CHAPTER THREE

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CHAPTER THREECHAPTER THREE

Understanding Equal Opportunity

&

The Legal Environment

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Chapter ObjectivesChapter Objectives

Understanding why compliance with HR laws is important

Review and understand progression of HR laws

To help understand how managers can make decisions that will help avoid legal liability

Review Key TermsAffirmative ActionDisparate impactDisparate treatmentHostile Work

Environment Protected ClassQuid pro quo

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Why Understanding the Legal Environment Why Understanding the Legal Environment Is ImportantIs Important

Assists in realizing what is the right thing to do…Assists in realizing what is the right thing to do… Helps employees understand the limitations of the HR Helps employees understand the limitations of the HR

and Legal departmentsand Legal departments Facilitate a fair and humane environmentFacilitate a fair and humane environment Can limit potential liabilityCan limit potential liability

Who to hireWho to hire How to compensate employeesHow to compensate employees What benefits to offerWhat benefits to offer How to accommodate employees with dependentsHow to accommodate employees with dependents How and when to fire employeesHow and when to fire employees

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Conflicting Strategies for Fair EmploymentConflicting Strategies for Fair Employment

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Conflicting Strategies for Fair EmploymentConflicting Strategies for Fair Employment

Affirmative Action: A phrase describing a range of policies to seek out, encourage and sometimes give preferential treatment to individuals in protected groups

Allowed when breaks down historic patterns of discrimination

All employees should be “essentially equally qualified” No absolute barriers to white employees No discharge of white workers Flexible and temporary May be court ordered

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Affirmative ActionAffirmative Action

Executive Order Presidential directive that has force of the law – all federal

agencies and organizations doing business with the federal government must comply

Executive Orders 11246 and 11375 Require affirmative action: steps that are taken for the purpose

of eliminating the present effects of past discrimination Office of Federal Contract Compliance Programs

(OFCCP) Responsible for implementing the executive orders related to

affirmative action and ensuring the compliance of federal contractors

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Equal Employment Opportunity LawsEqual Employment Opportunity Laws

The Equal Pay Act of 1963The Equal Pay Act of 1963 Title VII of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964 The Age Discrimination in Employment Act of The Age Discrimination in Employment Act of

19671967 The Vietnam Era Veterans Readjustment Act of The Vietnam Era Veterans Readjustment Act of

19741974 The Americans with Disabilities Act of 1990The Americans with Disabilities Act of 1990 Civil Rights Act of 1991 Civil Rights Act of 1991 (most recent amendment to Civil Rights (most recent amendment to Civil Rights

Act of 1964)Act of 1964)

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The Equal Pay Act of 1963The Equal Pay Act of 1963

An amendment to the Fair Labor Standards Act. It requires that male and female workers receive equal

pay for work requiring equal skill, effort and responsibility, and performed under similar working conditions.

Wage differentials are permitted, however, if they are based on factors other than sex, such as a seniority system, a merit system, or a system measuring earnings by quantity or quality of production.

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Key TermsKey Terms

Protected Class A group of people who have suffered discrimination in the past

and who are give special protection by the judicial system African Americans Asian Americans Latinos Native Americans Women

Disparate treatment Intentional discrimination on the part of the employer

Disparate impact A practice or policy that has a greater adverse impact on the

members of a protected group than on other employees, regardless of intent.

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Disparate TreatmentDisparate Treatment Title VII of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964

Disparate Treatment: Intentional discrimination on the part of the employer

Title VII of the Civil Rights Act of 1964 It is unlawful to fail or refuse to hire or to discharge an individual or

otherwise to discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.

It is unlawful to limit, segregate, or classify his/her employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee because of such individual’s race, color, religion, sex, or national origin.

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Title VII of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964

An employer cannot discriminate on the basis of race, color, religion, sex, or national origin with respect to employment.Coverage

All public or private employers of 15 or more persons. All private and public educational institutions, the federal

government, and state and local governments All public and private employment agencies All labor unions with 15 or more members

Created the Equal Employment Opportunity Commission (EEOC)

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Title VII of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964

The Equal Employment Opportunity Commission (EEOC)Consists of five members appointed by the president

with the advice and consent of the Senate. Each member serves a five-year term.The EEOC has a staff of thousands to assist it in

administering the Civil Rights law in employment settings.

EEOC may file discrimination charges and go to court on behalf of aggrieved individuals.

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Disparate ImpactDisparate Impact Griggs v. Duke Power Company (1971)Griggs v. Duke Power Company (1971)

Disparate impact A practice or policy that has a greater adverse impact on the members of a

protected group than on other employees, regardless of intent. Griggs v. Duke Power Company: Case heard by the Supreme Court in

which the plaintiff argued that his employer’s requirement that coal handlers be high school graduates was unfairly discriminatory. In finding for the plaintiff, the Court ruled that discrimination need not be overt to be illegal, that employment practices must be related to job performance, and that the burden of proof is on the employer to show that hiring standards are job related.

Discrimination by the employer need not be overt; employer’s intent is irrelevant.

An employment practice must be job related and valid if it has an unequal impact on members of a protected class.

The burden of proof is on the employer to show that the employment practice is job related.

Business necessity is the employer’s defense for any practice that has adverse impact.

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Disparate ImpactDisparate ImpactAlbemarle Paper Company v. Moody (1975)Albemarle Paper Company v. Moody (1975)

Disparate impact A practice or policy that has a greater adverse impact on the members of a

protected group than on other employees, regardless of intent. Albemarle Paper Company v. Moody: reaffirmed the idea that any

test used in the selection process or in promotion decisions must be validated if it is found that its use has had an adverse impact on women and minorities

If an employer uses a test to screen candidates, then the job’s specific duties and responsibilities must be carefully analyzed and documented.

The performance standards for employees on the job in question should be clear and unambiguous.

EEOC (now federal) guidelines on validation are to be used for validating employment practices

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Determining DiscriminationDetermining Discrimination McDonnell Douglas TestMcDonnell Douglas Test

McDonnell Douglas Test to Establish a Prima Facie (legally sufficient) Case of Discrimination:

The person is a member of a protected class. The person applied for a job for which he or she was

qualified. The person was rejected, despite being qualified. After rejection, the employer continued to seek other

applicants with similar qualifications.The burden now shifts to the employer to prove that

the action taken against the individual was not discriminatory.

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Defense of Discrimination ChargesDefense of Discrimination ChargesFour-fifths RuleFour-fifths Rule

Four-fifths rule EEOC’s Uniform Guidelines on Employee Selection

Procedures A selection rate for any race, sex, or ethnic group which is

less than four-fifths or 80 percent of the rate for the group with the highest rate generally is regarded as evidence of adverse impact

Rule of thumb followed by the EEOC in determining adverse impact for use in enforcement proceedings.

According to the Uniform Guidelines, a selection program has an adverse impact when the selection rate for any racial, ethnic, or sex class is less than four-fifths (or 80 percent) of the rate of the class with the highest selection rate.

The four-fifths rule is not a legal definition of discrimination, rather it is used to monitor severe discrimination practices.

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Employees Blacks (6) Hispanics (3) Whites (12)

Number Given Raise 2 2 9

Selection Ratio .33 .66 .75

Minority Selection Ratio/ Majority Selection Ratio

.33/.75 = .44 .66/.75 = .88

Adverse Impact Yes No

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Defense of Discrimination ChargesDefense of Discrimination Charges

Job Relatedness:Job Relatedness: Business can show that the decision was made for job- related reasons.Business can show that the decision was made for job- related reasons.

BFOQ:BFOQ: Bona Fide Occupational Qualification. Requirement that an employee Bona Fide Occupational Qualification. Requirement that an employee

be of a certain religion, sex, or national origin where that is reasonably be of a certain religion, sex, or national origin where that is reasonably necessary to the organization’s normal operation. Specified by the necessary to the organization’s normal operation. Specified by the 1964 Civil Rights Act.1964 Civil Rights Act.

Seniority:Seniority: Formal seniority systems are permitted - must be well established and Formal seniority systems are permitted - must be well established and

applied universally applied universally

Business necessity:Business necessity: Defense created by the courts, which requires an employer to show an

overriding business purpose for the discriminatory practice and that the practice is therefore acceptable. (drug testing)

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Title VII and PregnancyTitle VII and Pregnancy Pregnancy Discrimination Act (PDA) of 1978Pregnancy Discrimination Act (PDA) of 1978

A Title VII amendment that prohibits sex discrimination based on “pregnancy, childbirth, or related medical conditions.”

If an employer offers its employees disability coverage, then it must treat pregnancy and childbirth like any other disability, and include it in the plan as a covered condition.

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Title VII: Sexual HarassmentTitle VII: Sexual Harassment

Sexual harassmentHarassment on the basis of sex that has the purpose or

effect of substantially interfering with a person’s work performance or creating an intimidating, hostile, or offensive work environment.

Employers have an affirmative duty to maintain workplaces free of sexual harassment and intimidation.

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Sexual Harassment DefinedSexual Harassment Defined

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that takes place under any of the following conditions:

Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.

Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

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Sexual Harassment Sexual Harassment Two Broad CategoriesTwo Broad Categories

Quid pro quo Occurs when “submission to or rejection of sexual conduct is

used as a basis for employment decisions” Involves a tangible or economic consequence, such as a

demotion or loss of pay

Hostile Work Environment Occurs when unwelcome sexual conduct has the purpose or

effect of unreasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment.

Dirty jokes, vulgar slang, nude pictures, swearing, and personal ridicule and insult constitute sexual harassment when an employee finds them offensive.

Courts use a “reasonable person” test for hostile environment.

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Sexual Harassment Sexual Harassment Two Broad CategoriesTwo Broad Categories

In a quid pro quo case it is not necessary for the employee to have suffered a tangible job action to win the case.

The employer (in its defense) must show that it took reasonable care to prevent and promptly correct any sexually harassing behavior and that the employee unreasonably failed to take advantage of the employer’s policy.

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Sexual Harassment Sexual Harassment Court CasesCourt Cases

Meritor Savings Bank, FSB v. Vinson (1986) 1986 landmark sexual harassment decision, requiring the very

nature of such harassment to be so "severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment."

Burlington Industries v. Ellerth (1998) even if an employee does not suffer any financially-tangible,

job-related harm from a supervisor's sexual harassment, she or he may still hold the employer liable for other forms of injury.

Oncale v Sundowner Offshore Services (1998) Same-sex sexual harassment (male-to-male, female-to-female)

is covered under Title VII.

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Sexual Harassment Sexual Harassment Reducing Potential Liability Reducing Potential Liability

Take all complaints about harassment seriously.

Issue a strong policy statement condemning such behavior.

Inform all employees about the policy and of their rights.

Develop and implement a complaint procedure.

Establish a management response system that includes an immediate reaction and investigation by senior management.

Begin management training sessions with supervisors and managers to increase their awareness of the issues.

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Sexual Harassment Sexual Harassment Reducing Potential LiabilityReducing Potential Liability

Discipline managers and employees involved in harassment.

Keep records of complaints, investigations, and actions taken.

Conduct exit interviews that uncover any complaints and that acknowledge by signature the reasons for leaving.

Re-publish the sexual harassment policy periodically.

Encourage upward communication through periodic written attitude surveys, hotlines, suggestion boxes, and other feedback procedures.

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The Age Discrimination in Employment The Age Discrimination in Employment Act of 1967Act of 1967

The act prohibiting arbitrary age discrimination and specifically protecting individuals over 40 years old.

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Age Discrimination in EmploymentAge Discrimination in Employment Ways to Increase Potential LiabilityWays to Increase Potential Liability

Excluding older workers from important work activities. Making negative changes in the performance evaluations

of older employees. Denying older employees job-related education, career

development, or promotional opportunities. Selecting younger job applicants over older, better-

qualified candidates. Pressuring older employees into taking early retirement. Reducing the job duties and responsibilities of older

employees. Terminating older employees through downsizing

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The Vietnam Era Veterans Readjustment The Vietnam Era Veterans Readjustment Act of 1974Act of 1974

The law requires that employers with Federal contracts or subcontracts of $25,000 or more provide equal opportunity and affirmative action for Vietnam era veterans, special disabled veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.

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State and Local Equal Employment State and Local Equal Employment Opportunity LawsOpportunity Laws

The effect of the state and local laws is usually to further restrict employers’ treatment of job applicants and employees.

State and local laws cannot conflict with federal law but can extend coverage to additional protected groups.

The EEOC can defer a discrimination charge to state and local agencies that have comparable jurisdiction.

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Americans with Disabilities Act (ADA)Americans with Disabilities Act (ADA)

ADA of 1990Requires employers to make reasonable

accommodations for disabled employees; it prohibits discrimination against disabled persons.

DisabilityA physical or mental impairment that substantially

limits one or more major life activities.

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The ADA does not cover:Homosexuality or bisexualityGender-identity disorders not resulting from physical

impairment or other sexual-behavior disordersCompulsive gambling, kleptomania, or pyromaniaPsychoactive substance-use disorders resulting from

current illegal use of drugs Current illegal use of drugs Infectious or communicable diseases of public health

significance (applied to food-handling jobs only and excluding AIDS)

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Qualified individualsUnder ADA, those who can carry out the essential

functions of the job. Reasonable accommodation

If the individual can’t perform the job as currently structured, the employer must make a “reasonable accommodation” unless doing so would present an “undue hardship.”

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An employer must make a reasonable accommodation for a qualified disabled individual unless doing so would result in undue hardship.

Employers are not required to lower existing performance standards or stop using tests for a job.

Employers may ask pre-employment questions about essential job functions but can not make inquiries about disability.

Essential (each person in certain position must be able to do) vs. Marginal (not critical to job performance)

Medical exams (or testing) for current employees must be job-related.

Employers should review job application forms, interview procedures, and job descriptions for illegal questions and statements.

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Employers should have up-to-date job descriptions that identify the current essential functions of the job.

Courts will tend to define “disabilities” quite narrowly.

Employers are not required to tolerate misconduct or erratic performance even if the behaviors can be attributed to the disability.

Employers do not have create a new job for the disabled worker nor reassign that person to a light-duty position for an indefinite period, unless such a position exists.

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ADA Suggestions for an ADA Suggestions for an Accessible WorkplaceAccessible Workplace

Install easy-to-reach switches. Provide sloping sidewalks and

entrances. Install wheelchair ramps. Reposition shelves for the easy reach

of materials. Rearrange tables, chairs, vending

machines, dispensers, and other furniture and fixtures.

Widen doors and hallways. Add raised markings on control

buttons. Provide designated accessible

parking spaces. Install hand controls or manipulation

devices.

Provide flashing alarm lights. Remove turnstiles and revolving

doors or provide alternative accessible paths.

Install holding bars in toilet areas. Redesign toilet partitions to increase

access space. Add paper cup dispensers at water

fountains. Replace high-pile, low-density

carpeting. Reposition telephones, water

fountains, and other needed equipment.

Add raised toilet seats.

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Civil Rights Act of 1991 (CRA)Civil Rights Act of 1991 (CRA)

Impact of CRA: Burden of Proof

Once plaintiff shows disparate impact (prima facie case) , the employer has the burden of proving that the challenged practice is job related

Quotes Explicitly forbidden

Damages & Jury Trails permits compensatory and punitive damages - makes it easier to sue for

money damages in certain cases Expanded Coverage

amending the definition of employee to mean a U.S. citizen employed in a foreign country by a U.S.-owned or -controlled company

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Civil Rights Act of 1991 (CRA)Civil Rights Act of 1991 (CRA)

Provide appropriate remedies for intentional discrimination and unlawful harassment

Clarified the concepts of business necessity and job related

Confirm authority and guidelines for finding of disparate impacts under Title VII

Responded to recent Supreme Court decisions

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Avoiding Pitfalls in EEOAvoiding Pitfalls in EEO

Provide TrainingProvide Training Document DecisionsDocument Decisions Be HonestBe Honest Establish a Complaint Resolution ProcessEstablish a Complaint Resolution Process Ask Only for Info You Need to KnowAsk Only for Info You Need to Know

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Discriminatory Employment PracticesDiscriminatory Employment Practices

Recruitment Word of Mouth

Misleading Information

Help Wanted Ads

Personal Appearance Dress

Hair

Uniforms

Selection Educational Requirements

Preference to Relatives

Height, Weight, and Physical Characteristics

Arrest Records

Application Forms

Discharge Due to Garnishment

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Questions to Ask When an Employer Receives Notice Questions to Ask When an Employer Receives Notice That EEOC has Filed a Bias ClaimThat EEOC has Filed a Bias Claim

1. Exactly what is the charge and is your company covered by the relevant statutes?

2. What protected group does the employee belong to? Is the EEOC claiming disparate impact or disparate treatment?

3. Are there any obvious bases upon which you can challenge and/or rebut the claim?

4. If it is a sexual harassment claim, are there offensive comments, calendars, posters, screensavers, and so on, on display in the company?

5. Who are the supervisors who actually took the allegedly discriminatory actions and how effective will they be as potential witnesses?

Documents

CHAPTER THREE