Chapters 2, 3, 4 Legal Compliance/EEO

1. Chapters 2, 3, 4Legal Compliance/EEO

2. Sources of Laws and Regulations • Common law • Employment at will • State and Federal Constitutional Laws • Example: California - Article One (Right to Privacy) • Executive Orders • 11246, as amended by 11365 (nondiscrimination under federal contracts) • Agencies • Equal Employment Opportunity Commission (EEOC), Dept. of Labor (DOL), Office of Federal Contract Compliance Programs) OFCCP

3. Sources of Laws and Regulations • Statutory Laws (State and Federal laws and acts) • Civil Rights Act, Title VII (as amended) • Age Discrimination in Employment Act • Americans with Disabilities Act (as amended) • Rehabilitation Act • Immigration Reform and Control Act • Pregnancy Discrimination Act • Employment Polygraph Protection Act • Equal Pay Act • California Fair Employment and Housing Act (FEHA)

4. EEO Concepts • Equal Employment Opportunity (EEO) • Employment that is not affected by illegal discrimination. • Blind to differences • Differences among people should be ignored and everyone should be treated equally.

5. Major EEO Laws - Federal • Civil Rights Act of 1964, Title VII • Established the Equal Opportunity Commission to enforce the act’s provisions. • Coverage • All private employers with 15 or more employees • All educational institutions, public and private • State and local governments • Public and private employment agencies • Labor unions with 15 or more employees • Joint labor/management apprenticeship committee

6. Major EEO Laws - State • California’s Fair Employment and Housing Act • Established the Department of Fair Employment and Housing • Coverage • All private employers with 5 or more employees • Any person acting as the agent of the employer, directly or indirectly • State and local governments • Employment agencies

7. Discrimination • Discrimination - one person (or group) is treated differently from another person (or group). • Unlawful discrimination – when the reason for the difference in treatment is related to membership of a protected category.

8. Discrimination • It is illegal to for organizations to discriminate against employees in all employment practices, including • Advertisements • Applications, screening, and interviews • Hiring, transferring, promoting, terminating, or separating employees • Working conditions • Participation in a training or apprenticeship program, employee organization, or union

9. Protected Classes • Federal • Individuals within a group identified for protection under equal employment laws and regulation. • Race, ethnic origin, color • Age (40 or over) • Disability • Military experience • Religion • Marital status • Sexual orientation • Gender

10. Protected Classes • California • Individuals within a group identified for protection under California’s Fair Employment and Housing Act. • Race • Medical Condition • Color • Pregnancy • Religion • Marital Status • Veteran’s Status • Sex (Inc. gender identity) • National Origin • Sexual Orientation • Ancestry • Age (40 and over) • Physical Disability (including HIV and AIDS) • Mental Disability

11. Legal Issues • Bona Fide Occupational Qualification (BFOQ) • Reasonably necessary to the normal operation of the particular business • Bona Fide Seniority Systems • Law permits use of seniority systems if they are not the result of an intention to discriminate

12. Protected Classes • California – additional protected classes • Individuals within a group identified for protection under California’s Fair Employment and Housing Act. • Request for Family Care Leave • Request for Leave for Employee’s Own Serious Health Condition • Request for Pregnancy Disability Leave • Retaliation for Reporting Patient Abuse in Tax-Supported Institutions

13. Disability Protections • Disabled Person – Federal Americans with Disabilities Act (ADA), including Amendments Act of 2008 (ADAAA) effective 1/1/09 • Someone who has a physical or mental impairment that substantially limits major life activities, who has a record of such impairment, or who is regarded as having such an impairment. • Final interpretive guidance on Amendment Act of 2008 issued by EEOC in March 2011.

14. Disability Protections • Disabled Person – California Fair Employment and Housing Act (FEHA) • Someone who has a physical or mental impairment that limits life activities, who has a record of such impairment, or who is regarded as having such an impairment. • Broader in scope than Federal regulation.

15. Disability Protections • Disabled Person – California Fair Employment and Housing Act (FEHA) • Duty for employer to reasonably accommodate a disability. • Duty to engage in a good faith interactive process with an employee regarding any reasonable accommodations that might be available to permit the employee to perform the essential functions of a position. • Duty to engage in a good faith interactive process even with an employee who is not disabled but the whom the employer regards as disabled.

16. Discrimination • Anti-discrimination laws also prohibit: • Retaliating against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.

17. Discrimination

18. Discrimination • Disparate Treatment • Occurs in employment-related situations when either: • Different standards are used to judge different individuals, or the same standard is used, but it is not related to the individuals’ jobs • The outcome of the employer’s actions, not the intent, is considered by the regulatory agencies or courts when deciding whether or not illegal discrimination has occurred.

19. Disparate Treatment –Burden of Proof • A plaintiff alleging employment discrimination must: • Be a member of a protected group. • Show disparate treatment existed. • Once a court rules that a prima facie case (evidence that, unless rebutted, would be sufficient to prove a fact) has been made, the burden of proof shifts to the employer.

20. Discrimination • Adverse (Disparate) Impact • Occurs when substantial underrepresentation of protected-class members results from employment decisions that work to their disadvantage. • Griggs vs. Duke Power (1971) decision: • Lack of discriminatory intent is no employer defense if discrimination occurs. • The employer has the burden of proof in proving that an employment requirement is a job-related “business necessity.” No prima facie case is needed by employee first.

21. Adverse (Disparate) Impact Example

22. Affirmative Action • Affirmative Action • Program undertaken by an organization to improve job opportunities for and increase the utilization of protected classes in its workforce. • Applies to qualified individuals within protected classes. • Not a mandate to employ unqualified candidates or to give preferential treatment to one in a protected class at the expense of over another individual in a protected class. • Not legal to have hiring quotas.

23. Affirmative Action • Affirmative Action • Could be voluntary by company or company and its union • Could be required by court order or the Equal Employment Opportunity Commission (EEOC) to remedy past wrongs by a company • Could be required by Office of Federal Contract Compliance Programs (OFCCP) – Federal government contractors with 50 or more employees and government contracts of $50,000 or more)

24. Affirmative Action - California • Public Employers • Affirmative action is prohibited in some situations due to the passage of Proposition 209 in 1996 • Also known as California Civil Rights Initiative • This Proposition amended the State Constitution to prohibit discrimination against or granting preferential treatment to any individual or group in the operation of public employment, public education, or public contracting • Prohibited based on race, sex, color, ethnicity, and national origin

25. Affirmative Action Affirmative Action Plan (AAP) AAP Metrics A document reporting on the composition of an employer’s workforce, required for federal contractors. • Availability analysis • Utilization analysis • Goals and timetables

26. Arguments: Why Affirmation Action is Needed Arguments: Why Affirmation Action is Not Needed The Debate about Affirmative Action FIGURE 3–3

27. Managing Diversity • Accepting and valuing differences between people • Strategically driven (not legally driven) • Based on a more diverse workforce now and in the future • Assumes that diverse groups will create new ways of working together effectively • Aims to promote inclusiveness • Benefits - increases marketing opportunities, recruitment, creativity, and positive business image • If flexibility and creativity are valued as keys to competitiveness, diversity is critical for an organization's success

28. Other Staffing Laws: EmployeePolygraph Protection Act (1988) • Purpose • Prevent most private employers from usinga polygraph on job applicants or employees • Prohibited practices • Requiring applicants or employees to take a polygraph • Using results of a polygraph for employment decisions • Discharging or disciplining individuals for refusal to take a polygraph • Enforcement • Enforced by Department of Labor • Noncompliance may result in fines up to $10,000

29. Other Staffing Laws: FairCredit Reporting Act (1970) • Purpose • Regulates organization’s acquisition anduse of consumer reports on job applicants • Required compliance • Before obtaining a report, organization must • Give applicant notice in writing a report may be obtained • Obtain written authorization from applicant • If an “adverse action” is taken, organization must • Notify (written, oral, electronic) applicant of adverse action • Provide information of consumer reporting agency to applicant • Provide notice of applicant’s rights to applicant • Enforcement • Enforced by Federal Trade Commission • Noncompliance may result in fines up to $1,000