HR and the Law: Fairness and Safety I. Employment fairness II. Occupational Safety

Employment Legislation Constitutional amendments Constitutional amendments 13 th Amendment: 13 th Amendment: 14 th Amendment: 14 th Amendment:

Employment Legislation Timeline Congressional Legislation Congressional Legislation CRA (1866 and 1871): CRA (1866 and 1871): Equal Pay Act (1963): Equal Pay Act (1963): CRA (1964), Title VII: CRA (1964), Title VII: ADEA (1967): ADEA (1967): Vocational Rehab Act (1973): Vocational Rehab Act (1973): Veteran’s Readjustment Act (1974): Veteran’s Readjustment Act (1974): ADA (1990): ADA (1990): CRA (1991): CRA (1991):

Equal Employment Opportunity Commission (EEOC) Equal Employment Opportunity Commission responsible for enforcing most of the EEO laws Equal Employment Opportunity Commission responsible for enforcing most of the EEO laws EEO investigates and resolves complaints about discrimination and issues guidelines. EEO investigates and resolves complaints about discrimination and issues guidelines.

Equal Employment Opportunity Commission (EEOC) EEOC issues guidelines clarifying legal parameters for employment practices. EEOC issues guidelines clarifying legal parameters for employment practices. Uniform Guidelines on Employee Selection Procedures Uniform Guidelines on Employee Selection Procedures

Types of Charges Filed with the EEOC

Office of Federal Contract Compliance Procedures (OFCCP) Enforces executive orders that cover organizations doing business with the federal government. Enforces executive orders that cover organizations doing business with the federal government. Under OFCCP, some businesses must have a written affirmative action plan on file. This plan must include: Under OFCCP, some businesses must have a written affirmative action plan on file. This plan must include: Utilization analysis Utilization analysis Goals and timetables Goals and timetables Action steps Action steps

Terminology Clarification Disparate Treatment vs. Adverse Impact Disparate Treatment vs. Adverse Impact Table 3.3 Table 3.3 Affirmative Action vs. Valuing Diversity Affirmative Action vs. Valuing Diversity BFOQ BFOQ 4/5ths Rule 4/5ths Rule Standard Deviation Rule Standard Deviation Rule

Disparate Treatment Disparate treatment exists when individuals in similar situations are treated differently based upon race, color, religion, sex, national origin, age, or disability status. Disparate treatment exists when individuals in similar situations are treated differently based upon race, color, religion, sex, national origin, age, or disability status. Bona fide occupational qualifications (BFOQ) - A characteristic that is necessary, rather than preferred, for a job. Bona fide occupational qualifications (BFOQ) - A characteristic that is necessary, rather than preferred, for a job. McDonnell Douglas Corp v. Green McDonnell Douglas Corp v. Green

Disparate Impact Disparate impact occurs when a facially neutral employment practice disproportionately excludes a protected group from employment opportunities. Disparate impact occurs when a facially neutral employment practice disproportionately excludes a protected group from employment opportunities. Four-fifths rule - a test has disparate impact if the hiring rate for the minority group is less than four- fifths (80 percent) of the hiring rate for the majority group. Four-fifths rule - a test has disparate impact if the hiring rate for the minority group is less than four- fifths (80 percent) of the hiring rate for the majority group. Standard deviation rule - uses actual probability distributions to determine adverse impact. Standard deviation rule - uses actual probability distributions to determine adverse impact. Wards Cove Packing Co. v. Antonio Wards Cove Packing Co. v. Antonio Griggs v. Duke Power Griggs v. Duke Power

Types of Discrimination - Show intent? - Prima facie case - Employer’s defense - Plaintiff’s rebuttal - Damages - Key litigation Disparate Treatment - yes - member of protected group - show BFOQ - reason a pretext - compensatory/ punitive - McDonnell Douglas v. Green Hopkins v. Price Waterhouse Disparate Impact - no - statistical disparity - show job relatedness - other ways exist - equitable relief - Griggs v. Duke Power Wards Cove v. Atonio Reasonable Accommodation - yes - failure to be accommodated - job relatedness and business necessity - compensatory/ punitive - Walmart McGraw-Hill/Irwin

Accommodating Differences Reasonable Accommodation Reasonable Accommodation Undue Hardship Undue Hardship Accommodating Accommodating Disability (Table 3.5) Disability (Table 3.5) Religion (Figure 3.2) Religion (Figure 3.2) Sexism vs. Sexual Harassment (Table 3.4, Figure 3.3) Sexism vs. Sexual Harassment (Table 3.4, Figure 3.3)

Providing Reasonable Accommodation Reasonable accommodation: employer’s obligation to do something to enable an otherwise qualified person to perform a job. Reasonable accommodation: employer’s obligation to do something to enable an otherwise qualified person to perform a job. An accommodation is considered reasonable if it: An accommodation is considered reasonable if it: Does not present undue hardship such as expense that is large in relation to a company’s resources Does not present undue hardship such as expense that is large in relation to a company’s resources

Sexual Harassment Sexual Harassment=unwanted sexual advances Sexual Harassment=unwanted sexual advances The plaintiff cannot have "invited or incited" the advances The plaintiff cannot have "invited or incited" the advances Harassment must have been severe Harassment must have been severe Court determines the liability of the organization for actions of its employees Court determines the liability of the organization for actions of its employees Preventative steps for firms include Preventative steps for firms include a policy statement a policy statement training in inappropriate behaviors training in inappropriate behaviors a reporting mechanism a reporting mechanism disciplinary policy that is enforced disciplinary policy that is enforced McGraw-Hill/Irwin© 2006 The McGraw-Hill Companies, Inc. All rights reserved.

Workplace Safety The Occupational Safety and Health Act (OSH Act), most comprehensive U.S. law regarding worker safety. The Occupational Safety and Health Act (OSH Act), most comprehensive U.S. law regarding worker safety. Enforcement responsibilities divided between: Enforcement responsibilities divided between: Department of Labor Department of Labor Department of Health Department of Health Occupational Safety and Health Administration (OSHA) is responsible for: Occupational Safety and Health Administration (OSHA) is responsible for: Inspecting employers Inspecting employers Applying safety and health standards Applying safety and health standards Levying fines for violations Levying fines for violations Conducting research (NIOSH) Conducting research (NIOSH)

Occupational Safety and Health Act (OSH Act) Employee rights Employee rights Request an inspection Request an inspection Have a representative present an inspection Have a representative present an inspection Have dangerous substances removed Have dangerous substances removed Be promptly informed Be promptly informed Have violations posted Have violations posted OSHA inspection components: Compliance officer review Tour of the premises Employee interviews Closing conference

Occupational Safety and Health Act (OSH Act) Employees have a duty to report hazardous conditions. Employees have a duty to report hazardous conditions. Many industrial accidents are due to unsafe behaviors, not unsafe working conditions. Law alone does not guarantee employees will be safe, so some employers go beyond the law.

Reinforcing Safe Practices To ensure safe behaviors, employers should define how to work safely AND reinforce desired behaviors. To ensure safe behaviors, employers should define how to work safely AND reinforce desired behaviors. Safety incentive programs. Safety incentive programs. Injuries can be prevented through: Injuries can be prevented through: Job analysis Job analysis Written policies Written policies Safety training Safety training Protective gear Protective gear Rewards and sanctions Rewards and sanctions Management support Management support