2. Employment Laws © NB Johnson 2000 http://www.workplacefairness.org/guide

3. Civil Rights Act, 1964 (Title VII) It is unlawful for an employer to discriminate against an individual It is unlawful for an employer to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex or national origin. because of such individual’s race, color, religion, sex or national origin.

4. Civil Rights Act The act applies to: private employers with more than 15 employees unions employment agencies state and local government educational institutions

5. Discrimination Using prohibited factors to make an employment decision Discrimination allowed if based on: seniority seniority veterans preference veterans preference national security national security job qualifications job qualifications

6. Discrimination Theories Disparate or Adverse Treatment - where an employee(s) allege that he or she (as individuals) have been treated less favorably than others because of sex, race, etc. Individual cases. Individual cases. Motive or intent to discriminate must be shown. Motive or intent to discriminate must be shown.

7. Disparate or Adverse Impact Statistical discrimination One class of employees is treated differently than another class of employees. Policy is neutral on its face no discriminatory intent no discriminatory intent discriminatory effect discriminatory effect

8. Equal Employment Opportunity Commission (EEOC) Enforces Title VII - all charges must be brought with them. investigate complaints investigate complaints attempt to resolve disputes through conciliation attempt to resolve disputes through conciliation bring legal action against organizations bring legal action against organizations issues interpretive guidelines issues interpretive guidelines

9. Filing a discrimination complaint Filed within 6 months EEOC determines probable cause No probable cause  civil court If probable cause then EEOC attempts conciliation (settle) If not settled then suit filed in district court(private) or Justice Department (public)

10. Prima Facie Case (burden of proof) Plaintiff: Member of a protected class Member of a protected class Qualified for the position Qualified for the position Failure to be hired Failure to be hired

11. Employer Defenses Employer Defenses Bona Fide Occupational Qualification (BFOQ) reasonable exception to meet the needs of the business. reasonable exception to meet the needs of the business. narrowly construed. narrowly construed. Business necessity reasonable qualification to meet the needs of the business reasonable qualification to meet the needs of the business job related tests OK job related tests OK OK to use worker qualifications OK to use worker qualifications

12. Uniform Guidelines on Selection- 80% Rule The EEOC regulations to determine disparate impact 80% rule - selection rate for protected group must not be less than 80% of non-protected group If < 80% then grounds for disparate impact

13. Example of 80% Rule Selection Rate= Number Hired/Number Applied Applicants -100 males, 100 females Applicants -100 males, 100 females Number of males hired - 70 Number of males hired - 70 Number of women hired - 50 Number of women hired - 50 Selection rates Women 50% Men 70% 50/70= 71% 71%< 80% Grounds for disparate impact

14. Ward’s Cove Decision Minority employees concentrated in low paid jobs and poorer housing Court ruled that employee must prove that statistical imbalances caused by specific policy Effect shifted burden of proof to the employee

15. 1991 Civil Rights Act Amendments Reversed Ward’s Cove decision Shifted burden of proof back to employer Provided for punitive damages Employer liable even if employment result the same in absence of discrimination

16. Seniority Systems Seniority systems OK even with discriminatory effects. Last hired, first fired policy adversely affects women and minorities. ”retroactive seniority" given when in discriminatory company back to the time when they would have been hired back to the time when they would have been hired

17. Affirmative Action Employer Plans to alleviate racial imbalance of their company. Goals and timetables not quotas Goals and timetables not quotas Active recruiting of protected groups Diversity training to change attitudes Eliminating employment practices that negatively affect protected employees

18. Who has AA plans Federal government contractors required to Federal government contractors required to Voluntarily adopt such plans Voluntarily adopt such plans Consent decree or settlement for past discrimination Consent decree or settlement for past discrimination

19. Affirmative Action The courts have been gradually eroding the concept of AA Texas and California have eliminated in university admissions

20. AA Recommendations for Firms Address specific problem Temporary - have definite timetable that expires when problem is addressed. Remedy problems of pervasive and persistent past discrimination

21. Diversity Management Formal programs to promote diversity Include training and education Focus on culture Require top management support

22. Sexual Harassment under Title VII Illegal under Title VII constitutes discrimination constitutes discrimination Illegal under common tort claims assault, battery & infliction of emotional distress assault, battery & infliction of emotional distress jury trials & punitive damages jury trials & punitive damages

23. 1980 the EEOC Guidelines on Sexual Harassment Unwelcome sexual advances sexual advances request for sexual favors request for sexual favors other verbal or physical conduct of a sexual nature when: other verbal or physical conduct of a sexual nature when: Submission is a term or condition of employment or affects employment decisions Hostile working environment conduct interferes with work performance or creates an intimidating or hostile work environment conduct interferes with work performance or creates an intimidating or hostile work environment

24. Hostile Working Environment Conduct interferes with work performance or creates an intimidating or hostile work environment Reasonable person standard - would a reasonable person be intimidated. Reasonable person standard - would a reasonable person be intimidated. Reasonable women standard - more appropriate? Reasonable women standard - more appropriate?

25. Affirmative Defense 1. The employer reasonably acted to correct and prevent the harassment 2. The employee unreasonably failed to use the employer’s anti-harassment mechanisms 3. No tangible employment action resulted from harassment 4. The employer had no reason to suspect harassment

26. Quid pro quo Submission is a term or condition of employment or Affects employment decisions

27. Employers liable for employees, clients, or contractors Courts side with employers when: A policy on sexual harassment A company grievance procedure The grievance procedure bypassing the alleged harasser Training on sexual harassment On-going communication

28. Employers Advised to: Train employees Train employees Notify employees of sanctions Notify employees of sanctions Investigate claims Investigate claims Discipline violators Discipline violators

29. Equal Pay Act, 1963 Equal pay for men and women performing equal work same skill, effort, responsibility & working conditions same skill, effort, responsibility & working conditions Pay discrimination on upon seniority, merit, piece-rate OK. Most imbalances addressed

30. Gender Wage Differences Women earn less than men after controlling for experience, education. Many women in female dominated occupations (e.g., nursing, education, social work) Wages in female occupations lower than male occupations

31. Comparable Worth Some argue that women should be paid based upon their organizational worth Labor market criteria biased Title VII has been found to cover these claims. Labor market acceptable defense.

32. Pregnancy Discrimination Act, 1978 No discrimination based on pregnancy (fired, refused a job, or promoted because of pregnancy). Pregnancy is to be treated like any other disability.

33. Family and Medical Leave Act, 1993 Up 12 workweeks leave (which may be unpaid) in a 12 month period for any one of the following: birth or adoption of child birth or adoption of child care for seriously ill spouse, son, daughter care for seriously ill spouse, son, daughter seriously ill employee seriously ill employee

34. FMLA Same job back or equivalent position with equivalent benefits. Maintains benefits during the leave Exempts highly compensated employees

35. American’s with Disabilities Act (ADA), 1990 Prohibits employment discrimination on the basis of disability. Reasonable Accommodation - 10% of salary. making existing equipment accessible, special equipment, training, arranging modified work schedules, providing readers for the blind Courts are beginning to support claims of hostile working environment

36. Disability Physical or mental impairment that substantially limits one or more major life activities. Includes: recovering from cancer, disfiguring injury, alcoholism, drug addition.

37. Qualifications Employers can inquire about the ability to do job essential job functions essential job functions Like Title VII, individual must qualified Decisions are made on a individual case basis Catch 22: if you prove you are disabled, often suggesting can’t do job

38. Age Discrimination in Employment, 1967 Prohibits discrimination in employment for workers over 40 Performance is only justification for firing an employee of 30 years service Few performance appraisal systems will stand up to judicial review

39. Trends Older workers likely to sue because of their financial resources Many employers use attractive pension policies to encourage early retirement. Age can be a BFOQ for safety reasons must show most members of an age group unable to perform must show most members of an age group unable to perform no better criteria. no better criteria.

40. International HRM Many countries discriminate on the basis of sex, religion, and race. US employers must follow US law Customer preference is not an excuse for discriminating. Must follow laws of host country

41. What rights do you not have Right to self expression except religious Right to assembly Breaks for bathroom except where required Privacy Belongings, computers, drug testing Belongings, computers, drug testing Sexual orientation

42. Employment Law Summary Bottom line: you can't treat people differently in employment based upon race, sex, religion, age, disability status. Means employers need to review their personnel practices to make sure they use nondiscriminatory practices EEO affects virtually all HR processes.