HR CH 3
The two situations where affirmative action is mandatory are:
* under Executive Order 11246* for federal contractors with contracts totally more than $10,000 annually. * Federal court orders* can order affirmative action programs to correct past discriminatory practices. Bakke v. California (1978) is the basis for reverse discrimination.
Equal Employment (EEO) refers to the many laws enacted
. CRA, ADA, etc
why is diversity important
. Diversity is important to organizations because it can help increase sales and profits, increase in creativity and innovation, and improves divergent thinking. Despite all of its benefits, *Diversity helps increase sales, revenues, and profits—in other words, embracing diversity creates business opportunities*
OUCH abbrev.
Objective Uniform in application Consistent in effect Has job relatedness
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 protected groups disproportionately with an employment action 4/5 rule
In defining reasonable accommodations, it is also necessary to distinguish between "essential" and "marginal" job functions
Essential functions 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: The function is something that is done routinely and frequently in the job. The function is done only on occasion, but it is an important part of the job. The function may never be performed by the employee, but if it were necessary, it would be critical that it be done right.
Bona Fide Occupational Qualification (BFOQs).
*a mandatory qualification for an individual to be able to successfully complete a job* 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.12 A BFOQ defense can be used against both disparate impact and disparate treatment allegations
Are There Any Challenges to Diversity
*conflict* -simply the act of being opposed to another////There are many reasons for conflict, but it is typically greater when people are significantly different from each other, which means that if we create a more diverse workforce, there's a greater likelihood for more conflic *Cohesiveness * - is an intent and desire for group members to stick together in their actions. diversity brings certain challenges. These challenges include increase in conflict and struggles to develop group cohesiveness. Moving past those surface-level differences and actually getting to know each other can help mitigate these challenges.
The EEOC is a federal agency that was created by the Civil Rights Act of 1964. The main responsibilities of the EEOC are:
Investigating and resolving discrimination complaints Gathering and compiling statistical information on complaints Providing education and outreach programs to explain illegal discrimination
Uniform in application
Is the action being uniformly applied? 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
Has job relatedness
Is the action directly related to the primary aspects, or essential functions of the job in question?
Lily Ledbetter Fair Pay Act of 2009 (LLFPA)
LLFPA was passed as an amendment to the 1964 CRA. Basically, the act extend the time period in which an employee is allowed to file a lawsuit for pay discrimination. This act allows the 180 day time clock to reset upon every application of the discriminatory decision. For example, each pay period the 180 day time clock would reset for compensation discrimination claims.
one way to ensure decisions are being made correctly is to utilize the ___ test
OUCH- is a rule of thumb rule used whenever you are contemplating any employment action, to maintain fairness and equity for all of your employees or applicants. You should use this test whenever you are contemplating any action that involves your employees
Sexual harassment usually requires the following characteristics to be met:
Plaintiff is a member of a protected class Harassment was based on sex Person was subject to unwelcome sexual advances or Harassment was sufficiently severe enough to alter the terms, conditions, or privileges of employment
Religious Discrimination
Religious discrimination violates the 1964 Civil Rights Act. As an employer, it is important to enact workplace rules that respect the religious freedom of employees and does not unfairly discriminate Remember that religious discrimination is a violation of the 1964 CRA because it identifies religion as a protected class. Because religion was specifically identified in the CRA, we can't use it as a factor in making "any employment decision" with our employees. Religion is a less obvious characteristic than gender or race, so it is usually not a characteristic on which we base decisions
Sexual Harassment
Sexual harassment is part of the 1964 CRA (the prohibition of discrimination based on sex), but it is one of the two items we mentioned earlier in the chapter that was not specifically recognized as a separate type of discrimination until federal courts started hearing cases on the act.
Objective
Something that is objective is based on fact, or quantifiable evidence
Americans with Disabilities Act of 1990 (ADA), 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, such as job application procedures, hiring, firing, promotions, compensation, and training. It applies to virtually all employers with 15 or more employees in the same basic ways as the CRA of 1964 does.
Age Discrimination in Employment Act (ADEA) of 1967
The 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.
Title VII 7 of the 1964 Civil Rights Act
The Civil Rights Act caused significant changes in the way that business was conducted in the US. This law states that it is illegal to discriminate on the basis of race, color, religion, sex, or national origin. Title VII applies to organizations with 15+ employees who work 20 or more weeks a year and are involved in interstate commerce. Title VII identified the three types of discrimination discussed earlier (disparate treatment, disparate impact, pattern of practice). This act also established the Equal Employment Opportunity Commission (EEOC)
Civil Rights Act of 1991
The Civil Rights Act of 1991 was passed as an amendment to the Civil Rights Act of 1964. During the 1980s, there were several court decisions that effectively took equal employment protections backwards. This act provides for compensatory as well as punitive damages in the event of disparate treatment discrimination. Compensatory damages are those that are to compensate for the losses incurred by the victim; punitive damages are monetary damages designed to punish an injuring party. This act also provides for upper limits on the damages based on the number of employees. Lastly, the act prohibit quotas and race norming.
Equal Pay Act of 1963
The Equal Pay Act made it illegal to discriminate on the basis of sex for jobs of equal work. So what is equal? Equal is defined in terms of skill, effort, responsibility, and working conditions. While the intent of this act was to equalize pay between the sexes, it was not completely successful. (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 allowabl)
Pregnancy Discrimination Act of 1978 (PDA)
The Pregnancy Discrimination Act 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.16 Again, this law is mandatory for companies with 15 or more employees, including employment agencies, labor organizations, and state and local governments.
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.24 So you can't have different passing grades for any group.
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. *intentionally treating a protected class differently such that it has a negative impact* 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.
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. However, 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.
Equal Employment Opportunity Commission
he EEOC is a federal agency that has significant power over employers in the process of investigating complaints of illegal discrimination.31
pattarn of practice
intentional and BFOQ AS UNLIKELY DEFENSE
disparate treatment intent
intentional w/ organization defense is BFOQ
sexual harrasment defined
is defined by the EEOC as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment 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.
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.
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. Hostile work environment sexual harassment 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
Divergent thinking
is the ability to find many possible solutions to a particular problem, including unique, untested solutions. is necessary in order to come up with creative solutions to a problem
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.
Affirmative Action is
more of a punitive approach that is used to make up for past discrimination by giving a protected group preference in the hiring process. Diversity is not legally required but is viewed as a valuable part of the human resource process does not have the effect of law.Therefore, affirmative action is a much broader concept based on policies and executive orders (orders from the president) to help legally protected groups.
EEOC continued
mployers with 100 employees (or 50 employees + $50,000 in federal contracts) are required to file an annual report with the EEOC.� Discrimination claims must be filed within 180 days of the date of discrimination. The EEOC will then investigate the claim. If no cause is found, the case may be dismissed. If the EEOC finds cause, they will attempt to facilitate reconciliation through mediation. If mediation attempts are successful, the organization can file suit in federal court on the complainant�s behalf or issue a �right-to-sue letter on behalf of the complainant. Under the EEOC, employees have the right to bring discrimination claims against their employers and the right to participate in an EEOC investigation. Employers have the right to defend themselves against discrimination claims; however, employers are not permitted to retaliate against the employee or engage in constructive discharge.
illegal discrimination.
occurs when decisions are made based on one membership in a protected class.
Marginal job function
on the other hand, are those 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
Types of Sexual Harassment
quid pro quo harassment and hostile work environmen
Diversity
s simply the existence of differences—in HRM, it deals with different types of people in an organization. Diversity can be viewed from all types of differences. Most commonly, we think of diversity in regards to surface-level characteristics (race, age, sex, disability); however, diversity also looks at the deep-level characteristics (i.e. personality, etc.)
Disparate impact
unintentional any 3 of organizational defense
discrimination
which is the act of making distinctions or choosing one thing over another; in HR, it is making distinctions among people managers must discriminate when making decisions to choose which employee to select, promote, etc. However, it is vitally important that HR managers avoid illegal discrimination.
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)
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 *This act is intended to protect the gathering and use of genetic information by employers.*
Veterans Benefits Improvement Act of 2004 (VIRA)
VIRA is an amendment to USERRA. The act extends the requirements for employers to maintain health care coverage for employees on active duty for 2 years. 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 in a place where it would be visible to all employees who might be affected
Business Necessity
a practice that 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 be discriminatory; the case of Spurlock v. United Airlines set the precedent for business necessity as a defense 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 and that there is a specific business purpose for applying a particular standard that may, in fact, be discriminatory
Affirmative Action is defined
a series of policies, programs, and initiatives that have been instituted by various entities within both government and the private sector that are designed to prefer hiring of individuals from protected groups in certain circumstances, in an attempt to mitigate past discrimination.
4/5 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. 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. *the four-fifths rule compares the selection rate for the protected group to that of the unprotected group*
Types of Discrimination.
Disparate Treatment: Disparate Impact: Pattern of Practice
Job Relatedness
*exists when a test for employment is a legitimate measure of an individual ability to do the essential functions of a job* exists 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
Disparate Impact
*taking actions that unintentionally have an adverse impact on a protected group* occurs when an officially neutral employment practice disproportionately excludes the members 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.
Pattern or Practice.
*when a person/group engages in a series of actions over a period of time that are intended to deny rights provided to a member of a protected class* 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
What Does the ADA Require 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
gina continued
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.30 The result was GINA
Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA)
The VEVRAA provides similar protection as the CRA that applies to Vietnam veterans. This act only applies to federal contractors. This requires both equal opportunity and affirmative action for Vietnam veterans. -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
who does the 7 of the 1964 Civil Rights Act apply too
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
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. *Organizations can defend themselves against discrimination using either a Bona Fide Occupational Qualification (BFOQ), business necessity, or job relatedness.*
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
USERRA protects the civilian reemployment rights of military members who are called away from non-military jobs by US government orders. There is no minimum number of employees required to be covered under this act. 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
Constructive Discharge
Under the EEOC, employees have the right to bring discrimination claims against their employers and the right to participate in an EEOC investigation. Employers have the right to defend themselves against discrimination claims; however, employers are not permitted to retaliate against the employee or engage in constructive discharge.
reasonable accommodation
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.
Punitive damages
are 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.
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
For the purposes of the law, a reasonable person is
average" person who would look at the situation and its intensity to determine whether the accused person was wrong in their actions.
reverse discrimination
discrimination against members of the majority group by an organization, generally resulting from affirmative action policies within an organization.
