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Chapter 3 the law - Employment Law 1 Judicial Pecking Order...

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Unformatted text preview: Employment Law 1 Judicial Pecking Order U.S. Constitution Federal Laws (CRA, ADA, ADEA, FMLA, EPA) Executive orders (Executive Order 11246 – Federal Contractors) Federal case law (interprets Constitution and federal laws) 5th Amendment (federal government) 14th Amendment (state & local governments) Federal administrative guidelines U.S. Supreme Court Circuit Courts of Appeal (12 circuits, Virginia is 4th) U.S. District Courts EEOC OFCCP 2 Year 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 Complaint s 75,428 79,432 81,300 84,442 80,840 79,896 77,444 79,591 80,680 77,990 Problem Scope % Unwarranted 78.6 80.5 80.0 79.9 77.9 78.8 83.6 87.6 89.0 *in millions Monetary Benefits* $276.1 $251.7 $269.0 $257.7 $247.8 $245.7 $210.5 $169.2 $176.7 $145.2 3 90.9 Potential Legal Problems Disparate treatment (intentional discrimination) Disparate impact (adverse impact) Invasion of privacy Illegal search 4 Employee Complaint Process Alleged discriminatory act Internal investigation Internal resolution process Essential to have a formal policy Options External resolution process Appeal procedure is important State agencies in deferral states EEOC Law suit Dictate a decision Mediate a solution Arbitrate a decision 5 Alternative Dispute Resolution Mediation Arbitration Neutral third party Disputants reach agreement Neutral third party Arbitrator makes decision Dictation Binding Nonbinding Third party makes decision 6 EEOC Complaint Process 1. Alleged discriminatory act 1. Complaint filed a. 180 days for nondeferral states b. 300 days for deferral states 3. Employer notified within 10 days 4. Investigation (goal is to complete in 120 days) a. Reasonable cause found 1) attempt to reach agreement 2) if no agreement, EEOC can file suit b. Reasonable cause not found 1) right to sue letter issued to employee 2) employee has 90 days to file suit 7 Civil Rights Act ­ Title VII Who is Covered Private employers with at least 15 employees Federal, state, and local governments Employment agencies Unions Americans working abroad for American companies Who is Exempt Bona fide tax exempt private clubs Indian tribes Individuals denied employment due to national security concerns Publicly elected officials and their personal staff 8 Disparate Impact Cases Title VII Court Ordered Remedies Reinstatement Back pay Seniority Front Pay Affirmative Action Attorneys’ Fees Disparate Treatment Cases psychological damage actual expenses damage to reputation Same as disparate impact + Compensatory damages Punitive damages (private sector only) Damage Limits (no limit for race) Employees 15­100 50,000 101­200 Limit $ 9 Employment Decisions Hiring Placement Promotion Assignment (shift, patrol zone) Salary Discipline Training opportunities 10 Does requirement directly refer to member of federally protected class? no yes no yes BFOQ? Probably Illegal Has case law, state law, or local law expanded definition of protected class? no no yes Does requirement have adverse impact? yes Probably Legal yes Is requirement subterfuge for discrimination? no Probably Illegal Probably Illegal Probably Illegal 11 Is requirement job related? yes no Were alternatives with less adverse impact considered? yes no Probably Legal Does Requirement Directly Refer to a Member of a Federally Protected Class? Sex (Civil Rights Act) Race (CRA) Male Female National origin (CRA) African American Asian American White Native American Color (CRA) Age (over 40; ADEA) Religion (CRA) Disability (ADA) Vietnam veteran Pregnant female Current Previous Regarded as such 12 Federally Protected Classes Exercise 3.1 13 14 Questio Answer n A B C D E F G H I J No Yes Yes No Yes No Yes Yes No No Reason Only Viet Nam veterans are protected Religion (Civil Rights Act) Potential disability (ADA) Sexual preference is not a federally protected class Sex (Civil Rights Act) Only people over the age of 40 are protected National Origin (Civil Rights Act) Color (Civil Rights Act) Education level is not a federally protected class This is a grooming standard 15 Is the Requirement a Bona Fide Occupational Qualification (BFOQ)? Only members of a particular class can perform the job There can be no exceptions According to the courts: Race can never be a BFOQ Religion has been (e.g., Nun, priest) Gender seldom is Customer preference doesn’t matter 16 Is gender a BFOQ for Hooters? 17 Has Local, State or Case Law Added Protected Classes? State Law Examples Local Law Examples Virginia protects marital status Wisconsin protects sexual orientation Cincinnati protects people of Appalachian heritage Santa Cruz, CA outlaws discrimination based on height and physical appearance Transsexuals are not a sex Former drug use is not a disability 18 Case Law Examples Does the Requirement Have Adverse Impact on Members of a Protected Class? Occurs when the selection rate for one group is less than 80% of the rate for the highest scoring group Number of applicants Number hired Selection ratio Male 50 20 .40 Female 30 10 .33 .33/.40 = .83 > .80 (no adverse impact) 19 Education Level 80 70 60 50 40 30 20 10 0 Asian White African American Hispanic Bachelor's Degree High School Diploma 20 Adverse Impact ­ Example 2 Female Number of applicants 20 Number hired Selection ratio Male 40 20 .50 4 .20 21 .20/.50 = .40 < .80 (adverse impact) Computing Adverse Impact Exercise 3.2 22 23 Exercise 3.2: Sex Female Number of applicants 15 Number hired Selection ratio Male 10 6 .60 8 .53 24 .53/.60 = .88 > .80 (no adverse impact) Exercise 3.2: Race Number of applicants 10 Number hired Selection ratio White Black 15 10 .67 4 .40 .40/.67 = .60 < .80 (adverse impact) 25 Old voting requirements Residency requirements Height requirements Was the Requirement a Subterfuge for Intentional Discrimination? 26 Can the Employer Prove that the Requirement is Exempt or Job Related? Exemptions Bona fide seniority system Veteran’s preference rights National security Job Related Types Methods BFOQ Valid testing procedure Content validity Criterion validity Validity generalization 27 Content Validity Based on a solid job analysis A method of rationally matching tasks with the necessary knowledge, skills, abilities, and other characteristics (KSAOs) to perform the job 28 Criterion Validity Correlate test scores with relevant criteria Two types Requirements Concurrent Predictive Reasonable sample size Good range of test and criterion scores A good criterion 29 Validity Generalization Based on meta­analysis Borrows validity from other studies or organizations Job analysis results must be similar 30 Adverse Impact Exemptions Exercise 3.3 31 32 Questio Legality n A Legal B C Legal Legal Exemption Veterans preference The valid testing procedure (r = .45) justifies the adverse impact Bona fide seniority system 33 Did Employer Look for Reasonable Alternative with Less Adverse Impact? A different test measuring the same construct A different type of test Changes to testing conditions Job redesign video rather than written practice exams conditioning programs 34 Exercise 3.4: Flow Chart Exercise 35 36 Q 1 Refer to federally protected class? BFOQ? Adverse impact? Job related? No No Q 2 Yes (Sex) ? Q 3 No Yes .10÷.20 = .50 Yes Significant validity Yes Searched for test with less adverse impact? Legal Status Legal It would depend on the BFOQ status Legal 37 Harassment 38 What examples of harassment have you seen in the workplace? 39 EEOC Complaints ­ 2004 13,136 charges of sexual harassment Harassment Charges 15.1% of the charges were made by males 43% racial 34% sexual 17% national origin 6% other 40 Gender Race Religion Age National Origin Potential Victims of Harassment Disability Sexual Preference 41 Alien status Citizenship status Types of Harassment Quid Pro Quo Hostile Environment 42 Quid Pro Quo Harassment Claims Granting of sexual favors is tied to employment decisions Single incident is enough Organization is always liable 43 Hostile Environment Harassment Claims Pattern of conduct Related to gender Is unwanted Is negative to the “reasonable person” Affects a term, condition, or privilege of employment 44 Sexual comments Undue attention Verbal sexual abuse Verbal sexual displays Body language Invitations Physical advances Explicit sexual invitations Behaviors That Could Be Sexual Harassment 45 Types of Harassing Behavior Comments Jokes Posters Cartoons E­mail Drawings 46 Behaviors are offensive if they: Perpetuate stereotypes Degrade another group Build­up own group Make others feel uncomfortable 47 Identifying Sexual Harassment Exercise 3.5 48 49 Situatio n A B C D Answer Quid pro quo No harassment. The behavior is not unwanted. Hostile environment. Judy’s behavior is based on Brian’s sex, is a pattern, and is unwanted. Hostile environment. John only calls the females “honey,” the behavior is a pattern, and it is unwanted. 50 What Causes Offensive Behavior? Hatred toward a group To express an emotion Ignorance Attempts to gain power To “fit in” with another group Anger Frustration 51 Hurts workplace relationships Causes emotional distress Causes physical distress Decreases productivity Increases turnover and absenteeism Increases legal liability Why is Harassment a Problem? 52 Discouraging Harassment Don’t laugh at offensive behavior Speak your mind Let employees know when they are crossing the line 53 What to do if you think you are being harassed Talk to the individual Talk to your supervisor or to the HR Director yellow light red light all complaints are taken seriously an investigation will occur think about what you want the outcome to be don’t publicize your complaint 54 Responding to a Complaint 55 Liability of the Organization Victims must be encouraged to come forward Every complaint or suspicion must be investigated Appropriate action must follow the investigation 56 Investigating Complaints Investigation must be prompt Complaints must be kept confidential to protect the accused Actions must be taken to protect the accuser during the investigation Due process Appropriate action must be taken 57 58 What is affirmative action? Is it a good idea? 59 Affirmative Action Strategies Intentional recruitment of minority applicants Removal of supervisor and employee prejudices Identification and removal of employment practices that work against minority employees Preferential hiring and promotion of minorities 60 Reasons for Affirmative Action Plans Involuntary Voluntary Government regulation Court order Consent decree Desire to be a good citizen community relations customer relations hope that diversity will increase productivity 61 Was there a history of discrimination? Yes No Plan is illegal Yes Does the plan only benefit actual victims of discrimination? No Plan is Legal Area What population was used to establish goals? Qualified Work Force Plan is illegal Yes Did plan trammel the rights of nonminorities? No Plan is illegal Is there an ending point to the plan? Yes No Plan is illegal Plan is Legal 62 Was there a history of discrimination? Legality of Preferential Hiring A history of discrimination must be demonstrated Numeric disparity Affirmative action posture and efforts will also be considered Other reasons, such as lack of interest in the position, must be considered along with the disparity 63 can establish history numeric disparity by itself may not be enough 70 60 50 40 30 20 10 0 Portsmouth Black Population % Richmond Lynchburg Black Officer % 64 Legality of Preferential Hiring Does the plan benefit people who were not the actual victims of discrimination? 65 What population was used to establish hiring or promotion goals? Area population Legality of Preferential Hiring Qualified work force minimum standards minority interest in occupation 66 Legality of Preferential Hiring Did the plan trammel the rights of nonminorities? Magnitude of the goal must be reasonable All people hired must be qualified Race/gender can be used to break ties among equally qualified applicants Promotion spots can be “double filled” 67 Is there an ending point to the plan? Legality of Preferential Hiring Progress must be periodically reviewed Plan must end when goals have been achieved 68 Consequences of Affirmative Action Programs People hired due to affirmative action: Organizations using AA based hiring have lover levels of productivity (Silva & Jacobs, 1993) 69 are perceived by coworkers as being less competent tend to devalue their own performance behave negatively toward other AA people Exercise 3.6: Affirmative Action Flow Chart 70 71 Legal Consideration History of discrimination? Legal Status Yes – 30% population numbers compared to 10% employment numbers No – the qualified work force should have been used rather than the area population ? – It would depend on whether 3.4 GPA and 3 years experience are considered significantly higher than 3.2 GPA and 2 years experience 72 Population used to set goals Trammel rights of nonminorities? Is preferential hiring and promotion a good idea? 73 Americans With Disabilities Act Organizations must make reasonable accommodation for the physically or mentally disabled, unless to do so would impose an undue hardship 74 What experiences have you had with disabled coworkers? 75 Definition of Disability A physical or mental impairment that substantially limits one or more major life activities A record of such impairment, or Being regarded as having such an impairment 76 Reasonable Accommodations Making facilities accessible restructuring jobs Reassignment to a vacant position Modifying work schedules Acquisition or modification of equipment or devices Providing readers or interpreters Changing examinations, training materials, or policies 77 Ways to Determine if a Job Function is Essential Employer’s judgment Written job description Amount of time spent performing the function Consequence of not requiring the incumbent to perform the function Work experience of past job incumbents 78 Medical Exams and Inquiries Prehire medical exams and inquiries are prohibited Applicants may be asked if they are able to perform essential job related functions Medical exams occur after a conditional offer of employment 79 Clarifications Act does not require an organization to hire the disabled Act does not require an organization to give preference to the disabled Act requires that the disabled be given an equal opportunity, and if the best qualified, to be given the job 80 Privacy Issues Drug testing Office and locker searches Psychological tests Electronic surveillance 81 Employee Privacy Issues Exercise 3.7 82 Exercise 3.8: Knowledge Test 83 84 Questio n 1 2 3 4 5 Answer Yes, they can do that. A company must have 50 or more employees for FMLA to take effect. No. The scaring is covered under the ADA definition of “considered to be disabled.” No. Because it is done equally to men and women it would be annoying, but not illegal. Yes, this is hostile environment sexual harassment. The behavior is related to sex, a pattern, and unwanted. No, you can’t file a complaint. Although being Italian is covered by national origin, the 9 month period exceeds the 180 day time limit. 85 Applied Case Study: Keystone RV 86 ...
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