© 2013 Cengage Learning 1 Employee Selection and Legal Issues

© 2013 Cengage Learning

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Employee Selection and Legal Issues


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Judicial Pecking Order• U.S. Constitution

– 5th Amendment (federal government)– 14th Amendment (state & local governments)

• Federal Laws (CRA, ADA, ADEA, FMLA, EPA)• Executive orders (Executive Order 11246 – Federal Contractors)

• Federal case law (interprets Constitution and federal laws)– U.S. Supreme Court– Circuit Courts of Appeal (12 circuits, Virginia is 4th)– U.S. District Courts

• Federal administrative guidelines– EEOC– OFCCP


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Problem ScopeYear Complaints % Unwarranted Monetary Benefits*2010 99,222 80.8 $319.4

2009 93,277 79.7 $294.2

2008 95,402 78.7 $274.4

2007 82,792 78.1% $290.6

2006 75,768 77.8 $229.9

2005 75,428 78.6 $276.1

2004 79,432 80.5 $251.7

2003 81,300 80.0 $269.0

2002 84,442 79.9 $257.7

2001 80,840 77.9 $247.8

2000 79,896 78.8 $245.7

1999 77,444 83.6 $210.5

*in millions


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Potential Legal Problems

• Disparate treatment (intentional discrimination)

• Disparate impact (adverse impact)

• Invasion of privacy• Illegal search


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Employee Complaint Process

• Alleged discriminatory act• Internal investigation• Internal resolution process

– Essential to have a formal policy– Options

• Dictate a decision• Mediate a solution• Arbitrate a decision

– Appeal procedure is important

• External resolution process– State agencies in deferral states– EEOC– Law suit


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Alternative Dispute Resolution

• Mediation– Neutral third party

– Disputants reach agreement

• Arbitration– Neutral third party

– Arbitrator makes decision• Binding

• Nonbinding

• Dictation– Third party makes decision


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EEOC Complaint Process1. Alleged discriminatory act

2. 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


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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


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Title VII Court Ordered Remedies• Disparate Impact Cases

– Reinstatement

– Back pay

– Seniority

– Front Pay

– Affirmative Action

– Attorneys’ Fees

• Disparate Treatment CasesSame as disparate impact +– Compensatory damages

• psychological damage• actual expenses• damage to reputation

– Punitive damages (private sector only)

– Damage Limits (no limit for race)

Employees Limit

15-100 $ 50,000

101-200 $100,000

201-500 $200,000

>500 $300,000


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Employment Decisions• Hiring• Placement• Promotion• Assignment (shift, patrol zone)• Salary• Discipline• Training opportunities


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Does requirement directly refer to member of federally protected class?

Has case law, state law, or local law expanded definition of protected

class?

Does requirement have adverse impact?

Is requirement subterfuge for discrimination?

Is requirement job related?

Were alternatives with less adverse impact considered?

Probably Legal

Probably Illegal

Probably Illegal

Probably Illegal

Probably Illegal

Probably Legal

BFOQ?

yes

no

yes

no

yes

yes

yes

yes

no

no

yes

no

no

no


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Does Requirement Directly Refer to a Member of a Federally Protected Class?

• Sex (Civil Rights Act)– Male– Female

• Race (CRA)– African American– Asian American– White– Native American

• National origin (CRA)

• Color (CRA)• Age (over 40; ADEA)• Religion (CRA)• Disability (ADA)

– Current– Previous– Regarded as such

• Qualified veteran• Pregnant female


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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


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Is gender a BFOQ for Hooters?


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Has Local, State or Case Law Added Protected Classes?

• State Law Examples– Virginia protects marital status– Wisconsin protects sexual orientation

• Local Law Examples– Cincinnati protects people of Appalachian heritage– Santa Cruz, CA outlaws discrimination based on height and

physical appearance

• Case Law Examples– Transsexuals are not a sex– Former drug use is not a disability


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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

Male Female

Number of applicants 50 30

Number hired 20 10

Selection ratio .40 .33

.33/.40 = .83 > .80 (no adverse impact)


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01020304050607080

Asian White AfricanAmerican

Hispanic

Bachelor's Degree High School Diploma

Education Level


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Adverse Impact - Example 2

Male Female

Number of applicants 40 20

Number hired 20 4

Selection ratio .50 .20

.20/.50 = .40 < .80 (adverse impact)


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Was the Requirement a Subterfuge for Intentional Discrimination?

• Old voting requirements

• Residency requirements

• Height requirements


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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

• BFOQ

• Valid testing procedure

– Methods• Content validity

• Criterion validity

• Validity generalization


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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


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Criterion Validity

• Correlate test scores with relevant criteria

• Two types– Concurrent– Predictive

• Requirements– Reasonable sample size– Good range of test and criterion

scores– A good criterion


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Validity Generalization

• Based on meta-analysis• Borrows validity from other studies

or organizations• Job analysis results must be similar


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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– video rather than written

– practice exams

– conditioning programs

• Job redesign


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Harassment


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What examples of harassment haveyou seen in the workplace?


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EEOC Complaints - 2010• 30,989 charges of harassment

– 11,717 were for sexual harassment charges of sexual harassment

• 16.4% of the charges were made by males

• Harassment Charges– 27% racial

– 38% sexual

– 35% other protected classes


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Potential Victims of Harassment

• Gender• Race• Religion• Age• National Origin

– Alien status

– Citizenship status

• Disability• Sexual Preference


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Types of Harassment

• Quid Pro Quo

• Hostile Environment


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Quid Pro QuoHarassment Claims

• Granting of sexual favors is tied to employment decisions

• Single incident is enough• Organization is always liable

http://www.youtube.com/watch?v=vm_YewSqOy8&feature=youtu.be


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Hostile EnvironmentHarassment Claims

• Pattern of conduct• Related to gender• Is unwanted• Is negative to the

“reasonable person”• Affects a term, condition, or

privilege of employment


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Behaviors That Could Be Sexual Harassment

• Sexual comments• Undue attention• Verbal sexual abuse• Verbal sexual displays• Body language• Invitations• Physical advances• Explicit sexual invitations


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Types of Harassing Behavior• Comments• Jokes• Posters• Cartoons• E-mail• Drawings

http://youtu.be/LBRAnQ8vzmo

http://www.youtube.com/watch?v=bojKifKPkPk&feature=related

http://youtu.be/LBRAnQ8vzmo


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Behaviors are offensive if they:

• Perpetuate stereotypes• Degrade another group• Build-up own group• Make others feel uncomfortable


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What Causes Offensive Behavior?

• Hatred toward a group• To express an emotion

– Anger

– Frustration

• Ignorance• Attempts to gain power• To “fit in” with another

group


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Why is Harassment a Problem?

• Hurts workplace relationships• Causes emotional distress• Causes physical distress• Decreases productivity• Increases turnover and absenteeism• Increases legal liability


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Discouraging Harassment

• Don’t laugh at offensive behavior

• Speak your mind• Let employees know when

they are crossing the line


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What to do if you think you are being harassed

• Talk to the individual– yellow light

– red light

• Talk to your supervisor or to the HR Director– all complaints are taken seriously

– an investigation will occur

– think about what you want the outcome to be

– don’t publicize your complaint


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Responding to a Complaint


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Liability of the Organization

• Victims must be encouraged to come forward

• Every complaint or suspicion must be investigated

• Appropriate action must follow the investigation


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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


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What is affirmative action?Is it a good idea?


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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


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Reasons for Affirmative Action Plans

• Involuntary– Government regulation

– Court order

• Voluntary– Consent decree

– Desire to be a good citizen• community relations

• customer relations

• hope that diversity will increase productivity


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Was there a history of discrimination?

Does the plan only benefitactual victims of discrimination?

What population was usedto establish goals?

Did plan trammel therights of nonminorities?

Is there an endingpoint to the plan?

Plan is illegal

Plan is Legal

Plan is illegal

Plan is illegal

Plan is illegal

Plan is Legal

No

Area

No

Yes

Yes

Yes

No

Qualified Work Force

No

Yes


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Legality of Preferential HiringWas there a history of discrimination?

• A history of discrimination must be demonstrated

• Numeric disparity – can establish history

– numeric disparity by itself may not be enough

• 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


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Legality of Preferential HiringDoes the plan benefit people who were

not the actual victims of discrimination?


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Legality of Preferential HiringWhat population was used to establish

hiring or promotion goals?

• Area population• Qualified work force

– minimum standards

– minority interest in occupation


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Legality of Preferential HiringDid 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”


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Legality of Preferential HiringIs there an ending point to the plan?

• Progress must be periodically reviewed• Plan must end when goals have been achieved


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Consequences of Affirmative Action Programs

• People hired due to affirmative action:– are perceived by coworkers as being less

competent– tend to devalue their own performance– behave negatively toward other AA people

• Organizations using AA based hiring have lover levels of productivity (Silva & Jacobs, 1993)


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Is preferential hiring and promotion a good idea?


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Americans With Disabilities Act(ADA) & 2008 ADA Amendments Act

Organizations must make reasonable accommodation for the physically or

mentally disabled, unless to do so would impose an undue hardship


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What experiences have you hadwith disabled coworkers?


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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


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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


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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


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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


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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


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Privacy Issues

• Drug testing

• Office and locker searches

• Psychological tests

• Electronic surveillance

http://www.youtube.com/watch?v=PWfydTrfhCs&feature=youtu.be


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Applied Case Study: Keystone RV


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Focus on EthicsWorkplace Privacy

• Do you think the legal reasons for these workplace practices outweigh the ethical responsibilities of organizations?

• Are companies being unfair, and therefore, unethical by engaging in such activities?

• What are the ethical responsibilities to employees from companies who chose to use such practices?

• What are some other ethical dilemmas that you think could arise from such practices?

• Conduct an Internet search on the Genetic Information Nondiscrimination Act. Do you think that act is fair to employers and employees? Why or why not?

Documents

© 2013 Cengage Learning 1 Employee Selection and Legal Issues