2010 Cengage Learning Employment Law 1 2010 Cengage

© 2010 Cengage Learning Employment Law 1

© 2010 Cengage Learning Judicial Pecking Order • U. S. Constitution – 5 th Amendment (federal government) – 14 th Amendment (state & local governments) • Federal Laws (CRA, 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 2

© 2010 Cengage Learning Potential Legal Problems • Disparate treatment (intentional discrimination) • Disparate impact (adverse impact) • Invasion of privacy • Illegal search 3

© 2010 Cengage Learning 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 (reach a judgement) – Appeal procedure is important • External resolution process – State agencies in deferral states – EEOC – Law suit 4

© 2010 Cengage Learning Alternative Dispute Resolution • Mediation – Neutral third party – Disputants reach agreement • Arbitration – Neutral third party – Arbitrator makes decision • Binding (either party may not appeal) • Nonbinding (either party may appeal) • Dictation – Third party makes decision 5

© 2010 Cengage Learning 1. 2. 3. 4. EEOC Complaint Process Alleged discriminatory act Complaint filed a. 180 days for nondeferral states b. 300 days for deferral states Employer notified within 10 days 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 6

© 2010 Cengage Learning Civil Rights Act - Title VII: Title VII prohibits employment discrimination based on race, color, religion, sex and national origin • 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 7

© 2010 Cengage Learning Protected Class Federal Law Age (over 40 years) Age Discrimination in Employment Act Disability Americans with Disabilities Act Americans with Disability Amendment Act Vocational Rehabilitation Act of 1973 Race Civil Rights Act of 1964; 1991 National Origin Religion Sex Pregnancy Discrimination Act Qualified military veterans Vietnam era Veterans readjustment Act of 1974; Jobs for Veterans Act of 2002 8

© 2010 Cengage Learning BFOQ • Bonafide Occupational Qualification (BFOQ) is a selection requirement that is necessary for the performance of job related duties • Only members of a particular class can perform the job • Wet nurse, sperm donor • According to the courts: – Race can never be a BFOQ – Religion has been (e. g. , Nun, priest) 9

© 2010 Cengage Learning Has Local, State or Case Law Added Protected Classes? • An employment decision cannot violate federal law but it could violate state laws like – 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 10

© 2010 Cengage Learning 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 Number of applicants Number hired Selection ratio Male 50 20. 40 Female 30 10. 33/. 40 =. 83 >. 80 (no adverse impact) 11

© 2010 Cengage Learning Adverse Impact - Example 2 Number of applicants Number hired Selection ratio Male 40 20. 50 Female 20 4. 20/. 50 =. 40 <. 80 (adverse impact) 12

© 2010 Cengage Learning Computing Adverse Impact Exercise 13

© 2010 Cengage Learning Exercise 1: Sex Number of applicants Number hired Selection ratio Male 25 17. 68 Female 5 2. 40/. 68 =. 59 <. 80 (adverse impact) 14

© 2010 Cengage Learning Exercise 2: Race Number of applicants Number hired Selection ratio White 20 14. 70 Hispanic 10 5. 50/. 70 =. 71 <. 80 (adverse impact) 15

© 2010 Cengage Learning 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 16

© 2010 Cengage Learning 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 17

© 2010 Cengage Learning 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 18

© 2010 Cengage Learning Validity Generalization • Based on meta-analysis • Borrows validity from other studies or organizations • Job analysis results must be similar 19

© 2010 Cengage Learning 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 20

© 2010 Cengage Learning Harassment 21

© 2010 Cengage Learning Potential Victims of Harassment • • • Gender Race Religion Age National Origin – Alien status – Citizenship status • Disability • Sexual Preference 22

© 2010 Cengage Learning Types of Harassment • Quid Pro Quo • Hostile Environment 23

© 2010 Cengage Learning Quid Pro Quo Harassment Claims • Granting of sexual favors is tied to employment decisions • Single incident is enough • Organization is always liable 24

© 2010 Cengage Learning 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 25

© 2010 Cengage Learning Behaviors That Could Be Sexual Harassment • • Sexual comments Undue attention Verbal sexual abuse Verbal sexual displays Body language Invitations Physical advances Explicit sexual invitations 26

© 2010 Cengage Learning Types of Harassing Behavior • • • Comments Jokes Posters Cartoons E-mail Drawings 27

© 2010 Cengage Learning Behaviors are offensive if they: • • Perpetuate stereotypes Degrade another group Build-up own group Make others feel uncomfortable 28

© 2010 Cengage Learning 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 29

© 2010 Cengage Learning Why is Harassment a Problem? • • • Hurts workplace relationships Causes emotional distress Causes physical distress Decreases productivity Increases turnover and absenteeism Increases legal liability 30

© 2010 Cengage Learning Discouraging Harassment • Don’t laugh at offensive behavior • Speak your mind • Let employees know when they are crossing the line 31

© 2010 Cengage Learning 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 32

© 2010 Cengage Learning Responding to a Complaint 33

© 2010 Cengage Learning Liability of the Organization • Victims must be encouraged to come forward • Every complaint or suspicion must be investigated • Appropriate action must follow the investigation 34

© 2010 Cengage Learning 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 35

© 2010 Cengage Learning 36

© 2010 Cengage Learning Reasons for Affirmative Action Plans • Involuntary (when public agency found guilty of not hiring enough members of protected class they are forced to have AA program) – Government regulation – Court order • Voluntary (if a complaint has been filed public agency themselves can start AA program) – Consent decree – Desire to be a good citizen • community relations • customer relations • hope that diversity will increase productivity 37

© 2010 Cengage Learning Affirmative Action Strategies 1. Monitoring Hiring an Promotion Statistics: Intentional recruitment of minority applicants 2. Intentional recruitment of minorities: Target unrepresented groups in advertisements 3. Identification and removal of employment practices that work against minority employees Removal of supervisor and employee prejudices 4. Preferential hiring and promotion of minorities: Does not mean that unqualified minority will be given preference over a non-minority member 38

© 2010 Cengage Learning Legality of Preferential Hiring 1. 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 39

© 2010 Cengage Learning Legality of Preferential Hiring 2. Does the plan benefit people who were not the actual victims of discrimination? • If the plan benefits actual victims then it is legal • Otherwise other criteria is considered such as population, purpose of the plan etc. 40

© 2010 Cengage Learning Legality of Preferential Hiring 3. What population was used to establish hiring or promotion goals? • Area population: Ratio of number of minorities in the area to the number in the organization • Major discrepancy results in revision of hiring goals • Qualified work force – minimum standards – minority interest in occupation 41

© 2010 Cengage Learning Legality of Preferential Hiring 4. Did the plan trammel the rights of nonminorities? • Unqualified minority cannot be hired – All people hired must be qualified • Cannot use “quotas” 42

© 2010 Cengage Learning 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 43

© 2010 Cengage Learning 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 44

© 2010 Cengage Learning Privacy Issues • Drug Testing (if it affects safety and trust; results should be confidential) • Office and office locker searches (as long as they have a reasonable cause) • Psychological tests (tests are illegal if they invade privacy) • Electronic surveillance (to track unproductive behavior) 45