SHRM Module 1: Employment Law used for man4402

applying disparate treatment

1. Does the person belong to a protected class? 2. Has he/she applied and was qualitied for the position when the employer was seeking applications? 3. Despite the qualifications, the applicant was rejected? 4. After the rejection, the position remained open and the employer continued to seek applications for individuals with similar qualifications as the rejected applicant? All of these must be true for evidence of disparate treatment discrimination.

Reducing Violence at Work

1. Heightened Security Measures 2. Improved Employee Screening 3. Workplace Violence Training 4. Organizational Justice 5. Enhanced attention to employee retention/dismissal 6. dismissing violent employees 7. dealing with angry employees

Office of Federal Contract Compliance Programs

A branch of the Department of Labor's Employment Standards Administration. It creates and enforces guidelines in compliance with executive orders. The OFCCP processes complaints and reviews an employer, visiting their office (if necessary), to determine the validity of a claim. It may review an organization's affirmative action plans. A main goal of the OFCCP is to evaluate and identify underutilized groups of minorities. When this occurs the organization must put into place an affirmative action plan to attempt to increase this underutilized group in the workforce.

Negligent hiring

A claim made against an employer based on the premise that the employer has an obligation to not hire an applicant the employer knew or should have known was unsuitable and likely to behave inappropriately toward other employees.

Occupational Security

A comprehensive corporate security program should start with the following plans in place: -Company philosophy and policy on crime -Investigations of job applicants -Security awareness training -Crisis management

whistle-blower

A person who tells the public or someone in authority about alleged dishonesty or illegal activity being conducted by his or her employer.

Organizational Justice

A related step is to create a workplace culture emphasizing mutual respect, justice, and civility. In general, management should emphasize by word and deed that it believes deeply in and demands civility. This is part of what type of reducing violence in the workplace?

Violence at work

A spectrum of behaviors—including overt acts of violence, threats, and other conduct—that generates a reasonable concern for safety from violence, where a nexus exists between the behavior and the physical safety of employees and others (such as customers, clients, and business associates) on-site or off-site, when related to the organization. Includes any threat of or actual physical or psychological intimidation or harassment. Bullying and cyberbullying are on the rise in the workplace. Any threat or actual violence has negative impacts on the organizations. Various laws, regulations and employer policies expose employers to liability for incidents of workplace violence and domestic violence in the workplace. In addition, federal and state employee leave laws may entitle victims to take time away from work without penalty.

Claim step 3: Inform the employer

After a claim has been filed, the EEOC has 10 days to notify the employer that a claim has been filed against the organization. Usually the EEOC will ask the employer to provide a written answer to the charge.

Washington v. Davis (1976)

After the applications of two African American men were rejected by the District of Columbia's police department, the applicants filed suit against the mayor. The men alleged that the department's recruiting procedures, which included a written personnel test, discriminated against racial minorities. They claimed the test was unrelated to job performance and excluded a disproportionate number of African American applicants. The court held that the procedures and written personnel tests did not constitute racial discrimination under the Equal Protection Clause of the Fourteenth Amendment. The U.S. Supreme Court found that the clause was designed to prevent official discrimination on the basis of race; laws or other official acts that had racially disproportionate impact did not automatically become constitutional violations. The court reasoned that the police department's procedures did not have discriminatory intent and were racially neutral measures of employment qualification.

claim step 4: Investigation

After the employer has been notified, the agency has 120 days to investigate the claim to determine whether there was reasonable cause. An informal fact-finding conference may be held early in the investigation to see if negotiation is possible. The emphasis is on settlement.

Drug-free workplace act of 1988

All organizations covered this act are required to provide a drug-free workplace by taking the following steps: • Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy. • Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations. • Notify employees that as a condition of employment on a Federal contract or grant, the employee must a) abide by the terms of the policy statement; and b) notify the employer, within five calendar days, if he or she is convicted of a criminal drug violation in the workplace. • Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace. • Impose a penalty on—or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction."

disparate rejection rates

Also known as the 4/5th rule, looks at the hiring percentages of the majority and minority groups. If the selection rate for any racial, ethnic or sex group is less than 4/5ths or 80 percent of the rate for the majority group, there may be evidence of adverse impact.

Sarbanes-Oxley Act of 2002

Also known as the Public Accounting Reform and Investor Protection Act, this act was enacted in response to the ENRON and other investment/financial scandals. It applies to publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission (SEC). It requires top management to certify the accuracy of a company's financial reporting. Failure to do so could result in significant fines and penalties. For HR, the main issue here is the whistleblower clause that protects any employee who comes forward with information on suspicious activity. HR needs to work to make sure employees feel comfortable coming forward with this information and that no retaliation will take place.

Business necessity

An adverse impact case defense that requires employers to show the practice is job-related and is necessary to the safe and efficient performance of the job. ex. Spurlock v. United Airlines,United Airlines had a policy that required applicants for pilot positions to have a college degree and 500 flight hours. Spurlock sued the company, saying the policy was discriminatory to his race. The courts upheld the airline's practice because they were able to show that the practice was crucial to the success of the position. This highlights the importance of the validity of hiring practices.

Quid pro quo harassment

An employee's acceptance or rejection of unwanted sexual advances, usually by someone with authority. A Latin phrase meaning for "this for that." This is the most obvious type of sexual harassment. For example, a supervisor might request sexual favors in exchange for a tangible employment action (e.g., promotion, raise, demotion).

Affirmative action

Any program, policy or procedure that an employer implements to correct the present effects of past discrimination and ensure equal opportunity in the workplace. Affirmative action plans (AAPs) define an employer's standard for proactively recruiting, hiring and promoting women, minorities, disabled individuals and veterans. AAPs include numerical measures with the intent of increasing the representation of minorities. Federal contractors above certain dollar limits are required to institute AAPs under Executive Order 11246 and its regulations. The Office of Federal Contract Compliance Programs (OFCCP) is charged with enforcing federal contractor affirmative action mandates. Without violating Title VII of the Civil Rights Act of 1964, other employers may institute voluntary AAPs to remedy the effects of past discrimination if certain conditions are met.

Employers

BFOQ and business necessity are who's defenses for adverse impact

Kolstad v. American Dental Association (1999)

Carole Kolstad sued the American Dental Association (ADA) for gender discrimination under Title VII of the Civil Rights Act of 1964 when it promoted a man instead of her. A lower court denied Kolstad's request for punitive damages because she was unable to show that the ADA acted with "malice" and "reckless indifference" toward her. The U.S. Supreme Court reversed the lower court's denial of punitive damages, saying that if the employee can show that the employer knowingly acted in violation of federal law (rather than with malice toward the employee), then punitive damages could be awarded.

McKennon v. Nashville Banner Publishing Co. (1995)

Christine McKennon sued her former employer, Nashville Banner, alleging that her termination was a violation of the Age Discrimination in Employment Act (ADEA). McKennon had been employed at National Banner for 30 years and was 62 when her job was eliminated as part of a reduction in the company's workforce. During depositions for the trial, McKennon admitted that she had copied confidential documents, taken them home and shared them with her husband. Nashville Banner contended that they would have terminated her employment immediately had they known about it at the time. A lower court ruled for Nashville Banner, saying that the plaintiff's conduct was grounds for termination and that no remedy was available to her under the ADEA. The U.S. Supreme Court reversed the decision, ruling that an employer cannot use "after-acquired evidence" to avoid liability for discrimination, and that an employer is liable for its discriminatory acts even where it subsequently discovers evidence that would have led to the adverse employment action for lawful, legitimate reasons.

Equal Employment Opportunity Commission (EEOC)

Created by the CRA of 1964, this commission investigates discrimination claims and attempts to resolve them through conciliation. The EEOC has the power to bring legal action against an organization if they fail to comply with Title VII, ADEA and the ADA . Most organizations must submit annual forms that provide the demographic breakdown of the employees in their company.

Accuracy

Drug-testing is not 100% accurate. Some tests cannot demonstrate between legal and illegal substances which means making hiring decisions or other employment-related decisions based on drug test results can be problematic

Claim step 1: File a claim

Employees may file a claim if they believe they have reasonable cause to believe that a violation has taken place.

Employee Selection

Establish uniform standards for employers for the use of selection procedures and to address adverse impact, validation, and record-keeping requirements. The Uniform Guidelines are not in and of themselves legislation or law; however, through their reference in a number of judicial decisions, they have been identified by the courts as a source of technical information and have been given deference in litigation concerning employment issues.

Resource controls

Focus on determining the control mechanisms available and using them effectively to minimize or protect against the risk.

St. Mary's Honor Center v. Hicks (1993)

Hicks, an African American man and an employee of a halfway house operated by the Missouri Department of Corrections and Human Resources, sued the halfway house, alleging that it had violated Title VII of the Civil Rights Act of 1964 by demoting and then discharging him because of his race. A lower court found that Hicks had established a prima facie case of racial discrimination under the McDonnellDouglas burden-shifting framework. The employer gave non-discriminatory reasons for the demotion and discharge, but Hicks established that those reasons were pre-textual (i.e., they were not the real reasons for the demotion and discharge), however, and the federal appeals court ruled that once the employee proved that all of the employer's proffered reasons for the adverse employment actions to be pretextual, the employee was entitled to judgment as a matter of law. The U.S. Supreme Court subsequently reversed the appellate court's ruling, stating that the plaintiff must do more than show that the employer's reasons were not worthy of belief; it must meet its burden of persuasion that the employer intentionally discriminated against the plaintiff because of his protected status.

claim step 7: Notice-of Right-to Sue

If a conciliation agreement is not reached, the EEOC may sue the employer in federal court or issue a "Notice-of-Right-to-Sue" letter to the person who filed the charge.

EEOC Claim Process

If an employee thinks they have been discriminated against by the employer, they can file a claim/charge with the EEOC by filing a claim, charge acceptance, inform the employer, investigation, determination, conciliation, and notice of right to sue NOTE: Mediation may be, but is not always, an option. If not included it is because it is not suitable for every EEO charge, and is therefore, not always a step in the process. Ex. sometimes the EEOC will not even offer mediation as an option if the agency believes it has a strong case against the employer (i.e., there is substantial evidence that they will make a finding of discrimination). The EEOC will only offer mediation as an option to the employer and complainant if the EEOC has determined it is likely a moderate or weak case.

Phase 2 of RM

Implementation and Benchmarking 1. Procedures and classification: Determine how the risk will be assessed and what procedures should be followed, and define a classification system for assessing risk. 2. Create benchmarks: Decide what benchmarks will be used to assess the severity of the risk and begin assessment. 3. Determine risk tolerance and controls: This step answers the following questions: What is the company's desire for risk? How much risk is the company willing to take? What controls are in place to deal with risk?

Heightened Security Measures

Improve external lighting; use drop safes to minimize cash on hand, and post signs noting that only a limited amount of cash is on hand; install silent alarms and surveillance cameras; increase the number of staff on duty; provide staff training in conflict resolution and nonviolent response; close establishments during high-risk hours late at night and early in the morning; and issue weapons policy are all part of what types of reducing violence at work?

Pennsylvania State Police v. Suders (2001)

In August, 1998, Nancy Drew Suders quit her job as a dispatcher for the Pennsylvania State Police. She filed suit against the organization, claiming that she had been sexually harassed by her supervisors since she began working there in March of that year. She quit the job after her supervisor accused of stealing her own computer-skills exam papers. Suders had taken the papers after concluding that her supervisors had falsely reported that she had repeatedly failed, when in fact, the exams were never forwarded for grading. Suders did contact the state police's equal opportunity officer before quitting, but she did not file a report because the officer did not tell her how to obtain the necessary form. Suders filed a suit charging that the harassment had forced her to quit. The U.S. Supreme Court ruled in this case that an employee could file a constructive discharge lawsuit if the employee was faced with an intolerable workplace situation in which a reasonable person would feel compelled to resign. Employers, however, can use the employee's failure to report the harassment and show evidence of the safeguards in place to prevent harassment in their defense, therefore making the employer not liable for the harassment.

Burlington Industries, Inc. v. Ellerth (1998)

In this case, Ellerth, a female employee, was sexually harassed by her supervisor. Although the manager threatened to take adverse employment action against Ellerth if she did not submit to his sexual advances, he never followed through on his threats to retaliate against her. In fact, she was promoted during her fourteen months of employment at Burlington. Ellerth never complained to about the harassment even though she knew the company had a policy prohibiting sexual harassment. She ultimately resigned because of the harassment and filed suit against Burlington, alleging that she had been subjected to unlawful sexual harassment and constructively discharged. In deciding the case, the U.S. Supreme Court distinguished between supervisor harassment which results in a tangible employment outcome and that which does not. The court held that when harassment results in tangible employment action, the employer is always liable for the harassment. However, when no tangible employment action is taken against the employee, an employer may establish an affirmative defense to liability or damages if it can prove by a preponderance of the evidence that it (a) "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (b) "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Faragher v. City of Boca Raton (1998)

In this case, The U.S. Supreme Court stated that employers could be held liable for the actions an employee takes which creates a hostile work environment and that results in employment discrimination. The case involved Beth Ann Faragher, a lifeguard, who finally quit her position and later sued the City of Boca Raton, Fla. and her immediate supervisors alleging that her supervisors had created a sexually hostile atmosphere by touching, remarking and commenting. Faragher contended that this conduct was discrimination and in violation of Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court ruled in Faragher's favor, saying that the City was vicariously liable for the supervisors' behavior. The court also held that such liability is subject to an affirmative defense by the employer based on the reasonableness of the employer's and victim plaintiff's conduct (this defense was established in the Burlington Industries v. Ellerth decision.)

Smith v. Jackson, Mississippi (2005)

In this case, the U.S. Supreme Court ruled that plaintiffs may bring a disparate impact claim under the Age Discrimination in Employment Act (ADEA). Smith and a group of other police department employees—all older than age 40—sued the city and police department of Jackson, Miss., alleging that the department's salary plan had a disparate impact against older workers and thus violated the ADEA. The court found that a disparate impact claim was available under the ADEA, but also held that the scope of liability for employers is narrower under the ADEA than Title VII, given that an employer may not be liable if it can show that the policy or practice is based on a "reasonable factor other than age."

Regents of the University of California v. Bakke (1978)

In this case, the U.S. Supreme Court upheld affirmative action and allowed race to be one of several factors that could be considered when selecting a diverse student body. However, the court ruled that the use of quotas in affirmative action plans was not permissible. Allan Bakke was a white man who had twice applied and was twice denied admission to the University of California Medical School at Davis. Bakke contended discrimination based on race because the University reserved 16 seats in every entering class of 100 students for qualified minorities as part of the school's affirmative action program. Bakke's GPA and test scores were higher than any of the minority students who had been admitted during the time Bakke had applied to the school.

School Board of Nassau County v. Arline (1987)

In this case, the court ruled that a contagious disease could be considered a handicap under the Rehabilitation Act of 1973, a precursor to the Americans with Disabilities Act. Gene Arline was fired from her job as an elementary school teacher in Nassau County, Fla. Due to recurring tuberculosis. Arline sued the school system, claiming that it violated Section 504 of the Rehabilitation Act of 1973. The court ruled that an individual with a contagious disease was covered by the Rehab Act and that Arline was qualified to receive the protections afforded handicapped individuals under this Act.

Dealing with Angry Employees

Includes: making eye contact; stopping what your are doing and giving you full attention; speaking in a calm voice and creating a relaxed environment; being open and honest; letting the person have his/her say; asking for specific examples of what the person is upset about; being careful to define the problem; asking open-ended questions and exploring all sides of the issue; and listening. These are part of what type of reducing violence in the workplace?

Illegal Immigration and Immigrant Responsibility Act of 1996

Incorporates employment eligibility verification guidelines including sanctions for employers who fail to comply with the regulations and restrictions on unfair immigration-related employment practices, as well as provisions governing the distribution of government aid to aliens

OSHA Inspection Priorities

Inspections in order of priority are: 1) imminent danger situations 2) catastrophes, fatalities, and accidents that have already occurred (employers must report within 8 hours) 3) valid employee complaints of alleged violation of standards 4) Referrals of hazard information from other federal, state or local agencies, individuals, organizations or the media receive consideration for inspection 5) Follow-ups—checks for abatement of violations cited during previous inspections—are also conducted by the agency in certain circumstances 6) Planned or programmed investigations aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses. OSHA conducts an inspection within 24 hours for immediate danger complaints, and within 3 working days when a serious hazard exists. OSHA responds within 20 working days for a non-serious complaint filed in writing by a worker or union.

Basic Security Plan

Instituting a basic security program requires four steps: Analyzing the current level of risk, and then installing mechanical, natural, and organizational security systems.

Reaction planning

Involves defining contingencies to minimize or deal with the risk if it gets out of control. For example, if the checkout registers at a grocery store stop working due to a power outage, what can employees do (a process) to continue serving customers?

Emphasize Safety

It's the supervisor's responsibility to set the tone so subordinates want to work safely. Creating culture of safety will help everyone take the necessary precautions.

Oncale v. Sundowner Offshore Services, Inc. (1998)

Joseph Oncale sued his employer, Sundowner Offshore Services Inc., alleging that he was sexually harassed by male co-workers and a supervisor in violation of Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court found in favor of Oncale, holding for the first time that workplace sexual harassment may be established even where the harasser and the victim are the same gender.

Phase 4 of RM

Learn and Report 1. Review risk indicators: Assess the performance of the risk indicators to measure the effectiveness of the initiative. 2. Report risk performance: Describe performance and improvement. Continually monitor performance and make necessary changes to improve the initiative.

Immigration Reform and Control Act of 1986 (IRCA)

Makes it illegal for employers to discriminate in recruiting, hiring and firing based on an individual's national origin or citizenship status. Prohibits employers from knowingly hiring aliens who are not authorized to work in the U.S. Also requires employers to complete the I-9 Form for all new hires within three days of hire to verify that the individuals they hire are authorized to work in the United States. Permits new hires to present any acceptable I-9 document or combination of acceptable I-9 documents. Creates employer sanctions for unlawful hiring of undocumented workers.

Substance Abuse Testing

Many organizations require a drug test before hiring an applicant. They may also conduct random drug testing or require an employee to be tested after an accident. There are a number of issues related to drug-testing.

Phase 3 of RM

Measure and Monitor 1. Cost-effectiveness and improvements: This step focuses on the cost-effectiveness and efficiency of control mechanisms, and it begins the improvement process. 2. Culture and alignment: It is important that the organization create a risk-aware culture and align the risk management initiative with other management responsibilities. It is important to train employees on how to assess and monitor risk.

Meritor Savings Bank v. Vinson (1986)

Mechelle Vinson was fired from her job at Meritor Savings Bank. After her dismissal, Vinson sued her former boss and vice president of the bank, Sidney Taylor, alleging that she had been subjected to constant sexual harassment by Taylor during her four years of employment. The harassment, she contended, created a hostile working environment under Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court found that Title VII did not limit sexual harassment to tangible economic discrimination, but that it was intended "to strike at the entire spectrum of disparate treatment of men and women in employment. . ." and that plaintiffs could establish violations under the law if they could prove that harassment created an abusive or hostile working environment.

OSHA penalties

OSHA can impose penalties ranging from $5,000 up to $70,000 for willful or repeated serious violations, although in practice the penalties can be far higher

qualified individual

One who, with or without a reasonable accommodation, can carry out the essential functions of a job. If the qualified individual cannot perform the job as currently structured, the employer is required to make a reasonable accommodation unless doing so would present an undue hardship.

Fair Credit Reporting Act (FCRA) of 1969

Outlines the standards governing the collection, use and communication of credit and other personal information about consumers. Regulates consumer reporting agencies and entities, including employers. Makes it permissible for an employer to obtain a consumer report for employment purposes if the employer has given written notice to, and obtained written authorization from, the applicant or employee prior to obtaining the consumer report. Also requires that, before an employer may take an adverse action against an applicant or employee based on information obtained in a consumer report, the employer must provide that person with a copy of the consumer report and information about the consumers' rights under the FCRA.

Occupational Safety and Health Administration (OSHA)

Part of the DOL, which enforces the standards, this group administers the act, sets and enforces the safety and health standards, and has inspectors working out of branch offices throughout the country to ensure compliance. The four major categories of ___ Standards include: General industry standards, maritime standards, construction standards, and agricultural standards. Ex: Standards: height of guardrails, when hard hats are required etc. Employers are responsible for complying with the "general duty" clause where each employer "shall furnish a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

Occupational Safety and Health Act (OSHA)

Passed in 1970, this law requires workplaces to be safe environments with no hazards that could cause death or harm. Organizations must follow all health and safety regulations. Covers private sector employers and employees in all 50 states. Employees who work for state and local governments are not covered by this act, but have protections if they work in a state that has a state program approved by the Occupational Safety and Health Administration.

Phase 1 of RM

Planning and Design 1. Identify benefits: This step answers the following questions to gain approval from top management or a decision-making body: What are the benefits of the initiative? What do we hope to accomplish? 2. Plan initiative scope: This step answers the following questions: What is our definition of risk and other related terms? What is the scope of the initiative? 3. Establish strategy and framework: In this step, the strategic framework is devised and the responsibilities of those involved are defined

Motivation

Posters, Incentive Programs, and Positive Reinforcement have been successful at reducing workplace injuries.

Workplace Violence Training

Providing training on issues such as cyberbullying will help employees understand it and be able to recognize it. This supplements enhanced security and screening, and are part of what type of reducing violence in the workplace?

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)

Requires all employers to report certain data about new hires to a designated state agency. These new-hire reporting requirements have two related goals: 1) to assist persons entitled to payments under child support orders in speedily and efficiently obtaining such payments through wage garnishments, wage assignments, etc.; and 2), to help detect and prevent fraud in government benefits payments. This law includes a workforce development component to welfare legislation to encourage employment among the poor. It authorizes funding for state efforts to reduce needy families' reliance on government benefits. It requires the reduction or elimination of benefits to a recipient's family if the recipient refuses to participate in an assigned work activity. Requires a return to work within two years after being on public assistance.

Worker Adjustment and Retraining Act (WARN) of 1988

Requires employers with 100 or more employees to provide 60 days' advance notice to employees and their representatives before a "plant closing" or "mass layoffs" as defined by the WARN. Advance notice gives workers some transition time to adjust to the prospective loss of employment. WARN also requires 60 days advance notice to the local chief elected official and state dislocated worker units so that they can promptly offer dislocated worker assistance. WARN does not apply to closure of temporary facilities, or the completion of an activity when the workers were hired only for the duration of that activity.

Circuit City Stores v. Adams (2001)

Saint Clair Adams, a sales counselor at a Circuit City store, signed an employment application that included a provision stating that he agreed to settle any employment disputes by final and binding arbitration. Adams later filed a state law discrimination lawsuit against Circuit City; Circuit City responded by initiating a lawsuit against Adams in federal court to compel arbitration pursuant to the arbitration agreement and the Federal Arbitration Act. The district court found in favor of Circuit City and the federal appellate court reversed. The U.S. Supreme Court reversed the decision of the appeals court, and ruled that the Federal Arbitration Act permits most employers to require employees to arbitrate employment discrimination claims.

Selection and Placement

Screening is another way to reduce unsafe acts. Isolating the trait that might predict accidents on the job in question, and then screen candidates for this trait will help to eliminate the safety hazards. The Employee Reliability Inventory (ERI) measures emotional maturity, conscientiousness, safe job performance, and courteous job performance, can help employers reduce unsafe acts at work.

Employee Screening

Screening potentially explosive employees and applicants by instituting a rigorous pre-employment investigation is a line of defense is part of what type of reducing violence in the workplace?

Civil Rights Act of 1991

Section 102 of the act addressed money damages. It allows employees who claim intentional discrimination (disparate treatment) to ask for compensatory damages and punitive damages if it is determined that the employer engaged in discrimination "with malice or reckless indifference to the federally protected rights of an aggrieved individual." Damages are capped, depending on the size of the employer. The maximum award of compensatory and punitive damages combined was set at $300,000 for the largest employers (more than 500 employees). Under the provisions of the 1991 Act, parties could now obtain jury trials, and recover compensatory and punitive damages in Title VII and ADA lawsuits involving intentional discrimination. The act specifies that an "unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." In other words, employers cannot avoid guilt or liability by demonstrating that they would have taken the same action (such as denying a promotion) even without the discriminatory motive. Plaintiffs who use these mixed motive cases recently gained an advantage from a U.S. Supreme Court decision in Desert Palace Inc. v. Costa, where the court ruled that plaintiffs do not have to provide evidence of explicitly discriminatory conduct, but can instead provide circumstantial evidence.

Hostile work environment by supervisors

Sexual harassment does not have to result in a tangible employment action. If the behavior of a supervisor 1) interferes with an employee's performance; 2) creates an intimidating or humiliating environment; or 3) affects an employee's emotional and psychological well-being, it can also be sexual harassment.

Hostile work environment by non-supervisors

Sexual harassment does not take place only between a supervisor and a subordinate. It can occur between co-workers or between an employee and a nonemployee. If the behavior creates a hostile work environment that substantially 1) interferes with an employee's performance; 2) creates an intimidating or humiliating environment; or 3) affects an employee's emotional and psychological well-being, it can also be sexual harassment.

hostile environment harassment

Sexual or other discriminatory conduct that is so severe and pervasive that it interferes with an individual's ability to perform the job and which creates an intimidating, offensive, threatening or humiliating work environment or causes a situation where a person's psychological well-being is adversely affected. To create a hostile work environment, three conditions must be met: the harassment must be sexual in nature, it must be severe or pervasive and it must be unwelcome.

Intrusiveness

Some drug tests require only a sample of hair for follicle testing but others are more invasive and require a sample of urine

State and local laws

States cities or counties can pass their own laws that may be more strict than a federal law. They cannot, however, conflict with the federal law or be less strict. For example, a state could pass its own version of the FMLA (and call it something else) that requires organizations to offer periods longer than 12-26 weeks of unpaid leave (which is the federally mandated minimum) but the state would not be able to include provisions in their law that were less than the federal minimum.

T

T/F? Discrimination may occur in recruiting, dress code, or employee selection

Natural security

Taking advantage of the facility's natural or architectural features in order to minimize security problems.

claim step 6: Conciliation

The EEOC has 30 days to work out a conciliation agreement between the claimant and the organization. The conciliation agreement is signed by all parties and submitted for EEOC approval.

Claim step 2: Charge acceptance

The EEOC will decide whether to accept the claim or refer it to a state or local agency.

City of Richmond v. J.A. Croson Company (1989)

The Richmond, Va. city council adopted a regulation in 1983 that required companies with city construction contracts to subcontract 30 percent of their business to minority businesses. The J.A. Croson Company lost its contract because of the 30 percent set-aside and sued the city. The U.S. Supreme Court ruled that the regulation was unconstitutional; that the city had not laid proper groundwork for the regulation; and had neither identified nor documented discrimination before creating the policy.

Johnson v. Transportation Agency (1987)

The Santa Clara County, Calif., Transportation Agency promoted a female employee over a male employee who scored higher on a selection test. Both candidates were qualified for the job. To remedy the under-representation of women in its workplace, the employer had a voluntary affirmative action program that took gender into account as one factor in the decision-making process. The court, like the court in the Weber case, ruled in favor of the agency, stating that an employer can take voluntary affirmative action to either (a) remedy its own prior discriminatory practices; or (b) remedy a manifest imbalance in traditionally segregated job categories, provided that there was no quota system in place.

United Steelworkers v. Weber (1978)

The U.S. Supreme Court decided in this case that private-sector employers could take steps to implement the goals of Title VII through affirmative action. To increase the number of skilled African American craft workers, the United Steelworkers of America and Kaiser Aluminum and Chemical Corporation began an affirmative action-based training program. Half of the slots in the program were reserved for African Americans. Weber, a white man, was denied admission to the program. Weber sued both organizations, claiming reverse discrimination. The court found that, under Title VII, a voluntary affirmative action plan that takes race into account is lawful but only if it serves a remedial purpose consistent with Title VII's goals and does not "unnecessarily trammel" the interests of other employees, lead to their discharge or permanently prevent their promotion. Since this program sought to eliminate archaic patterns of racial segregation and hierarchy, was a temporary measure, and did not prohibit white employees from advancing in the company, the court found that it was consistent with the intent of the law.

Americans with Disabilities Act Amendment (ADAAA) of 2008

The amendment modified the original act in several ways, including the following: 1. It expanded the definition of "major life activities", walking, reading, bending and communicating. "major bodily functions": immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 2. measures other than ordinary eyeglasses or contact lenses shall not be considered in assessing whether an individual has a disability. 3. It specified that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 4. It changed the definition of "regarded as" so it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and it instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor.

Conditions

The best way to reduce the overall risk of an accident. Safety Engineers should design jobs to remove hazards, additionally, supervisors and managers should help identify and remove potential hazards.

retalitation

The concept of retaliation is reflected in the laws enforced by the Equal Employment Opportunity Commission (EEOC) that make it illegal to fire or harass employees because they file a charge of discrimination against their employer.

validity

The degree to which the test or other employment practices are related to or predicts performance on the job. Validity can support a business necessity defense.

Albemarle Paper v. Moody (1975)

The plaintiff, Moody, filed a lawsuit claiming that Albemarle Paper Company's selection procedures were discriminatory. Albemarle presented validity evidence for their selection procedures, but lost the case. The U.S. Supreme Court found that a test must not only be valid; employers must also seek tests with the least adverse impact (among those comparably valid). The poor technical quality of the selection validation weakened Albemarle's case, and they were unable to effectively argue that its methods were more valid than other options. This demonstrates an organization's need to establish evidence that a test is related to job content and is the least likely to create adverse impact.

Harris v. Forklift Systems Inc. (1993)

The plaintiff, Teresa Harris, filed suit against her employer claiming that the she had been sexually harassed and that the harassment had created an "abusive work environment" in violation of Title VII of the Civil Rights Act of 1964. The employer contended that the harassment had not been severe enough to seriously affect her psychologically or impair her ability to work, and that it therefore did not create an abusive work environment under the meaning of Title VII. The U.S. Supreme Court rejected the employer's argument, stating that as long as the harassment can be perceived by a reasonable person to be hostile or abusive, there is no need to prove that is was psychologically injurious to find that it violates Title VII.

risk treatment

The process of choosing and implementing controls and measures to moderate the risk. Includes responding to risks, resource controls, and reaction planning

Mechanical security

The utilization of security systems such as locks, intrusion alarms, access control systems, and surveillance systems.

Reasonable Accomodations

There are three categories of reasonable accommodations: 1. Modifications to a job application process to enable a qualified applicant with a disability to be considered for the position. 2. Modifications to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position. 3. Modifications that enable an employee with a disability to enjoy equal benefits and privileges of employment enjoyed by other similarly situated employees without disabilities.

Employee Participation

There are two main reasons to get the employees involved in designing the safety program. First, employees are generally more aware of the problems and how to solve them. Second, employees are more likely to accept and follow the safety program when they've had a hand in designing it.

Safety vs. Impairment

There is a big debate on whether someone who tested positive for an illegal substance was actually impaired during work hours. Because of this some people argue that drug-testing is not justified.

Age Discrimination in Employment Act (ADEA) of 1967

This act made it unlawful to discriminate against employees and applicants 40 years of age and older with respect to any term, condition or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments and training.

Equal Pay Act of 1963

This act made it unlawful to discriminate in pay on the basis of sex when jobs in the same establishment involve equal work; equivalent skills, effort and responsibility; and are performed under similar working conditions (amended in 1972)

Americans with Disabilities Act (ADA) of 1990

This act prohibits discrimination against disabled people and requires employers to make reasonable accommodations for disabled employees and applicants. The ADA defines an individual with a disability as a person who: • Has a physical or mental impairment that substantially limits one or more major life activities; • Has a record of such impairment; or • Is regarded as having such impairment

identify risks

This helps to define the amount of risk an organization faces. To do this well, assessors must have firsthand knowledge of the organization (e.g., operations, culture, legal issues, strategy and finances). They must clearly understand what factors are critical for organizational success and what aspects of the company add the most value.

Report and monitor risks

This includes creating systems that help employees describe any issues and actions related to the risk to monitor its severity

Analyze the level of risk

This includes determining likely threats based on what the company does and where they are located. For example, are there risk factors about the products the company makes or is the company near an airport? These increase the level of risk. Also, assess the level of access at entrance points to the building and how to control them. Develop a plan of action with local law enforcement in the event an incident occurs.

Review and evaluate risks

This involves assessing the control mechanisms surrounding the risk, evaluating success and learning from past experience. This is a continuous improvement process designed to ensure that risks are managed to the best of the organization's ability

Piscataway Board of Education v. Taxman (1996)

This is a U.S. Court of Appeals for the Third Circuit case that was settled before the U.S. Supreme Court could hear the case. The school board of Piscataway, N.J., needed to eliminate a teaching position from a high school. Under state law, tenured teachers had to be laid off in reverse order of seniority. The newest tenured teachers, Sharon Taxman and Debra Williams (white and African American respectively) had started working at the school on the same day. Williams was the only black teacher in the department, and 50 percent of the students were minorities. The school board voted to lay off Taxman in the interests of diversity. Taxman alleged that the board had violated Title VII of the Civil Rights Act of 1964. The U.S. Court of Appeals for the Third Circuit ruled in favor of Taxman, noting that race-based employment decisions were only permissible to remedy two situations: to remedy (1) the effects of past employment discrimination or (2) a manifest racial imbalance in the workforce—not to promote racial diversity.

Training

This is especially appropriate for new employees. OSHA provides materials to help organizations train their employees about safety.

Griggs v. Duke Power Co. (1971)

This landmark case established the "adverse impact" (also referred to as "disparate impact") theory of employment discrimination. Duke Power required all coal handlers to have a high school diploma or to pass an intelligence test. Griggs sued under Title VII of the Civil Rights Act of 1964, saying these selection requirements adversely impacted individuals based on race. The U.S. Supreme Court ruled that discrimination need not be overt to be illegal. If an organization uses a selection procedure that has an adverse impact based on a protected class, the employer must show evidence that the selection procedure is job-related. If the instrument causes adverse impact, it is illegal unless there is good evidence for the validity of the instrument or procedures.

McDonnell Douglas Corp. v. Green (1973)

This landmark case involved an African American employee who was discharged as a result of a general reduction in the company's workforce. The employee was active in civil rights, and after his termination participated in several protests against McDonnell Douglas that were nonviolent but illegal. The U.S. Supreme Court used this case to set out a four-part standard about the order and allocation of proof in a lawsuit challenging employment discrimination under Title VII of the Civil Rights Act of 1964. Specifically, the plaintiff can prove unlawful discrimination indirectly by showing, for example, in a hiring case, that: (1) the plaintiff is a member of a Title VII protected group; (2) he or she applied and was qualified for the position sought; (3) the job was not offered to him or her; and (4) the employer continued to seek applicants with similar qualifications. If the plaintiff can prove these four elements, the employer must show a legitimate lawful reason why the individual was not hired. The employee still may prevail if he or she discredits the employer's asserted reason for not hiring him or her. The court upheld the company's right to lay off employees as long as there was a reason (not including race) and put the burden of proof on the plaintiff to show that the employer's legitimate reason is not pretextual.

Pregnancy Discrimination Act of 1978

This law amends the Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination based on pregnancy, childbirth, or related medical conditions. Since the passage of this law, an employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers. Additionally, an employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same. Pregnant employees must be permitted to work as long as they are able to perform their jobs.

Workplace Smoking

This part of employee health addresses the Nature of the Problem which is serious for employees and employers. Smokers have significantly greater risk of occupational accidents and higher absenteeism rates than nonsmokers. They increase the cost of health and fire insurance. Many organizations are charging higher insurance premiums to those who smoke or not hiring smokers.

Job Stress

This part of employee health can range from getting more sleep and eating better to negotiating with your boss for realistic deadlines on important projects to reducing the amount of trivia to which you give your attention. The three-step stress reduction technique involves: developing awareness; adjusting attitudes; and taking action.

Computer-Related Health Problems

This part of employee health includes short-term eye problems (like burning, itching, tearing, eyestrain, and eye soreness), backaches, and neck-aches -common complaints among video display operators.

Title VII of the Civil Rights Act of 1964

This prohibits employment discrimination on the bases of race, color, religion, sex and national origin. This law makes it unlawful to for an employer to discriminate against any individual in recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment

Audits and Inspections

This should occur for possible safety and health problems, using checklists as aids. All accidents and near misses should be investigated. A system should be in place for employees to notify management about hazardous conditions.

Disparate Treatment

Title VII prohibits employers from treating applicants or employees differently because of their membership in a protected class. Treatment resulting in intentional discrimination when rules or policies are applied inconsistently to one group of people over another (e.g. when a only a certain group of people must take a selection test).

Enhanced Attention to Employee Retention/Dismissal

To reduce the potential liability of retaining employees who subsequently commit violent acts. Problem employees do not stop their behavior if transferred to another department. Set up a performance improvement plan and terminate if goals and behavior expectations are not met. This is part of what type of reducing violence in the workplace?

Disparate Impact (adverse impact)

Under Equal Employment Opportunity (EEO) law, a less favorable effect for one group than for another. A disparate impact results when rules applied to all employees have a different and more inhibiting effect on women and minority groups than on the majority. "A substantially different rate of selection in hiring, promotion or other employment decision that works to the disadvantage of a race, sex or ethnic group." refers to how employer policies and procedures that seem neutral on their face may, as applied negatively affect the employment, placement or promotion of people in protected groups. There are several approaches to determine adverse impact: population comparisons and disparate rejection rates

OSHA Recordkeeping

Under OSHA, employers with 11 or more employees must prepare and maintain records of serious occupational injuries and occupational illnesses (e.g., any abnormal condition or disorder caused by exposure to environmental factors associated with employment). NOTE: On September 11, 2014, OSHA announced changes to the list of industries that are exempt from the requirement to routinely keep OSHA injury and illness records, and to the list of severe work-related injuries and illnesses that all covered employers must report to OSHA. These new requirements will go into effect on January 1, 2015 for workplaces under federal OSHA jurisdiction.

General Dynamics Land Systems, Inc. v. Cline (2004)

Under a new union contract, General Dynamics provided full health care benefits only to retirees who were older than the age of 50 by July 1, 1997. Dennis Cline and other workers between the ages of 40 and 49 sued General Dynamics under the Age Discrimination in Employment Act of 1967 (ADEA) alleging that providing benefits only to the retirees aged 50 years and older (and not those between the ages of 40 to 49) was age discrimination. The U.S. Supreme Court ruled that the ADEA did not protect younger workers—even if they were over the age of 40—from workplace decisions that favor older workers.

Causes of Workplace Accidents

Unsafe Conditions and Other Work-Related Factors 1. Chance occurrences are unplanned events that can happen at any time. For example, an organization next to a baseball field may occasionally have a baseball come crashing through a window. These are hard to plan for and avoid. 2. Unsafe conditions are one main cause of accidents. Ex: Improperly guarded equipment; Defective equipment; Hazardous procedures in, on, or around machines or equipment; Unsafe storage— congestion, overloading; Improper illumination—glare, insufficient light; Improper ventilation—insufficient air change, impure air 3. Unsafe Acts - There are no easy answers to the question of what causes them. The consensus is that accident proneness is situational. Ex: forgetfulness, not wearing hard hat, etc.

Dismissing Violent Employees

Use caution when firing or disciplining potentially violent employees. Analyze anticipate their behavior. Have a security guard or a violence expert present when the dismissal takes place. This is part of what type of reducing violence in the workplace?

bona fide occupational qualification (BFOQ)

Used to justify an employment practice that may otherwise discriminate against members of a protected class. It may be a requirement that an employee be of a certain age (Federal Aviation Administration requires that commercial pilots quit flying when they turn 65) religion (a Catholic school may require all of their teachers to be Catholic), gender (an organization that hires employees to work with developmentally disabled individuals who require hygiene assistance may be able to hire employees who are of the same gender as the client) or national origin ( individuals who run for the president of the United States must be born in the United States) when it is reasonably necessary to the organization's normal operation. This is increasingly being more narrowly interpreted by courts. Important note: BFOQs usually are not involved in adverse impact cases

Organizational security

Using good management to improve security.

Respond to risk

When responding to risk, there are several options. An organization can choose to tolerate the risk as is, treat the risk by attempting to reduce it or transfer the risk to another area (a business unit or third party) that is more suited to handle it. An organization may also attempt to terminate the risk altogether. T^4: tolerate, treat, transfer, terminate

claim step 5: Determination

When the investigation is complete, the EEOC will make a determination of cause or no cause. If the claim is dismissed, the EEOC will issue the claimant a "Notice of Right to Sue" letter. The individual has 90 days to file suit on his or her own behalf. If the EEOC finds reasonable cause for the claim, the conciliation process begins.

evaluate risks

When the risk analysis is complete (identifying risks), the organization must prioritize and evaluate the risks to determine which are the most significant. This includes determining which business units are affected, what control mechanisms are in place and where these controls may be reduced, raised or appropriated differently.

Behavior-Based Safety

Which involves identifying the worker behaviors that contribute to accidents and then training workers to avoid these behaviors.

preventing accidents

a part of risk management that includes: -Reducing Unsafe Conditions -Reducing Unsafe Acts by Emphasizing Safety -Reducing Unsafe Acts Through Selection and Placement -Reducing Unsafe Acts Through Training -Reducing Unsafe Acts Through Motivation -Use Behavior-Based Safety,Use Employee Participation -Conduct Safety and Health Audits and Inspections

population comparisons

approach examines the percentage of the protected group and majority group workers in the organization and compares that information with the percentage of the corresponding groups in the labor market (the labor market is usually defined as the U.S. Census data for the Standard Metropolitan Statistical Area). If the population comparison reveals a significant difference between the population of the organization and the labor market,such that minority groups are underrepresented, there may be evidence of adverse impact.

discriminatory recruitment practices

help-wanted ads should not highlight or exclude a particular gender or race. engaging solely in word-of-mouth advertising can lead to hiring the same types of employees the organization already has because people tend to interact with people they are similar to.

discriminatory dress code

if a policy singles out a protected group and treats them differently, it could be a discriminatory practice. (Black guy didn't want to shave because of the bump condition)

way to calculate adverse impact

number hired/number applied= selection rate. Then, take selection rate of group A/ SR of group B. if that percentage is less than 80% you may have grounds of adverse impact ex. Men: 20 hired/110 applied = 18% Women: 15 hired/150 applied = 10% Divide the minority selection rate by the majority selection rate (10 / 18 = 55%). Because the hiring rate for women is less than 80% of the hiring rate for men, there may be evidence of adverse impact.

discriminatory selection practices

organizations should not make hiring decisions based on arrest records because individuals in this country are innocent until proven guilty, so the use of arrest records are not always appropriate and can lead to a discriminatory practice.

Creating a Risk Management Initiative

phases include planning and design, implementation and benchmarking, measure and monitor, and learn and report

risk assessment

stage one of this includes Identify risks and evaluate risks.

RM process

stages of this include: 1: risk assessment 2: risk treatment 3: feedback mechanisms

Risk Management (RM)

the effect of uncertainty on the goals and objectives of an organization. Risk can be positive, negative or just increase the ambiguity associated with a situation.Risk is usually described as an event or occurrence, a deviation from the norm or an outcome or consequence of an action. ISO 31000 are the risk management guidelines applicable to public or private sector organizations. The guidelines are published by the International Organization for Standardization. Organizations must assess risk in terms of their goals and objectives to determine if meeting those goals is possible and what the risk associated with those goals might be.

Feedback mechanisms

this includes reporting/monitoring risks and reviewal/evaluation of risks

Burnout

this part of employee heath is the total depletion of physical and mental resources caused by excessive striving to reach an unrealistic work-related goal. Some suggestions for alleviating this include: breaking your patterns; getting away from it all periodically; reassessing your goals in terms of their intrinsic worth; and think about your work.

Defenses for ADA

•"Direct threat" • Qualification standards are "job-related and consistent with business necessity." Employers are not required to tolerate misconduct or erratic performance, even if the behaviors can be attributed to an employee's disability. Employers do not have to create a new job for a disabled worker or reassign that person to a light-duty position for an indefinite period unless such a position exists.

Employer Obligations

•Employers must make a reasonable accommodation for a qualified disabled individual unless it would result in undue hardship. •Employers are not required to lower existing performance standards or stop using tests for a job. •Employers may ask pre-employment questions about essential job functions but cannot make inquiries about disability. •Medical exams (or testing) for current employees must be job related. A job offer may be contingent upon the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. •Job application forms, interview procedures and job descriptions must be reviewed for illegal questions and statements and adjusted accordingly.