MANA 3320 Dr. Jeanne Michalski Michalski@uta.edu Legal Compliance 1 MANA 3320 Dr. Jeanne Michalski Michalski@uta.edu 1

Legal Issues for HR Managers Sexual Harassment  Equal Opportunity  Age Discrimination  Wrongful Discharge  Background Checks  Employee Benefits  Health Insurance Disabilities   Immigration Contingent Workers  Non Competition Agreements  Privacy  Whistleblowers Family & Medical Leave  

Primary EEO Laws and Regulations Equal Pay Act of 1963 Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act of 1967 Pregnancy Discrimination Act of 1978 Americans with Disabilities Act of 1990 (ADA) Civil Rights Act of 1991

What are the differences? Diversity Equal Employment Opportunity Affirmative Action

Protected Groups Race Color Religion Sex National origin Age Disability

Civil Rights Act of 1964 Title VII (a) It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Civil Rights Act of 1964 Title VII (a) It shall be an unlawful employment practice for an employer – DISPARATE TREATMENT (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or ADVERSE IMPACT (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Civil Rights Act of 1991 Followed Wards Cove Packing vs. Antonio (1989) Prohibits “race norming” of tests. Plaintiffs can sue for punitive damages in cases of intentional discrimination. Adverse impact prohibited for each piece of a selection system. Burden of proof on the employer. Prohibits quotas in selection.

Presentation of Evidence Plaintiff (usually the employee) charges discrimination and presents evidence of adverse impact or direct discrimination. If prima facie (“at first appearance”) is established, the employer must then show that discrimination did not occur. Prima Facie requires The applicant was not selected OR The applicant appeared qualified Others were hired for the position 4/5ths Rule

Presentation of Evidence Must prove that rejection was discriminatory. Plaintiff Provides a clear and specific job‑based explanation for actions. Defendant He or She demonstrates: a) Protected class b) Was qualified c) Was rejected d) The job remained open “McDonnell-Douglas Test” Disparate Treatment Demonstrates Job relatedness (validity) and business necessity Proves that an alternative practice is available that has less adverse impact 4/5’ths Rule Adverse Impact

4/5ths RULE The selection rate for any protected group should be no less than 4/5ths or 80% of the selection rate for the group with the highest rate of selection. Number Hired Selection Rate (SR) = Number of Applicants If SR1 *.8 > SR2, then Adverse Impact.

4/5ths Rule Assume 200 employees were selected from a pool of 500 applicants (200 black and 300 white). Of the employees selected 60 were black and 140 were white. Selection Rates: White = 140 / 300 = 46.7% Black = 60 / 200 = 30% 4/5ths Rule: .467 X .8 = .374 = 37.4% Since 30% (actual selection rate) is less than 37.4% (4/5ths comparison selection rate) evidence of discrimination exists.

Enforcement Agencies Equal Employment Opportunity Commission (EEOC) All private employers with more than 15 employees EEO – 1 for more than 100 employees Office Of Federal Contract Compliance Programs (OFCCP) Government contractors or sub-contractors. Covers approximately 26 million or nearly 22% of the total civilian workforce. OFCCP requires a contractor to engage in a self-analysis for the purpose of discovering any barriers to equal employment opportunity. Investigates complaints of discrimination.

EEO vs. Affirmative Action Equal Employment Opportunity Collection of laws that apply to all organizations Aimed at ending discrimination Affirmative Action Executive Order 11246 Applies only to (1) government and contractors (2) court orders and (3) voluntary programs. NO affirmative action requirements for others. Written document with targets for minority hiring.

Affirmative Action Program (AAP) Develop a written program for each establishment Identify potential problems in the participation and utilization of women and minorities. Gives the specific procedures and the good faith efforts to provide equal employment opportunity. If there is underutilization, provides gives targets (not hard quotas) and timetables. Expanded efforts in outreach, recruitment and training.

AAP Statistics Flow Statistics Availability and utilization analyses Examines selection rates by group 4/5 th’s rule Availability and utilization analyses Employee distribution compared with local population “Stock Statistics” Concentration Statistics Examining placement of women and minorities by job category

Utilization Analysis The process of comparing the composition by race and sex for jobs within an organization against composition of the employer’s relevant labor market. The workforce is at parity when its composition matches the relevant labor market. If the workforce composition is below external figures, the affected protected classes are underutilized and the employer should take affirmative steps to correct the imbalance.

Availability Analysis U.T. System determines minority availability by: The minority population in the surrounding labor market. The minority unemployment rate in the surrounding labor market. The percentage of the minority workforce as compared with the total workforce in the surrounding labor market and Texas. The availability of promotable and transferable minorities within U. T. System Administration.

Defense of Discrimination Job Relatedness Judged on an individual basis Bona Fide Occupational Qualification Must be present for all who hold that job If is required for the job then it does not matter that it has adverse impact Business necessity Seniority

Record Keeping EEOC requires that employers keep all personnel records for one year after termination. Written descriptions of benefits plans (such as pensions) and any seniority or merit system. Fair Labor Standards Act (FLSA) and the Equal Pay Act, require employers to keep payroll records for at least three years. All records relevant to wages including wage rates, job evaluations, and seniority and merit systems.

Employment Information Report (EEO-1) EEO-1 survey is authorized by Title VII and the Equal Employment Opportunity Act of 1972. All employers with 15 or more employees are required to keep employment records as. Employers are required to file an EEO-1 report on an annual basis if they: Employ 100 or more employees Employ 50 or more employees and have Federal contracts totaling $50,000 or more.

Sexual Harassment Based on Title VII Defined by 1980 EEOC interpretation of the law Two types of sexual harassment

Two Types of Harassment “Quid pro quo” Submission to conduct is a term of employment or the basis for employment decisions. “Hostile work environment” "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Systems, Inc.,

Sexual Harassment - EEOC Sexual harassment can occur in a variety of circumstances, including but not limited to the following: The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harasser's conduct must be unwelcome.

Company Responsibility Hostile environment applies to all protected classes. Intent is not a defense. "knew or should have known" about the speech/conduct and did not intervene. What does "knew or should have known" mean? “An ordinary, reasonable prudent person in like or similar circumstances" would have known.

HR Manager’s Responsibility Establish a written policy Train employees on harassment Establish an effective complaint procedure Timeliness Due process Documentation Access to senior management Fair resolution Respond to ALL reported cases

Other HR Laws / Regulations Classifying Employees FLSA and Internal Revenue Code Affirmative Action Executive Order 11246 Immigration Immigration Reform and Control Act Compensation and Benefits COBRA FMLA State Laws & Regulations http://www.twc.state.tx.us/ Additional Regulations Workplace Safety Labor Unions Many others….

Age Discrimination Age Discrimination in Employment Act of 1967 Protects employees 70 million workers over 40 Nearly 50% of workers Cases most often arise from layoff or dismissal It is legitimate to consider salary in layoffs No standard of “reverse discrimination” for age suits The number of age discrimination complaints filed with the EEOC increase when economy weakens.

Equal Pay Act of 1963 Employers are requires to pay men and women the same wages and benefits for doing “equal” work. “Equal” means same duties, responsibilities, skills, effort, working conditions, and location. Some exceptions: Pay for performance Different shifts or locations More experience or seniority

Immigration Reform and Control Act (1986) Employers must comply with the Act by: Having employees fill out their part of Form I-9. Checking documents establishing an employee’s identity and eligibility to work. Complete the employer’s section of Form I-9. Retain Form I-9 for at least three years. Present Form I-9 for inspection to an Immigration and Naturalization Service officer or to a Department of Labor officer upon request.

Americans with Disabilities Act (ADA) 1990 law covers employers with more than 15 employees. Discrimination is prohibited against individuals with disabilities who can perform essential job functions with reasonable accommodation unless it would cause undue hardship. Employers not required to change work rules if they are business necessity. OFCCP vs. Ozark Airlines (1986) – employers must prove applicant could not perform the job safely.

Americans with Disabilities Act (ADA) Disability is a physical or mental impairment that affects a major life activity. Essential vs. marginal job functions Categories of "reasonable accommodations": changes to a job application process changes to the work environment changes to the way a job is usually done employee training

What Is a “Disability”? The ADA does not cover: Homosexuality or bisexuality Gender-identity disorders not resulting from physical impairment or other sexual-behavior disorders Compulsive gambling, kleptomania, or pyromania Psychoactive substance-use disorders resulting from current illegal use of drugs Current illegal use of drugs Infectious or communicable diseases of public health significance (applied to food-handling jobs only)

Undue Hardship “Undue hardship” means significant difficulty or expense. Not only financial difficulty Those that would fundamentally alter the nature or operation of the business. Every request for reasonable accommodation should be evaluated separately taking into account: Nature and cost of the accommodation needed Overall financial resources of the business Number of persons employed by the business Impact of the accommodation on the business

Pregnancy Discrimination Act (1978) Broadens the definition of sex discrimination to include pregnancy and childbirth. Employers may not alter the benefits of employment based on pregnancy or possibility of pregnancy if a woman is capable of performing their job duties. UAW vs. Johnson Controls (1987) Employers may not prevent women from taking jobs that may harm fetal health.

Avoiding Pitfalls in EEO Provide Training Document Decisions Be Honest Establish a Complaint Resolution Process Ask Only for Info You Need to Know

HW #1 Think about your current job or a past job and answer the following questions: What are the primary or most important duties that you perform? What are the major results of your job? List any machines, tools, instruments, equipment, or materials you use in your job. Describe the previous work experience (type and amount) required to do your job. What kinds of knowledge, skills and abilities are required to perform your job? Based on the answers to the above questions write a complete job description following the format in Chapter 4 of your book; including a section on job identification, a brief description of the job, the essential functions of the job and the job specifications. Due September 16