1. Human Resources Management
Instructor: Erlan Bakiev, Ph.D.
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2. Understanding Equal Opportunity and the Legal Environment
Chapter 3
Understanding Equal Opportunity and the Legal Environment
Discrimination claims are always difficult for companies, so it’s important for managers and human resource professionals to stay current with laws, trends, and the legal environment. In this chapter we will look at some key laws that impact the role and nature of the human resource professional and the organization’s liabilities.
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3. Chapter Challenges
Recognize why understanding the legal environment is important
Become aware of conflicting strategies for fair employment
Gain mastery of the equal employment opportunity laws
After reading Chapter 3, you should be able to
1. Recognize why understanding the legal environment is important
2. Become aware of conflicting strategies for fair employment
3. Gain mastery of the equal employment opportunity laws
Understanding the legal environment and applying the knowledge into the workplace through training can help organizations avoid legal conflicts.
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4. Chapter Challenges Understand EEO enforcement and compliance
Have familiarity with other important laws
Ensure avoiding pitfalls in EEO
Chapter 3 also addresses the following challenges:
4. Understand EEO enforcement and compliance
5. Have familiarity with other important laws
6. Ensure avoiding pitfalls in EEO.
All of these are very important for all managers and HR professionals to become familiar with and to help with training within the organization.
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5. The Managerial Perspective
Managers must understand the legal issues when making the following decisions:
Which employees to hire
How to compensate employees
What benefits to offer
How to accommodate employees with dependents
How and when to fire employees
The legal environment is vast, complex, and dynamic, meaning that HR professionals must stay on top of the latest laws and understand how each affects the organization and decisions that will be made within the organization. Additionally, HR must help equip managers to work with employees in the best manner possible to ensure a positive relationship with employees. The legal environment will affect:
Which employees to hire;
How to compensate employees;
What benefits to offer;
How to accommodate employees with dependents; and
How and when to fire employees.
We will cover these issues in this chapter.
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6. Understanding the Legal Environment
Do the right thing
Realize the limitations of the HR and legal departments
Understanding and complying with HR law is important for three reasons. It’s important that organizations must first, do the right thing. Complying with the laws are a must, but it’s important to engage in fair practices such as equal pay for same work regardless of gender, race, or disability. Many companies have made headlines for not complying with the compensation laws. However, companies such as McDonald’s have taken the lead in hiring youth with learning disabilities, which has created a positive image with customers.
Realizing the limitations of the HR and legal departments: Although it’s important to stay on top of the laws, HR managers are also responsible for maintaining record keeping, writing and implementing good HR policies, and monitoring the firm’s decisions. However, when managers make poor decisions, the HR department will not always be able to resolve them nor can an organization’s legal department magically solve the problems created by mangers. Thus, it’s important for HR team to impress upon the organization the importance of understanding and implementing fair practices.
Limit potential liability: Considerable financial liabilities can occur when HR laws are broken or perceived to be broken. Typical court awards to victims of age, sex, race, or disability discrimination can be upwards of $300,000 or more, depending on the negligence.
Limit potential liability
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7. Challenges to Legal Compliance
A dynamic legal landscape
The complexity of laws
Conflicting strategies for fair employment
There are many challenges to complying with the law due to the dynamic and constantly changing legal landscape. In this chapter, we’ll see the many laws that affect the practices of HRM. Several have been passed in the last decade. Griggs v. Duke Power, for example, placed a heavy burden of proof on the employer in employment discrimination cases.
The complexity of laws: For example, the ADA law is spelled out in a manual that is several hundred pages long and includes 1,000 different disabilities affecting over 43 million Americans.
Conflicting strategies for fair employment: Society at large, political representatives, government employees, and judges all have different views regarding the best ways to achieve equitable HR laws. We’ll look closer at the conflicting strategies.
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8. Conflicting Strategies for Fair Employment
Fair employment is defined as a situation in which employment decisions are not affected by illegal discrimination. There are a few different strategies to achieve fair employment. One way is to select the best decision without regard to race, sex, religion, national origin, color, age or disability, whereas the affirmative action strategy is intended to achieve fair employment by urging employers to hire certain groups of people who were discriminated against in the past.
It is very common for a law, a government program, or an organizational policy to have numerous unanticipated consequences, some of which turn out to be negative. HR law is certainly not immune to this phenomenon.
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9. Equal Employment Opportunity Laws
The Equal Pay Act of 1963
Title VII of The Civil Rights Act of 1964 and 1991 amendment
The Age Discrimination in Employment Act of 1967
The American with Disabilities Act of 1990
The Vietnam Era Veterans Readjustment Act of 1974
These are the major employment laws that we will discuss in detail in this chapter:
The Equal Pay Act of 1963
Title VII of The Civil Rights Act of 1964 and 1991 amendment
The Age Discrimination in Employment Act of 1967
The American with Disabilities Act of 1990
The Vietnam Era Veterans Readjustment Act of 1974
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10. Title VII of the Civil Rights Act of 1964
The Title VII section of the Civil Rights Act of 1964 applies to employment decisions and mandates that employment decisions not be based on race, color, religion, sex, or national origin.
A protected class is a group of people who suffered discrimination in the past and who are given special protection by the judicial system. This includes African Americans, Asian Americans, Latinos, Native Americans, and women.
Despite the negative connotations the word discrimination has acquired, discrimination simply means making distinctions—in the HR context, distinctions among people.
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11. Types of Discrimination
Illegal under Title VII
Disparate treatment
Disparate treatment: Discrimination that occurs when individuals are treated differently because of their membership in a protected class.
Adverse impact: Discrimination that occurs when the equal application of an employment standard has an unequal effect on one or more protected classes. Also called disparate impact.
Adverse impact
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12. Defense of Discrimination Charges
Job relatedness
Bona fide occupational qualifications (BFOQs)
Seniority
Business necessity
When a discrimination case makes it to court, it is the responsibility of the plaintiff (the person bringing the complaint) to show reasonable evidence that discrimination has occurred. The legal term for this type of evidence is prima facie. The Four-Fifths Rule is an EEOC provision for establishing a prima facie case that an HR practice is discriminatory and has an adverse impact. A practice has an adverse impact if the hiring rate of a protected class is less than four-fifths the hiring rate of a majority group.
Defense of Discrimination Charges: Job relatedness: Employer must show that the decision was made for job-related reasons.
Bona fide occupational qualifications (BFOQs): Characteristics that must be present in all employees for a particular job.
Seniority: An employment decision is made in the context of a formal seniority system.
Business necessity: An employer can use the business necessity defense when the employment practice is necessary for the safe and efficient operation of the organization and there is an overriding business purpose for the discrimination practice.
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13. Title VII and Pregnancy 1978
Title VII amended to include protection for someone with the ability to become pregnant and actual pregnancy
Requires employers to treat a pregnant employee in the same way as someone who has a medical condition
Title VII was amended to include protection for someone with the ability to become pregnant and actual pregnancy.
It requires employers to treat a pregnant employee in the same way as someone who has a medical condition. For example, an employer cannot deny sick leave for pregnancy-related illnesses such as morning sickness if the employer allows sick leave for other medical conditions such as other illnesses that cause nausea. The law also states that a company cannot design an employee health benefit plan that provides no coverage for pregnancy.
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14. Hostile work environment
Sexual Harassment
Quid pro quo
Favor for a favor
Hostile work environment
Offensive and undesirable
Quid pro quo: Favor for a favor; harassment that occurs when sexual activity is required in return for getting or keeping a job or job-related benefit. An example would be a request for sexual favors in exchange for a job promotion.
Hostile work environment: Harassment that occurs when the behavior of anyone in the work setting is sexual in nature and is perceived by an employee as offensive and undesirable. To help clarify hostile work environment, the Supreme Court lists several questions to help judges and juries determine if verbal and other nonphysical behavior of a sexual nature creates a hostile work environment.
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15. Reducing Liability
It is important to know how to establish an environment that is free of hostility and harassment. HR professionals and managers can reduce potential liability of sexual harassment by conducting the following:
Establishing a written policy prohibiting harassment
Communicating the policy to employees
Training employees in what constitutes harassment
Establishing an effective complaint procedure
Quickly investigating all claims
Taking remedial action to correct past harassment
Making sure that the complainant does not end up in a less desirable position if transferred
Following up to prevent continuation of harassment
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16. How to Handle a Sexual Harassment Investigation
Timeliness
Documentation
Employee agreement
Resolution
Failure to investigate a sexual harassment complaint can result in an employer liability if the case goes to court. Following are some guidelines for conducting an investigation into sexual harassment: Timeliness: Managers should respond quickly, within 24 to 48 hours.
Documentation: Managers should ask open-ended questions and get as much detail as possible about the complaint. Documenting everything, including date and time, is important for the investigation.
Employee agreement: After documenting the facts in the report, the manager should go over the events with the complainant and document the employee’s agreement with the report.
Resolution: Managers should ask what end result the employee is seeking.
Findings of fact: The manager should interview witnesses who can corroborate or discredit the allegations of sexual harassment.
Remedy: The employer is obligated only to take steps reasonably likely to stop the harassment and has the right to determine an appropriate course of action.
Findings of fact
Remedy
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17. EEO Laws Continued The Civil Rights Act of 1991
Employer bears burden of proof
Prohibits quotas
Allows payment for punitive and compensatory damages
The Civil Rights Act of 1991 was passed to ensure that discrimination was strictly enforced and the outcome was as follows:
Now the burden of proof was shifted to the employer, meaning that the employer had to prove that there was no discrimination, instead of originally it falling in the hands of the employee having to prove discrimination. This is one of the biggest changes in the amendment.
The 1991 law prohibits quotas, which are employer adjustments of hiring decisions to ensure that a certain number of people from certain protected class are hired.
The act also now allows for punitive damages, which are fines awarded to a plaintiff to punish the defendant for discriminatory acts. The act also allows for compensatory damages, which are fines awarded to a plaintiff to compensate for the financial and psychological harm the plaintiff suffered.
Executive Order 11246: Prohibits discrimination against the same categories of people in Title VII but says that organizations under government contract (contracts over $50,000 and 50 or more employees) must develop an affirmative action program to promote the employment of protected-class members.
Executive Order 11246, 1965
Prohibits discrimination by government and government contractors
Required to develop affirmative action programs
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18. The Age Discrimination in Employment Act, 1967 (ADEA)
EEO Laws Continued
The Equal Pay Act of 1963
Same pay for men and women
May differ based on quality or quantity of production
Seniority plans exempt
Does not prohibit use of merit pay
The Equal Pay Act of 1963 was established to bring more equity between the pay of men and women. The same job or similar jobs based on quality and quantity of production must have the same pay. There are exemptions based on seniority or merit pay.
The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against persons age 40 and over.
The Age Discrimination in Employment Act, 1967 (ADEA)
Protects employees age 40 and over
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19. EEO Laws Continued American with Disabilities Act (1990)
Protects those with disabilities
Physical or mental
Impaired major life activity
Must provide reasonable accommodations for essential job function
Individual must be otherwise qualified for the job
The Americans with Disabilities Act was established in 1990 to protect those with physical or mental disabilities that impair a major life activity. The company must provide reasonable accommodations for the essential job functions for any individual with a disability as long as the individual is otherwise qualified for the job.
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20. EEO Laws Continued The Vocational Rehabilitation Act of 1973
The Vietnam Era Veterans Readjustment Act of 1974
The Vocational Rehabilitation Act of 1973 is the precursor to the ADA. However, this act applies only to the federal government and its contractors. This act prohibits discrimination and requires that covered organizations have an affirmative action plan to promote the employment of individuals with disabilities.
The Vietnam Era Veterans Readjustment Act of 1974 prohibits discrimination against Vietnam-era veterans by federal contractors. The law also protects the rights of military veterans who served on active duty during a war, campaign, or expedition.
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21. EEO Enforcement and Compliance
Regulatory Agencies
Equal Employment Opportunity Commission (EEOC)
Processes discrimination complaints
Issues written regulations and guidelines
Collects and disseminates information
Office of Federal Contract compliance Programs (OFCCP)
Actively monitors compliance
Companies must be sure to understand the enforcement and compliance steps of the EEOC. The three steps in processing of discrimination complaints are investigation; conciliation, or to reach a settlement by negotiating between three parties; and litigation if a settlement cannot be reached.
The OFCCP has the enforcement power that the EEOC lacks and actively monitors the compliance procedures.
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22. EEO Enforcement and Compliance
Affirmative Action Plans
Utilization Analysis
Goals and Timetables
Action Plans
Reverse Discrimination
An affirmative action plan is required of all government agencies and businesses that do a significant amount of work for the government. Three action steps are needed in developing an affirmative action plan:
1. Conduct a utilizing analysis to describe the organization’s current workforce relative to the pool of qualified workers in the labor force.
2. Establish goals and timelines for correcting underutilization.
3. Determine action plan options in deciding exactly what affirmative actions to take.
Reverse discrimination: Discrimination occurring as a result of an attempt to recruit and hire more people from protected classes.
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23. Other Important Laws Immigration Reform and Control Act of 1986
Immigration Act of 1990
Drug-Free Workplace Act of 1988
Uniformed Services Employment and Reemployment Rights Act of 1994
The Immigration Reform and Control Act of 1986 requires employment verification (I-9) to reduce the inflow of illegal immigrants to the United States. Its intent is to discourage the hiring of illegal immigrants.
The Immigration Act of 1990 was legislated to make it easier for skilled immigrants to enter the United States.
The Drug-Free Workplace Act of 1988 requires that government contractors try to ensure that their workplaces are free from drug use.
The Uniformed Services Employment and Reemployment Rights Act of 1994 protects the rights of people who take short leaves from a private-sector employer to perform military service.
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24. Avoiding Pitfalls of EEO
Provide training
Establish a complaint resolution process
Document decisions
Be honest
Ask only for information you need to know
The great majority of employees and job applicants in the United States fall into one or more protected classes. Sound management practices will not only contribute to avoiding pitfalls of EEO, but also contribute to the organization’s bottom line. Five specific management practices are recommended: providing training, establishing a complaint resolution process, documenting decisions, being honest, and asking applicants for only needed information.
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25. Summary and Conclusions
Why Understanding the Legal Environment Is Important
Challenges to Legal Compliance
Equal Employment Opportunities Laws
EEO Enforcement and Compliance
Other Important Laws
Avoiding Pitfalls in EEO
The legal landscape is vast, complex, and dynamic (constantly changing). It is essential for HR professionals to stay on top of the key issues and how they will impact their employer/employee relationship.
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26. Pearson Education, Inc. Copyright
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