are subject to both civil and criminal penalties.

While the IRCA does not permit employers to discriminate, it does permit employers to choose or show preference to U.S. citizens or nationals over aliens. However, discharges and layoffs cannot be based on these preferences.

In addition, this act requires that employers provide a working environment that prohibits ethnic slurs and verbal or physical abuse related to an individual’s national origin. As is the case with sexual harassment, the employer is responsible for providing a workplace free of such acts by supervisors, other employees, and nonemployees.

20 Chapter 1 ������� � ���� ���� ���������� ����������� ������������Exhibit 5 Form I-9: Employment Eligibility Verification

Employment Laws and Applications 21

Employee Polygraph Protection Act of 1988 In the past, it was fairly common for employers to require employees and all appli- cants to submit to polygraph tests in a number of situations. The Employee Poly- graph Protection Act of 1988 prohibits the use of polygraphs in about 85 percent of the employment situations in which they were previously used. Under this law, employees are protected from dismissal, discipline, and discrimination solely on the basis of their refusal to submit to a polygraph exam. Employers can request polygraph tests under a very narrow exception. This exception permits employ- ers to use polygraph tests to investigate economic loss or injury when they have reason to believe an employee was involved, and if they afford the employee other protection. Federal, state, and local governments and firms that perform sensitive work for the U.S. Department of Defense, FBI, or CIA are exempt from this law.

Drug-Free Workplace Act of 1988 According to the U.S. Chamber of Commerce, drug abuse cost the United States $200 billion in lost productivity in 2010. While it is extremely difficult to pin specific numbers to this problem and many may quarrel with this figure, it is undoubtedly true that substance abuse does cost money to businesses. This has led to a huge drug-testing industry. Federal agencies spend billions each year on drug testing, as do private businesses. The use of drug testing is fueled, in part, by a desire to assure customers that businesses do not hire or employ drug users. However, per- haps the biggest reason that the drug-testing industry has grown to such an extent is that employers are given discounts on workers’ compensation insurance rates if they conduct drug testing.

Whether all this drug testing is providing a benefit to society commensurate with its costs is debatable. Occupational Health and Human Services reported at the end of 2008 that just 3.6 percent of job applicants tested positive for drugs during pre-employment drug screenings. And drug testing is just one element of the U.S. “war on drugs.” This three-decade “war” now costs tens of billions per year, with costs climbing. Yet drugs remain cheap, easy to obtain, and with higher purity levels than before the war on drugs was initiated. Obviously, this makes it more difficult for employers to maintain a drug-free workplace.

The Drug-Free Workplace Act of 1988 does not mandate a drug-free work environment for all private employers. It does, however, require that federal con- tractors establish policies and procedures to prohibit drug abuse and make a good- faith effort to sustain drug-free working environments. Federal contractors must publish company rules about drug possession and use of controlled substances, establish drug awareness programs, and administer appropriate discipline to employees convicted under drug statutes.

The Civil Rights Act of 1991 The Civil Rights Act of 1991 brought sweeping changes to employment law, but not because it expanded the scope of protection. Instead, the act precipitated changes in the area of costs and litigation. Prior to this law, employees could receive only back pay and equitable relief. Employees are now able to sue for

22 Chapter 1 damage awards. More specifically, the act permits individuals to request a trial by jury if they believe they have been discriminated against. If intentional discrimina- tion is found, punitive and other damages can be assessed.

Another aspect of the act addresses “business practices.” Criteria used by a business for hiring decisions must be “job related for the position in question and consistent with business necessity.” Employers with fewer than fifteen employ- ees are exempt from payment of punitive damages, except in cases of intentional discrimination.

Family and Medical Leave Act of 1993 After eight years of debate, Congress passed the Family and Medical Leave Act (FMLA) in 1993. The act requires employers with fifty or more employees within a 75-mile radius to offer up to twelve weeks of unpaid (but job-protected) leave during a twelve-month period for birth; adoption; care for an ill parent, spouse, or child; or medical treatment. To be eligible, a worker must have been employed for at least twelve months and have worked 1,250 hours (or about twenty-five hours per week). Employers are not required to provide these benefits to the highest paid ten percent of executives.

The right to take leave applies to males and females equally. Employers who employ both husband and wife can limit their total to twelve weeks annually. Intermittent leave cannot be taken for birth or adoption, but is available for illness. Employers must continue health care coverage while employees are on leave. Pen- alties for violation are severe for employers: up to 100 percent of lost wages and benefits, plus attorney fees and various court-related costs.16

Since the act’s passage, twenty-four million Americans have taken advantage of its provisions. Statistics from the FMLA provide interesting facts about where the law is headed:17, 18

• 29 percent of all FMLA leaves are to care for family members, primarily aging parents.

• The median leave has been two months. • Several states offer longer leave periods, specifically for “bonding” with new

children. Twenty percent of the FMLA leaves to date are taken for this purpose.

Research on those who have taken FMLA leaves shows:

• Leave-takers are 18 percent less likely to be promoted than their peers. • Leave-takers receive eight percent less in salary increases. • There is a correlation between the length of leave and the decrease in raises

and promotions awarded to leave-takers. • Leave-takers have gotten lower performance evaluation scores.

A report from the Employment Policy Foundation (www.epf.org) notes that lost productivity, continued benefits coverage, and replacement labor to cover employees on FMLA leave cost employers an estimated $21 billion in 2004. The report’s conclusions came from a survey of 110 organizations employing about 500,000 workers. Other highlights of the report include the following:

www.epf.org
Employment Laws and Applications 23 • The survey showed that 14.5 percent of employees at responding companies

took FMLA leave during 2004. Among these, 35 percent took more than one period of leave, and 15 percent took six or more covered leaves.

• Thirty percent of FMLA leaves lasted less than five days. Twenty percent of such leaves amounted to one day or less. The average leave was 10.1 days long.

• Less than half of the individuals who used FMLA at the surveyed organiza- tions provided notice before the day the leave started.19

At the time of this writing, the DOL was considering changes to the FMLA that would extend the number of days a person must be sick—from three to ten— in order to request this leave. Various groups are debating this change and the impact that it could have on employers and employees alike.

Other Employment Laws and Court Interpretations not all the legislation affecting employer-employee relations is directly addressed in the major federal employment acts. Executive orders, issued by the president of the United States, and rulings in court cases have also helped shape employer- employee relations over the past forty years. The following section outlines impor- tant executive orders and court rulings.

Executive Orders and Affirmative Action

Thousands of companies have contracts with the federal government. Compa- nies doing business with the U.S. government must obey the mandates of vari- ous employer-employee laws and the requirements of numerous presidential executive orders. Several executive orders require employers to hire, recruit, and promote women and minorities on an affirmative action basis. Exhibit 6 outlines sample steps toward establishing an affirmative action plan.

Let’s consider Executive Order 11246, issued by President Johnson in 1965. This order paralleled Title VII of the Civil Rights Law of 1964 by prohibiting discrimina- tion on the basis of race, color, religion, or national origin. However, the executive order goes beyond Title VII and requires employers with U.S. government con- tracts of $10,000 or more annually to engage in affirmative action; it requires those with fifty or more employees and $50,000 in contracts to develop affirmative action plans. These plans must include a set of specific, results-oriented goals designed to correct past discrimination against women and minorities in the workplace. Execu- tive Order 11375 issued in 1967 set the same guidelines—based on gender—for federal contractors.

In 1969, President nixon extended the issue of civil rights in the workplace by issuing Executive Order 11478. This order mandated that all U.S. government agencies and contractors base employment policies on merit and fitness, rather than gender, race, color, or national origin. Other executive orders issued in the late 1970s apply to veterans, citizenship requirements, and federal employees with disabilities.

24 Chapter 1

Executive orders are administered by the Department of Labor through its Office of Federal Contract Compliance Programs (OFCCP). This office is charged with monitoring the employer-employee workplace actions of federal contractors through annual reports filed by contractors. The OFCCP is also charged with gain- ing compliance through conciliation agreements or, if necessary, through action by the U.S. Department of Justice. Failure to adhere to affirmative action provisions outlined in executive orders can result in loss of government contracts, ineligibility for future contracts, and fines or penalties.

Major Cases and Interpretations In Griggs v. Duke Power Co., 1971, the U.S. Supreme Court found that, by requiring a high school education or successful completion of an intelligence test as a condi- tion of employment, the employer had unlawfully discriminated against African Americans. Since that ruling, educational and testing practices have been increas- ingly scrutinized for discriminatory elements.

Subsequent court actions increased the employer’s responsibility. For instance, in Steelworkers v. Weber, 1979, the Supreme Court ruled that companies and unions could establish quotas to eliminate racial imbalance in the workplace. This was later modified by two more rulings. Firefighters Union No. 1784 v. Stotts, et al., 1984, ruled that a company could not interfere with an established seniority system to protect the rights of newly hired employees. In 1989, the Martin v. Wilks finding enabled employees adversely affected by affirmative action to sue on the basis of alleged discrimination. The Civil Rights Act of 1991 substantially modified Martin by strictly limiting circumstances under which plaintiffs can challenge affirmative action programs long after they have been established. (The Civil Rights Act over- turned several 1989 decisions by the U.S. Supreme Court that had made it difficult to prove discrimination. The 1991 version also increased protection for women and minorities, including individuals with disabilities, against job discrimination and sexual harassment.)

������� � ������ ����� �� �� ����������� ������ ����

• Establish a company affirmative action statement or policy. • Determine the most effective methods of communicating the policy. • Widely circulate the policy or statement. • Designate or assign EEO/AA responsibilities to appropriate personnel. • Train personnel. • Conduct utilization analysis to establish program objectives based on the

company policy. • Establish goals and timetables. • Establish implementation procedures. • Establish system for monitoring, evaluating, and reviewing the system. • Identify and correct problem areas. • Prepare documentation and reports for submission to EEOC.

Exhibit 6 Sample Steps in an Affirmative Action Plan

Employment Laws and Applications 25 Other significant cases that have affected the balance of employer-employee

relations in the workplace include the 1983 Newport News Shipbuilding and Dry- dock Co. v. EEOC. In this case, the court ruled that employers must treat male and female employees equally when providing health benefit coverage for spouses. Also in 1983, Arizona v. Norris found that employer-sponsored retirement plans must pay equal benefits to men and women—despite actuarial tables that showed that women were likely to live longer than men and, thus, cost more in benefits. In 1987, the courts ruled through Johnson v. Transportation Agency that employers can implement affirmative action policies to correct gender discrimination.

While none of the major cases was based in a hospitality industry setting, the rulings apply to hospitality companies.

State Employment Laws nearly all states and many localities have EEO laws. In many cases these laws provide much broader protection than federal EEO legislation, which often limits coverage to companies meeting certain size requirements. Companies of all sizes are generally required to follow state EEO regulations.

Many states and municipalities have enacted laws that protect groups not included in the federal protection plan. For instance, some states protect the rights of homosexuals. In fact, “sexual preference” is now protected in some states. Other states and municipalities prohibit discrimination based on physical appearance, political affiliation, contagious diseases, and so on. Because these provisions can change so radically from state to state, employers should not assume that com- pliance with federal law is enough. Instead, employers should conduct a careful review of state and local EEO laws before establishing a business in any locale.

Major Areas of Abuse and Litigation in Hospitality Operations Some describe the hospitality industry as a hotbed for EEO abuse, although few major court cases have alleged discrimination on the part of hospitality companies. The potential for such problems exists in the hospitality industry for several reasons:

• The hospitality industry is the largest employer of minimum-wage employees in the United States.

• While the hospitality industry has long provided employment for a large number of women, many hospitality companies have relatively poor records of promoting women to top-level management positions. This raises a red flag for potential charges of sex discrimination.

• The large number of female employees working for male managers creates situations conducive to sexual harassment charges.

• In the past, some segments of the hospitality industry have emphasized appearance as a condition of employment. As a result, these companies could be subject to charges of preferential selection, which involves hiring candi- dates on the basis of personal characteristics such as appearance. Preferential selection constitutes illegal discrimination.

26 Chapter 1

• The hospitality industry has a high incidence of illegal discrimination in recruitment advertising.

• Historically, the hospitality industry has placed sex designations on some jobs. Some companies have specifically prohibited individuals from perform- ing specific jobs based on their sex.

Exhibit 7 highlights some of the major areas of EEO abuse and litigation in the hospitality industry.

Recruitment and Selection Managers in the hospitality industry may be tempted to recruit and hire under- qualified candidates simply to fill vacancies. Most managers already realize that such decisions can yield unproductive employees. What many managers may not know is that such hiring practices can be construed as discriminatory. For instance, if a restaurant has posted a job description for a server that specifically calls for “experience,” it must not deviate from this condition for employment. If it does—even once—the employer can be viewed as practicing discrimination if an applicant is turned down later on for lacking experience.

As noted earlier, business necessity is a narrow defense against a charge of discrimination under Title VII. To date, most successful cases have involved safety issues, such as special training and experience for airline pilots, bus drivers, and so on. A hotel operator’s desire to project a certain image to hotel guests by employing only certain age groups or races would not be considered a business necessity. The government deems such hiring practices as inconvenience or annoy- ance issues. Failing to hire female employees due to a lack of locker rooms, rest- rooms, or other appropriate facilities would also be considered an inconvenience issue. Other policies that would not be considered business necessities include:

• Refusing to hire women as hotel stewards because they cannot lift heavy objects

• Hiring only pretty or young employees as greeters in a restaurant because the company likes the impression they make on its guests

• Hiring only male servers because management views the image as more “professional”

������� � ����� ����� �� ��� ����� ��� ����������

Recruitment Reverse Discrimination Selection Employee Benefits Business Necessity Issues Sex Discrimination Four-Fifths Rule Religious Discrimination Applicant Testing Seniority Age Discrimination Recruitment Advertising Wrongful Discharge

Exhibit 7 Major Areas of EEO Abuse and Litigation

Employment Laws and Applications 27

Sexual Harassment: Preventing and Resolving Workplace Complaints

Sexual harassment takes many forms, some easier to distinguish than others. More and more managers and supervisors are learning that a wide range of activities can be labeled as sexual harassment. With sexual harassment, the single biggest mistake a manager or supervisor can make is to fail to take every complaint seriously. All complaints must be carefully considered and investigated.

Basically, sexual harassment can occur when:

• Employment decisions are made based on an individual’s acceptance or rejec- tion of sexual conduct.

• A person’s job performance is adversely affected by sexual conduct. • Sexual conduct creates an intimidating, hostile, or offensive work environment

for an individual. • An employee is subject to unwanted sexual conduct from nonemployees and

the employer fails to exercise control over the work environment to stop the improper behavior.

As this list reveals, sexual harassment does not necessarily involve sexual contact or overt sexual advances or suggestions. Harassment can occur when one employee stares provocatively at another, makes off-color remarks or jokes, or for many other reasons. In fact, sexual harassment can occur even when victims appear to be willing participants. For instance, an employee can participate in telling off- color jokes and later successfully claim that he or she was sexually harassed. The defense would be that the others involved expected the employee to participate in the joke-telling and that his or her failure to do so would result in workplace hostility. Courts have also considered pinups, calendars, graffiti, vulgar statements, abusive language, innuendoes, and references to sexual activity to be aspects of sexual harassment.

The basic point is that unwanted, abusive conduct toward one gender and not the other can constitute sexual harassment in the workplace. Sexual harassment that creates a hostile or offensive work environment for one gender is considered a barrier to sexual equality. Sexual harassment is essentially sex discrimination and is thereby prohibited by Title VII of the Civil Rights Act of 1964. As such, sexual harassment charges are filed by employees with the Equal Employment Opportu- nity Commission (EEOC), the government agency that enforces Title