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Legal Issues in HRM
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Legal Quiz
1. Discrimination in employment processes isillegal.
2. It is necessary to show intent to win a claim of illegal employment discrimination.
3. Courts have generally upheld management’sright to dismiss employees even when there is no
cause. 4. Because of the Age Discrimination in Employment
Act (ADEA), it is illegal to refuse to hire a 20 yearold for a position based on the belief that he/she is
“too young.” 5. Because of the ADEA, mandatory retirement
programs are illegal. 6. According to the Americans with Disabilities Act
(ADA), having AIDS or being HIV-positive isconsidered a protected disability.
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Legal Quiz, continued
7. Federal ADA law protects obesity as adisability.
8. Rehabilitated drug users are protected by
ADA. 9. Alcoholics are protected by ADA.
10. Providing the necessary accommodations
for persons with disabilities is generally quiteexpensive for employers.
11. Affirmative Action is synonymous with
preferential treatment.
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Outline Overview
I. Laws and Case Law
Equal Pay Act (1963) men & women must be paid same $ Night shifts, training, experience, knowledge.
Title VII of the CRA of 1964 Two types of illegal discrimination (treatment and
impact)
Case: Griggs v. Duke Power (1971, U.S.)
“Employment at Will”
Age Discrimination in Employment Act (ADEA)
(1967) over 40 years old Americans with Disabilities Act (ADA) (1990)
Family and Medical Leave Act (1993)
II. Affirmative Action vs. DiversityManagement
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Equal Pay Act (1963)
Equal pay for equal work, regardless of sex Unless the difference can be justified by factor
other than sex E.g., ??????
Plaintiff must prove 2 Ees opp. sex Same establishment
Receive unequal pay
On the basis of sex For work that is equal
How big of a difference?
But beware of “aggregation fallacy”…
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General EEO Law
7 protected classes in federal EEO law
???Sex, Age, Disability, Origin, Race, Religion,Color.
Title VII of CRA of 1964 covers…
?? Same seven protected class listed above.
Applies to any and all screening and selectiondevices, as well as to all HR functions (e.g.,training, compensation)
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Illegal Discrimination
#1
Disparate (Adverse) Treatment
Using race, color, religion, etc as a basis for treating
people unequally “Intentional” discrimination
Adverse Impact
A practice – possibly neutral on its face but withoutbusiness justification-- that has unequal consequencesfor people of different race, color, religion, etc.
4/5ths (or 80%) rule-of-thumb (EEOC)
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Griggs v. Duke Power (1971)
#2
Three major outcomes: Originated concept of Adverse Impact
Tests must demonstrate validity (jobrelevance) IF disproportionate number of minorities selected.
Intent of employer is irrelevant
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Defenses for Illegal Discrimination
BFOQ
“Bona-fide occupational qualification”
Courts have interpreted these very narrowly
Business Necessity Job relevance/validity
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“Employment at Will” Employment relationship is a voluntary one
We have no "right" to a job (unless under contract)
Employers have no right to keep us working against ourwill (unless under contract)
#3
“For good cause, for no cause, or even for causemorally wrong”
Some exceptions:
Contract and Tort Theory Non-retaliation (whistle-blowing and discrimination claims)
But best advice is to treat employees as if causewere required
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Age Discrimination in Employment Act
Protected class = people over 40 years old?? #4
Case: Hodgson v. First Federal (1972)
Because of ADEA, no mandatory retirement,generally
Exceptions:
Execs 65+ in high policy-making positions withpensions
Tenured faculty (originally)
Public Safety Officers
#5
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Americans with Disabilities Act Protected class: Qualified AND…
Physical/mental impairment Record of impairment, or
Regarded as being impaired
Physical impairment: any physiological disorder,disfigurement, or anatomical loss affecting oneof the body systems.
#6
Mental impairment: Any mental or physicaldisorder, such as mental retardation, organicbrain syndrome, emotional or mental illness, andspecific learning disabilities.
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Americans with Disabilities Act
NOT considered impairments: Left-handedness; Pregnancy; Quick temper;
Inability to read; Broken bones; Obesity.
#7
Moral, illegal, and other non-impairments(“Jesse Helms exceptions”)
Sexual orientation; transvestism/transexualism; pedophilia; illegal drug use;voyeurism; compulsive gambling;kleptomania, pyromania.
#8 & 9
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Americans with Disabilities Act
Reasonable Accommodations
Advice: ASK the employee with disability
Organization’s Defense: “Undue Hardship”
However, #10
69% cost NOTHING
Only 3% cost more than $1000
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Family & Medical Leave Act (FMLA)
After leave, employer must either Restore employee to the position held when
the leave commenced; or
Restore employee to equivalent position withequivalent benefits, pay, and other conditionsof employment.
Leave is unpaid, but employer mustcontinue group health benefits asnormal employment
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Paid Family Leave Law
(Fairly) recent California law (7/2004) Workers must receive 55 percent of pay for
up to six weeks to care for newborn or look
after a seriously ill child, parent, spouse ordomestic partner
30-some other states have followedCalifornia’s lead to institute paid familyleave
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Affirmative Action
Components Recruitment of underrepresented groups
Changing management's attitudes
Removing discriminatory obstacles Preferential treatment
#11
“Reverse Discrimination”? Case: Regents of the University of
California v. Bakke (1978)
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Consent Agreements
Martin v. Wilks (1989, U.S.)
City consented to hiring and promotion goals(Level 1 “Consent Agreement”)
Statement that selection procedure must be valid
Agreement that the selection procedure cannot haveany adverse impact
An agreement that there will be hiring by quota suchthat a certain percentage of minorities will be hired orpromoted
SC ruled that a consent agreement b/w plaintiff and employer CAN be challenged
However, Congress overruled with CRA of 1991
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Managing Diversity
“Business case” for diversity Lower costs
Improved employee attitudes
More effective recruitment and retention Increased sales, market share, and corporate
profits
Increased creativity, innovation, and group
problem-solving effectiveness and productivity
Keys to successful diversity programs:
Accountability, development, recruitment