chapter 3 - legal issues (16 mc, 2 sa) Flashcards
eeo federal law overview
Laws whose purpose is the elimination of discrimination in human resource management decisions
Prohibits employers from using non job-related characteristics when making employment decisions
Federal EEO law covers private ERs with 15 or more EEs
regulatory model of eeo:
- All laws are created because of societal problems
- The EEOC and other agencies enforce these laws
- A lot of gray area
- EEO vs AA.
Test your knowledge of EEO law
- Persons addicted to illegal drugs are classified as disabled under the Americans with Disabilities Act (ADA).
True or False?
False - As an employer you must hire a certain number of each demographic group (e.g., gender, age, ethnicity, etc.) in order to be in compliance with EEO law?
True or False?
False - An applicant that you did not hire claims that you denied her employment because of her age (she’s 38). She could take legal action against you on this basis.
True or False?
False (ADA protects 40+)
(ON EXAM) - federal eeo laws: Equal Pay Act of 1963
Prohibits discrimination in pay, benefits, and pensions based on a worker’s gender
Must provide equal pay for equal work regardless of gender
“Equal” work = work that requires similar skills, effort, responsibility, and working conditions
Exceptions to Equal Pay Act? –>
Lilly Ledbetter Fair Pay Act (2009) – changed statute of limitation for filing an equal pay lawsuit. Now the statute is 90 days after the last paycheck (instead of first).
(ON EXAM) - federal eeo laws: Title VII, Civil Rights Act of 1964 (title 7)
Prohibits discrimination in ALL HR activities on the basis of race, color, gender, religion, and national origin
Most significant of the anti-discrimination laws
Exceptions to the law:
- Bona fide occupational qualifications BFOQ - ex: we need to hire a female worker, how do we argue we are not discriminating against men? Argue it is a business necessity –> Business Necessity
(ON EXAM) - what is a BFOQ vs business necessity (title 7)
BFOQs – legal defense in which age, gender, religion or national origin is an actual qualification for a job
Business Necessity – safety issue is the reason the ER is discriminating based on subgroup status
Example BFOQs –
Race? National Origin? Gender?
EX: entertainment industry typically looks for a specific person (gender, ethnicity, etc.) to fill a role
(ON EXAM) - federal eeo laws: Age discrimination in employment act (ADEA)
Age discrimination in employment act (1967):
Prohibits employers from discrimination against people age 40 and older (as amended) in any HR-related activities
Age BFOQs?
- Occupational exceptions
- Related to safety concerns
(ON EXAM) - federal eeo laws: americans with disabilities act (ADA)
The Americans With Disabilities Act defines a disability as:
- A physical or mental impairment that substantially limits one or more of the major life activities (e.g., caring for oneself, walking, speaking),
- A record of such impairment, or
- Being regarded as having such an impairment.
Definition of a qualified individual:
“Qualified individual with a disability”
1) The individual has a covered disability
and
2) can perform the essential functions of the job with or without reasonable accommodation
ADA - Additional Issues
- Protected group added - persons with a mental or physical disability
- Note on definition of “disability” is broad
- Essential functions defined (Chapter 4)
- Selection issues related to interview/application form questions
- Medical exam requirements
- Reasonable accommodation (next slide)
(not on exam just want to know) federal eeo laws: americans with disabilities act: reasonable vs unreasonable accommodations & exclusions
Examples of reasonable accommodation:
- job restructuring
- modified work schedules
- reassignment of ee to a vacant position
Examples of unreasonable accommodation:
- hiring an individual not qualified for the job
- lowering standards to make an accommodation
- finding a position for a job applicant who is not qualified for the position sought
ADA exclusions as stated (#1 & 2) and as interpreted (#3) by the U.S. Supreme Court:
1. Current illegal use of drugs
2. Infectious or communicable diseases of public health significance (applied to food-handling jobs only and excluding AIDS)
3. “Correctable” disabilities (e.g., vision, diabetes, high blood pressure) were interpreted as excluded by Supreme Court rulings in 1999-2002
(ON EXAM) - federal eeo laws: ADA amendments Act of 2008
Congress’ reaction to a number of Supreme Court decisions that limited the scope of coverage under ADA
This law makes important changes to the definition of “disability” under the ADA, reversing previous U.S.
Supreme Court decisions in favor of broad and inclusive interpretation
Act states that a person should be considered disabled if s/he is diagnosed with an impairment regardless of whether corrective devices, medicine, etc., can correct it
These changes to ADA made it easier for a person seeking protection under the law to establish eligibility
(ON EXAM) - federal eeo laws: civil rights act of 1991
Amended Civil Rights Act of 1964 to address the following issues:
- Supreme Court rulings
- Misperceptions about how to create equal employment opportunity
- Necessary additions to the Civil Rights Act of 1964 after over 25 years
6 issues discussed in this act:
1. Shifted burden of proof in (adverse impact) discrimination cases back to employer
**Adverse impact**
2. Quotas prohibited
3. Subgroup norming prohibited
4. Right to sue for punitive damages if victim of intentional discrimination
5. Sexual harassment is covered under EEO law
6. U.S. citizens working as expatriates are covered under U.S. EEO law
(ON EXAM) - state eeo laws: CA Fair Employment and Housing Act (FEHA; 1980)
- Covers ERs with 5 or more employees
- Additional Protected Groups in CA:
1. Marital status
2. Domestic partnerships
3. Gender expression
4. Lawful, off duty conduct
5. Religious dress practice
6. Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks that adversely impact a protected group - Protects actual, perceived, and associated memberships
- Prohibits retaliation against any person for making a complaint under FEHA or for assisting another in making such a complaint
how it differs from title 7*
- Note that sexual orientation and gender identity were covered in CA prior to the Supreme Court ruling that it is covered under Title VII
(ON EXAM) - CA FEHA disabilities definition
CA Definition of disability is broader than ADA – a person is considered disabled if they are “limited” in one of more of the major life activities (“substantially limited” under ADA)
Specifically prohibits discrimination based on genetic characteristics (ee medical condition)
Prohibits use of genetic info of family members (e.g., test results of family member, or manifestation of disease/condition of family member)
(ON EXAM) - eeoc activities and investigations
EEOC’s Primary Activities:
1. Educating ERs and EEs on EEO issues
2. Investigating claims of discrimination
Steps in an EEOC investigation:
1. Investigation – probable cause? Yes or No?
2. Conciliation – If yes, EEOC will attempt to mediate a settlement
3. Litigation – EEOC may represent the plaintiff in court
(ON EXAM) - types of discrimination (2)
Disparate Treatment
Applying different standards across different groups (overt; intentional)
Adverse Impact
Same standard is applied to everyone but the net effect is that a disproportionate number of a group is “weeded out” (covert; unintentional)
(ON EXAM) - disparate treatment case steps + what is the evidence needed to defend against discrimination charges for this
Step 1: Plaintiff must establish a prima facie case using the **“McDonnell–Douglas Test”**
–> Plaintiff must answer “yes” to four questions to establish a prima facie case:
1. Issue relates to a protected group?
2. Applied and were qualified?
3. Rejected despite qualifications?
4. Position remained open and the search continued for similarly qualified applicants?
Step 2: Defendant (ER) rebuttal
Must provide a clear and specific job- based explanation for actions
Is this difficult to do?
Step 3: Plaintiff’s rebuttal (DEFENSE)
Must prove that the defendant’s argument is a pretext (a lie) and the true reason for rejection was based on discrimination
(ON EXAM) - adverse impact case steps + what is the evidence needed to defend against discrimination charges for this
Step 1: Plaintiff must establish a prima facie case using statistics
- Must demonstrate statistically that the HR practice in question affects various protected groups differently – four-fifth’s rule (for example)
**Four-fifth’s rule***
- Equal Employment Opportunity Commission (EEOC) guideline
- Not absolute proof that discrimination occurred
- 4/5ths Rule – Comparison of protected groups’ hiring rates to see if the less favored protected group(s)’ hiring rate is less than 4/5 (80%) the most favored group’s hiring rate
–> Which group was the most favored group?
–> Which group(s) appear to be adversely impacted?
Step 2: Defendant’s (ER’s) rebuttal (DEFENSE)
ER must demonstrate at least one of three defenses: business necessity, BFOQ, or proof that selection test or criteria used is valid
**Validation evidence**
- Employers should be able to prove that a selection device bears a direct relationship to success on the job
- This proof is established through a validation study that shows the job relatedness of the device
- We’ll discuss ways to validate a test in Chapter 6
Step 3: Plaintiff’s rebuttal
Plaintiff must prove that an alternative selection device is available that has less adverse impact
(ON EXAM) - supreme court eeo rulings: Griggs v. Duke Power
Griggs v. Duke Power
1. Lack of discriminatory intent not a sufficient defense
2. Established Adverse Impact discrimination
3. Selection criteria must be job related if adverse impact results
4. Employer bears the burden of proof in adverse impact cases
(ON EXAM) - supreme court eeo rulings: United Auto Workers v. Johnson Controls (1991)
United Auto Workers v. Johnson Controls (1991)
1. Safety exception to BFOQ defense is limited to instances in which gender or pregnancy actually interferes with ee’s ability to perform job
2. Company’s moral concerns about health of future children is not sufficient to bar women from employment
3. Decisions about future children’s health is left to the parents
(ON EXAM) - supreme court eeo ruling: Bostock v. Clayton County (2020)
Sexual Orientation and Gender Identity
Supreme Court ruling Bostock v. Clayton County (2020) ruled that that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964
Title VII now specifically interpreted to include that discrimination on the basis of an employee’s sexual orientation or gender identity is illegal
While not specifically included in Title VII, the Court ruled that both are included under discrimination on the basis of “sex” as worded in the 1964 law
(ON EXAM) - sexual harassment
Unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the working environment
An employer can be considered guilty of sexual harassment when:
- Employer knew or should have known about the unlawful conduct and failed to remedy it or to take corrective action
- Employer allows nonemployees (customers or salespeople) to sexually harass employees
Implementing an Effective Sexual Harassment Policy
1. Develop an organization-wide policy
2. Communicate policy - have EEs sign it
3. Complaint procedure – system in place for EEs to voice complaints
4. Swift investigation and resolution
- ERs do all these things and can only hope that the probability of any one EE harassing another will go down. - ER is still responsible for EEs acts - in court it would help - an ER help to have these procedures in place.
(ON EXAM) - sexual harassment: Quid Pro Quo Harassment
- Occurs when “submission to or rejection of sexual conduct is used as a basis for employment decisions.”
- Involves a tangible or economic consequence, such as a demotion or loss of pay.
- Oncale v Sundowner Offshore Services (1998)
- Supreme Court ruled that that same-sex sexual harassment (male-to-male, female-to-female) is covered under Title VII
(ON EXAM) - sexual harassment: Hostile Environments + COURT TESTS USED IN ESTABLISHING HOSTILE ENVIRONMENT HARASSMENT
Hostile Environment
- Occurs when unwelcome sexual conduct “has the purpose or effect of unreasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment.
- Dirty jokes, offensive pictures, swearing, and personal ridicule and insult constitute sexual harassment when an employee finds them offensive.
**Federal courts use a “reasonable person” test for hostile environment, in CA– “reasonable victim” test for hostile environment
equal employment opportunity vs. affirmative action
EEO – laws that address current and future discrimination
AA – programs that address areas of past discrimination
(ON EXAM) - Situations in which a company would adopt an affirmative action plan (AAP)
- Federal contractors
- Court-order
- Voluntarily
(ON EXAM) - components/characteristics of an AAPs
- Workforce analysis
- Goals and Timetables
- Action Plan
- Audit in place to measure progress
general supreme court rulings on AAPs
AAPs are ok as long as they are temporary
No quotas
General concerns with AA:
- Perception of reverse discrimination
- Potential stigma attached to being hired under an AAP
Uniform Guidelines on Employee Selection Procedures
Employers are often uncertain about the appropriateness of specific selection procedures, especially those related to testing and selection. To remedy this concern, the EEOC, along with three other government agencies, adopted the current Uniform Guidelines on Employee Selection Procedures. The Uniform Guidelines is a very important procedural document for managers because it applies to employee selection procedures in the areas of hiring, retention, promotion, transfer, demotion, dismissal, and referral. It is designed to help employers, labor organizations, employment agencies, and licensing and certification boards comply with the requirements of federal laws prohibiting employment discrimination.
Workforce Utilization Analysis
As you have learned, employers must be aware of how their selection procedures affect protected class members. Part of this process involves analyzing the composition of their internal workforce when compared with their external labor market.
The EEOC refers to this comparison as workforce utilization analysis. This type of analysis simply compares an employer’s workforce by race and gender for specific job categories against the surrounding labor market. The employer’s relevant labor market is the area from which employees are drawn who have the skills needed to successfully perform the job. For example, if Squarespace, the website maker, is hiring computer technicians from a labor market composed of 10 percent B lack workers, 8 percent Hispanic workers, and 2 percent Native American workers, all of whom possess the qualifications for the job, the employer’s internal workforce should reflect this racial composition. When this occurs, the employer’s workforce is said to be at parity with the relevant labor market. If the employer’s racial workforce composition in terms of one or more underrepresented groups does not match the external figures, then the protected class is said to be underutilized, and the employer should take steps to correct the imbalance.
