1. © 2013 Cengage Learning 1 Employee Selection and Legal Issues

2. © 2013 Cengage Learning 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 11246 – 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

3. © 2013 Cengage Learning 3 Problem Scope YearComplaints% UnwarrantedMonetary Benefits* 201099,22280.8$319.4 200993,27779.7$294.2 200895,40278.7$274.4 200782,792 78.1%$290.6 200675,76877.8$229.9 200575,42878.6$276.1 200479,43280.5$251.7 200381,30080.0$269.0 200284,44279.9$257.7 200180,84077.9$247.8 200079,89678.8$245.7 199977,44483.6$210.5 *in millions

4. © 2013 Cengage Learning 4 Potential Legal Problems Disparate treatment (intentional discrimination) Disparate impact (adverse impact) Invasion of privacy Illegal search

5. © 2013 Cengage Learning 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

6. © 2013 Cengage Learning 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

7. © 2013 Cengage Learning 7 EEOC Complaint Process 1. Alleged discriminatory act 2.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

8. © 2013 Cengage Learning 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

9. © 2013 Cengage Learning 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 15-100$ 50,000 101-200$100,000 201-500$200,000 >500$300,000

10. © 2013 Cengage Learning 10 Employment Decisions Hiring Placement Promotion Assignment (shift, patrol zone) Salary Discipline Training opportunities

11. © 2013 Cengage Learning 11 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

12. © 2013 Cengage Learning 12 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 Qualified veteran Pregnant female

13. © 2013 Cengage Learning 13 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

14. © 2013 Cengage Learning 14 Is gender a BFOQ for Hooters?

15. © 2013 Cengage Learning 15 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

16. © 2013 Cengage Learning 16 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 50 30 Number hired 20 10 Selection ratio.40.33.33/.40 =.83 >.80 (no adverse impact)

17. © 2013 Cengage Learning 17 Education Level

18. © 2013 Cengage Learning 18 Adverse Impact - Example 2 MaleFemale Number of applicants 40 20 Number hired 20 4 Selection ratio.50.20.20/.50 =.40 <.80 (adverse impact)

19. © 2013 Cengage Learning 19 Was the Requirement a Subterfuge for Intentional Discrimination? Old voting requirements Residency requirements Height requirements

20. © 2013 Cengage Learning 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

21. © 2013 Cengage Learning 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

22. © 2013 Cengage Learning 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

23. © 2013 Cengage Learning 23 Validity Generalization Based on meta-analysis Borrows validity from other studies or organizations Job analysis results must be similar

24. © 2013 Cengage Learning 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

25. © 2013 Cengage Learning 25 Harassment

26. © 2013 Cengage Learning 26 What examples of harassment have you seen in the workplace?

27. © 2013 Cengage Learning 27 EEOC Complaints - 2010 30,989 charges of harassment –11,717 were for sexual harassment charges of sexual harassment 16.4% of the charges were made by males Harassment Charges –27% racial –38% sexual –35% other protected classes

28. © 2013 Cengage Learning 28 Potential Victims of Harassment Gender Race Religion Age National Origin –Alien status –Citizenship status Disability Sexual Preference

29. © 2013 Cengage Learning 29 Types of Harassment Quid Pro Quo Hostile Environment

30. © 2013 Cengage Learning 30 Quid Pro Quo Harassment Claims Granting of sexual favors is tied to employment decisions Single incident is enough Organization is always liable http://www.youtube.com/watch?v=vm_YewSqOy8&feature=youtu.be

31. © 2013 Cengage Learning 31 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

32. © 2013 Cengage Learning 32 Behaviors That Could Be Sexual Harassment Sexual comments Undue attention Verbal sexual abuse Verbal sexual displays Body language Invitations Physical advances Explicit sexual invitations

33. © 2013 Cengage Learning 33 Types of Harassing Behavior Comments Jokes Posters Cartoons E-mail Drawings http://youtu.be/LBRAnQ8vzmo http://www.youtube.com/watch?v=bojKifKPkPk&feature=related http://youtu.be/LBRAnQ8vzmo

34. © 2013 Cengage Learning 34 Behaviors are offensive if they: Perpetuate stereotypes Degrade another group Build-up own group Make others feel uncomfortable

35. © 2013 Cengage Learning 35 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

36. © 2013 Cengage Learning 36 Why is Harassment a Problem? Hurts workplace relationships Causes emotional distress Causes physical distress Decreases productivity Increases turnover and absenteeism Increases legal liability

37. © 2013 Cengage Learning 37 Discouraging Harassment Don’t laugh at offensive behavior Speak your mind Let employees know when they are crossing the line

38. © 2013 Cengage Learning 38 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

39. © 2013 Cengage Learning 39 Responding to a Complaint

40. © 2013 Cengage Learning 40 Liability of the Organization Victims must be encouraged to come forward Every complaint or suspicion must be investigated Appropriate action must follow the investigation

41. © 2013 Cengage Learning 41 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

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43. © 2013 Cengage Learning 43 What is affirmative action? Is it a good idea?

44. © 2013 Cengage Learning 44 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

45. © 2013 Cengage Learning 45 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

46. © 2013 Cengage Learning 46 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

47. © 2013 Cengage Learning 47 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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49. © 2013 Cengage Learning 49 Legality of Preferential Hiring Does the plan benefit people who were not the actual victims of discrimination?

50. © 2013 Cengage Learning 50 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

51. © 2013 Cengage Learning 51 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”

52. © 2013 Cengage Learning 52 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

53. © 2013 Cengage Learning 53 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)

54. © 2013 Cengage Learning 54 Is preferential hiring and promotion a good idea?

55. © 2013 Cengage Learning 55 Americans With Disabilities Act (ADA) & 2008 ADA Amendments Act Organizations must make reasonable accommodation for the physically or mentally disabled, unless to do so would impose an undue hardship

56. © 2013 Cengage Learning 56 What experiences have you had with disabled coworkers?

57. © 2013 Cengage Learning 57 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

58. © 2013 Cengage Learning 58 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

59. © 2013 Cengage Learning 59 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

60. © 2013 Cengage Learning 60 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

61. © 2013 Cengage Learning 61 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

62. © 2013 Cengage Learning 62 Privacy Issues Drug testing Office and locker searches Psychological tests Electronic surveillance http://www.youtube.com/watch?v=PWfydTrfhCs&feature=youtu.be

63. © 2013 Cengage Learning 63 Applied Case Study: Keystone RV

64. © 2013 Cengage Learning 64 Focus on Ethics Workplace Privacy Do you think the legal reasons for these workplace practices outweigh the ethical responsibilities of organizations? Are companies being unfair, and therefore, unethical by engaging in such activities? What are the ethical responsibilities to employees from companies who chose to use such practices? What are some other ethical dilemmas that you think could arise from such practices? Conduct an Internet search on the Genetic Information Nondiscrimination Act. Do you think that act is fair to employers and employees? Why or why not?