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Chapter 4 What’s Legal and What’s Not

Chapter 4 What’s Legal and What’s Not. Title VII Uniform Guidelines Affirmative Action Negligent Hiring. Civil Rights Act 1964 . Unlawful Practices 1. race, color, religion, gender, Nat’l origin 2. can’t segregate for employment opportunities 3. can’t refuse to refer (labor unions also)

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Chapter 4 What’s Legal and What’s Not

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  1. Chapter 4 What’s Legal and What’s Not • Title VII • Uniform Guidelines • Affirmative Action • Negligent Hiring Chapter 4 Legal and What's Not

  2. Civil Rights Act 1964 • Unlawful Practices • 1. race, color, religion, gender, Nat’l origin • 2. can’t segregate for employment opportunities • 3. can’t refuse to refer (labor unions also) • 4. applies to all employers, unions, training programs • 5. can’t recruit to indicate preferences • (can say “equal opporemployer, or “encourage minorities” • 6. can’t retaliate against anyone who opposes unlawful practices Chapter 4 Legal and What's Not

  3. EEOCempowered to: • Investigate charges • Dismiss unfounded charges • Persuade • Work with authorities (state .e.g.) • File suit in federal courts for • “reasonable cause” Chapter 4 Legal and What's Not

  4. Uniform Guidelines:the legal context • Adverse Impact and Disparate Treatment • Action affects different groups differential • Disparate Treatment • Individual is treated differently • Business Necessity: • Practice must be related to job performance • 80% rule (4/5) to determine adverse impact • If 25% (25 of 100)of whites are hired, must hire 20 blacks (4/5 of 25) • What is meant by a “trigger” ? • Give an example of why one employer may have < 80% and another >80% • What is meant by a “chilling effect”- give example Chapter 4 Legal and What's Not

  5. Uniform Guidelines (con’t) • Options under Adverse Impact • With validation, an Adverse impact procedure may be • Modified – • Eliminated - • Justified – • What’s the most sound option? • How about random selection? • Guidelines three options: • Cut scores (to screen only unqualified) • What’s a problem with this? Hint: promotion after hire • Banding • Ranking top down • What will this typically do? • Or perhaps use an alternative Chapter 4 Legal and What's Not

  6. Requirements for Validation • Criterion related - • What’s this? • Content Validation • Job analysis required! • Construct Validation • Job analysis required! • Why is this “ruled out”? • See p. 89 Guidelines provision Chapter 4 Legal and What's Not

  7. Use of Valid Procedures • “Transportability” of Validity Information • VG – what kind of criterion relatedness is this? • Requirements • Same job • Criterion relevance • Demographic similarities • Give a sports example • Is broad similarity necessary? E.g. for GMA? • Why is this still part of the legal context? Chapter 4 Legal and What's Not

  8. Use of Valid Procedures (con’t) • Testing for higher level jobs • Why is hiring for higher level jobs a pretext for discrimination? “…if a majority of those still employed after a ‘reasonable period of time’ (5 yrs) progress to the higher level job.” What are the implications of this? use sports example: baseball farm clubs. • Use of scores (four methods) -note diff in gov’t and private sector • Ranking – evidence for variation needed (negates content val) • Banding – cannot have separate bands for protected groups • Pass/fail – low ones preferred by Guidelines (why?) • Combinations of tests (compensatory) Chapter 4 Legal and What's Not

  9. Issues: • Should the cutoff be lowest score obtained (in validity study)? • As “some enforcement agencies advocate” (Guion, p92) • What are the implications for doing so or not doing so? • How does the civil service sector differ from private sector in viewing cut scores? Chapter 4 Legal and What's Not

  10. Reporting and Record keeping • Extensive, but essential • Consult DCI Consulting Group • Eric Dunleavy Chapter 4 Legal and What's Not

  11. Case Law – EEO Some Court Decisions • Griggs v. Duke Power ‘71 • Intent v. effect <- • Business necessity (job relatedness) • Give examples • Job-relatedness • Deference to Guidelines • Use of tests for job qualifications • Must be job related • Dothard v. Rawlinson (‘77) Alabama • Height for correctional officers (5’2”) • Disparate Impact v. treatment • What’s the difference? • Burden of production (prime facie) • Burden of persuasion Chapter 4 Legal and What's Not

  12. More cases… • Regents, U. Ca v. Bakke (Title VI Education) • Has implications for Title VII • Blacks admitted at Davis Med School with lower scores • Supreme Court Ruled: • Admissions system was unacceptable – admit Bakke • But race can be considered, just not a two track system • How can consideration of race avoid discriminating against whites. • Connecticut v. Teal (‘72) “individual” not “equality for a group” • Any component (promotion test) that had adverse impact must be shown to be job related • Each hurdle in “multiple hurdles” must be considered Chapter 4 Legal and What's Not

  13. Even more Legal cases… • Watson v. Fort Worth Bank & Trust (‘88) • Subjective assessments are covered • What are some examples of subjective assessments? • How could this possibly lead to adoption of surreptitious quotas? • Why would not requiring it jeopardize the mandate not to discriminate? • Decision: • Plaintiff must identify the specific practice & provide statistical evidence that it caused “loss” • burden not shifted to defendant- who can refute the data or causal inference • Expensive validation was not necessary when job relatedness was clear Chapter 4 Legal and What's Not

  14. Even more… • Wards Cove Packing Co. v. Atonio (‘89) • Need to specify practice challenged • Burden of persuasion proof on plaintiff • Adverse impact must take into account the relevant labor market • What are some implications for this for employer? • Business necessity -> “justification” – (not necessarily essential) • Provide an example Chapter 4 Legal and What's Not

  15. 1991 Amendment to Civil Rights Act(Title VII affected) • Concerns about the use of quotas led to: • Prohibition of “race norming” (e.g. GATB for USTES used H/M/L) • What’s the difference between quotas and goals? • What’s race norming? • Allowed for punitive as well as compensatory damages for intentional discrimination • What’s the difference between the two? • What are the implications for an employer for adding punitive damages? Chapter 4 Legal and What's Not

  16. Affirmative Action(to reduce effects of prior discrimination) • Some voluntary, some court ordered or consent decree • Executive orders (11246)required federal contractors to have AA plans • Philadelphia Plan EO 11246 • Why was this a problem for federal contractors in Philadelphia? • What was the remedy applied? • Again, what’s the difference between goals and quotas? • How was AA changed when the appellate and Supreme Court upheld the plan? • Reverse Discrimination- • AA plan is ok (EEOC) if actual or potential adverse impact was caused from practices in past or planned practices • Shown by discrepancy between relevant labor market and available pool (protected groups) Chapter 4 Legal and What's Not

  17. Affirmative Action (con’t) • Developing Affirmative Action Plans • Not restricted to hiring • Include special training, recruiting, and other plans for advancing those with underutilized abilities • Must be limited in scope • Now just for “do good” purposes of from fear of litigation • Diversity as a Business Necessity • Gratz v. Bollinger (2003) U. of MI use of bonus points for minority apps • U MI awarded 20 (of 100) points for every minority applicant (to get proportionate representation comparable to population). • What was the argument here that goes beyond discrimination? • How had the reason for AA changed? • What are some implications for not being transparent about how diversity is achieved? Chapter 4 Legal and What's Not

  18. Other Discriminations • Age (‘67) • 40 and over • Mostly for firing, RIFs, forced early retirement (not for hiring) • Sometimes age related BFOQs could be justified • Persons with Disabilities (‘90) • Focus should be on what they can do, not cannot do • No preferential treatment is encouraged • Reasonable accommodations (usually minimal costs) • General employment practices Chapter 4 Legal and What's Not

  19. Negligent Hiring, Defamation, Wrongful Discharge • Injury to worker when employee should have been seen unfit • Can you think of a situation? • Grounds for Action under Negligent Hiring • Usually physical unfitness, but also personality, mental disorders • Appropriate Methods of Assessment • Reference checks are relatively useless now (defamation) • Employer must be able to prove the negative statement be true • What are the up and downsides of this? • Background investigations –similar risks • Should the employer be able to use social media to investigate an applicant? Chapter 4 Legal and What's Not

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