Healthcare Human Resource Management Flynn Mathis Jackson Langan Legal Issues Affecting the Healthcare Workplace Chapter 4 PowerPoint Presentation by Tonya L. Elliott, PHR

After you have read this chapter, you should be able to: Learning Objectives After you have read this chapter, you should be able to: Describe the major law affecting the healthcare workplace Define what are lawful and unlawful pre-employment inquiries Discuss the components of an Affirmative Action Plan (AAP) Identify the important elements of a sexual harassment prevention program Describe the steps in responding to an EEO complaint Compare and contrast legal responsibilities and ethics

Major HR Law Affecting the Workplace The Civil Rights Act of 1964 Contains: Title VII – Equal Employment Opportunity Created due to Congress finding patterns of: Exclusion Discrimination Segregation Inferior treatment of minorities and women

Equal Employment Opportunity (EEO) A broad concept holding that individuals should have equal treatment in all employment-related actions Protected individuals are protected against: Illegal Discrimination – occurs when individuals having a common characteristic are discriminated against based on that characteristic

EEO: Protected Class Protected class -- those having the designated characteristics Race, ethnic origin, color African/Hispanic/Native or Asian Americans Gender (women, including those who are pregnant) Age (individuals over age 40) Individuals with disabilities (physical or mental) Military experience (Vietnam-era veterans) Religion (special beliefs and practices)

EEO: Affirmative Action Affirmative action -- when employers identify problem areas, set goals, and take positive steps to guarantee equal employment opportunities for those in protected classes voluntary required if > 50 employees & > $50K government contracts Under-representation – when protected class members are underrepresented in an organization in relation to their availability in the labor markets

Current volatile issue in U.S. courts EEO: Reverse Discrimination Reverse Discrimination … discrimination of non-protected class members … the idea that affirmative action leads to quotas and preferential selection of protected class members Current volatile issue in U.S. courts

Major Federal EEO Laws & Regulations Equal Pay Act Title VII, Civil Rights Act of 1964 Executive Orders 11246 and 11375 Age Discrimination in Employment Act Executive Order 11478 Vocational Rehabilitation Act Rehabilitation Act of 1974 Vietnam-Era Veterans Readjustment Act Pregnancy Discrimination Act Immigration Reform and Control Act Americans With Disabilities Act Older Workers Benefit Protection Act Civil Rights Act of 1991 Congressional Accountability Act 1963 1964 1965, 67 1967 1969 1973 1974 1978 1986, 90, 96 1990 1991 1995

Civil Rights Act of 1964, Title VII Prohibits discrimination in employment on basis of race, color, religion, sex, or national origin Key concept: to bring equality in all employment-related decisions Equal Employment Opportunity Commission (EEOC) -- agency responsible for enforcing Title VII

Affected Organizations: EEOC Compliance Affected Organizations: Employers with 15 or more employees Recommended: EEO policy statement Widely communicated EEOC Record Maintenance Requirements

Lawful & Unlawful Pre-Employment Inquiries

Lawful & Unlawful Pre-Employment Inquiries (cont’d) Figure 4-2 (cont’d)

Bona Fide Occupational Qualification (BFOQ) A legitimate reason why an employer can exclude persons on otherwise illegal bases of consideration Title VII May discriminate based on sex, religion, national origin if characteristic is reasonably necessary to the normal operation of the business (BFOQ)

Disparate Treatment / Disparate Impact …protected class members are treated differently Disparate Impact …substantial under-representation of protected-class members resulting from employment decisions that work to their disadvantage Employers have burden of proof Employers are prohibited from retaliation

Consistent with business necessity Civil Rights Act of 1991 Requires employers show employment practice is: Job-related Consistent with business necessity Court Ramifications: Employers must show protected class status played NO factor in decision making Compensatory & punitive damages available Jury Trials

Affirmative Action Regulations Executive Orders 11246, 11375, and 11478 -- prohibits holders of government contracts from discriminating against members of protected class, and to create affirmative action plans -- issued by the President of the United States Office of Federal Contract Compliance Programs (OFCCP) -- responsibility for enforcing nondiscrimination in government contracts

Affirmative Action Plans (AAPs) Figure 4-3

Sexual Harassment and Gender Discrimination Applicable Law: Title VII, Civil Rights Act of 1964 Governed by: EEOC Prohibits discrimination in employment on the basis of gender 2 Types of Sexual Harassment: Quid pro quo – “something for something” Hostile environment – interferes with work performance or psychological well-being or creates intimidating or offensive working conditions

Sexual Harassment: Potential Sexual Harassers Figure 4-4

Sexual Harassment: Employers’ Responsibility Employers should ensure reasonable care: Establish a sexual harassment policy Communicate policy regularly Train all employees and management Prompt investigation and action taking PREVENTION: the best tool to eliminate sexual harassment in the workplace!!!

Pregnancy Discrimination Applicable Law: Pregnancy Discrimination Act (PDA) of 1978 Governed by: EEOC Requires employers treat maternity leave the same as other personal leaves _____________________________________________________ Applicable Law: Family Medical Leave Act (FMLA) of 1993 Requires individuals be given up to twelve weeks of family leave without pay and allows these individuals to return to their jobs

Equal Pay and Pay Equity Applicable Law: Equal Pay Act of 1963 Governed by: EEOC Requires employers to pay similar wage rates for similar work without regard to gender Differences in pay allowed because of: Differences in seniority or performance Differences in quality and/or quantity of production Factors other than sex (skill/effort/working conditions)

Equal Pay and Pay Equity (cont’d) -- concept that says the pay for jobs requiring comparable levels of knowledge, skills, and ability should be similar, even if actual duties differ significantly -- also called “comparable worth” The Glass Ceiling -- refers to the discriminatory practices that have prevented women and other protected-class members from advancing to executive-level jobs

Immigration Reform And Control Act (IRCA) The IRCA of 1986 -- illegal for an employer to discriminate in recruiting, hiring, or terminating based on an individual’s national origin or citizenship Purpose to address problems arising from the continued flow of immigrants to the United States

Religious Discrimination & Sexual Orientation -- Title VII of the Civil Rights Act prohibits discrimination based on religion -- Religious schools & institutions can use religion as a bona fide occupational qualification (BFOQ) Sexual Orientation -- Some states and cities have passed law prohibiting discrimination based on sexual orientation/lifestyle -- Some legislation addresses the issue of benefits coverage for “domestic partners”

Veterans’ and Military Employment Rights The Vietnam-Era Veterans Readjustment Act -- Requires affirmative action in hiring and advancing Vietnam-era veterans be undertaken by federal contractors and subcontractors with contracts of $10,000 or more The Uniformed Services Employment and Re-employment Rights Act of 1994 -- Employees must notify employers of military service obligations -- Employees must be provided leaves of absence and reemployment rights for up to 5 years

Enforcement Agencies Equal Employment Opportunity Commission (EEOC) Responsibility for: employment-related aspects of CRA Activities ------ initiates investigations ------ responds to complaints ------ develops guidelines to enforce laws Office of Federal Contract Compliance (OFCCP) Responsibility for: nondiscriminatory practices in government contracts Activities ------ ensure covered employers have affirmative action plans to counter prior discrimination practices

Equal Employment Charges By Type Figure 4-5 Source: Equal Employment Opportunity Commission, 2001.

Uniform Guidelines on Employee Selection Procedures “No-Disparate-Impact” Approach Four-fifths rule Discrimination = the selection rate of the protected group is less than 80% (four-fifths) of the selection rate of the majority group or less than 80% of the group’s representation in the relevant labor market Job-Related Validation Approach Validity -- the extent to which a test actually measures what it says it measures Reliability -- the consistency with which a test measures an item

Three Types of Validation Approach Content Validity Logical, non-statistical method used to identify the knowledge, skills, and abilities and other characteristics necessary to perform the job Criterion-Related Validity Concurrent Validity -- tests given to employees and scores correlated with job performance Predictive Validity – tests results of applicants are compared with the job performance Construct Validity Relationship between an abstract characteristic inferred from research and job performance

Elements of EEO Compliance EEO Policy Statement EEO Records Retention (3 years minimum) EEO-1 Report Applicant Flow Data EEO Investigation Compliance

EEO Investigation Process Figure 4-6

Ethics, Law, & HR Healthcare Management Laws and ethics intersect, but are not the same Figure 4-7