Management 351 – Class 2 Chapters 3 and 14 Revisions to syllabus  Change/confirm paper length: 4-6 pages  Rework schedule Matewan is now extra credit Room change requested Notes/website reminder

Chapter 3 – EEO and Legal What’s the point?  Doing the right thing  “Managing risk” Protecting employer rights  Employee advocate Protecting employee rights

Employment law – shifting sands “A dynamic legal landscape”  Courts constantly change foundations  Legislative changes less frequent Proposed FLSA revisions Complexity is an issue  ADA: 1,000 disabilities affecting 43MM

Color blind vs color conscious Fair employment  Decisions are made without regard to “color”  Broadly speaking, protected classes* are protected Affirmative Action  Seeks to right past wrongs  Decisions, themselves, NOT affected  Processes ARE affected

Equal Pay Act Essentially equal pay for equal work Applies broadly to men and women Exceptions  Does not prohibit merit pay  Quantity and quality of production  Bona fide seniority plans Has it worked???

Title VII of the 1964 Civil Rights Act Often referred to as the CRA Most important employment legislation on the books  Passed one year after MLK’s “I have a dream” Applies to employers with 15+ employees Established protected class categories

Protected classes Race Color National origin Age Religion Disability Gender/sex Pregnancy Sexual orientation Marital status Familial status Family leave Injured workers Whistle blowers  Retaliation Association

Discrimination defined Discrimination: making distinctions  Discrimination happens all the time! Discrimination based on protected class status is the key (remember this!) Disparate treatment: intentional Adverse impact (disparate impact): unintentional (chart page 92)

Griggs v Duke Power Companies may be guilty despite their best efforts to not discriminate Burden of proof placed on employers  Must show that “tests” are not discriminatory in their impact

Defending against discrimination charges Plaintiff establishes “prima facie” case  “On its face” the actions appear discriminatory  Disparate treatment uses McDonnell-Douglas test Applicant not hired Applicant was qualified Applicant is a member of a protected class Company hired someone in another class after rejecting the applicant

Prima facie and four-fifths rule UGESP EEOC provision for establishing evidence of discrimination  Compares hiring rates of protected classes to those of majority classes (example on page 93)  Whites hired at 50%; African Americans at 25%: four-fifths (80%) of 80% of 50% is 40% which is more than 25% (!)

After prima facie After prima facie case is established (i.e. the employer appears to have discriminated) the burden of proof shifts Employer defenses  Job relatedness (most common)  BFOQ  Seniority  Business necessity

Title VII and pregnancy Protects women based either on:  Their ability to become pregnant  Their actual pregnancy Or a related condition

Harassment Based on any protected class Includes general harassment Includes sexual harassment Has this suddenly become an issue?

EEOC statistics FY 2001  59,631 Charges filed with EEOC  $146.8 million in monetary benefits FY 2002  14,396 Harassment Charges filed with EEOC  Ten year increase of 249% (1989 to 1999) FY 2001  22,257 Retaliation Charges filed  Ten year increase of 201%

How pervasive is harassment? Some statistics:  31% of females and 7% of males  62% of those harassed took no action  100% of women report it was a man  59% of men report it was a woman  43% report it was a supervisor  27% report it was someone senior to them  19% report it was a peer-level employee  8% report it was a junior-level employee

Two broad categories Quid pro quo: literally this for that Hostile work environment  Teresa Harris v Forklift Systems  The behavior need only be such that a “reasonable person” would be offended EEOC definition of harassment (page 95) Supreme Court guidance (page 96) Same sex-sexual harassment

Managing risk Employers may be held liable for actions of their managers even if they were unaware of the actions Employer defense:  Reasonable care to prevent  Plaintiff failed to report Personal liability exists for managers and co-workers alike

Civil Rights Act of 1991 Amended 1964 CRA Burden of proof: returned to Griggs standard (shifted BOP back to employers) Quotas: specifically outlawed Damages and jury trials  Enabled both  Punitive damages  Compensatory damages

Executive order Established affirmative action “50 and 50” rule: 50 employees and $50k+ in federal contracts or subcontracts

Other laws ADEA of 1967  Protects those over 40 (originally 40-65) ADA of 1990  Employment discrimination is prohibited against individuals with disabilities who are able to perform the essential functions of the job with or without reasonable accommodation

Individuals with disabilities (sample list on page 100) Definition: substantially limits a major life (NOT WORK) activity  Toyota employee with carpal tunnel not successful in ADA case Extends to those perceived as disabled Excludes drug and alcohol unless under treatement

Essential Functions The reason the job exists is to perform the essential functions Marginal functions:  Secondary job requirements  Job functions done on an ad hoc basis  Duties that are performed as a back up

Reasonable accommodation No “bright line” test Varies depending on situation and employer’s resources

Enforcement EEOC enforces civil rights laws EEOC roles  Investigation  Conciliation  Litigation OFCCP enforces laws and executive orders (affirmative action)

Affirmative Action Plans Essentially a comparative document with corrective action Compares:  Workforce availability to  Workforce utilization Includes specific actions to address gaps in utilization

Chapter 14 – Your rights A right: the ability to engage in conduct that is protected by law or social sanction free from interference by another party. Statutory rights: protected by law Contractual rights: protected by… wait for it… contracts

Comparison of rights Statutory, contractual and “other” rights (table page 467) Wrongful discharge: discharge based on protected class status  Constructive discharge Limited right to privacy Limited right to free speech

Management rights Essentially to run a business as seen fit and to retain profits Employment at will:  Either party can,  Enter into or dissolve the employment relationship,  At any time,  For any reason,  Without or without notice.

Legal limitations to at-will Public policy exceptions  Filing workers’ compensation claim  Exercising legal duty (i.e. jury duty)  Refusing to violate professional ethics  Refusing to lobby for a political candidate favored by an employer Implied contracts: what you say CAN hurt you! Pages 472 to end of chapter: skim and be familiar – light coverage