PSY 6430 Unit 2

1. 1 PSY 6430 Unit 2 Legal Issues Continued Schedule Tonight and Monday: Lecture Wednesday, 2/02: Exam Unit 3 Monday, 2/07: Guest speaker: Michele Henry

2. Shelly Henry Priddy, Cutler, Miller, & Meade, Louisville, KY Employment discrimination and civil rights violations in education under the Individuals with Disabilities Act in Education MA in I/O psychology, WMU Human resources director for 5 years University of Virginia Law school First ranked student in employment discrimination law Voted by her fellow students as most likely to succeed in employment discrimination law Clerked for a federal judge in West Virginia Worked for Frost Brown Todd for about 5 years Drinks/dinner after class 2

3. 3 SO1: Court structure, Title VII cases Title VII cases are tried in the federal court system

4. 4 SO2: EEOC administrative process Before an individual can pursue redress in court under Title VII (usually followed by OFCCP as well) File a complaint with the EEOC Exhaust all internal administrative remedies At WMU an employee must contact Office of Institutional Equity EEOC may pursue four negotiation steps Stakes increase at each step - penalties for the company become more and more severe EEOC can proceed through all four in order, or skip some and start with the most severe one, depending upon the strength of the individual’s complaint

5. 5 SO2: First negotiation step No Fault Settlement Complaint is filed with EEOC Before EEOC collects any data, a settlement is attempted Within 10 days of receipt of the complaint, EEOC sends a copy to the company and immediately gives the company an opportunity to settle it If unsuccessful, moves to informal fact finding Informal fact finding, settlement attempted again If successful, it results in a no fault settlement Company does not admit any wrong doing, but engages in some sort of compromise If unsuccessful, moves to the next negotiation step

6. 6 SO2: Second negotiation step:  Pre-Determination Settlement EEOC can and usually does subpoena the company’s records That is how EEOC gets access to the company’s records EEOC can subpoena ALL of the company’s records, not just the records related to the specific complaint If it finds something else it doesn’t like, it can “go for it” as well EEO data are strongly protected by organizations - national security secrets! Company is invited to respond, if it does the response can be used by EEOC then or in the future Most lawyers say organizations should never respond; whatever information/data they give EEOC can be used against them EEOC, based on data, determines probable cause or no probable cause If no probable cause, EEOC usually withdraws, but individual can pursue remedy in court - constitutional right (with little chance of success) If probable cause and company settles, no wrong doing is admitted by the company

7. 7 SO2: Third negotiation step:  Conciliation Agreement Initiated by finding of probable cause and no settlement Because the EEOC has found probable cause, at this point things get pretty serious and any settlement is likely to result in some major concessions by the company (WMU’s conciliation agreement) EEOC, not the Court, oversees this agreement thus it is a private agreement between parties, not a legal agreement The EEOC administers compliance; if the organization does not comply, EEOC will typically file a law suit or OK a law suit by the plaintiff No wrong doing is admitted by the company if it settles at this step If no settlement can be reached, things get REAL serious and move to the Consent Decree step

8. 8 SO2: Fourth negotiation step:  Consent Decree Initiated by a law suit filed by EEOC or the plaintiff BEFORE litigation, EEOC attempts a settlement again If settled, costly for the organization Usually involves lump sum payouts including back payments (for wages lost) Typically not done in prior negotiation steps (including Conciliation Agt) Also may involve an AA program Again, typically not done in prior negotiation steps Court must approve the settlement because a law suit was filed Court oversees compliance because the law suit was filed This is NOT a private agreement between EEOC and the company If settled at this step, the company still does not admit to any wrong doing The company has not had its day in court, and thus has not been found to have engaged in unfair discrimination

9. 9 SO22: Two reasons why a company may opt to settle even if charge is weak

10. 10 SO22: Two reasons why a company may opt to settle even if charge is weak Costs and uncertainties of the outcome of litigation (could be worse than the settlement) Public relations Who wants to buy clothes from a store that has unfairly discriminated against blacks, Hispanics, Asians and females? Who wants to buy gas from Texaco where “the black jelly beans are stuck to the bottom of the bag?” In fact, there was a very large, well organized boycott of Texaco before the case was resolved

11. 11 NFE: Difficult issues David Glenn, VP of Institutional Equity Hired in 1988 In 1989, WMU faced normal periodic investigations from both EEOC and Dept. of Education (WMU probably knew they were coming, Mr. Glenn did not) Conciliation agreement arose from those investigations Never once since David has been here has the University lost a court case (not as appreciated as he should be - nonevents are not recognized)

12. 12 SO3: Some statistics from EEOC In 2009, ~93,000 charges of discrimination filed with the EEOC Race 36% Sex 30% Age 24% Disability 23% National origin 12% Religion 4%

13. 13 SO4: EEO vs. AA Equal Employment Opportunity Every individual is treated the same and every individual who is equally qualified has an equal opportunity for employment, promotions, etc. No preferential treatment Professional selection issue (this is exactly what selection systems are designed to do - hire the best applicants) Not controversial except for racists, sexists, etc.

14. 14 SO4: EEO vs. AA Affirmative Action Redresses historical imbalances and increases number of minorities hired in the work place at a faster rate than what would occur simply through EEO Can result in preference being given to individuals in certain demographic groups If two candidates are equally qualified, preference will be given to the minority candidate A less qualified minority may be hired instead of a more qualified majority Social policy, not a “professional” selection issue Extremely controversial

15. 15 NFE: Affirmative Action: Different and more controversial than EEO Advocates of AA EEO often does not exist Historical imbalances exist from past discrimination Opponents of AA Violation of basic principles of justice (fairness) Brands minorities as inferior

16. 16 NFE: Affirmative Action: Different and more controversial than EEO Affirmative Action New York Herald article, circa 1900 The poor and illiterate class that is a national menace and cannot be disregarded with safety Immigrants from Asia Immigrants from Southern Europe Not to mention immigrant Irish who were severely persecuted “The rights of a lot of your foreparents were not recognized until the government stepped in and affirmatively lifted them up” (Kenneth Brown, UM, 2004)

17. 17 NFE: Affirmative Action: Different and more controversial than EEO Affirmative Action Threats to college-diversity programs pose risks for boys What about AA for boys being admitted to college? Admissions preferences are being used to maintain a balance now when more girls attend college than boys, and have better qualifications What about other types of preferences? What about athletes? What about legacy? (preferences for children of alumni) Justice Dept. sued Illinois State University for giving preference to minority and women in a janitorial training program, but did not address the fact that veterans were given the same preference

18. 18 NFE: Proposition 2, Michigan Proposition 2, passed in November, 2006 Bans public institutions from using AA programs that give preferential treatment to groups or individuals based on race, gender, color, ethnicity, or national origin for employment, education and contracting purposes

19. 19 NFE: Proposition 2, Michigan: Some history In Michigan, in 1995, the admissions policies of both the undergraduate and law school at UM were challenged because of AA policies The law school admission policy was found to be legal, the undergraduate admission policy was found to be illegal Undergraduate policy awarded 20 points on to the “admission score” for any underrepresented minority Proposition 2 was sponsored by the same individuals that sponsored a similar proposition in CA, and the individual (plus advocates) of the individual who was denied admission to the law school

20. 20 NFE: Proposition 2 vs. OFCCP How does Proposition 2 affect WMU? Seem to have contradictory laws with OFCCP requiring AA and Proposition 2 banning it Federal laws supersede state laws, thus in situations where the OFCCP laws require affirmative action for hiring, they will take precedence (i.e., hiring of staff and professors at WMU) Federal laws do not address admissions or scholarships (or hiring contractors) based on diversity, so Proposition 2 takes precedence It took a long time to figure everything out!

21. 21 SO7: Why are the Uniform Guidelines on Employee Selection Procedures important? 1. These guidelines were “hammered” out and approved by all of the federal agencies involved in EEO and AA compliance (1978) EEOC, Civil Service Commission, Dept. of Justice, and Dept. of Labor Prior to this, both EEOC and Dept. of Labor (OFCCP) had issued separate guidelines that conflicted. Selection specialists could not conform to both with respect to some procedures. Imagine the confusion.

22. 22 SO7: Why are the Uniform Guidelines on Employee Selection Procedures important? 2. While not legally binding, the courts give “great deference” to the guidelines. The courts have ruled that these guidelines will be used as a “checklist” for the appropriateness of selection procedures.

23. 23 SO10: Skills & abilities, when not acceptable for selection re UG? 1. If they can be learned during a relatively brief training period - within 6 months Makes perfect sense from a selection standpoint Has implications for job analysis so we will be coming back to this, but your job analysis must identify not only which KSAs are required for effective job performance, but also which can be learned on the job (so they can be excluded from your selection procedures)

24. 24 SO10: Skills & abilities, when not acceptable, cont. 2. KSAs from higher level jobs are only acceptable if The majority of job incumbents actually assume higher level positions If they so do within a reasonable period of time - Uniform Guidelines, within five years If you are hiring assembly line workers, 40 incumbents, but only 2 supervisory positions, and only a few ever become supervisors - NO! If it takes an assembly line worker more than 5 years to become a supervisor - NO! If supervisory position requires a BA, but the assembly line worker position does not - you cannot require your assembly line workers to have BAs

25. 25 SO11: Three types of cut-off score procedures Least restrictive: Minimum cut-off score Minimum score above which you consider all applicants equally qualified Pass/fail system Type of validity procedure: Empirical or content Next restrictive: Banding Establish ranges of scores and group applicants in those ranges: Every applicant is equally qualified within each band Type of validity procedure: Empirical only

26. 26 SO11: Three types of cut-off score procedures, cont. Most restrictive: Rank order applicants based on scores Select top person first, then the next one, etc. Type of validity procedure: Empirical only

27. 27 SO11: Three types of cut-off score procedures, cont. Must use empirical validity to determine job relatedness of the selection procedure if Banding Rank ordering (and of course, if there is adverse impact)* Why? Two requirements: Uniform Guidelines state If you use these approaches not only do you have to show that your selection procedures are job related, but also that those who score higher on the exam/procedure will also perform better on the job There is only ONE way to do that - statistics, empirical validation

28. 28 SO13: Three situations in which a company would adopt an AA program Organization is a government contractor and thus is required to do so under the laws administered by the OFCCP Organization has entered into an agreement with EEOC or OFCCP to do so, or has been ordered by the courts to do so (Consent decree or lawsuit) Organization adopts a voluntary AA program Language in the CRA of 1991 makes the legality of voluntary AA programs questionable* Lawyers recommend that organizations NOT do this

29. 29 SO15: Voluntary AA programs 15A: Explain why the courts have historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII 15B: What are white males permitted to challenge in court re voluntary AA programs?

30. 30 SO15: Voluntary AA programs - the controversy Conflict between wording of Title VII and preference that can be given members of protected classes: It is unlawful to fail or refuse to hire any individual with respect to race, color, religion, sex, or national origin. Further, “nothing in this title shall be interpreted to require any employer to grant preferential treatment to any individual.” So, what about white males? Color - white Sex - male

31. 31 SO15: Reverse Discrimination Several reverse discrimination cases have been brought under Title VII “Reverse discrimination:” Members of a majority group claim they have unfairly discriminated against All of the cases that I am familiar with to date have involved groups of white males In an employment situation, under Title VII (as opposed to laws that govern admission to universities/colleges), white males have never been successful in winning a direct challenge under Title VII The current problem with voluntary AA, thus, is not the wording of Title VII (as authors state) but with the wording of CRA of 1991 (more on that later)

32. 32 SO15: Reverse Discrimination SO15A: Why have the courts historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII? The Supreme Court has ruled that the intention of the framers of Title VII was to protect individuals who have been subjected to unfair discrimination in the past. Because white males do not fall into that category, the Supreme Court ruled that they are not entitled to file a lawsuit under Title VII. SO15B: What can white males challenge in court? White males can challenge the legality of voluntary AA programs. (CRA of 1991 makes it virtually impossible for white males to challenge court-ordered AA programs, negating an earlier decision of the Supreme Court)

33. 33 Birmingham Dept. of Safety orIt’s difficult to do the right thing 1972 Courts ruled selection tests were not job related and unfairly discriminated against blacks In the 37-year history of the department, a black trooper had never been hired even though 25% of the workforce in the area was black The department revised its selection procedures Schizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sectorSchizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sector

34. 34 Birmingham Dept. of Safety orIt’s difficult to do the right thing 1977 Black troopers challenged the promotional exams to captain Of the 230 officers at or above the rank of corporal, not one was black EEOC entered the case on the side of the troopers pressuring the department to change its selection procedures After several years, the department had failed to do so Schizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sectorSchizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sector

35. 35 Birmingham Dept. of Safety orIt’s difficult to do the right thing Justice Department then entered the case on the side of the black troopers The department agreed to revise testing procedures New tests were developed but found to be inadequate Justice Department asks courts to impose a hiring quota, which the courts did (50% hiring quota)* Justice Department then switches sides after Reagan is President Justice Department helps the white troopers appeal the quota system to the Supreme Court on the grounds of “reverse discrimination” *hiring quotas are now illegal; goals are not, but quotas are Schizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sectorSchizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sector

36. 36 Birmingham Dept. of Safety orIt’s difficult to do the right thing Supreme Court rules that the white employees can challenge the court-ordered AA program because they were not “parties” to the original contract Supreme Court remands the case back to the Eleventh Circuit Court of Appeals to decide whether the AA program is legal or illegal

37. 37 Birmingham Dept. of Safety orIt’s difficult to do the right thing Eleventh Circuit Court struck down the AA program, ruling that it was illegal as formulated Court ruled that the organization was NOT given more protection “just because the program had been approved by the courts as part of a consent decree.” Court refused to treat the consent decree ordered by the court any differently than a “voluntary” AA program. Civil Rights Act of 1991 Makes it virtually impossible for white males to challenge the legality of a court-ordered AA program Schizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sectorSchizophrenic nature of course I have been asked a lot about differences 20th anniversary issue of JOBM - trace the history of OBM in the private sector

38. 38 SO16: Legality of voluntary AA, and the CRA of 1991 CRA of 1991 It is unlawful to use a protected status characteristic as a motivating factor* in selection. You cannot have an AA program without using protected status as a motivating factor, hence the CRA 1991 calls into question the legality of voluntary AA programs. No court cases have addressed this issue, that I know of, so we just don’t know what the courts would decide. Nonetheless, legal experts have strongly advised organizations not to adopt a voluntary AA and to abandon their current ones until this is resolved.

39. 39 NFE: History of that language CRA language was written to protect members of protected classes It was in response to the Supreme Court decision involving a mixed motive case Price Waterhouse v. Hopkins, 1989

40. 40 NFE: Price Waterhouse Disparate treatment (not adverse impact) case Hopkins, a female, was denied promotion to partner The company considered both legal and illegal factors when it denied promotion Illegal: make-up, hair style, and dress Legal: poor interpersonal skills Thus, both legal and illegal factors were motivating factors in the decision: hence, the term, mixed motive case

41. 41 NFE: Price Waterhouse Supreme Court ruled in favor of Price Waterhouse Why? Price Waterhouse maintained it would have made the same decision if they had not used gender-related factors as motivating factors To negate that decision, the CRA language states that “it is unlawful to use a demographic characteristic as a motivating factor in selection.” Unfortunately, that language also calls into question the legality of voluntary AA programs

42. 42 NFE: Mixed motive cases, an aside Even under CRA of 1991, the legal remedies for a mixed motive case are severely restricted even if a plaintiff wins Restricts monetary reimbursement (which does include payment of attorney fees and costs) to costs/expenses directly related to the pursuit of the mixed motive case The court cannot award damages (monetary compensation) or back pay The court cannot order the company to admit that it did anything wrong (that it unfairly discriminated against the plaintiff) The court cannot reinstate an employee or force an employer to hire or promote the employee Basically an “empty” victory for the plaintiff and not a very lucrative type of case for a law firm to take on

43. 43 SO17: Characteristics that an AA program must have to be legal Text states that there are three characteristics that voluntary AA programs must have to be considered legal However, all apply to any AA program, not just voluntary ones Also, in the SO, I changed the three characteristics for the exam a little; the first two in the text are really the same

44. 44 SO17: Characteristics that an AA program must have to be legal They must be initiated/designed to correct a manifest imbalance – in other words minorities must be underrepresented and you must be able to prove that In addition, the goals, if there are any, must be connected in some way to the degree of imbalance. They must not “trammel the interests of the white employees” or as I have said in the SO: They cannot completely bar advancement or hire of the majority group; quota systems are not legal (goals are but quotas are not) This is one reason the Supreme Court struck down UM’s undergraduate AA program that added an arbitrary 20 points to the scores of underrepresented minorities

45. 45 SO17: Characteristics that an AA program must have to be legal They must be temporary and have no permanent adverse impact on whites This is because they are designed to eliminate an historical balance, not maintain a balance

46. 46 SO17: NFE: Thought Question

47. 47 SO20: Connecticut v. Teal, intro There are two different strategies a company can use when they have multiple selection instruments Applicants complete all steps in the selection process and a decision is made at the end Can be very expensive for an organization 40 applicants - interview, written ability test, agility test If applicants do well on one of these tests, but do not do well on one of the others, they will not be hired What is the most cost-effective way to proceed?

48. 48 SO20: Connecticut v. Teal, intro Multi-step: Candidates must pass each selection step in sequence to be eligible to go on to the next Start with written ability test - cheapest to administer (or online submission of a training and experience evaluation which is very common now for consulting/training/systems analysis positions that have experience criteria) Then move to the interview Finally, administer the agility or situational test (most expensive)

49. 49 SO20: Connecticut v. Teal, intro CT v. Teal: State of CT had a multi-step selection process for the position of Welfare Eligibility Supervisor The first step in the selection process was a written test Four blacks who failed the written test, filed a lawsuit claiming unfair discrimination Even though 23% of the black applicants and only 14% of the white applicants were promoted (no adverse impact), the Supreme Court ruled against CT and in favor of the plaintiffs

50. 50 SO20: Connecticut v. Teal WHY? Court ruled that CT had unfairly discriminated against blacks because the first step in the selection process, the written test, had adverse impact What was the Court’s rationale? Title VII prohibits employment practices that deprive “any individual of employment opportunities.” Thus, the focus is on the individual, not the group. Title VII does not permit individuals to be told that they have not been wronged because other other persons of their race or sex were hired What are the implications? If the organization is using a multi-step selection process, each step must be examined and must be nondiscriminatory (not have adverse impact)

51. SO21: Ricci v. DeStefano (maybe FE) One of the most recent Supreme Court cases, decided June 29, 2009 New Haven Civil Service Board administered promotional exams for lieutenant and captain fire fighter jobs After the exams had been administered and scored, CSB discarded the exams because their use would have resulted in adverse impact for the positions 51

52. SO21: Ricci v. Destefano 52

53. SO21: Ricci v. Destefano 2006: District Court upheld the right of CSB to refuse to certify the results of the test on the grounds it would result in adverse impact 2008 (Feb.): Three judge panel of the 2nd Circuit upheld the District Court ruling, stating that the CSB was “in an unfortunate position of having no good alternatives.” 2008 (June): 2nd Circuit declined a full en banc review by 7-6, but dissenting 6 urged the Supreme Court to hear the case 53

54. SO21: Ricci v. Destefano 2009: Supreme Court ruled 5-4 in favor of the plaintiffs, not the CSB That is, CSB cannot discard the test because it would result in adverse impact. If the test was job-related, then adverse impact would be OK (fair discrimination). The case has been remanded back to District Court to determine redress for the plaintiffs Case was a disparate treatment case, so tension between disparate treatment and adverse impact No doubt an adverse impact case will be filed against CSB 54

55. 55 Questions? EEO vs. AA: Difficult issue Do you believe that you have been unfairly discriminated against? Do you believe others have been unfairly discriminated against? Do you believe EEO exists? Have you been disadvantaged by AA? How strongly do you value diversity in the work place?

56. Wal-Mart: some details about the issues Managerial jobs were not posted; men were often invited to apply, females were not Some female managers make $20,000-$25,000 less than male counterparts Females in every job category have been paid less than men since 1997, even though they have higher average performance appraisals and less turnover “God made Adam first, so women would always be second to men” 56

57. Wal-Mart continued One female manager was told she was paid less than a less qualified male because she “didn’t have the right equipment.” Females were repeatedly told “men need to be paid more because they have families to support” and “men are here to make a career while women are not.” Others were called “worthless broads” and asked to wear lower cut shirts. And on and on…. 57

58. Texaco – settled in 1996, race $176.1 million settlement Class action suit EEO was investigating the complaints At an executive level meeting which was secretly taped by one of the individuals, one executive referred to blacks as “black jelly beans that all seem to be glued to the bottom of the bag.” At the same meeting, executives conspired to alter, withhold, or destroy corporate documents requested by EEOC and plaintiffs 58

59. Novartis Pharmaceuticals – US, 2010 $250 million punitive damages $3.37 million in compensatory damages Could reach $1 billion dollars 70% of managers are male, while 66% of sales representatives are female Women in sales positions received an average of $105.00 less per month than males in comparable jobs from 2002-2007 Management expects female representatives to be amenable to sexual advances from the doctors they call on and have criticized them when they have complained about inappropriate advances 59

60. Novartis Pharmaceuticals – US, 2010 A male district manager repeatedly showed female subordinates pornography and invited them to sit on his lap. He referred to women as “b……s and c…s” and said wives “were only good for washing, ironing, and f… .g.” Company responded “He wasn’t that bad a manager. He was just terrible with women.” Novartis kept him on staff managing women for 2 years after HR had substantiated these claims and explained that it just took a long time to get rid of him because the company was owned internationally. 60

61. Novartis Pharmaceuticals – US, 2010 Manager told a woman he preferred not to hire young women because: “First comes love, then comes marriage, then comes flex time and a baby carriage.” Recruiters consistently asked women if they were married or had children but not men One woman who had children was repeatedly passed over for promotion by men who had inferior sales numbers One manager encouraged a woman to have an abortion 61

62. Other articles in course pack Coca-Cola, 2000, $192 million, race Boeing, 2005, $72.5 million, sex Publix Super Markets, 2000, $10 million, race Abercrombie & Fitch, 2005, $40 million, race and sex (Hispanic, African-Americans, Asians) Home Depot, 2004, $5.5 million, race, sex, and national origin Costco, sex, class action involving 750 current and former employees Ford, 2002, $3.8 million, race and sex 62

63. 63 Unit 2: The End Questions? Comments?