“THE DUAL LOYALTY DILEMMA FOR H.R. MANAGERS UNDER TITLE VII COMPLIANCE”

Michael Bauman / MGMT Strategic HR Management 4550 / 7.2

WHAT WE WILL COVER TONIGHT…

What Title VII is and its purpose What is the EEOC and what can it do? Civil Rights Act of 1991 The Nature of the Role of the HR

Manager Anti-Retaliation Under Title VII Needs for future changes

ABOUT TITLE VII

Title VII of the civil rights act of 1964 sought to eradicate employment discrimination based on race, color, national origin, sex, and religion

Under the Title VII Act, the Equal Employment Opportunity Commission (EEOC) was created.

ABOUT THE EEOC

The Equal Employment Opportunity Commission was created with an envisioned role of conciliating allegations of discrimination as opposed to functioning as a watchdog agency.

Congress intended the main responsibility for compliance with Title VII to rest with employers.

Employers in return were expected to create their own type of internal voluntary Title VII compliance mechanisms.

THE PURPOSE OF TITLE VII

Once again, The act was sought to create a largely self-regulating system by which employers would voluntarily abandon the discriminatory practices prohibited in the Act.

In hopes from congress, they hoped that employers would do so without intervention by government agencies.

Congress sought to promote voluntary compliance and control efforts to eradicate employment discrimination

THE PURPOSE OF TITLE VII (CONT’D)

The main fear of this act by congress was that the government would interfere with individual business prerogatives.

After the EEOC was created, Congress envisioned an agency that would respond to complaints rather than initiate them.

WHAT HAPPENS WHEN A COMPLAINT IS FILED

The EEOC receives employee complaints for the purpose of conciliation as a prerequisite for obtaining relief through the courts.

The EEOC conducts a preliminary investigation EEOC investigations that find charges with

merit provide an incentive for employers to rectify behavior and practices. If it is not done, then the EEOC has the power to file suit on behalf of the aggrieved employee or employees.

THE CIVIL RIGHTS ACT OF 1991

The law was passed in 1991 which altered employee/employer Title VII dynamics.

This act added compensatory and putative damages as well as the opportunity for jury trials as remedies for the Title VII violations.

This now included the Americans with Disabilities Act of 1990.

THE CHANGE THAT THWARTED AMERICAN EMPLOYER BEHAVIOR

With the addition of the Civil Rights Act of 1991 and Americans with Disability Act of 1990 to the Title VII compliance law, the EEOC’s litigation began to skyrocket.

Since 1992, the EEOC has averaged almost 85,000 cases per year on average.

This caused the EEOC to become swamped over with cases to be investigated.

The EEOC started offering mediation-based-alternatives to nearly half the charges it finds valid.

THE NATURE OF THE ROLE OF THE HUMAN RESOURCE MANAGER

The role of a HR manager is often somewhat ambiguous. Ideally when chasms exist between employees and management. The role of the HR function is to bridge these chasms and resolving conflict between employees and management in creating and maintaining a motivating work environment conductive to high performance.

THE NATURE OF THE ROLE OF THE HUMAN RESOURCE MANAGER (CONT’D)

HR is sometimes seen as a representative for management to handle employee problems

HR is sometimes seen as an advocate for employees concerns towards management even though they may not always be clear

As you can see HR is placed on a dual expectations often placed on the HR Manager which creates an ambiguous and conflicting dual loyalty.

THE NATURE OF THE ROLE OF THE HUMAN RESOURCE MANAGER (CONT’D)

HR is called upon to help bridge the organizations needs, the rights, and interests of employees.

HR managers are expected to establish an atmosphere of trust and confidentiality with employees to facilitate in-house resolution of grievances

THE NATURE OF THE ROLE OF THE HUMAN RESOURCE MANAGER (CONT’D)

HR managers are expected and relied upon to be the voice of the employees by bringing up and resolving employee concerns

Tension can arise in most instances when the role of employee advocacy conflicts with interests and goals of the organization. This dual loyalty causes much hardship upon the HR Manager since he / she is loyal to not only the employees, but also the employer as well.

SOCIETY OF HUMAN RESOURCE MANAGEMENT (SHRM)

The code of ethics for the nation’s largest professional HR organization states that the HR manager is supposed “to make the fair and equitable treatment for all employees a primary concern” while simultaneously stating expectations “to maintain loyalty to the employer, even while upholding all laws and regulations relating to the employer’s activities”.

HR MANAGEMENT AND THE EEOC

HR is generally the first place where employees file complaints of behaviors that violate their Title VII rights because HR is responsible for compliance with the EEOC legislation.

HR tries to resolve these complaints in house

HR’s best interest is to ensure that the complaint will be handled in house fairly.

THE NATUREOF THE ROLE OF THE HUMAN RESOURCE MANAGER (CONT’D)

The HR manager clearly needs to be able to promote a law-abiding workplace in which employee trust can be made without fear of reprisal by the employer in which Human Resources would have to challenge managers

This scenario is best for the employer and is clearly consistent with congress’ intent

ANTI-RETALIATION UNDER TITLE VII

Title VII’s anti-retaliation provision is a specific portion under the Civil Rights Act of 1964.

It prohibits employers from discriminating against any employee who has opposed any practice made unlawful by the Act.

WORD FOR WORD ANTI-RETALIATION UNDER TITLE VII

“It shall be an unlawful employment practice for an employer to discriminate against and employee or applicant for employment because the employee or applicant for employment has opposed any practice made an unlawful by this title or because the employee or applicant has filed charge, testified, assisted, or participated in any manner in an investigation under this title.” - 42 U.S.C. Sect. 2000e-3(a)

THE QUESTION THAT ARISES FROM THE ANTI-RETALIATION UNDER TITLE VII

How are HR managers with the equal employment opportunity responsibility can be assertive concerning compliance and with the violations of the Title VII’s express terms and policies when he or she is totally deprived of any protection from retaliation

A NEED FOR NEW INTERPRETATION

All opposed activity by rank-and-file employees have been called to be afforded unconditional 704(a) protection to prevent judicial abandonment of employees’ anti-retaliation rights and to ensure the Title VII’s protection is not undermined.

This argument has also formed from the lack of protection of the 704(a) for managerial employees too

A NEED FOR NEW INTERPRETATION (CONT’D)

Management Staff, most in particular HR managers, have been clearly distinguished from rank-and-file employees by the courts who have been denied protections against employer retaliation

A critical problem remains as HR Managers responsibility to employers are set on a direct collision course with the intentions of Congress eradicating many types of discrimination in employment.

IN SUMMARY

Clearly there is a need to re-examine the roles, rights, and responsibilities of the HR manager

The HR manager is expected to be the catalyst to promoting voluntary compliance, he or she needs to be able to be more of an intermediary and not jus a management employee whose job is to make a claim go away.

IN SUMMARY (CONT’D)

The dual roles of HR managers in attending to the needs and upholding the legal rights of employees while at the same time looking out for the interests and needs of management involves a difficult balancing act.

This holds true especially when it comes to Title VII Act.

IN SUMMARY (CONT’D)

Until congress will adopt a different rule of law, internal compliance will remain as is. Provisions of Title VII will remain undermined and circumvented in the workplace.

HR Managers need to get together and try and get congress to provide HR and EEO managers protection against anti-retaliation so internal compliance can operate more effectively.

ANY QUESTIONS?