PSY 6430 Unit 2

1. PSY 6430 Unit 2 Legal Issues Continued Schedule Tonight and Monday: Lecture Wednesday, 1/28: Exam

2. Supreme Court 92 District Courts SO1: Court structure, Title VII casesTitle VII cases are tried in the federal court system 9 justices 3 judges 1 judge Eleven Courts of Appeals Corresponding to Eleven Circuits (MI is in the 6th; in most cases, trials heard by judges, not juries: click; CRA1991 permits trials intentional disc when compensatory Or punitive damages. Different laws in different parts of the country until a case reaches the Supreme Court- most liberal, 9th, CA notorious)

3. 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 (in 1990, OFCCP decided, based on statistics from WMU, to skip the first two and go directly to third step - conciliation agreement. It was lifted in 1995 - I’ll talk more about that in a few minutes)

4. 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

5. 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 (NY State Court system, job analysis and needed access to those data so I could develop a representative sample, the AA officer refused to give them to me. I eventually got it, but had to go to Personnel Director and have him fight the battle with the AA office; AA office usually is separate from personnel)

6. SO2: Third negotiation step: Conciliation Agreement • Initiated by finding of probable cause and no settlement • Because the EEOC has found probably 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

7. 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 Conciliation Agreements • Also may involve an AA program • Again, typically not done in Conciliation Agreements • 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 (company has not been proven guilty in court; read some of WMU’s conciliation agreement; Abercombie and Fitch Consent Decree, Home Depot)

8. SO20: Two reasons why a company may opt to settle even if charge is weak (I am going to jump ahead here - because of the relevancy of SO20; here are some figures - why on earth would companies settle for these amounts?)

9. SO20: 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 its black, Hispanic, Asian and female employees? • 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 (A&F - equal opportunity discriminator - all but white males)

10. 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) (How I met David; student came to me describing a situation that clearly suggested harassment, hostile environment, seeking my advice. Next time, I handled it differently - but at what point and what do you say to a student?)

11. SO3: Some statistics from EEOC • In 2007, ~83,000 charges of discrimination filed with the EEOC • Race 37% • Sex 30% • Age 23% • Disability 21% • National origin 11% • Religion 4% (so these are the ones that “made it through” the company’s administrative procedures)

12. SO5: 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. (I was actually in this situation at PA - we were a semi-private, semi-public organization, subject to both EEOC and OFCCP guidelines, yet we couldn’t satisfy both. And, remember what the stakes are for violating the law….)

13. SO5: 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. (when we get to the professional development/requirements for selection procedures, particularly the job analysis, they are based on these Uniform Guidelines).

14. SO8: Skills & Abilities, not acceptable for selection according to 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)

15. SO8: Skills & Abilities, not acceptable for selection according to UG? 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 (Many companies want to test for higher level skills, particularly if there is a strong hire from within policy. However…political hot potato in orgs)

16. SO9: 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 (type of cut-off score, major implications for the type of validity procedure you use and hence the type of job analysis; cover this now and again later)

17. SO9: 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 (managers have trouble with this one, by the way - input with respect to who is going to be working for them)

18. SO9: 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 *Remember, the laws are only relevant if adverse impact exists (often ignored by organizations)

19. SO11, intro: Review of 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. (SO11 deals with the 3 situations where a company would adopt an AA program - briefly review difference between EEO and AA)

20. SO11: 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

21. 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

22. SO11: Three situations in which acompany 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 *I’ll talk about this more in a moment - SO 13

23. SO12: Voluntary AA programs • 12A: Explain why the courts have historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII • 12B: What are white males permitted to challenge in court re voluntary AA programs?

24. SO12: 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 (what about white males who are not hired because a member of a protected class is given preference? It happens)

25. SO12: (NFE) 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 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) (they have at times, won “admission” law suits, but those are different laws: next slide)

26. SO12: Reverse Discrimination • SO12A: 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. • SO12B: 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) (Back to SO12A&B’ last point, imagine the company – the court ordered and approved an AA program – white males challenged it, and the Supreme Court said it was OK for the males to challenge the legality of the AA program – that was corrected in the CRA 1991.

27. 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 Quintessential case demonstrating complexity

28. 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

29. 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

30. 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

31. 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 (all’s well that ends well – this started in 1977)

32. SO13: Legality of voluntary AA, and the CRA of 1991 • CRA of 1991 It is unlawful to use protected status characteristicas 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, 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. * “Motivating factor” is an extremely important term here (language of the CRA that poses the problem for AA programs; remember Gatewood, Field & Barrick: we know what is not legal; but not what is legal)

33. 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

34. NFE: Price Waterhouse • Disparate treatment 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

35. 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 one of the 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 (can’t use it at all; good luck on that one! They meant well)

36. 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 (failure to promote/hire is based on both “legitimate” reasons and “illegitimate”) • Restricts monetary reimbursement, including 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

37. SO14: 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

38. SO14: 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 OK, quotas are not) • This is basically the reason the Supreme Court struck down UM’s undergraduate AA program that added an arbitrary 20 points to the scores of underrepresented minorities (love the language - trammel!!; 50-50 hiring quota, a white can be completely denied the opportunity for advancement)

39. SO14: 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

40. SO14: NFE: Thought Question Is the fact that AA programs must be temporary inconsistent with the fact that the OFCCP laws require government contractors to have an AA plan? That is, how can a program be both required and temporary? If there is no adverse impact (no manifest imbalance), then there is no AA program, because an AA program must only be used to correct manifest imbalances. Essentially, if there is not a historical imbalance, then an AA program is not required

41. SO17: 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? (skipping SOs 15-16, unless questions/comments; multi-step)

42. SO17: 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 • Then move to the interview • Finally, administer the agility test (most expensive)

43. SO17: 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

44. SO17: 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) (last slide on Sos)

45. 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? (Sos 22-28 just describe some EEO lawsuits; also have some articles in the course pack)

46. Wal-Mart (case still in process) • Case started in 2001 • Expanded to class action suit in 2004 – as a result of a court ruling • Wal-Mart appealed; Appeals court upheld class action suit in 2007 • Wal-Mart has appealed • 1.6 – 2 million females who have worked for Wal-Mart from 1997-present

47. Wal-Mart continued • Managerial jobs not posted; men were often invited to apply, females were not • Some female managers make $20,000-$25,000 less than male counterparts • Female managers were required to go to Hooters for meetings and one was required/pressured to go to a strip club for a meeting • “God made Adam first, so women would always be second to men”

48. 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 “a worthless broad” or asked to wear lower cut shirts. • And on and on….

49. 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 plaintiffs

50. 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 (Latino, African-Americans, Asians) • Home Depot, 2004, $5.5 million, race, sex, and national origin • Costco, pending, sex, class action involving 750 current and former employees • Ford, 2002, $3.8 million, race and sex (last slide)