© 2004 Wadsworth, a division of Thomson Learning, Inc 1 Employment Law

© 2004 Wadsworth, a division of Thomson Learning, Inc 2 Judicial Pecking Order U.S. Constitution –5 th Amendment (federal government) –14 th Amendment (state & local governments) Federal Laws (CRA, ADA, ADEA, FMLA, EPA) Executive orders (Executive Order – Federal Contractors) Federal case law (interprets Constitution and federal laws) –U.S. Supreme Court –Circuit Courts of Appeal (12 circuits, Virginia is 4 th ) –U.S. District Courts Federal administrative guidelines –EEOC –OFCCP

© 2004 Wadsworth, a division of Thomson Learning, Inc 3 Problem Scope Year $ ,189 $ ,259 $ ,990 $ ,680 $ ,591 $ ,444 $ ,896 $ ,840 $ ,442 Monetary Benefits% UnwarrantedComplaints

© 2004 Wadsworth, a division of Thomson Learning, Inc 4 Potential Legal Problems Disparate treatment (intentional discrimination) Disparate impact (adverse impact) Invasion of privacy Illegal search

© 2004 Wadsworth, a division of Thomson Learning, Inc 5 Employee Complaint Process Alleged discriminatory act Internal investigation Internal resolution process –Essential to have a formal policy –Options Dictate a decision Mediate a solution Arbitrate a decision –Appeal procedure is important External resolution process –State agencies in deferral states –EEOC –Law suit

© 2004 Wadsworth, a division of Thomson Learning, Inc 6 Alternative Dispute Resolution Mediation –Neutral third party –Disputants reach agreement Arbitration –Neutral third party –Arbitrator makes decision Binding Nonbinding Dictation –Third party makes decision

© 2004 Wadsworth, a division of Thomson Learning, Inc 7 EEOC Complaint Process 1. Alleged discriminatory act 1.Complaint filed a. 180 days for nondeferral states b. 300 days for deferral states 3. Employer notified within 10 days 4. Investigation (goal is to complete in 120 days) a. Reasonable cause found 1) attempt to reach agreement 2) if no agreement, EEOC can file suit b. Reasonable cause not found 1) right to sue letter issued to employee 2) employee has 90 days to file suit

© 2004 Wadsworth, a division of Thomson Learning, Inc 8 Civil Rights Act - Title VII Who is Covered –Private employers with at least 15 employees –Federal, state, and local governments –Employment agencies –Unions –Americans working abroad for American companies Who is Exempt –Bona fide tax exempt private clubs –Indian tribes –Individuals denied employment due to national security concerns –Publicly elected officials and their personal staff

© 2004 Wadsworth, a division of Thomson Learning, Inc 9 Title VII Court Ordered Remedies Disparate Impact Cases –Reinstatement –Back pay –Seniority –Front Pay –Affirmative Action –Attorneys’ Fees Disparate Treatment Cases Same as disparate impact + –Compensatory damages psychological damage actual expenses damage to reputation –Punitive damages (private sector only) –Damage Limits (no limit for race) Employees Limit $ 50, $100, $200,000 >500$300,000

© 2004 Wadsworth, a division of Thomson Learning, Inc 10 Does Requirement Directly Refer to a Member of a Federally Protected Class? Sex (Civil Rights Act) –Male –Female Race (CRA) –African American –Asian American –White –Native American National origin (CRA) Color (CRA) Age (over 40; ADEA) Religion (CRA) Disability (ADA) –Current –Previous –Regarded as such Vietnam veteran Pregnant female

© 2004 Wadsworth, a division of Thomson Learning, Inc 11 Does the Requirement Have Adverse Impact on Members of a Protected Class? Occurs when the selection rate for one group is less than 80% of the rate for the highest scoring group MaleFemale Number of applicants Number hired Selection ratio /.40 =.83 >.80 (no adverse impact)

© 2004 Wadsworth, a division of Thomson Learning, Inc 12 Employment Decisions Hiring Placement Promotion Assignment (shift, patrol zone) Salary Discipline Training opportunities

© 2004 Wadsworth, a division of Thomson Learning, Inc 13 Does requirement directly refer to member of federally protected class? Has case law, state law, or local law expanded definition of protected class? Does requirement have adverse impact? Is requirement subterfuge for discrimination? Is requirement job related? Were alternatives with less adverse impact considered? Probably Legal Probably Illegal Probably Illegal Probably Illegal Probably Illegal Probably Legal BFOQ? yes no yes no yes no yes no

© 2004 Wadsworth, a division of Thomson Learning, Inc 14 J I H G F E D C B A Question This is a grooming standardNo Education level is not a federally protected classNo Color (Civil Rights Act)Yes National Origin (Civil Rights Act)Yes Only people over the age of 40 are protectedNo Sex (Civil Rights Act)Yes Sexual preference is not a federally protected classNo Potential disability (ADA)Yes Religion (Civil Rights Act)Yes Only Viet Nam veterans are protectedNo ReasonAnswer

© 2004 Wadsworth, a division of Thomson Learning, Inc 15 Is the Requirement a Bona Fide Occupational Qualification (BFOQ)? Only members of a particular class can perform the job There can be no exceptions According to the courts: –Race can never be a BFOQ –Religion has been (e.g., Nun, priest) –Gender seldom is –Customer preference doesn’t matter

© 2004 Wadsworth, a division of Thomson Learning, Inc 16 Has Local, State or Case Law Added Protected Classes? State Law Examples –Virginia protects marital status –Wisconsin protects sexual orientation Local Law Examples –Cincinnati protects people of Appalachian heritage –Santa Cruz, CA outlaws discrimination based on height and physical appearance Case Law Examples –Transsexuals are not a sex –Former drug use is not a disability

© 2004 Wadsworth, a division of Thomson Learning, Inc 17 Education Level

© 2004 Wadsworth, a division of Thomson Learning, Inc 18 Adverse Impact - Example 2 MaleFemale Number of applicants Number hired 20 4 Selection ratio /.50 =.40 <.80 (adverse impact)

© 2004 Wadsworth, a division of Thomson Learning, Inc 19 Was the Requirement a Subterfuge for Intentional Discrimination? Old voting requirements Residency requirements Height requirements

© 2004 Wadsworth, a division of Thomson Learning, Inc 20 Can the Employer Prove that the Requirement is Exempt or Job Related? Exemptions –Bona fide seniority system –Veteran’s preference rights –National security Job Related –Types BFOQ Valid testing procedure –Methods Content validity Criterion validity Validity generalization

© 2004 Wadsworth, a division of Thomson Learning, Inc 21 Content Validity Based on a solid job analysis A method of rationally matching tasks with the necessary knowledge, skills, abilities, and other characteristics (KSAOs) to perform the job

© 2004 Wadsworth, a division of Thomson Learning, Inc 22 Criterion Validity Correlate test scores with relevant criteria Two types –Concurrent –Predictive Requirements –Reasonable sample size –Good range of test and criterion scores –A good criterion

© 2004 Wadsworth, a division of Thomson Learning, Inc 23 Validity Generalization Based on meta-analysis Borrows validity from other studies or organizations Job analysis results must be similar

© 2004 Wadsworth, a division of Thomson Learning, Inc 24 Did Employer Look for Reasonable Alternative with Less Adverse Impact? A different test measuring the same construct A different type of test Changes to testing conditions –video rather than written –practice exams –conditioning programs Job redesign

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© 2004 Wadsworth, a division of Thomson Learning, Inc 26 What is affirmative action? Is it a good idea?

© 2004 Wadsworth, a division of Thomson Learning, Inc 27 Affirmative Action Strategies Intentional recruitment of minority applicants Removal of supervisor and employee prejudices Identification and removal of employment practices that work against minority employees Preferential hiring and promotion of minorities

© 2004 Wadsworth, a division of Thomson Learning, Inc 28 Reasons for Affirmative Action Plans Involuntary –Government regulation –Court order Voluntary –Consent decree –Desire to be a good citizen community relations customer relations hope that diversity will increase productivity

© 2004 Wadsworth, a division of Thomson Learning, Inc 29 Was there a history of discrimination? Does the plan only benefit actual victims of discrimination? What population was used to establish goals? Did plan trammel the rights of nonminorities? Is there an ending point to the plan? Plan is illegal Plan is Legal Plan is illegal Plan is Legal No Area No Yes No Qualified Work Force No Yes

© 2004 Wadsworth, a division of Thomson Learning, Inc 30 Legality of Preferential Hiring Was there a history of discrimination? A history of discrimination must be demonstrated Numeric disparity –can establish history –numeric disparity by itself may not be enough Affirmative action posture and efforts will also be considered Other reasons, such as lack of interest in the position, must be considered along with the disparity

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© 2004 Wadsworth, a division of Thomson Learning, Inc 32 Legality of Preferential Hiring Does the plan benefit people who were not the actual victims of discrimination?

© 2004 Wadsworth, a division of Thomson Learning, Inc 33 Legality of Preferential Hiring What population was used to establish hiring or promotion goals? Area population Qualified work force –minimum standards –minority interest in occupation

© 2004 Wadsworth, a division of Thomson Learning, Inc 34 Legality of Preferential Hiring Did the plan trammel the rights of nonminorities? Magnitude of the goal must be reasonable All people hired must be qualified Race/gender can be used to break ties among equally qualified applicants Promotion spots can be “double filled”

© 2004 Wadsworth, a division of Thomson Learning, Inc 35 Legality of Preferential Hiring Is there an ending point to the plan? Progress must be periodically reviewed Plan must end when goals have been achieved

© 2004 Wadsworth, a division of Thomson Learning, Inc 36 Consequences of Affirmative Action Programs People hired due to affirmative action: –are perceived by coworkers as being less competent –tend to devalue their own performance –behave negatively toward other AA people Organizations using AA based hiring have lover levels of productivity (Silva & Jacobs, 1993)

© 2004 Wadsworth, a division of Thomson Learning, Inc 37 Harassment

© 2004 Wadsworth, a division of Thomson Learning, Inc 38 What examples of harassment have you seen in the workplace?

© 2004 Wadsworth, a division of Thomson Learning, Inc 39 EEOC Complaints ,396 charges of sexual harassment –14.9% of the charges were made by males –No reasonable cause found in 44.1% of charges –$54.6 million obtained in settlements 6,116 charges of racial harassment

© 2004 Wadsworth, a division of Thomson Learning, Inc 40 Potential Victims of Harassment Gender Race Religion Age National Origin –Alien status –Citizenship status Disability Sexual Preference

© 2004 Wadsworth, a division of Thomson Learning, Inc 41 Types of Harassment Quid Pro Quo Hostile Environment

© 2004 Wadsworth, a division of Thomson Learning, Inc 42 Quid Pro Quo Harassment Claims Granting of sexual favors is tied to employment decisions Single incident is enough Organization is always liable

© 2004 Wadsworth, a division of Thomson Learning, Inc 43 Hostile Environment Harassment Claims Pattern of conduct Related to gender Is unwanted Is negative to the “reasonable person” Affects a term, condition, or privilege of employment

© 2004 Wadsworth, a division of Thomson Learning, Inc 44 Behaviors That Could Be Sexual Harassment Sexual comments Undue attention Verbal sexual abuse Verbal sexual displays Body language Invitations Physical advances Explicit sexual invitations

© 2004 Wadsworth, a division of Thomson Learning, Inc 45 Types of Harassing Behavior Comments Jokes Posters Cartoons Drawings

© 2004 Wadsworth, a division of Thomson Learning, Inc 46 Behaviors are offensive if they: Perpetuate stereotypes Degrade another group Build-up own group Make others feel uncomfortable

© 2004 Wadsworth, a division of Thomson Learning, Inc 47 What Causes Offensive Behavior? Hatred toward a group To express an emotion –Anger –Frustration Ignorance Attempts to gain power To “fit in” with another group

© 2004 Wadsworth, a division of Thomson Learning, Inc 48 Why is Harassment a Problem? Hurts workplace relationships Causes emotional distress Causes physical distress Decreases productivity Increases turnover and absenteeism Increases legal liability

© 2004 Wadsworth, a division of Thomson Learning, Inc 49 Discouraging Harassment Don’t laugh at offensive behavior Speak your mind Let employees know when they are crossing the line

© 2004 Wadsworth, a division of Thomson Learning, Inc 50 What to do if you think you are being harassed Talk to the individual –yellow light –red light Talk to your supervisor or to the HR Director –all complaints are taken seriously –an investigation will occur –think about what you want the outcome to be –don’t publicize your complaint

© 2004 Wadsworth, a division of Thomson Learning, Inc 51 Responding to a Complaint

© 2004 Wadsworth, a division of Thomson Learning, Inc 52 Liability of the Organization Victims must be encouraged to come forward Every complaint or suspicion must be investigated Appropriate action must follow the investigation

© 2004 Wadsworth, a division of Thomson Learning, Inc 53 Investigating Complaints Investigation must be prompt Complaints must be kept confidential to protect the accused Actions must be taken to protect the accuser during the investigation Due process Appropriate action must be taken

© 2004 Wadsworth, a division of Thomson Learning, Inc 54 Americans With Disabilities Act Organizations must make reasonable accommodation for the physically or mentally disabled, unless to do so would impose an undue hardship

© 2004 Wadsworth, a division of Thomson Learning, Inc 55 Definition of Disability A physical or mental impairment that substantially limits one or more major life activities A record of such impairment, or Being regarded as having such an impairment

© 2004 Wadsworth, a division of Thomson Learning, Inc 56 Reasonable Accommodations Making facilities accessible restructuring jobs Reassignment to a vacant position Modifying work schedules Acquisition or modification of equipment or devices Providing readers or interpreters Changing examinations, training materials, or policies

© 2004 Wadsworth, a division of Thomson Learning, Inc 57 Ways to Determine if a Job Function is Essential Employer’s judgment Written job description Amount of time spent performing the function Consequence of not requiring the incumbent to perform the function Work experience of past job incumbents

© 2004 Wadsworth, a division of Thomson Learning, Inc 58 Medical Exams and Inquiries Prehire medical exams and inquiries are prohibited Applicants may be asked if they are able to perform essential job related functions Medical exams occur after a conditional offer of employment

© 2004 Wadsworth, a division of Thomson Learning, Inc 59 Clarifications Act does not require an organization to hire the disabled Act does not require an organization to give preference to the disabled Act requires that the disabled be given an equal opportunity, and if the best qualified, to be given the job