Ch. 4: HR Legislation and Regulation Fairness Equal Employment Opportunity (EEO) The concept that all individuals should have equal or equitable treatment in all employment-related actions. Safety and health Privacy

Ch. 4: HR Legislation and Regulation Discrimination Recognizing differences among items or people. Protected Class Groups identified for protection under equal employment laws and regulation. Race, ethnic origin, color • Sex/gender • Age Disability • Military experience • Religion Marital status • Sexual orientation

Illegal Employment Discrimination

DISPARATE TREATMENT Occurs when different standards are used to judge different individuals, or the same standard is used, but it is not related to the individuals’ jobs Protected class(es) affected differently OUTCOME of the employer’s actions, not intent, is considered by courts when deciding whether illegal discrimination has occurred.

DISPARATE IMPACT Substantial underrepresentation of protected class member(s) resulting from employment decisions that work to their disadvantage. Griggs vs. Duke Power (1971) decision: Lack of intent to discriminate is not a valid employer defense Employer has burden of proof to show that an employment requirement is a job-related “business necessity.”

EEO Terms and Concepts Business necessity Job relatedness BFOQs Burden of Proof No retaliation

Burden of Proof McDonnell-Douglas v. Green Court ruled that a prima facie (preliminary) case of employment discrimination is shown by: Person is a member of a protected group. Person applied for and was qualified for a job but was rejected. Employer continued to seek other applicants after the rejection occurred. Once prima facie case has been made, burden of proof shifts to the employer.

Equal Opportunity Equal Employment Employment that is not affected by illegal discrimination. Blind to differences – suggests that Differences among people should be ignored and everyone should be treated equally. Affirmative Action Employers urged to actively seek employees of protected races, age, gender, or national origins to make up for past discrimination.

Major Federal EEO Laws and Regulations

Major Federal EEO Laws and Regulations

Major Federal EEO Laws and Regulations

Sex/Gender Discrimination Pay Equity & Comparable Worth Pay for jobs requiring comparable levels of KSAs should be paid similarly, even if actual duties differ significantly. Courts have consistently ruled against claims. Equity Theory

Sex/Gender Discrimination Sexual Harassment Unwanted sexual advances Threat of adverse employment conditions Creating a hostile work environment Can occur between Boss and a subordinate Co-workers Non-employee business contact and employee Other org members

Americans with Disabilities Act (ADA) Definition of Disability Physical or mental impairment that substantially limits one or more life activity, record of such impairment, or being regarded as having such an impairment. Employers win 90%

ADA and Job Requirements Essential Job Functions Fundamental job duties of the employment position that an individual with a disability holds or desires. Undue Hardship Significant difficulty or expense imposed on an employer in making an accommodation for individuals with disabilities. Reasonable Accommodation

Most Frequent ADA Disabilities Cited Source: Based on data from U.S. Equal Employment Opportunity Commission, 1992–2005; see www.eeoc.gov for details.

ADA Amendments Act of 2008 Effective 1-1-09 Restores original intent of ADA, overturning Supreme Court decisions that narrowed interpretation Changes focus from “Is the employee truly disabled?” to “Has the employer met its obligation?”

Changes brought by ADA Amendments Act of 2008 Broadens Definition of Disability: Regarded as having an actual or perceived physical or mental impairment—whether it limits or is perceived to limit major life activity Doesn’t apply to minor or transitory (< 6 months) impairments Reasonable accommodation not required for “Regarded”

Changes brought by ADA Amendments Act of 2008 Substantial Limitation on one major life activity is enough Overrules court cases Major Life Activities expanded List includes eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating, etc. Adds Major Bodily Functions Digestion, respiration, circulation, etc.

Changes brought by ADA Amendments Act of 2008 Reasonable Accommodations: Not required for “Regarded as” Disability (see definition) Reverse Discrimination No claims allowed under ADAAA

Employment Discrimination Acts Age Discrimination in Employment (ADEA) Prohibits employment discrimination against individuals age 40 or older working for employers having at least 20 workers. Unless age is a job qualification (BFOQ). Older Workers Benefit Protection Act (OWBPA) Amendment to ADEA protecting employees from liability waivers for age discrimination in exchange for severance packages.

Immigration Reform and Control Act (IRCA) Prohibits employment discrimination against persons legally permitted to work in the US Requires employers to document (I-9 form) eligibility for employment. Provides penalties for knowingly employing illegal workers.

Religion and Military Religious Discrimination Illegal unless religion is a bona fide occupational qualification (BFOQ) Reasonable accommodation of beliefs is required. Military Status and USERRA Vietnam-Era Veterans Readjustment Act and Uniformed Services Employment and Reemployment Act encourage employment of veterans Require employers to provide leaves of absence and reemployment rights for employees called to active duty.

USERRA Provisions Common Issues Leaves of absence Return to employment rights Prompt re-employment on return Protection from discharge/retaliation Health insurance continuation Continued seniority rights

Sexual Orientation and Appearance Sexual Orientation and Discrimination Court and EEOC have ruled that sex discrimination under CRA Title VII applies to a person’s gender at birth. Appearance and Weight Discrimination Uniform application of dress codes is permitted. Height and weight requirements must be proven job-related.

Seniority and Arrest Records Seniority and Discrimination Courts have held that application of a valid seniority system does not violate the rights of protected-class individuals. Conviction and Arrest Records Employers may not use arrest records in employment decisions. Conviction records may be used in determining employability IF the offense is job-related.

Guidelines for Legal Pre-Employment Inquiries

Guidelines for Legal Pre-Employment Inquiries

Guidelines for Legal Pre-Employment Inquiries

Guidelines for Legal Pre-Employment Inquiries

Uniform Guidelines on Employee Selection Procedures (1978) Used by EEOC, Department of Labor’s OFCCP, and Department of Justice How an employer should deal with hiring, retention, promotion, transfer, demotion, dismissal, and referral. If sued, employers have two routes to prove they are not illegally discriminating against employees: no disparate impact or job-related validity.

Uniform Guidelines on Employee Selection Procedures “No Disparate Impact” Approach 4/5ths Rule Selection rate for a protected-class must be at least 80% (4/5ths) of the selection rate for the majority group or at least 80% of the group’s representation in the relevant labor market

Internal Disparate Impact Example

Internal Metrics for Disparate Impact Selection of candidates for interviews from those recruited Pass rates for various selection tests Performance appraisal ratings as they affect pay increases Identification of individuals for layoffs Promotions, demotions, and terminations Check for internal disparate impact

Internal Metrics for Disparate Impact ASSESS Selection of candidates for interviews--from those recruited Pass rates for selection “tests” Process for selecting layoff targets Promotion, demotion, discipline and termination processes Perf Appraisal process and pay raises

Racial Distribution in Valleyville (Example of Relevant Labor Market) (External)

Job-Related Validation Approach Employment “test” Employment-related decision procedure must have both job-related validity and reliability. Validity The extent to which a test actually measures what it says it measures. Reliability The consistency with which a test measures an item.

Validity and Equal Employment Selection Procedures and Validity Employers must demonstrate that tests of knowledge, skills, and abilities (KSAs) are valid and job-related. Content Validity Logical, non-statistical method (e.g., job analysis) to identify the KSAs and other characteristics necessary to perform the job. Criterion-Related Validity Validity measured using a test as the predictor of how well an individual would perform on the job.

EEO Enforcement Agencies EEO Commission Enforcement authority for federal employment laws. Its policy statements are not “law,” but “persuasive authority” in most cases. Office of Federal Contract Compliance (OFFCP) Ensures that federal contractors have nondiscriminatory practices and take affirmative action to overcome the effects of past discrimination. State and Local Agencies May provide greater remedies, require different actions, or prohibit discrimination in more areas.

EEO Compliance Records Retention All employment records must be maintained Application forms and documents concerning hiring, promotion, demotion, transfer, layoff, termination Rates of pay or other terms of compensation Selection for training and apprenticeship Documents should be maintained minimum of three years.

EEOC Reporting Forms EEOC-1 (Annual Reporting Form) required for: Employers with 100 or more employees, except state and local governments Subsidiaries of companies if the total number of combined employees equals 100 or more Federal contractors with at least 50 employees and contracts of $50,000 or more Financial institutions with at least 50 employees, holding government funds or issuing saving

Stages in the EEOC’s Response to an EEO Complaint Receive EEO Complaint Determine EEOC Jurisdiction and Categorize Complaint Serve Charge Notification on Employer Investigate Complaint Attempt to Mediate Complaint Issue Notice of Relief, Right to Sue, or Sue Employer Individual Files Suit in Federal Court EEOC Files Suit in Federal Court

Stages in the Employer’s Response to an EEO Complaint