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Mgmt 383

Mgmt 383. Chapter 4 Legal Framework for Equal Employment Fall 2008. Semantics: Diversity, EEO and Affirmative Action. EEO - individuals should have equal treatment in all employment-related actions. Diversity - recognizing the differences among people.

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Mgmt 383

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  1. Mgmt 383 Chapter 4 Legal Framework for Equal Employment Fall 2008

  2. Semantics: Diversity, EEO and Affirmative Action • EEO - individuals should have equal treatment in all employment-related actions. • Diversity - recognizing the differences among people. • Discrimination - recognizing differences among items or people. • Unlawful Discrimination – considering race, color, religion, sex, or national origin of an individual when making an employment decision. • Affirmative Action – employers are urged to hire people based on underutilized protected class, to atone for historical discrimination.

  3. Equal Employment Opportunity Laws • The HR activity that affects all other HR activities is regulatory compliance with Equal Employment Opportunity laws and regulations. • Title VII even trumps NLRA (Bennett v. Alexander-Denver)

  4. Major US Employment Laws • Civil Rights Act of 1964 • Civil Rights Act of 1991 • Executive Order 11246 • Equal pay Act of 1963 • Pregnancy Discrimination Act of 1978 • Americans with Disability Act of 1990 • Immigration Reform & Control Act of 1986

  5. Civil Rights Act of 1964 • Title VII - Equal Employment Opportunity • It shall be an unlawful employment practice for an employer: • (1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin; or

  6. Civil Rights Act of 1964 • (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex or national origin. Source: 42 U.S.C. § 2000e-2(a).

  7. Protected Classes under EEO Laws • Race • Color • Religion • Sex • National origin (Ethnicity) • Age (40+) (ADEA) • Disability (ADA) Title VII

  8. Recruiting Selection Promotions Transfers Layoffs Training Wages Benefits Terminations Work assignments Working conditions Apprenticeships Performance Appraisal Practices that can result in Discrimination

  9. Employers Covered Under Title VII • Private sector employers with 15 or more employees. • All educational institutions (public or private). • All labor unions with 15 or more members. • All employment agencies (public & private). • All state and local governments. • All joint (labor-management) committees for apprenticeship and training.

  10. Two Forms of Discrimination under Title VII • Disparate Treatment-intentional discrimination. Members of a protected class are treated differently. • Disparate Impact-unintentional discrimination. Facially neutral requirement causes substantial underrepresentation of protected class members.

  11. Three Stages of a Disparate Treatment Case I. Prima Facie Case (shifts the burden to the employer) II. Employer’s Rebuttal III. Complaining Party's Rebuttal

  12. PrimaFacie Case (Selection) (1)Complaining party is a member of a protected class. (2)Complaining party was qualified & applied for (or held) the job in question (3)Complaining party was subjected to an adverse action (4)Similarly situated individuals not from the CP’s protected class with fewer or equal qualifications were not subjected to the adverse action

  13. Disparate Treatment • Employer defenses for disparate treatment: • Legitimate nondiscriminatory reason for the decision. • Bona fide occupational qualification (BFOQ).

  14. Bona Fide Occupational Qualification • BFOQs are permitted only for: • Sex • Religion • National Origin • There are no BFOQs for race.

  15. Disparate Treatment • Employee’s rebuttal of the employer defense. • Employee may still prevail if he or she can show that the employer’s legitimate nondiscriminatory reason was pretextual.

  16. Equal Employment Opportunity Commission • Equal Employment Opportunity Commission (EEOC): • Enforces Title VII, ADA, Equal Pay Act, ADEA, § 501 Rehabilitation Act. • Investigates EEO Complaints: • Reasonable cause (5.3% in 2006). • No reasonable cause (61.2% in 2006). • Dismiss (16.6% in 2006). • Settlements (11.4% in 2006). • Withdrawals (5.5% in 2006).

  17. Disparate Impact • Disparate Impact (unintentional discrimination) • A facially neutral selection criterion has the effect of disqualifying a disproportionate number of protected class members. • Under UGESP, this is usually demonstrated by a manifest statistical imbalance.

  18. Disparate Impact • Methods for establishing statistical imbalances: • Two or three standard deviations. • Four-Fifths Rule. • The most common under the Uniform Guidelines on Employee Selection Procedures is the Four-Fifths Rule.

  19. Four-Fifths Rule Selection rateSelection rate of the protected < .8 of the group class with the highest rate

  20. Four-Fifths Rule A company requires all applicants to pass an achievement test. Of the 181 white applicants, 105 pass. Of the 102 Hispanic applicants , 46 passed. 46 105 102 181 .45/.58 = .777 .777 < .8 = .45 = .58

  21. Four-Fifths Rule Now assume that: 105 of the 181 white applicants pass and 49 of the 102 Hispanic applicants pass. 49105 102 181 .489/.58 = .84 .84 < .8 = .489 = .58

  22. Employer Defenses for Disparate Impact • Challenge complaining parties statistics. • Demonstrate that the practice causing the disparity is a business necessity/job-related. • Job-relatedness is established through a process known as validation.

  23. Civil Rights Act of 1991 • Major Provisions of the Civil Rights Act of 1991 • Prohibits race norming. • Places burden of proof on complaining parties initiating disparate impact charges. • Provides for extraterritorial application of Title VII. • Provides for jury trials.

  24. Race Norming 80 70 60 90 50 Mean test scores by EEO category. All group scores are adjusted by the difference in mean scores. A S I A N +10 W H I T E +20 +30 B L A C K H I S P A N I C +40 A M E R I N D

  25. Punitive & Compensatory Damages Under CRA 1991 • Provides for punitive & compensatory awards: Size of Firm Max. Award 15-100 $50,000 101-200 $100,000 201-500 $200,000 >500 $300,000

  26. Pregnancy Discrimination • Pregnancy Discrimination Act of 1978amended Title VII to include discrimination on the basis of pregnancy, child birth, or related medical conditions. • The intent of this statute is to ensure that pregnancy is treated like any other medical related condition in the workplace. (42 U.S.C. Section 2000e(K))

  27. Pregnancy Discrimination • Prima Facie Case: • (1) she was pregnant. • (2) she was qualified for the job. • (3) she was subjected to an adverse employment decision. • (4) there was a connection between her pregnancy and the adverse employment decision. Source: Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996)

  28. Sexual Harassment • To be discussed in detail in Chapter 5

  29. Americans with Disabilities • Creates a new protected class, qualified individuals with a disability. • Requires reasonable accommodation. • Extremely ambiguous and broad.

  30. Americans with Disabilities • Americans with Disabilities Act of 1990 (ADA) Title I prohibits employment-related discrimination against qualified individuals with disabilities.

  31. Qualified Individuals with a Disability • Two criteria must be met if the ADA is to apply in an employment situation: • The individual must be disabled.As defined in the ADA. • The individual must be qualified. He or she must be able to perform the essential job functions with, or without, reasonable accommodation.

  32. Who is Disabled? • Has a physical or mental impairment which substantially limits one or more of an individual’s major life activities. • Has a record of such impairment. • Is regarded as having such impairment.

  33. Conditions That Have Been Treated As Impairments • Conditions that have been declared “impairments” under the ADA: • Allergies • Morbid obesity • Color blindness • Facial disfigurements • AIDS

  34. Reasonable Accommodation • Reasonable Accommodation- a modification or an adjustment to the work environment that enables a qualified individual with a disability to perform the essential job functions. • An accommodation is not reasonable when it places an undue hardship on the employer.

  35. Undue Hardship • Undue Hardship: • Cost of the accommodation. • Size (number of employees). • Number and type of facilities. • Composition and structure of workforce. • Not required to change essential job functions (the paraplegic policeman). This does not apply to marginal job functions.

  36. ADA Restrictions on Medical Information • No pre-employment medical exams. • Cannot ask any candidate during an interview about current or past medical conditions. • All medical information (post-employment) must be kept under the strictest confidentiality. • Medical files must be kept separate from personnel files.

  37. Age Discrimination • Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful to discriminate in the terms and conditions of employment on the basis of age. • 40 years-old or older. • Does not protect against: • Poor performance. • Inability to perform assigned tasks. • Disparate Impact is available in ADEA litigation Smith v. City of Jackson 125 U.S. 1536 (2005).

  38. National Origin & English-Only Rules • English-Only work rules • Must be justified. • Cannot create a universal prohibition. • Must describe consequences for noncompliance • Must be communicated to all employees. Source: Garcia v. Spun Steak, 13 F.3d 296 (9th Cir. 1993)

  39. Immigration Reform and Control Act • The Immigration Reform and Control Act (IRCA) of 1986 • Employers must assure that employees hired are legally authorized to work in the U.S. within 3 business days of hiring. • However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA. • Verification must be obtained from all applicants and employees and not just some.

  40. Verification Requirements Under IRCA

  41. IRCA Penalties for Noncompliance

  42. Immigration Reform and Control Act • The Immigration Reform and Control Act (IRCA) of 1986 • Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities may violate IRCA (but not Title VII).

  43. Illegal Aliens and Title VII • Though illegal aliens have no legal right to be in the US, once there are here they are protected under Title VII. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, (1973) • Title VII protection from unlawful discrimination of "any individual," extends to aliens (legal or illegal). • NLRA: Sure-Tan, Inc., v. NLRB 467 U.S. 883 (1984). • FLSA: Patel v. Quality Inn South, 846 F.2d 700, 706 (11th Cir. 1983), cert. denied, 489 U.S. 1001, 109 S. Ct. 1120 (1989. • Equal Protection Clause Amend XIV: Plyler v. Doe, 457 U.S. 202 (1982).

  44. Requirements for Immigrants & Foreign-Born Workers • Visas & Work Permits • Insure that the worker has authorization to work in the US: • H-1B for professional employees (good for 6 years). • L-1 for intra company transfers. • SSAN and employee name mismatches • Unreported name change. • Marital status change. • Stolen identity. • Clerical error. • Fraud (likely an illegal alien).

  45. USERRA • Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994. • Leaves of absence while called to active duty. • Return to job or comparable job. • Prompt reemployment upon return. • Protection from discharge or retaliation. • Continuation of health care. • Continued seniority rights.

  46. Sexual Orientation • No Title VII Protection for: • Homosexuals - Simonton v. Runyon, 232 F.3d 33; (2nd Cir. 2000);Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001); Wrightson v. Pizza Hut of Am., 99 F.3d 138 (4th Cir.1996); Kirkpatrick v. Seligman & Lutz, Inc., 636 F.2d 1047 (5th Cir. 1981);Dillon v. Frank, 1992 U.S. App. LEXIS 766 (6th Cir. 1992); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000); Schmedding v. Tnemec Co., 187 F.3d 862 (8th Cir. 1999); Osborne v. Gordon & Schwenkmeyer Corp., 2001 U.S. App. LEXIS 11381 (9th Cir. 2001).

  47. State Laws & Sexual Preference • Seventeen states plus the District of Columbia have laws prohibiting sexual orientation discrimination in both private and public jobs:

  48. Content Validity • The best employer’s rebuttal: The criterion creating the imbalance is a business necessity (job-related). • Validity - the extent to which a test actually measures what it purports to (usually job performance). • Content Validity - an actual sample of the work to be performed. • Vestibule training. • Must be a “fair sample” of the work to be performed.

  49. Criterion-Related Validity • Criterion-Related Validity - how well the employment requirement accurately predicts job performance. • Predictive Validity - uses new hires to provide data. • Concurrent Validity - uses current employees to provide data.

  50. Construct Validity • Construct Validity - must show a correlation between an abstract characteristic and job performance. • Most difficult validation to perform. • Actually two-in-one. Leadership Leadership Style Managers’ Performance Assessment Test

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