MGT 333 Chapt 3

Lilly Ledbetter Fair Pay Act of 2009 (LLFPA)

Amended Title VII of the 1964 CRA. Extends the period of time in which an employee is allowed to file a lawsuit for compensation (pay) discrimination. (The 1964 CRA only allowed 180 days from the time of the discriminatory action for an individual employee to file a lawsuit). The LLFPA allows an individual to file a lawsuit within 180 days after "any application" of that discriminatory compensation decision, including every time the individual gets paid, as long as the discrimination is continuing, which would usually be for the entire period of their employment

Reasonable accommodations

A reasonable accommodation is an accommodation made by an employer to allow someone who is disabled but otherwise qualified to do the essential functions of a job to be able to perform that job. Reasonable accommodations are usually inexpensive and easy to implement. For example, if a job requires that the employee use a computer keyboard and a blind individual applies for that job, the organization can make a reasonable accommodation by purchasing a Braille keyboard. In this case, Braille keyboards are inexpensive and provide the blind individual with the ability to do the job based on the reasonable accommodation provided. In defining reasonable accommodations, we have to distinguish between "essential" and "marginal" job functions.

The Ouch Test

A rule of thumb used whenever you are contemplating any employment action, to maintain fairness and equity for all of your employees or applicants. Every manager should use this test whenever contemplating any action that involves their employees.

The 1964 Civil Rights Act states that it is illegal for an employer to...

1. Fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin 2. To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. The act applies to organizations with 15 or more employees who are working 20 or more weeks a year and who are involved in interstate commerce. The law also generally applies to state and local governments; educational institutions, public or private; all employment agencies; and all labor associations of any type.

Types of Sexual Harassment

1. Quid Pro Quo Harassment: Literally, quid pro quo means "this for that." Quid pro quo harassment is harassment that occurs when some type of benefit or punishment is made contingent upon the employee submitting to sexual advances. "If you do something sexual for me, I will do something for you." Quid pro quo is a direct form of harassment aimed at an individual and is most commonly seen in supervisor-subordinate relationships, although this is not always the case. It is, however, based on the power of one individual over another 2. Hostile Work Environment: Hostile work environment is harassment that occurs when someone's behavior at work creates an environment that is sexual in nature and that makes it difficult for someone of a particular sex to work in that environment. This happens when a "reasonable person" determines that the behavior in question goes beyond normal human interaction and the jokes and kidding that accompany such interaction, instead rising to a level that such a reasonable person would consider the act or acts to be both harassing and sexual in nature. For the purposes of the law, a reasonable person is the "average" person who would look at the situation and its intensity to determine whether the accused person was wrong in their actions.

In order for the organization to be considered for liability in sexual assault cases, two critical conditions must exist:

1. The plaintiff did not solicit or incite the advances. 2. The harassment was undesirable, and was severe enough to alter the terms, conditions, and privileges of employment.

To qualify as a prima facie case of sexual harassment, the work situation must include the following characteristics:

1. The plaintiff is a member of a protected class 2. The harassment was based on sex 3. The person was subject to unwelcome sexual advances 4. The harassment was sufficiently severe enough to alter the terms, conditions, or privileges of employment.

The 4/5th rule

A test used by various federal courts, the Department of Labor, and the EEOC to determine whether disparate impact exists in an employment test. Says that if the selection ratio for any group (e.g., Asian males) is less than four-fifths of the selection rate for the majority group (e.g., white males) in any employment action, then it constitutes evidence of potential disparate impact If we are out of compliance with the Four-Fifths Rule, have we automatically broken the law? No. We do have to investigate why we are outside the four-fifths parameter, though. If there is a legitimate reason for the discrepancy that we can prove in a court case, then we are probably OK with a selection rate that is outside the parameters. We can also look at six-fifths to determine the possibility of reverse discrimination, which is discrimination against the majority group. So we would want to have between 16 and 24 African-American males selected in the first example, since 6/5 of 20 is 24.

Sexual Orientation and Gender Identity Discrimination

As of early 2017, two federal appeals courts had provided rulings which said that sexual orientation was not explicitly prohibited under Title VII of the 1964 Civil Rights Act. EEOC—the federal agency charged with investigating claims of discrimination—has stated that sexual orientation or gender identity discrimination is a form of sex discrimination, and many experts in HR law are recommending to companies that they not participate in any discrimination based on sexual orientation or gender identity for solid business reasons. Remember that states and even cities have the ability to make laws concerning equal opportunity and fairness in the workplace. According to the Society for Human Resource Management (SHRM): - 22 states and the District of Columbia prohibit discrimination relating to sexual orientation. - 19 states and the District of Columbia prohibit discrimination in private and public employment related to gender identity. - More than 255 local municipalities provide protections in private and public employment against discrimination based on sexual orientation and/or gender identity.

Compensatory and Punitive damages

Compensatory damages: Monetary damages awarded by the court that compensate the injured person for losses. Such losses can include future pecuniary loss (potential future monetary losses like loss of earnings capacity), emotional pain, suffering, and loss of enjoyment of life. Punitive damages: Monetary damages awarded by the court that are designed to punish an injuring party that has intentionally inflicted harm on others. They are meant to discourage employers from intentionally discriminating, and they do this by providing for payments to the plaintiff beyond the actual damages suffered.

Essential vs material job functions

Essential: are the fundamental duties of the position. Based on many court decisions, a function can generally be considered essential if it meets one of the following criteria: 1. The function is something that is done routinely and frequently in the job. 2. The function is done only on occasion, but it is an important part of the job. 3. The function may never be performed by the employee, but if it were necessary, it would be critical that it be done right. Marginal job functions: functions that may be performed on the job but need not be performed by all holders of the job. Individuals with disabilities cannot be denied employment if they cannot perform marginal job functions.

Race norming

Exists when different groups of people have different scores designated as "passing" grades on a test for employment. The 1991 act basically equated this with quotas and, as such, made it illegal.

Undue hardship

Exists when the level of difficulty for an organization to provide accommodations, determined by looking at the nature and cost of the accommodation and the overall financial resources of the facility, becomes a significant burden on the organization. An undue hardship may be different for different companies. For instance, a small company may have an undue burden based on a relatively low-cost accommodation to a disabled individual, while a larger company could not claim undue hardship for the same accommodation.

Veterans Benefits Improvement Act of 2004 (VBIA)

Is an amendment to USERRA It extended the requirement for employers to maintain health care coverage for employees who were serving on active duty in the military (originally, this period was 18 months, but the VBIA changed it to 2 years), and it also required employers to post a notice of benefits, duties, and rights under USERRA/VBIA.

Age Discrimination in Employment Act of 1967 (ADEA)

Prohibits discrimination against employees age 40 or older, so it added the "protected class" of age. In this case, it applies if the organization has 20 or more workers instead of 15. The wording of this act almost exactly mirrors Title VII with the exception of the 20-worker minimum. This mirroring of the 1964 CRA is true of nearly all of the protected class discrimination laws that came about after 1964.

Under the Americans with Disabilities Act employers are:

Not required to make reasonable accommodations if the applicant or employee does not request it Not required to make reasonable accommodations if applicants don't meet required qualifications for a job Not required to lower quality standards or provide personal use items such as glasses or hearing aids to make reasonable accommodations; and Not required to make reasonable accommodations if to do so would be an undue hardship.

What does the Ouch Test stand for ?

Objective: Is the action objective, or is it subjective? Something that is objective is based on fact, or quantifiable evidence, not on personal feelings or prejudices. Something that is subjective is based on your emotional state/feelings or opinion. You should make your employment actions as objective as possible, in all cases. Uniform in Application: If you apply an action in an employment situation, are you applying that same action in all cases of the same type? If you ask someone to perform a test, you need to create the exact same testing circumstances, as much as you can control them. For instance, if one person took an exam in a quiet room and the other in a noisy hallway, your actions would not be uniform in application. Consistent in Effect: Does the action have a significantly different effect on one or more protected groups than it has on the majority group? We have to try to make sure that we don't affect one of the many legally protected groups disproportionately with an employment action. Use the 4/5th rule! Consistency in effect is by far the most complex of the four OUCH test factors. However, it is also very important in allowing us to show consistency in our actions as managers in an organization. Has job relatedness: Is the action directly related to the primary aspects, or essential functions of the job in question? In other words, if your job has nothing to do with making coffee for the office in the morning, I cannot base any employment action such as a hiring or firing on whether or not you do a good job making the coffee.

Sexual Harassment

Once was not specifically recognized as a separate type of discrimination until federal courts started hearing cases on the act. Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Filing Complaints and HR's Response

One thing many employees don't know, and need to, is that the Supreme Court determined that in order to get legal recourse, employees have to first file harassment complaints with the HR department. HR needs to develop and make the policies and process of filing a complaint clear to all employees. If the employee is not satisfied with any investigation and action taken by the organization, then they can take the complaint to the EEOC and courts. In some situations, sexual harassment is clear and one offense is too many (such as quid pro quo harassment) and should be reported to the HR department. However, there is a lot of gray area, such as asking to go out on a date, sexual talk and pictures, and telling dirty jokes. To some employees, these behaviors are welcome; but to others, these behaviors can be considered a hostile work environment. In these situations, where you feel as if you are being sexually harassed, you should clearly tell the person not to repeat the behavior because it is sexual harassment and that you will report them if they do it again. If the behavior is repeated, file the complaint with HR.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

Prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. Because companies were starting to use genetic tests to make employment and health care decisions, Congress decided to address their use so that the general public would not fear adverse employment-related or health coverage-related consequences for having a genetic test or participating in research studies that examine genetic information.

Compare the two primary types of sexual harassment.

Quid pro quo harassment occurs when some type of benefit or punishment is made contingent upon the employee submitting to sexual advances. In other words, if you do something for me, I will do something for you, or conversely, if you refuse to do something for me, I will harm you. Hostile work environment harassment occurs when someone's behavior at work creates an environment that is sexual in nature and makes it difficult for someone of a particular sex to work in that environment. Hostile environment sexual harassment happens when a "reasonable person" would determine that the environment went beyond normal human interactions and the jokes and kidding that go with those interactions and rose to the level that such a reasonable person would consider the act or acts to be both harassing and sexual in nature.

Briefly discuss the employer's requirements concerning avoidance of religious discrimination in the workplace.

Religion is one of the identified protected classes in the 1964 Civil Rights Act. As such, we can't use it as a factor in making "any employment decision" with our employees. Issues such as standards of dress, time off for religious holidays, adherence to strongly held religious beliefs, and other questions of religious freedom should be accommodated to the best of our ability to avoid inadvertent violation of the law.

The Equal Pay Act

Requires that all employees who do the same job, in the same organization, must receive the same pay. It defines equal in terms of "equal skill, effort, and responsibility, and . . . performed under similar working conditions. However, if pay differences are the result of differences in seniority, merit, quantity or quality of production, or any factor other than sex (e.g., shift differentials and training programs), then pay differences are legally allowable. While originally designed to equalize pay between men and women, the act hasn't been fully successful. Women make up about half of the U.S. workforce, but they are only paid 77 cents on the dollar compared to their white male counterparts, and women of color only earn 65 cents. And the best-paid jobs have the biggest gaps, as women have fewer opportunities for advancement. Women are underrepresented at every management level. Men are 30% more likely than women to be promoted into a managerial role. These two gaps are much wider in many other countries.

Constitutes for Sexual Harassment

Sexual harassment does not have to occur between a male and female or between a supervisor and subordinates. Same-sex harassment and female-to-male harassment also occur at work. As in other forms of illegal discrimination, the plaintiff only has to show a prima facie (literally "on the face of it," meaning it looks like harassment to a reasonable person) case that harassment has occurred.

Types of Discrimination

The 1964 CRA identified three types of discrimination: disparate treatment, disparate impact, and pattern or practice. Disparate treatment: Exists when individuals in similar situations are intentionally treated differently and the different treatment is based on an individual's membership in a protected class. In a court case, the plaintiff must prove that the employer intended to discriminate in order to prove disparate treatment. Disparate treatment is generally illegal unless the employer can show that there was a "bona fide occupational qualification" (or BFOQ) that caused the need to intentionally disallow members of a protected group from applying for or getting the job. Disparate impact: occurs when an officially neutral employment practice disproportionately excludes the member of a protected group; it is generally considered to be unintentional, but intent is irrelevant. Disparate impact is generally judged by use of the Four-Fifths Rule. If our investigation shows an employment test or measure was biased toward or against a certain group, then we have to correct the test or measure unless there was a legitimate reason to measure that particular characteristic. However, if our investigation shows the test was valid and reliable and that there was some other legitimate reason why we did not meet the four-fifths standard, then illegal discrimination may not exist. Pattern or practice discrimination: Occurs when a person or group engages in a sequence of actions over a significant period of time that is intended to deny the rights provided by Title VII of the 1964 CRA to a member of a protected class. If there is reasonable cause to believe that any organization is engaging in pattern or practice discrimination, the U.S. Attorney General may bring a federal lawsuit against it In general, no individual can directly bring a pattern-or-practice lawsuit against an organization. As with disparate treatment, it must be proven that the employer intended to discriminate against a particular class of individuals and did so over a protracted period of time.

Americans with Disabilities Act of 1990 (ADA), as Amended in 2008

The ADA is one of the most significant employment laws ever passed in the United States. It prohibits discrimination based on disability in all employment practices, and applies to virtually all employers with 15 or more employees in the same basic ways as the CRA of 1964 does. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment, or being regarded as having such an impairment. Problems with ADA: The biggest problem that employers have with the ADA is the fact that it contains a number of words and phrases that can be interpreted in different ways. The law is still difficult to interpret and follow. Because of these poorly defined terms, companies have had a difficult time in applying the ADA in a consistent manner, and as a result, they have quite likely been involved in more lawsuits per disabled employee than with any other protected group. ADA Requirements of employers: An organization must make "reasonable accommodations" to the physical or mental limitations of an individual with a disability who was otherwise qualified to perform the "essential functions" of the job, unless it would impose an "undue hardship" on the organization's operation.

Civil Rights Act of 1991

The CRA of 1991 was enacted as an amendment designed to correct a few major omissions of the 1964 CRA as well as to overturn several U.S. court decisions. One of the major changes in the amendment was the addition of compensatory and punitive damages in cases of intentional discrimination under Title VII and the ADA, when intentional or reckless discrimination is proven. The act also provides a scale of upper limits or "caps" on the combined amount of compensatory and punitive damages based on the number of employees employed by the employer. Another major area in which the 1991 act changed is in the application of quotas for protected group members. Quotas were made explicitly illegal by the 1991 act. The act also prohibits "discriminatory use" of test scores, which is commonly called race norming.

Briefly discuss the major functions of the Equal Employment Opportunity Commission (EEOC).

The EEOC is a federal agency that investigates complaints of illegal discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC has three significant functions: 1. Investigating and resolving discrimination complaints through either conciliation or litigation 2. Gathering and compiling statistical information on such complaints 3. Running education and outreach programs on what constitutes illegal discrimination.

Discrimination

The act of making distinctions or choosing one thing over another; in HR, it is making distinctions among people. Discrimination happens... but we absolutely want to avoid illegal discrimination based on a person's membership in a protected class, and we want to avoid unfair treatment of any of our employees at all times.

Discuss the major equal employment opportunity (EEO) laws specifying the groups of people each law protects.

The Equal Pay Act of 1963 requires that women be paid equal to men if they are doing the same work. The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, or national origin, in all areas of the employment relationship. The Age Discrimination in Employment Act of 1967 prohibits age discrimination against people 40 years of age or older, and it restricts mandatory retirement. The Vietnam Era Veterans Readjustment Assistance Act of 1974 prohibits discrimination against Vietnam veterans by all employers with federal contracts or subcontracts of $100,000 or more. It also requires that affirmative action be taken. The Pregnancy Discrimination Act of 1978 prohibits discrimination against women affected by pregnancy, childbirth, or related medical conditions, and it treats such discrimination as unlawful sex discrimination. The Americans with Disabilities Act of 1990 requires employers to provide "reasonable accommodations" to allow disabled employees to work. The Civil Rights Act of 1991 strengthened civil rights by providing for possible compensatory and punitive damages for discrimination. The Uniformed Services Employment and Reemployment Rights Act (USERRA) ensures the civilian reemployment rights of military members who were called away from their regular (nonmilitary) jobs by U.S. government orders. The Veterans Benefits Improvement Act of 2004 amends USERRA to extend health care coverage while away on duty, and it requires employers to post a notice of benefits, duties, and rights of reemployment. The Genetic Information Nondiscrimination Act of 2008 prohibits the use of genetic information in employment, prohibits intentional acquisition of the same, and imposes confidentiality requirements. The Lilly Ledbetter Fair Pay Act of 2009 amends the 1964 CRA to extend the period of time in which an employee is allowed to file a lawsuit over pay discrimination

Identify the four components of the OUCH test by describing when it is useful in an organizational setting

The OUCH test is a rule of thumb you should use whenever you are contemplating any employment action. You use it to maintain equity for all of your employees or applicants. OUCH is an acronym that stands for Objective, Uniform in application, Consistent in effect, and Has job relatedness. An employment action should generally be objective instead of subjective; we should apply all employment tests the same way, every time, with everyone, to the best of our ability; the employment action should not have an inconsistent effect on any protected groups; and the test must be directly related to the job to which we are applying it.

Pregnancy Discrimination Act of 1978 (PDA)

The PDA prohibits discrimination against women affected by pregnancy, childbirth, or related medical conditions as unlawful sex discrimination under Title VII and requires that they be treated as all other employees for employment-related purposes, including benefits. This law is mandatory for companies with 15 or more employees, including employment agencies, labor organizations, and state and local governments.

Religion-based discrimination

The ability of employers to create work rules that may affect religious freedom continues to be an issue in the workplace. The issue of standards of dress in a number of religions, most notably Islam's standards for women's attire in public (including the hijab, niqab, and burqa), has become a point of contention in some workplaces. If a person's religion requires a certain type of dress, or observation of religious holidays or days of worship that are not in keeping with the normal workday practices of the organization, and if the individual requests accommodation for these religious beliefs, then we generally would need to make every reasonable effort to accommodate such requests. Employers are required to provide such a "reasonable accommodation" for requests that are based on "employees' sincerely held religious beliefs or practices, unless doing so would impose an 'undue hardship' on their business operations." HR and line managers should clearly describe the job and working days and hours required. If the employee agrees to accept the job described, they are required to do the job. So, if the employee refuses to deliver alcohol or work specific, agreed-upon hours to attend religious services, they are not performing their job, which is grounds for dismissal. But, to promote diversity and inclusion, and to fill jobs with qualified employees, many companies accommodate religious requests as much as possible

Organizational Defenses Against Discrimination Charges

The organization can defend itself against discrimination charges by showing either that there was a need for a particular characteristic or qualification for a specific job or that there was a requirement that the business do certain things in order to remain viable and profitable so that we didn't harm all of our employees by failing and shutting down. Defensives Include: 1. BFOQ: a qualification that is absolutely required in order for an individual to be able to successfully do a particular job. The qualification cannot just be a desirable quality within the job applicant—it must be mandatory. A BFOQ defense can be used against both disparate impact and disparate treatment allegations. 2. Business necessity: Exists when a particular practice is necessary for the safe and efficient operation of the business and when there is a specific business purpose for applying a particular standard that may, in fact, be discriminatory. A business necessity defense is applied by an employer in order to show that a particular practice was necessary for the safe and efficient operation of the business. Business necessity defenses must be combined with a test for job relatedness. However, business necessity is specifically prohibited as a defense against disparate treatment. 3. Job relatedness: Is shown when a test for employment is a legitimate measure of an individual's ability to do the essential functions of a job. For job relatedness to act as a defense against a charge of discrimination, it first has to be a business necessity, and then the employer must be able to show that the test for the employment action was a legitimate (valid) measure of an individual's ability to do the job.

Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA)

This act again provides basically the same protection as the CRA does, but for Vietnam veterans. However, it only applies to federal contractors. It requires that "employers with federal contracts or subcontracts of $100,000 or more provide equal opportunity and affirmative action for Vietnam era veterans, special disabled veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized."

Title VII of the Civil Rights Act of 1964 (CRA)

This act changed the way that virtually every organization in the country did business, and it also helped change employers' attitudes about discrimination.

HR Disciplinary Action and Cover-ups

To avoid EEOC complaints and lawsuits, HR needs to do a good job of investigating the complaint and disciplining in a timely manner. However, this does not always happen. You shouldn't give high performers a pass to keep them. Could you live with yourself knowing you allowed sexual assault and harassment to happen and continue to negatively affect the lives of others? No one should have to be uncomfortable at work because of sexual harassment. The HR department has the responsibility of educating employees about how to avoid, and how to report, sexual harassment. They also need to investigate the offense and take action to stop the behavior, punish offenders, and prevent future harassment. Many HR departments require all employees to complete a sexual harassment training course and pass a test, often online. We sometimes end up in court over harassment allegations. Once the plaintiff has shown a prima facie case supporting the accusation, the courts will determine whether the organization is liable for the actions of its employee based on the answers to two primary questions: 1. Did the employer know about, or should the employer have known about, the harassment? 2. Did the employer act to stop the behavior? In general, if the employer knew or should have known about the harassment and did nothing to stop the behavior, then the employer can be held liable. Sexual harassment should be treated very seriously, because the consequences can be grave for the organization if managers don't do what they should to prevent the harassment. Weinstein's company declared bankruptcy just a few months after his first accusers came forward.

Technology and Dangers in Equal Opportunity and Diversity Management

Virtually all major technology companies being criticized over their lack of diversity Google, for example, is known for trying to take the bias out of hiring by creating algorithms to identify candidates for employment. But how do the algorithms get created? By looking at successful past hires that are overwhelmingly white males and trying to identify commonalities among those hiring successes. This method would almost have to create a bias, unless the researchers made a concerted effort to take any factors that correlated with gender, age, ethnicity, race, and multiple other bias categories out of the equations. A reasonably new concept of "candidate personas" is being used in creating many of these algorithms. Technology has a tendency to make these problems even more significant than having a manager hire new employees based on their opinion, because biases are now built into the system that then throws out all of the candidates who are not ideal. What does a great HR manager need to do? 1. Understand that just because a candidate pool was generated by a computer does not mean that it is unbiased. 2. Analyze the inputs to the algorithm (assuming it was designed by your company or you can get the input information from the firm that did design it). Look for implicit biases in the input data. 3. Test the candidate pools that result from such algorithms against the OUCH test, and specifically against the four-fifths rule, to look for disparate impact.

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

Was passed to ensure the civilian reemployment rights of military members who were called away from their regular (nonmilitary) jobs by U.S. government orders. Unlike other EEO laws, there is no minimum number of employees required for coverage by USERRA. USERRA covers virtually every individual in the country who serves or has served in the uniformed services, and it applies to all employers in the public and private sectors, including federal employers. It also provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate their disabilities. Under USERRA, the employee returning from military service is not only entitled to the job that they had when they left, but they are entitled to any "escalation," or any job or pay/benefits increase they would have attained, if they had not been called away.

One of the primary jobs of an HR manager is to...

assist in avoiding any discriminatory employment situations that can create legal, ethical, or social problems with organizational stakeholders

Illegal discrimination

the act of making distinctions that harm people and that are based on those people's membership in a protected class