Chapter 3 Equal Employment Opportunity and The Legal Environment (Federal and CA State laws) HR managers must have a solid understanding of the legal environment in which they operate. In chapter three we will look at some key laws that impact the role and nature of the human resource field.

Understanding the Legal Environment It is important to understand the legal environment to Limit potential liability and costly lawsuits Do the right thing (*ethics also ) Understanding the legal environment is very important in the workplace. This understanding is important so that you can do the right thing and realize the limitations of the human resource department and the laws. It also helps you to create a fair and humane environment. From an organizational perspective it will help to limit potential liability and costly lawsuits. How does understanding the legal environment provide a better workplace for management and employees alike?

Challenges to Legal Compliance A Dynamic [changing] Legal Landscape The Complexity of Employment Laws Differences between California [FEHA] and Federal [T.VII, CRA 1964/1991] Laws There are many challenges to complying with the law due the constantly changing legal landscape. The laws and the legal system are extremely complex and hard to navigate which can make it difficult to comply with it’s demands.

Equal Employment Opportunity Laws [Federal “Acts”]—Overview [details follow] The Civil Rights Acts of 1964 and 1991 The Equal Pay Act of 1963 The Age Discrimination in Employment Act of 1967 The Americans with Disabilities Act of 1990/Rehab. Act of 1973 The Vietnam Era Veterans Readjustment Act of 1974 [“VEVRA”] This slide lists the main equal employment opportunity laws and the following slides will go into more detail on each these legal actions that impact the employment relationship.

Title VII of the Civil Rights Act of 1964 Employment decisions―no discrimination because of: Race, Color, Religion, National Origin, Sex [includes pregnancy disability] “Protected classes”—still relevant construct? Methods of Proving Discrimination: Disparate treatment Adverse impact [Four-fifths rule] Harassment Gender Stereotyping The Civil Rights Act of 1964 had numerous titles or chapters, with the main chapter dealing with employment law. It stated that employment decisions should not be based on race, color, religion, sex or national origin. It defines discrimination as making distinctions among people. Under the act it lists groups that are protected and they include African Americans, Asian Americans, Native Americans, Latinos and women. Title VII describes two types of discrimination, disparate treatment and adverse impact. Disparate Treatment is discrimination that occurs when an employer treats an employee differently because of his or her protected-class status. Adverse Impact is discrimination that occurs when the same standard is applied to all, but that standard affects a protected class more negatively.

Title VII Continued Defense of Discrimination Charges Disparate Treatment claims: Legitimate, non-discriminatory reasons or [rarely] “BFOQ”―Bona Fide Occupational Qualification Adverse Impact claims: Job relatedness Business necessity One of the rules to be aware of when dealing with Title VII Four-Fifths Rule. This rule is used to compare hiring rates of protected class & majority group. If a practice is said to have an adverse impact if the hiring rate of a protected class is less than four-fifths the hiring rate of a majority group then the employer will be guilty of discrimination. Some possible defenses for employers are job relatedness, bona fide occupational qualification, seniority, and business necessity. Job relatedness is when it can be shown that the employment practice is related to the job itself. It is helpful to have written documentation (e.g. job analysis). The BFOQ a characteristic that must be present in all employees for a particular job and also gives the employer the right to look for a certain qualification even if it might discriminate against a certain group. Seniority can be used when there is a system in place & it is universally applied. Business necessity is when the employment practice is necessary for safe & efficient operation of business.

Hostile work environment (reasonable care) unless Title VII Continued Sexual Harassment Quid pro quo (strict liability) Hostile work environment (reasonable care) unless Alleged harasser is a supervisor (strict liability) Training required by California law There are some additional legal acts that are important to be aware of. One is the Pregnancy Discrimination Act of 1978. In this act it was stated that employers must treat pregnancy like any other medical condition. Sexual Harassment has been a growing issue in the work place and has attracted a lot of media attention. This is when unwelcome sexual advances or a sexually charged climate cause an employee to feel harassed on the job. There are two main types of sexual harassment. The first is quid pro quo and it occurs when sexual activity is demanded in return for a job-related benefit. The second is hostile work environment and it occurs when the behavior of anyone in the work setting is sexual in nature and the employee perceives the behavior as offensive and undesirable.

Manager’s Notebook Reducing Liability for Sexual Harassment: Establish a written policy prohibiting harassment Communicate the policy to employees Train employees in what constitutes harassment Establish an effective complaint procedure Quickly investigate all claims Take remedial action to correct past harassment Make sure that the complainant does not end up in a less desirable position if transferred Follow up to prevent continuation of harassment This slide looks at a some great steps for a company to take to reduce their liability for sexual harassment charges. It includes recommendations for a written policy, strong communication of the policy, establishing a complaint procedure and a follow up plan to prevent continuation of the harassment.

EEO Laws Continued The Civil Rights Act of 1991 Prohibits quotas or subgroup norming of test scores in voluntary AAPs [see below] Allows payment of compensatory and punitive damages plus costs and fees Executive Order 11246 (1965) Prohibits discrimination by govt. and govt. contractors Required to develop affirmative action programs The Civil Rights Act of 1991 was brought forth to change a few things that were brought forth in Title VII. It shifted the burden of proof to the employer, prohibited quotas and changed the remedy requirements so punitive damages could be applied. Executive Order 11246 prohibits discrimination by the government and government contractors. Also required government organizations or related entities to develop affirmative action programs.

EEO Laws Continued The Equal Pay Act of 1963 Same pay to men & women in same job May differ based on quality or quantity of production Seniority plans exempt Does not prohibit use of merit pay The equal pay act of 1963 was established to bring more equity between the pay of men and women. The same job or similar jobs based on quality and quantity of production must have the same pay. There are exemptions based on seniority or merit pay. The age discrimination act was established to protect workers over the age of 40 from being discriminated on the basis of age. The Age Discrimination in Employment Act of 1967 Protects employees over age 40

EEO Laws Continued Americans with Disabilities Act (1990) Protects those with disabilities Physical or mental impairment That “limits a major life activity” Provide reasonable accommodation for essential job functions Must be “otherwise qualified” for job Amended by the ADAAA CA law -> “substantial limitation” not required The Americans with Disabilities Act was established in 1990. It protects those with physical or mental disabilities that impair a major life activity. The company must provide reasonable accommodation for the essential job functions for any individual with a disability as long as they are otherwise qualified for the job.

Equal Employment Opportunity Laws Continued The Vocational Rehabilitation Act of 1973 The Vietnam Era Veterans Readjustment Act of 1974 Vocational Rehab Act applies to government & government contractors and prohibits discrimination. It requires covered organizations to have an affirmative action plan for disabled individuals. Vietnam Era Vet Readjustment Act applies to government contractors and prohibits discrimination against Vietnam-era veterans. It also requires federal contractors to take affirmative action to hire Vietnam-era veterans.

EEO Enforcement and Compliance Regulatory Agencies [EEOC & DFEH] Equal Employment Opportunity Commission [Fed] Department of Fair Employment and Housing [CA] Office of Federal Contract Compliance Programs (OFCCP) Actively monitors AAP compliance Companies must be sure to understand the enforcement and compliance steps of the EEOC. The 3 steps in processing of discrimination complaints are investigation, conciliation or to reach a settlement by negotiating between 3 parties and litigation if a settlement can’t be reached. The OFCCP has the enforcement power that the EEOC lacks and they actively monitor the compliance procedures.

Decision Making to Avoid Legal Liability Managers must be cognizant of the legal landscape and make decisions that help them avoid legal liability Most employees fall into a protected class [even more so in California!] so sound practice is essential. Given the complex and changing nature of the legal landscape managers have to be fully aware of the legal pitfalls they can encounter. Most employees will fall into a protected class of some sort so it is critical that sound business decision making is put in place.

“Only in California!” FEHA [Fair Employment & Housing Act] prohibits employment discrimination based on race, color, ancestry, national origin, religion, gender, age, disability, marital status, and sexual orientation Administered by DFEH [Dept. of Fair Employment and Housing]—CA’s “706” agency Generally more protective of employees than comparable federal law, particularly for age, disability, and religion claims CA sexual orientation protection extends to heterosexual, homosexual, bisexual, and transgender individuals The legal landscape is complex and constantly changing. It is essential for HR professionals to stay on top of the key issues and how they will impact their employer/employee relationship.