Hiring, Promotion, Termination,

Compensation, and Leave

Chapter 6

Management Contexts, Relevant Laws, and Cases

Hiring, Promotion, and TerminationEmployment discrimination may occur

in different forms. The U.S. Constitution and several federal statues addresses many

employment discrimination.

Decisions may be based illegally on:

•Race

• Sex

•Religion

•Disability

Title VIITitle VII of the Civil rights Act of

1964• Protected classes:

• Race

• Color

• Religion

• Sex

• National origin

• Applies to employers with 15 or more full-time employees.

• Does not apply to independent contractors or to private membership clubs.

• Does not apply to American Indian Tribes or religious organization hiring for religious functions.

Types of DiscriminationAdverse employment actions related to:

• Hiring

• Firing

• Layoffs

• Job training

• Work assignments

• Discipline

• Job classifications

• Provision of benefits

Equal Employment Opportunity Commission

(EEOC)A Federal Agency

•Facts

•1. The EEOC issues regulations for implementing Title VII.

•2. The EEOC can issue guidelines for analyzing discrimination.

•3. An example of #2 is the Enforcement guidelines on Sex Discrimination in the Compensation of Sports coaches in Educational Institutions (EEOC, 1997).

The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and

policies.

•Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;

•the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;

•the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

•Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

•Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;

•Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and

•the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

Title VII Remedies• Back pay- for work missed due to

employment action.

• Front pay- for future earnings that would have been received.

• Reinstatement- employee goes back to the position.

• Retroactive seniority

• Injunctive relief- ordering the employer to cease unlawful practices.

• Attorneys fees-

• Compensatory and punitive damages

COACHES

Theories of Liabilities and Defenses

• Courts use two primary theories of liability in deciding Title VII cases:

• I. Disparate Treatment

• Claim requires a finding of intentional discrimination:

• Direct evidence of intent

• Inference from circumstantial evidence relating to the way the employer has treated others

• Read p. 103 Biver v. Saginaw Township Community Schools (1986)

• Evidentiary burdens:

• Burden of production-defendant’s responsibility to produce evidence supporting the defense.

• Burden of proof- The responsibility of proving the truth of a claim.

Theories of Liabilities and Defenses

• 2. Disparate Impact

• Used when a plaintiff has appropriate statistical evidence that a “neutral” employment practice has had an impact on members of a protected class.

• Successful claims are rare:

• Difficult to establish that a workforce pool has been negatively impacted.

• The common method used of proving discriminatory intent is the McDonnell Douglas test.

The McDonnell Douglas Test(A burden-shifting analysis)

• Burden of production –need to produce evidence

• Burden of proof- need to prove the truth of an issue

• Prima facie case- prove that the allegations are true

• Preponderance of the evidence- the level of proof required to prevail

• SLNDR – some legitimate, nondiscriminatory reason

• Page 104 (exhibit 6.4)

• Page 105 Read

BFOQ Defense

In cases of alleged gender discrimination the BFOQ defense is available:

•Bona fide occupational qualification defense

•Employer must show that members of the excluded class could not perform essential job functions effectively—and discrimination was justified.

•Example:

• Male fitness instructor at an all-female health club.

• Read page 110

Title IX

• TITLE IX:

• Prohibits sex discrimination in education programs/activities provided by recipients of federal funds.

• Applies to employment discrimination in educational institutions.

• Analyzes employment discrimination claims similar to a Title VII claim (burden-shifting).

NCAA AND TITLE IXUnderstanding

PART II

CHAPTER SIX

Equal Protection Clause(14th Amendment to the

Constitution) • Declares that no state shall deny to

any person the equal protection of the laws.

• State action requirement: Government must be the bad actor for the Constitution to apply.

• Applies only when purposeful discrimination is alleged.

Equal Protection Clause Tests

Ludtke v. Kuhn

Page 113

Read

Age Discrimination in Employment Act (ADEA)

• Applies to employers with 20 or more employees

• Applies to American Indian tribes, religious organizations, and private membership clubs (unlike Title VII)

• Prohibits private right of action against state government employers

• Does not protect against discrimination based on being too young

Examples of Age Discrimination

• Forcing retirement due to age

• Including age preferences in job ads

• Assigning older workers to jobs that do not allow for promotion to higher-level positions

• Promoting a younger worker over an older worker, because the older worker may be planning to retire

• Hiring a younger worker over a better-qualified older worker

Your Perspective

• You’ve just been hired as the new skiing instructor at a ski resort in Colorado. You discover that another applicant with 20 years’ of instructing experience was turned down for the job.

• What is your reaction?

• What do you say to the person who made the hiring decision?

Disability DiscriminationRelevant Federal Law

Disability DiscriminationRelevant Federal Law

• §504 of Rehabilitation Act of 1973:

• 1. The disability limits a major life activity.

• 2. Plaintiff was discriminated against on the basis of the disability.

• 3. No reasonable accommodation was made.

• Americans with Disabilities Act of 1990

• Americans with Disabilities Act Amendments Act of 2008

Covered Disabilities

• Physical impairments

• Mental impairments/psychological disorders

• Infectious/contagious diseases

• Past disabilities

• Perceived but not real disabilities (i.e., facial deformities, prior cancer treatment)

• Not covered: • Temporary injuries or conditions, correctable

impairments

SPECIAL OLYMPICS

§ 504 / ADA /ADAAAConditions Excusing Employer from

Liability

• Adverse action is not solely based on disability

• Employee could not perform essential job functions

• Reasonable accommodation is offered

• Needed accommodation is an undue hardship or requires fundamental alteration in nature of business

Examples of Reasonable / Unreasonable Accommodations

• Reasonable:

• Rendering facilities/equipment accessible and usable

• Modifying work schedules

• Modifying qualifying exams or training materials

• Unreasonable:

• Tolerating employee misconduct stemming from a disability

• Tolerating frequent absences

• Redesigning a job by eliminating many essential job functions

Significant Risk Exception

• If a risk poses direct threat to safety and well-being of oneself or others, there is no obligation to hire or maintain employment.

• Factors in assessing direct threat:

• Severity of risk

• Likelihood of harm

• Available means of reducing risk

Competitive Advantage Strategies

Hiring, Promotion, and Termination• Review application materials and interview questions to check for inappropriate questions

• Encourage a diverse pool of applicants

• Review workforce policies to ensure they are applied fairly to all employees

• Keep records of performance appraisals

• Carefully define essential functions of a job

• Make reasonable accommodations for employees with disabilities

(continued)

In Your Role as Manager, continued

• Do not require medical exams until after an employee has been hired

• Seek other perspectives when trying to determine if an accommodation is reasonable or constitutes undue hardship

• Avoid asking interview questions with potentially discriminatory implications

• Focus on what applicants can do.

Discrimination in Compensation

Relevant Federal Law

• During the 1990s the issue of gender equity saw lawsuits under the following laws:

• Title VII

• Title IX

• Equal Pay Act of 1963

Stanley v. USC (1999)

Perdue v. City Univ. of NY (1998)

Tyler v. Howard Univ. (1993)

Coaching Compensation:Key Issues

• Differences in coaching responsibilities, pressures, revenue generation

• Title VII and Equal Pay Act claims are based on the sex of the employee, but salary disparities are based on the sex of the team.

Discrimination Regarding Employee

Leave

• Pregnancy Discrimination Act of 1978:

Employers to treat pregnancy like any other temporary inability to work and allow pregnant women to take leave time.

• Family & Medical Leave Act of 1993:

Guarantees up to 12 weeks of unpaid leave per year that can be used childbirth or adoption or to care for sick primary family members. Employee’s must have the equivalent job upon return.