Chapter 3-Regulatory Issues

Employment-at-will

Hiring provisions based on state laws that allow employers to terminate (or hire or transfer) employees at any time and that allow employees to quit at any time

Reasonable Accommodation

Making modifications in how the work is done or in the work environment so that someone who is qualified for the job and who has a disability can perform the job

Gender-Plus Discrimination

The second form of gender discrimination occurs when an employee would have been treated differently if it had not been for that employee's gender. This form is known as

Equal Employment Opportunity (EEO)

The term used to describe laws, regulations, and processes related to fair treatment of employees

Managers need to consider several questions regarding multinational corporations and employee law:

1. Do the U.S. EEO laws apply to employees of U.S. companies in other countries? 2. What are the responsibilities of U.S. companies operating abroad relative to the laws of those countries? 3. Do non-U.S. companies operating in the United States have to follow the U.S. equal employment laws?

McDonnell Douglas test

A four-step test used to make a case of disparate treatment

Four-Fifths Rule

A guideline generally accepted by the courts and the EEOC for making a prima facie case of disparate impact by showing that an employment practice results in members of a protected class being treated less favorably by an employment practice than members of a non-protected class

Mixed Motive

A legitimate reason for an employment decision exists, but the decision was motivated by an illegitimate reason

Disability

A physical or mental impairment that substan- tially limits one or more major life activities

Alternative Dispute Resolution (ADR)

A process for resolving disputes among employ- ees and employers using a mediator or an arbitrator

Reverse Discrimination

A type of discrimination where members of a protected group are given preference in employment decisions, resulting in discrimination of non-protected groups

Office of Federal Contract Compliance programs (oFCCp)

Agency responsible for developing guidelines and overseeing compliance with anti-discrimination laws relative to executive orders

Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP)

Agency responsible for enforcing compliance with anti-discrimination laws such as the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act

A second possible defense in a disparate impact case is that the practice is a

Business Necessity

Affirmative action plans under EO 11246 are periodically reviewed by the OFCCP and require the company to engage in three activities:6

Conduct a utilization and availability analysis: Companies must first identify the demographic profile of current employees in certain job groupings (for example, managerial, secretarial, technical). Second, companies must identify the percentage of individuals in the relevant labor market—the appropriate comparison group of skilled employees—who are in each job grouping. Third, companies must then compare these two demographic profiles. Identify goals and timetables Develop and implement an action plan.

National Origin Discrimination

Discrimination on the basis of national origin can take the form of harassment, disparate treatment, or disparate impact, and it results from: •Treating an individual differently from others in employment situations because of his or her ancestry, ethnicity, or accent; • Treating an individual differently because he or she is married to or associates with someone of a particular nationality; and/or • Assuming that a person is of a particular national origin because of physical, linguistic, or cultural traits associated with an ethnic group.

Disparate Impact, or Adverse Impact

Discrimination that occurs when an employment practice results in members of a protected class being treated less favorably than members of a non-protected class even though discrimination was not intentional

Prima Facie Case

Establishing the basis for a case of discrimination

Hostile Work Environment

Exists whenever an employee is the subject of unwelcome harassment because of his or her membership in a protected class and that harassment is severe and abusive

Affirmative Defense

Factual information presented by the defendent that leads to a claim by a plaintiff being defeated even if the claim is true

In the 1982 Price Waterhouse v. Hopkins Case

Hopkins, an associate, brought a lawsuit against Price Waterhouse when she was denied a partnership. Apparently some of the firm's partners didn't like her use of profanity and thought she was too macho and too aggressive, even though she had an exemplary record.

Genetic Information

Information about an individual's genetic tests and genetic tests of family members; also information about individual or family member's diseases or disorders

Bona Fide Seniority System

Is a third defense that companies can offer. Seniority systems give employees rights based on length of time with the company. Rights can include opportunities for better working hours, for instance

CRA 91

It clarifies the burden of proof in disparate impact cases. It addresses rights of U.S. employees working abroad It prohibits race norming It eliminates the use of the mixed-motive defense in disparate treatment cases It allows jury trials and damage awards

Retaliation

Occurs when an employer takes an adverse action against an employee who has filed a discrimination complaint

Harassment

Occurs when employees are subjected to unwanted and unwelcome treatment because of their race, color, religion, sex, national origin, age, disability, or genetic information

Quid Pro Quo Harassment

Occurs when submission to sexual conduct is made explicitly or implicitly a condition of employment

Wrongful discharge and terminating an employee for illegal reasons or for reasons that the courts have found to be inappropriate for discharge are known as exceptions to the employment-at-will doctrine, or common law claims. These exceptions include

Public policy exception. Implied employment contract Implied covenant of good faith and fair dealing

The main protected classes are:

Race Sex (including gender identity and sexual orientation) Religion Color National origin Age (40 or older) Disability Veteran status Pregnancy Genetic information

Qualified is a key word in interpreting the ADA—

Requires an employer to hire someone who is not qualified—that is, someone who does not have the knowledge, skills, and abilities or other characteristics required to perform a job. Individuals with disabilities: a qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job

Undue Hardship

Situation that exists when accommodating an employee would put the employer at a disadvantage financially, or would otherwise make it difficult for the employer to remain in business and competitive

Fair Employment Practice Laws

State and local government employee management regulations

The plaintiff must show all of the following (McDonnell Douglas test):

That he or she is a member of a protected class. That he or she applied for the job (or other employment opportunity, such as being eligible for a raise or promotion) and was qualified. That he or she was rejected. That someone else got the job, or the employer continued to seek applications from individuals with the plaintiff's qualifications.

Protected Classifications, or Protected Classes

The demographic characteristics that cannot be used for employment decisions, also called protected classes

Business Necessity

The employment practice that has some relation- ship to legitimate business goals and that it is essential to the company's survival

Essential Functions

The job tasks, duties, and responsibilities that must be done by a person in a job

Affirmative Action

The process of actively seeking to identify, hire, and promote qualified members of underrepresented groups

Title VII

Title VII makes it unlawful for an employer to discriminate on the basis of gender in any employment situation or opportunity.

Disparate Treatment

Treating individuals differently in employment situations because of their membership in a protected class

Discrimination

Treating people differently in employment situations because of characteristics, such as race, color, and gender, that have nothing to do with their ability to perform a particular job

According to EEOC guidelines, sexual harassment includes, but is not limited to, the following:

Unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature when: 1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; 2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3. such conduct has the purpose or effect of unreasonably interfering with an indi- vidual's work performance or creating an intimidating, hostile, or offensive working environment.

The following are examples of race and color discrimination by employers in violation of Title VII:

Using race or race-related characteristics and conditions to make employment decisions. A "no-beard" Tolerating the harassment of employees because of their race or color. Segregating or classifying employees based on race or color. Collecting pre-employment information about race in such a way that it is available to those making the hiring decisions. Dismissing an employee because of his association with someone of a different race.

Bona Fide Occupational Qualification (BFOQ).

a BFOQ exists when a protected classification can legally be used to make an employment decision

Executive Order 11246 (EO 11246)

• Ensure that the job application process and subsequent employment experience are not based on race, color, religion, sex, or national origin • Conspicuously post notices from the OFCCP, describing the provisions of the nondiscrimination clause in EO 11246 • Provide notices to labor unions or other groups with whom the employer has a collective bargaining agreement • State on all job advertisements that the company is an EEO, affirmative action employer

Retaliation can take many forms, including

•denying a promotion to the employee, who is otherwise qualified; •demoting the employee; •suspending the employee for a period of time; •writing a negative evaluation of the employee; and/or •threatening the employee if the complaint is not withdrawn.