HR: Legal Environment

Adverse Impact

unintentional rejection Adverse impact refers to the unintentional rejection for employment, placement, or promotion of a significantly higher percentage of members of a protected class when compared with members of non-protected classes. According to the Uniform Guidelines, a selection program has an adverse impact when the selection rate for any racial, ethnic, or sex class is less than four-fifths (or 80 percent) of the rate of the class with the highest selection rate.

Disparate Treatment

A situation in which protected class members receive unequal treatment or are evaluated by different standards.

Uniform Guidelines on Employee Selection Procedures Business necessity

A work-related practice that is necessary to the safe and efficient operation of an organization.

Disparate Treatment vs Adverse Impact

Adverse impact cases deal with unintentional discrimination; disparate treatment cases involve instances of purposeful discrimination. Allowing men to apply for craft jobs, such as carpentry or electrical work, but denying this opportunity to women would also show disparate treatment. To win a disparate treatment case, the plaintiff must prove that the employer's actions intended to discriminate, which is often difficult. There are two basic ways to show that adverse impact exists: four-fifths rule (Adverse Rejection Rate) & Restricted Policy

Affirmative Action

Affirmative action goes beyond not discriminating among employees. Affirmative action occurs when employers take proactive steps to help reverse the impact of past discrimination against minorities. Employers with voluntary affirmative action programs actively encourage employment diver- sity, post job opportunities with minority agencies, remove unnecessary barriers to employment, and offer comprehensive training and mentoring to protected class members.

equal opportunity vs Affirmative Action

Affirmative action goes beyond providing equal employment opportunities to employees. Firms with federal contracts and firms that have been found guilty of past discrimination can be required to utilize affirmative action programs. This is accomplished by employing protected classes for jobs in which they are underrepresented. The employer's goal is to have a balanced internal workforce representative of the employer's relevant labor market. The future of affirmative action might not rest in judicial decisions or laws but in the efforts of managers to voluntary embrace and foster diver- sity. Differences of all sorts among people are ubiquitous in the workforce. Managers need to leverage these differences because they can be the source of organizational strength.

Title VII Civil Rights Act of 1964

The Civil Rights Act of 1964 is a landmark law that addresses discrimination in society. Title VII of the act specifically bars employment discrimination in all HR activities, including hiring, training, promotion, transfers, pay, employee benefits, and other conditions of employment. Discrimination is prohibited on the basis of race, color, religion, sex, or national origin.

Sexual Harassment HR Manager's Responsibilities

The EEOC considers an employer guilty of sexual harassment when the employer knew or should have known about the unlawful conduct and failed to remedy it or to take corrective action. Employers are also guilty of sexual harassment when they allow nonemployees (customers or salespeople) to sexually harass employees.

Sexual harassment Types

The EEOC recognizes two forms of sexual harassment as being illegal under Title VII: 1. quid pro quo 2. hostile environment

The Equal Pay Act of 1963

The Equal Pay Act makes it illegal to discriminate against people in terms of the pay, employee benefits, and pension they earn based on their gender when they do equal work. Jobs are considered "equal" when they require substantially the same skill, effort, and responsibility under similar working conditions and in the same establishment. However, a company does not violate the Equal Pay Act when the differences in the wages it pays to men and women for equal work are based on seniority systems, merit considerations, or the workers' quantity or quality of production. Also, if a pay disparity between the sexes exists, employers cannot legally lower the wages of one gender to comply with the law; rather, they must raise the wages of the gender being underpaid.

Americans with Disabilities Act of 1990 Requirement

The act requires employers to make a reasonable accommodation for disabled people who are otherwise qualified to work, unless doing so would cause undue hardship to the employer. "Undue hardship" refers to unusual work modifications or excessive expenses that might be incurred by an employer in providing an accommodation.Reasonable accommodation "includes making facilities accessible and usable to disabled persons, restructuring jobs, permitting part-time or modified work schedules, reassigning to a vacant position, changing equipment, and/or expense." Furthermore, employers cannot use selection procedures that screen out or tend to screen out dis- abled people unless the selection procedure "is shown to be job-related for the position in question and is consistent with business necessity" and acceptable job performance cannot be achieved through reason- able accommodation. Information and forms related to the health of employees must be kept confidential and separate from their regular personnel files.

hostile environment

The second type of harassment, hostile environment, can occur 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, vulgar slang, nude pictures, swearing, and personal ridicule and insult create a hostile environment when an employee finds them offensive. Email, instant and text messages, and posts on social networking sites have become convenient ways for employees to sexually harass their coworkers electronically.

quid pro quo

"THIS FOR THAT" The first, quid pro quo harassment, occurs when "submission to or rejection of sexual conduct is used as a basis for employment decisions." This type of harassment involves a tangible or economic consequence, such as a demotion or loss of pay. If a supervisor promotes an employee only after the person agrees to an after-work date, the conduct is clearly illegal.

The Civil Rights Act of 1964 covers a broad range of organizations. The law includes under its jurisdiction the following:

1. All private employers in interstate commerce who employ 15 or more employees for 20 or more weeks per year 2. State and local governments3. Private and public employment agencies 3. Private and public employment agencies 4. Joint labor-management committees that govern apprenticeship or training programs 5. Labor unions having 15 or more members or employees 6. Public and private educational institutions 7. Foreign subsidiaries of U.S. organizations employing U.S. citizens

How to defend Sexual Harassment Charge

Both large and small employers understand that the foundation to preventing any form of discrimination is having a comprehensive EEO policy. Employers that do not have an EEO policy are legally vulnerable. Since managers and supervisors are key to preventing and correcting discrimination, they, in particular, must be trained to understand employee rights and managerial obligations. A comprehensive training program will include (1) the prohibitions covered in the various EEO statutes and executive orders, (2) guidance on how to respond to complaints of discrimination, (3) procedures for investigating complaints, and (4) suggestions for remedying inappropriate behavior. Perhaps the ultimate key to preventing employment discrimination is for managers and supervisors to create an organizational climate in which the principles of dignity, respect, and the acceptance of a diverse workforce are the norm and therefore expected.

Disparate Treatment vs Adverse Impact (Acceptable defenses for discriminatory practices)

Certain employers are excluded from coverage of the Civil Rights Act. Broadly defined, these are (1) U.S. government-owned corporations; (2) bona fide, tax-exempt private clubs; (3) religious organizations employing people of a specific religion; and (4) organizations hiring Native Americans on or near a reservation. Under Title VII of the Civil Rights Act, employers are permitted limited exemptions from antidiscrimination regulations if the employment preferences are based on a bona fide occupational qualification. A bona fide occupational qualification (BFOQ) permits discrimination when employer hiring preferences are a reasonable necessity for the normal operation of the business. Courts have ruled that a business necessity is a practice that is necessary for the safe and efficient operation of the organization.

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 agen- cies, and licensing and certification boards comply with the requirements of federal laws prohibiting employment discrimination.

Immigration Reform and Control Act: I9 Form

Employers must comply with the law by verifying and maintaining records on the legal rights of applicants to work in the United States. The Handbook for Employers, published by the U.S. Department of Justice, lists five actions that employers must take to comply with the law: 1 Have employees fill out their part of Form I-9. 2 Check documents establishing an employee's identity and eligibility to work. 3 Complete the employer's section of Form I-9. 4 Retain Form I-9 for at least three years. 5 Present Form I-9 for inspection to an Immigration and Naturalization Service officer or to a Department of Labor officer upon request

Immigration Reform and Control Act

Employers must comply with the requirements of the Immigration Reform and Control Act (IRCA). The law has two employer mandates. First, all employers covered by the law are prohibited from knowingly hiring or retaining unauthorized aliens on the job.30 Second, employers with four or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship. Employers must comply with the law by verifying and maintaining records on the legal rights of applicants to work in the United States. Employers found to have violated the discrimination provisions of the Immigration Reform and Control Act will be ordered to cease the discriminatory practice. They may also be directed to hire, with or without backpay, individuals harmed by the discrimina- tion and to pay a fine of up to $1,000 for each person discriminated against. Charges of discrimination based on national origin or citizenship are filed with the Office of Special Counsel in the Department of Justice.

equal opportunity

Equal employment opportunity legislation requires managers to provide the same opportunities to all job applicants and employees regardless of race, color, religion, sex, national origin, or age.

Not every mental or physical impairment is considered a disability under the law.

For example, significant personality disorders are covered under the EEOC's "Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities." Covered personality disorders include schizophrenia, bipolar disorders, major affective disorders, personality disorders, and anxiety disorders. These impairments are characterized by aberrant behavior, self-defeating behavior, manipulation of others, and troublesome manners of behavior. However, mental impairments described as "adjustment disorders" or attributed to stress have generally not been subject to ADA coverage. Therefore, employees who claim to be "stressed" over marital problems, financial hardships, demands of the work environment, job duties, or harsh and unreasonable treatment from a supervisor would not be classified as disabled.

BFOQ (Bona Fide Occupational Qualification)

However, a BFOQ is a suitable defense against a discrimination charge only when age, religion, sex, or national origin is an actual qualification for performing the job. For example, an older person could legitimately be excluded from consideration for employment as a model for teenage designer jeans. It is also reasonable to expect the Chicago Bears of the National Football League to hire male locker-room attendants. Religion is a BFOQ in organizations that require employees to share a particular religious doctrine. National origin can also be a BFOQ if it is an actual qualification for a job. For example, to ensure the "authenticity" of the dining experience, an Asian restaurant could use the business-necessity defense to support its preference for hiring Asian American servers. The BFOQ exception does not, however, apply to discrimination based on race or color.

Title VII of the Civil Rights Act also created the EEOC to administer the law in order to promote equal employment opportunity.

In response to the growing number of immigrant workers and workplace cultural and ethnic awareness, the EEOC has issued important guidelines on national origin discrimination. A "national origin group" is defined as a group of people sharing a common language, culture, ancestry, and/or similar social characteristics. This definition includes people born in the United States who are not racial or ethnic minorities. Also prohibited under the act is discrimination based on pregnancy or a medical condition related to it or childbirth.

List of protected classes

Individuals of a minority race, women, older people, and those with disabilities who are covered by federal laws on equal employment opportunity.

protected classes

Major federal EEO laws have been enacted to prevent discrimination against groups of workers most often affected by unfair employment practices. These groups are referred to as protected classes. Defined broadly, the classes include employees of a particular race, color, religion, national origin, sex, age, and those with physical or mental disabilities. Figure 3.4 lists the major and separate federal laws and their provisions governing equal employment opportunity.

Americans with Disabilities Act of 1990

Prohibits discrimination in employment against people with physical or mental disabilities or the chronically ill; enjoins employers to make reasonable accommodation to the employment needs of the disabled; covers employers with 15 or more employees. Congress in 1990 passed the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against individuals with physical and mental disabilities and the chronically ill. Disability discrimination charges from employees have doubled from 2005 to 2016, from 14,893 to 28,073. The law defines a disability as "(a) a physical or mental impairment that sub- stantially limits one or more of the major activities; (b) a record of such impairment; or (c) being regarded as having such an impairment." Note that the law also protects people "regarded" as having a disability—for example, individuals with disfiguring burns.

Age Discrimination Act of 1967

Prohibits private and public employers from discriminating against people age 40 or older in any area of employment because of age; exceptions are permitted when age is a bona fide occupational qualification. The Age Discrimination in Employment Act (ADEA) prohibits specific employers from discriminating against employees and applicants age 40 or older in any employment area. Employers affected are those with 20 or more employees; unions with 25 or more members; employment agencies; and federal, state, and local governments. Managers or supervisors discriminate against older employees if they: •Exclude older workers from important work activities. •Make negative changes in the performance evaluations of older employees. •Deny older employees job-related education, career development, or promotional opportunities. •Select younger job applicants over older, better-qualified candidates. •Pressure older employees into taking early retirement or terminate them. •Reduce the job duties and responsibilities of older employees. Exceptions to the law are permitted when age is a bona fide occupational qualification.

Civil Rights Act of 1991

Provides for compensatory and punitive damages and jury trials in cases involving intentional discrimination; requires employers to demonstrate that job practices are job-related and consistent with business necessity; extends coverage to U.S. citizens working for U.S. companies overseas.

Disparate Treatment vs Adverse Impact (four-fifths rule)

Related to Adverse Impact The EEOC has adopted the four-fifths rule as a rule of thumb to determine adverse impact in enforcement proceedings. The four-fifths rule is not a legal definition of discrimination; rather, it is a method by which the EEOC or any other enforcement agency monitors serious discrepancies in hiring, promotion, or other employment decisions. An alternative to the four-fifths rule, and one frequently used in discrimination lawsuits, is to conduct a standard deviation analysis of a firm's applicant data. The Supreme Court, in Hazelwood School District v. United States, set forth a standard deviation analysis that determines whether the difference between the expected selection rates for protected groups and the actual selection rates could be attributed to chance. If chance is eliminated for the lower selection rates of the protected class, it is assumed that the employer's selection technique has an adverse impact on the employment opportunities of that group.

affirmative action analyses

Sometimes employers voluntarily develop their own affirmative action programs to ensure that protected class members receive fair treatment in all aspects of employment. For example, some companies employ chief diversity officers. A chief diversity officer (CDO) is a top executive responsible for the implementation of a firm's diversity efforts. For example, in 2016 Salesforce, Dropbox, Pinterest, and Twitter all hired a chief diver- sity officer, following the footsteps of tech giants like Google, Microsoft, and Facebook. Today, about one in five Fortune 1000 companies have a CDO. A number of studies have demonstrated how a diverse workforce drives up a company's revenue. In fact, one study has shown that having a diverse set of leaders can improve a company's likelihood of improving market share by 45 percent. As HR professionals readily note, the success of any voluntary affirmative action program or diversity effort largely depends on the support given to it by senior managers and supervisors at all organization levels.48 The EEOC recommends that organizations developing affirmative action programs follow specific steps

Uniform Guidelines on Employee Selection Procedures Job Relatedness

When using a test or other selection instrument to choose individuals for employment, employers must be able to prove that the selection instrument bears a direct relationship to success on the job. This proof is established through validation studies that show how related the test is to the job.

Griggs vs. Duke Power Company

Willie Griggs, who was black, had applied for the position of coal handler with the Duke Power Company. His request for the position was denied because he was not a high school graduate, a requirement for the position. Griggs claimed the job standard was discriminatory because it did not relate to job success and because the standard had an adverse impact on a protected class. When employers use educational, physical, or intelligence standards as a basis for hiring or promotion, these must be absolutely necessary for job success.

Griggs vs. Duke Power Company (1971) Adverse Impact

a benchmark case in employment selection procedures

prima facie

at first face / at first sight

Sexual harassment

refers to unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. It can also include offensive remarks, vulgar or obscene gestures, language or comments, related to one's sex, an individuals body, or sexual activity. Both the victim and the harasser can be either female or male, and harassment can occur between individuals of the same or opposite sex. The harasser can be the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.

Americans with Disabilities Act Suggestions for an Accessible Workplace

•Install easy-to-reach switches. •Provide sloping sidewalks and entrances. •Install wheelchair ramps. •Reposition shelves for the easy reach of materials. •Rearrange tables, chairs, vending machines, dispensers, and other furniture and fixtures. •Widen doors and hallways. •Add raised markings on control buttons. •Provide designated accessible parking spaces. •Install hand controls or manipulation devices. •Provide flashing alarm lights. •Remove turnstiles and revolving doors or provide alternative accessible paths. •Install holding bars in toilet areas. •Redesign toilet partitions to increase access space. •Add paper cup dispensers at water fountains. •Replace high-pile, low-density carpeting. •Reposition telephones, water fountains, and other needed equipment. •Add raised toilet seats. •Provide a full-length bathroom mirror.