Techniques for Supervising Protected Groups

Presented to
Perry Barton, Instructor
MGMT 2215-Team Project

By
Debra Baldwin

February 7, 2015

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The supervision of employees belonging to protected groups often challenges

organizations and the managers within it. However, if an organization properly equips all
managers with knowledge regarding which groups are considered protected employees, provide
a Human Resources team that is knowledgeable about the application of the laws providing the
protections, correctly documents position requirements, and is consistent with the application of
performance standards, the organization will be better prepared in protecting themselves from
unnecessary discrimination complaints and lawsuits.
The education of the managers should begin with reviewing the various laws that create
the protections for certain groups. We will first review Title VII of the Civil Rights Act of 1964.
This Act provides protection from adverse employment actions against individuals on the basis
of race, color, religion, national origin, and sex. We will evaluate the specifics of each of these
items individually and give examples of adverse employment actions within each category.
The protection for the category of race simply defines that an individual may not be
discriminated against for the race they are or the color of their skin. This protection from
discrimination applies to both applicants and existing employees. Race discrimination can even
occur if the manager and the subordinate are of the same race. Those of the same race may also
differ in color and the protection provided by this law specified protection against adverse
employment action taken as the result of a color. For example, a hiring manager chooses not to
hire an applicant who is of another race because the organizations existing employee base is all
of the same race and the applicant is of another race and therefore the hiring manager doesnt
think the person will fit in the organization and chooses not to hire the applicant regardless of
the fact that the individual is the most qualified person interviewed for the position. The
protection for the basis of race or color also applies to something referred to as reverse
discrimination, which means that an individual of the predominant race or color groups is
experiencing an adverse action in the practice of hiring, firing or training. Discrimination on the
basis of color is also a protected group because there may be situations where people of the same
race may differ in the pigmentation or color of their skin. Because one skin color may be
considered that of the working class and another color considered that of the wealthy class, a
person could be discriminated against on the basis of color. Again, any adverse employment
action could be perceived as a result of color discrimination. If the business has customers that
prefer one race or color over the other, that is still not an acceptable basis for the discrimination.
The protection provided by Title VII for the category of religion is quite broad. Most of
us are familiar with the larger religions such as Christianity, Buddhism, Hinduism, Judaism,
Muslim, Jehovahs Witness, Scientology, Atheism, or Satanism. These are a few of the more
common religions but the protection provided under this section of the Civil Rights Act forbids
employers for discriminating against individuals for religious observances, religious beliefs or
religious practices. An employer may not have even heard of a religion for an applicant or
employee to be protected under this section of the law. Additionally, an organization may not
discriminate if the employee or applicant has no religion whatsoever. If an employee must wear
some type of religious clothing, an employer cannot discriminate against the employee unless
there is a business necessity such as an OSHA requirement that would forbid a type of garment
due to safety reasons. A current example of religious discrimination has been in the metro
Atlanta news recently when the fire chief was terminated because of a religious book that he

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wrote expressing his personal religious views on homosexuality despite the fact that the city told
him he had never discriminated against any employees because of these personal beliefs. This
fire chief has filed a civil rights claim with the EEOC (Equal Employment Opportunity
Commission).
The protection under Title VII for national origin pertains to where an individual or his
parents were born. An adverse action as a result of an individuals accent could also be
considered discriminatory behavior under the national origin section of Title VII. National origin
should not be confused with citizenship, since national origin is your historical background and
country of origin. If an employer were to choose not to hire an individual for the IT support
position because he comes from India and the employer previously had complaints from
employees about their Help Desk and not being able to understand the support personnel who
werent American and as a result the employer chose not to hire the man from India even
though he had the best background and qualifications, that applicant would have suffered an
adverse employment action under the national origin section of Title VII.
The final category of protection under Title VII of the Civil Rights Act is sex. This does
not refer to the act but the gender of an individual. The original intent of those who wrote the
law was to protect women from discrimination, however this provision may protect men as well.
There are also various components to look at under this category. There are several examples
that will cover this. First, you have a woman applying for the position as a law enforcement
officer. This lady graduated the top of her class at the police academy and she is hired by a local
police force. Once on the job, the woman finds out there is no locker room for her to get
changed into her uniform even though her male counterparts have a nice locker room, complete
with shower and sauna. She must change into her uniform in the ladies bathroom, which she
finds is often used by the men on the force and is not cleaned regularly. After she files a
complaint with the chief, they designate a storage closet as her locker room and give her a plastic
milk crate to store her personal items in. There is a janitors sink in the closet used to clean out
mop buckets and she finds that they have placed a bracket on the wall which is holding a garden
hose that comes off the faucet, and it is marked shower above where there is a floor drain. She
files another complaint with the chief stating she is not being treated the same as the men on the
force. This officer starts experiencing flat tires and at the end of her shift, her clothes that she
left at the station are wet with dirty mop water and someone said, oh the crate fell off the shelf.
The chief fires her three days later when she refuses to change into her uniform in the closet
again and is told not to return until she adjusts her attitude. She feels she has no other choice
but to quit. The lady officer files a complaint with the EEOC under the protected category of
sex. The next example involves a man. This gentleman interviews for a nursing position and has
the same qualifications and years of experience in nursing as a fellow candidate. The supervisor
decides to hire the female candidate, rather than the male candidate because she thinks he will
fit in better with the other women. The male candidate has basis for a sex discrimination claim
under Title VII. The final example involves a female applicant who is being interviewed, the
interviewing manager asks her if she has children and if so, does she have someone to watch the
children should she need to work overtime on short notice. A male candidate was not asked
these questions. Again, this would be the basis for a sex discrimination claim under Title VII.

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The next protected category is protected under a law called The Age Discrimination in
Employment Act of 1967. Protection under this law begins for those who are the age of 40 and
ceases when one dies. Though people today do not consider the age of 40 being old, this was
written at a time when people didnt live as long as they do now and therefore being forty was
really though of as being past the highlight point in ones career. This law provides protection to
people for being considered too old for a position but can also be recognized as the basis for
additional employment actions such as mandatory retirement, which is also forbidden under this
act. Here are two examples of this type of discrimination. First, two candidates are up for
promotion, one is 35 and the other is 48. Both have equal experience on the sales force with
comparable sales results. The company promotes the 35 year old because they feel she can carry
the organization into the next decade with her refreshing ideas and that she would be around for
years to come. The 48 year old does not receive the promotion and overheard two senior
executives saying that his ideas given in the interview were just too old and stale to be relevant in
todays changing environment of internet based sales. He has the basis to file a claim with the
EEOC under the Age Discrimination in Employment Act. In our second example, you have two
individuals applying for a position at a hotel chain as the breakfast cook and hostess. One
applicant is 55 and the other applicant is 72. Both candidates have been in the restaurant
business but the younger candidate has more years in the management capacity. The hiring
manager decides to hire the 72 year old because she looks like someones grandmother which
appeals to the hotel clients because she is great with telling stories while she is serving a meal.
The 55 year old may file a claim under the Age Discrimination in Employment Act because her
age was taken into consideration when an adverse employment action occurred and not her
experience and ability to do the job.
One group of protected individuals is women covered by Pregnancy Discrimination Act
of 1978. This Act was created to amend Title VII of the Civil Rights Act of 1964, which already
prohibited employment related discrimination based on sex to expand the coverage for
discrimination based on pregnancy, childbirth or the medical conditions related to such. Here is
an example of this type of discrimination: a woman applies for a job as a server in a restaurant
who has the necessary experience and certification. Because the restaurant is also considered a
bar, the hiring manager chooses not to hire the pregnant woman and hires a less experienced
server to fill the position but does not indicate to the pregnant woman why she did not get the
job. The manager made the choice because he is worried that the smoking in the bar area could
affect the pregnant woman and he cannot guarantee that she would not have to serve in that area
of the restaurant so did not want to be liable if the smoke negatively affected the pregnant
womans condition. The pregnant woman and her spouse dined at the establishment a week later
and she had a very inexperienced server who said she was just hired. This lady filed a claim with
the EEOC for pregnancy discrimination.
There is protection for non-U.S. citizens called the Immigration Reform and Control Act
of 1986, referred to as IRCA. This particular law prohibits discrimination based on whether an
individual is a U.S. citizen or not. There are multiple methods in which an individual may be
allowed to work in the USA and citizenship is cannot be used as a requirement. Employers
cannot ask if a person is a citizen but only if they may legally work in the USA. As a result,
employers cannot ask for verification of the citizenship or work status until an individual is
hired. An example of this type of discrimination would be an employer is advertising for an

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American restaurant chain and only wants American citizens working at it and runs an add
stating that. Any applicant could file a discrimination complaint that does not have U.S.
Citizenship, as that cannot be used as the hiring criteria, only the right to work in the USA.
Under the Americans with Disabilities Act of 1990 and amended in 2008, employers are
not allowed to discriminate based on an individuals disability. It does not matter if this person
had the disability in the past, if the individual currently has a disability or even in the individual
is perceived or assumed to have a disability. This is a very complex employment law because
there are additional stipulations that require something called reasonable accommodation. We
can address the disability piece with this example. An individual applies online for a position as
an agent at a rental car company. The individual attends the interview and the hiring manager
finds the candidate to be in a wheel chair. However, the applicant answered the question, yes,
when asked if he could complete the job with or without modifications. Because this candidate
has the necessary education and a clean background and a similar candidate failed the driving
record part of the background, the candidate in the wheelchair is hired. Once hired, the
individual asks for two accommodations, 1) that another person must climb into each vehicle to
obtain the odometer reading which must be verified at the time of the rental and when turned in,
and 2) that another rental agent be allowed to check the top of SUVs or vans for damage.
Though this would be considered a reasonable accommodation, there are periods when only one
rental agent may be working and if the new hire cannot complete the tasks without assistance,
that person cannot fulfill the requirements of the job, therefore he is terminated. This person
may or may not have a claim under the American Disabilities Act.
Though there may be additional state and federal laws, we will cover the last most
common one in todays working environment. That is the Family and Medical Leave Act or
most commonly known as FMLA. This law allows employees of companies with fifty or more
people up to 12 weeks annually, unpaid time off to care for themselves or a family member with
a serious health condition. The law doesnt require employers to pay the employees, only that
the leave is protected and when the employee returns, they are restored to the same position and
pay they were at before the leave period began. The leave may be consecutive leave or
intermittent but the allotment may not exceed 12 weeks in a rolling 12-month period. An
example of this is an employee takes the 12 weeks off work to care for a parent with a terminal
condition. Upon the leave reaching the 12-week limit, the employee is notified that they must
return to work. However, the parent is still very ill and near the end of their life and the
employee refuses to return to work. The employee contacts the company two weeks later,
following the passing of the parent and services and asks for the job back. The employer has not
had time to post the position yet but refuses to give the employee the job back. Would this
former employee have basis for a suit under the FMLA? Most likely not, as the employee had
exhausted the 12 weeks leave period. However, the employer could allow the employee to reapply for the position once it is posted but if hired, there would be no requirement to return this
employee to the same position or pay.
What can the human resources department do to ensure that managers are compliant with
the employment laws that provide protection for certain groups? The H/R team must be
knowledgeable of all of the laws and the latest updates to existing laws. This knowledge base
may be acquired from trade organizations such as SHRM and other trade organizations that
closely monitor legislative changes that affect the legal environment that the Human Resources

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team is required to comply with. H/R departments must provide initial education classes with
newly promoted managers and annual refresher classes for all management personnel after that.
This does not require travel and expensive hotel rooms. With todays technology and webinar
capabilities, this type of training is easily completed with little overhead cost to the employer.
Next, all messages start at the top, so it is imperative that all policies that govern the companys
interaction with the protected groups of employees, be affirmed by the senior leader. Many
organizations do this by annually having the CEO issue a letter stating that the company does not
discriminate on the basis of the above-mentioned groups and that the responsibility for enforcing
the companys policy on this matter is delegated to one individual, whose name and contact
information is listed on the annual letter. Also, the local manager should sign a similar letter
indicating that they affirm the senior executives position on non-discrimination and who the
local or facility contact for the enforcement of the policies is delegated to.
The Human Resources team must work with the legal team to create a handbook of the
policies that include the protections for specific groups as well as the work rules for the
organization and update it as the laws change. A company cannot enforce a policy that is not
written, so the CEO affirming the company policy can only do so if the policy is written. If the
company happens to be a government contractor, there are posting requirements that ensure
compliance of non-discriminatory practices in order to receive a government contract and to
continue and existing one.
The Human Resources team must be the go-to people for managers to ask questions
about these policies. Though many seem very black and white with understanding what the
protections are, there are always going to be undefined situations or incidences where the
manager may not understand the intent of the policy so it is up to the Human Resources team to
give the best direction possible to that manager to avoid future litigation. All complaints of
discrimination should be thoroughly investigated by the organizations compliance or H/R team.
Why? A company may be able to avoid costly fines if they show that they have done their due
diligence when it comes to training, communicating, and enforcing non-discriminatory behavior,
but also investigating and modifying existing policies.
For each position within an organization, a comprehensive job description should be
created, modified and regularly reviewed by the H/R team and the respective manager. This
description must include the responsibilities of the position, the education requirement if any, the
amount of previous experience if any, and any necessary certifications. Job descriptions are then
typically reviewed by compensation to determine if the duties classify the position as exempt or
non-exempt. Additionally, each position should have something called a position analysis which
details the physical requirements for the position which includes the percentage of time spent
sitting, standing, walking, bending, carrying, or lifting weight requirements. The position
analysis should be published along with any job description so that candidates know the
requirements of the job before applying. This position analysis is also used in pre-employment
physicals to determine if a candidate is fit for duty under the written guidelines. This can also be
used once an employee is hired to determine if they are fit for duty to return from FMLA.
We have stated all of the things that must happen before a manager begins to supervise a
protected group but how is this done on a daily basis? Managers must be very familiar with the

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laws as indicated above, must be trained by the Human Resources team on an annual basis to
understand any changes and must be consistent in application of the company policies.
Consistent application of policies will truly assist any supervisor of a protected group.
All hiring decisions should be based solely on who the best candidate is with no regard to any of
the protected classes. The best way to do this is to be closely review applications before
scheduling interviews. Be consistent with interviews, asking each candidate the same question.
Review past employment history and verify that the person really held that position. Use
behavior based questions during interviews such as, how would you handle this particular
situation? Responses to behavior based questions help discern which candidate is most
competent to do the job along with the other criteria that you have established.
Once the person is employed, ensure that all of the supervisors are following the
organizations position on nondiscriminatory treatment of employees. Follow the company
guidelines each time without exception. You cannot allow disparaging comments about women,
but discipline employees for making disparaging comments about a specific ethnic group. Be
consistent with how you handle complaints. If you are a manager and you have a complaint,
take it seriously. Always investigate even if you think it is the person who brought it to your
attention is the chronic complainer in the organization. That person could be doing you a favor
by letting you know that something is brewing. If you make it a policy to have an H/R person
present when interviewing employees, be sure that each time you complete an investigation, you
have an H/R person present or it could be assumed that you are treating people differently.
Document performance and attendance continually. If you have specific documentation
on performance for each employee, there is less of a chance that someone will feel they were
improperly treated as a result of discrimination. If you can prove that you regularly document
this for each employee and that marginal or poorly performing employees are given equal
opportunity to review and correct their behavior, there is less of a chance that one will cry,
discrimination when disciplined or terminated. Though unfortunately, you will occasionally
have that situation occur in your career.
Make promotion decisions the same way you make the hiring decisions. Remember to
focus on abilities, training and experience. Ask the candidates up for promotion the same
questions as you would during an interview.
When faced with a request for modification under the ADA, focus on the ability to do the
job. Then determine if any reasonable accommodations must be made for the position.
Sometimes this is as simple as relocating an office to a lower floor, reconfiguring a workstation
to provide the necessary clearance or breaking down a task into smaller and easily manageable
steps. As with hiring decisions, if you focus on abilities, you will be able to utilize the
candidates assets and experiences to enhance the company. If the accommodation is costly or
unreasonable, ask your legal department if the accommodation requested is reasonable or not and
use them to make the final decision.
How can a manager run a department when you have multiple situations going on? For
instance, you have an employee out on FMLA for their sick child. This FMLA is intermittent
and not continual but because of the childs condition the employee must often take a day or two

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per week off work depending on the childs blood counts and chemo treatment. The manager has
another employee who was passed over for a promotion and previously filed a discrimination
complaint alleging that the manager didnt give them the supervisory position due to their race.
H/R investigated the complaint and found no basis as the most qualified candidate was promoted
to supervisor. The employee on FMLA and the employee who believes they were previously
discriminated against share the same job responsibilities as problem resolution clerks in the
Customer Service Department. Because of the employee on intermittent FMLA, the workload to
the other employee is increasing and all work for the problem resolution team is falling behind.
The manager writes up both employees for failing to resolve the total complaints required to be
resolved in a month. Is this discriminatory? Yes, it is. The employee on intermittent FMLA
cannot be held accountable for the time they are not at work as the FMLA leave is protected time
off. What about the other employee who now is complaining of retaliation due to filing a
complaint about not receiving the promotion? Yes, if you increased one persons workload as a
result of another individuals leave and this negatively affects the other party, you are not
applying the same performance standard to both employees. Could it be perceived as retaliation?
Certainly if the timeline shows it occurs within a reasonable time after the initial discrimination
complaint was filed. The manager needs to hire a temporary worker to cover the position, move
someone from another department into that role temporarily, or reassign some of the tasks of that
position until the worker is back to work full-time.
Though no organization can completely avoid litigation from protected groups of
employees, by being educated, having a staff that understands the laws, having clear job
descriptions and non-discriminatory written policies in place, making decisions based on the job
duties itself and not the individual, applying policies consistently and equally, organizations will
be better prepared to defend themselves should a discrimination complaint arise.

Works Cited
Dwoskin, Linda B., and Melissa Berman Squire. "Reasonable Accommodation Under the New
ADA:." Employee Relations Law Journal Spring 38.4 (2013): 3-27. Web. 03 Feb. 2015.

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Segal, Jonathan A. "A Guide for Managers to Protected Groups." Bloomberg Business Week.
Bloomberg, 16 Apr. 2010. Web. 07 Feb. 2015
Visser, Steve, Ex-Atlanta Fire Chief Files Discrimination Complaint. The Atlanta JournalConstitution, Local News, 22 Jan. 2015. Web. 02 Feb. 2015
Zachary, Mary-Kathryn, J.D. "Emerging Medical Issues Affecting Employees and Their
Associates." Supervision 76.1 (2015): 22-26. Web. 03 Feb. 2015.