Chapter 3

The Legal Environment: Equal Employment Opportunity and

Safety

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Learning Objectives

1. Identify the three branches of government and the role each plays in influencing HRM legal environment.

2. List major federal laws that require equal employment opportunity (EEO) and protections provided by each of these laws.

3. Discuss roles, responsibilities, and requirements of the federal agencies responsible for EEO laws.

4. Identify three theories of discrimination under Title VII of the Civil Rights Act and apply these theories to different discrimination situations.

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Learning Objectives, cont.

5. Discuss legal issues involved with preferential treatment programs.

6. Identify behavior that constitutes sexual harassment and list things than an organization can do to eliminate or minimize it.

7. Identify major provisions of the Occupational Safety and Health Act (OSHA) (1970) and rights of employees guaranteed by this act.

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U.S. Legal System

Executive Branch

Judicial Branch

Legislative Branch

3 Branches

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Legislative Branch

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Executive Branch

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Judicial Branch

Equal Employment Opportunity (EEO)

EEO–the government's attempt to ensure that all individuals have an equal chance for employment, regardless of race, color, religion, sex or national origin.

Constitutional Amendments: 13th Amendment - abolished slavery 14th Amendment - provides equal protection

for all citizens and requires due process in state action.

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Congressional Legislation

Civil Rights Acts (1866 and 1871)

Equal Pay Act of 1963

Title VII of the Civil Rights Act of 1964

Age Discrimination in Employment Act of 1967

Rehabilitation Act of 1973

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Congressional Legislation

Vietnam Era Veteran’s Readjustment Act of 1974

Pregnancy Discrimination Act

Civil Rights Act of 1991

Americans with Disabilities Act of 1990

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Disability

According to EEOC, a disability is a physical or mental impairment that

“substantially limits one or more major life activity; a record or past history of such an impairment; and/or being ‘regarded as’ having a disability by an employer whether you have one or not, usually in terms or hiring, firing or demotion

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Executive Orders

Executive Order 11246 - Prohibits government contactors from discrimination

Executive Order 11478 - government employment policies based on merit and fitness

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Enforcement of EEO

Two agencies responsible for enforcement of these laws and executive orders:

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Equal Employment Opportunity Commission

3 major responsibilities of EEOC:1. Investigate and resolve discrimination complaints2. Gather information3. Issue guidelines

Lilly Ledbetter Fair Pay Act

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Office of Federal Contract Compliance Programs (OFCCP)

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Reasonable Accommodation

DisparateTreatment

Disparate Impact

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Disparate Treatment

Disparate treatment exists when individuals in similar situations are treated differently based upon race, color, religion, sex, national origin, age, or disability status.

Bona fide occupational qualifications (BFOQ) is a job qualification based on race, sex, religion, etc. that an employer asserts is a necessary qualification for the job. UAW v. Johnson Controls, Inc.McDonnell Douglas Corp. v. Green.

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Burden of Proof

Plaintiff has the burden of proving that the defendant committed an illegal act; the idea of a “prima facie” case. Plaintiff meets prima facie burden by showing four things:

1. Plaintiff belongs to a protected group.

2. Plaintiff applied for and was qualified for the job.

3. Despite possessing qualifications, plaintiff was rejected.4. After plaintiff was rejected, the position remained open and the employer continued to seek applicants with similar qualifications, or the position was filled by someone with similar qualifications.

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Disparate Impact

Disparate impact occurs when a neutral employment practice disproportionately excludes a protected group from employment opportunities.• Four-fifths rule• Standard deviation ruleWards Cove Packing Co. v. AtonioGriggs v. Duke Power

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Pattern and Practice

Plaintiffs attempt to show three things in showing class action pattern and practice lawsuits:1. Statistical disparities between the composition of some group within the company compared to some other relevant group

2. Plaintiff tries to show individual acts of intentional discrimination that suggest that the statistical disparity is a function of the larger culture.

3. Plaintiff usually tries to make the case that the promotion and/or pay procedures leave too much discretion to managers, providing the avenue through which their unconscious biases can play a part.

Plaintiffs attempt to show three things in showing class action pattern and practice lawsuits:1. Statistical disparities between the composition of some group within the

company compared to some other relevant group

2. Plaintiff tries to show individual acts of intentional discrimination that suggest that the statistical disparity is a function of the larger culture.

3. Plaintiff usually tries to make the case that the promotion and/or pay procedures leave too much discretion to managers, providing the avenue through which their unconscious biases can play a part.

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Reasonable Accommodation

Reasonable Accommodation - places a special obligation on an employer to affirmatively accommodate an individual’s disability or religion. Religion and Accommodation Disability and Accommodation

readily accessible facilities job restructuring reassignment alternative testing formats, readers, additional time, interpreters,

or reading assistance technology own accommodation etc.

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Retaliation for Participation and Opposition

Title VII states that employers cannot retaliate against employees for either "opposing" a perceived illegal employment practice or "participating in a proceeding” related to an alleged illegal employment practice.

Employees do not have an unlimited right to talk about how racist or sexist their employers are.

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Diversity and EEO ISSUES

Sexual Harassment

Affirmative Action and

Reverse Discrimination

Outcomes of Americanswith Disabilities Act

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Sexual Harassment

Sexual harassment - unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment 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 of employment decisions affecting such individual, or

3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

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Sexual Harassment

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Sexual Harassment

3 conditions for sexual harassment cases:1. Plaintiff cannot have "invited or incited" the advances2. Harassment must have been severe enough to alter

terms, conditions or privileges of employment3. Court must determine liability of the organization for

actions of its employees

Preventative steps include development of a policy statement, training, a reporting mechanism and disciplinary policy.

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4 Steps to Ensure a Workplace Free of SH

Policy Statement

Training

Reporting mechanism

Prompt disciplinary action

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Affirmative Action and Reverse Discrimination

Affirmative Action was conceived as a way of taking extra effort to attract and retain minority employees. Perceived as imposing quotas, but inaccurate Entire debate over affirmative action continues to evoke

attention.

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Americans with Disabilities Act (ADA)

Under ADA, a firm must make "reasonable accommodation” to a physically or mentally disabled individual unless doing so would impose "undue hardship.”

Consequences of ADA: Increased litigation Cases being filed do not reflect Congressional intent Act was passed to protect people with major disabilities The law has not resulted in a major increase in the proportion

of people with disabilities who are working.

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Employee Safety

Employee safety is regulated by both federal and state governments.

BP refinery in Texas City, Texas

Occupational Safety and Health Act (OSHA) General Duty Clause

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Employee Rights under OSHA

1. Request an inspection.2. Have a representative present at inspection. 3. Have dangerous substances identified.4. Be promptly informed about exposure to hazards and given access to accurate records regarding exposures. 5. Have employer violations posted at work-site.

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OSHA Inspections Citations and Penalties

OSHA inspections are conducted by compliance officers, specially trained Department of Labor agents.

Violation results in a citation to the employer.

Criminal and civil penalties

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Safety Awareness Programs

Safety Awareness Programs attempt to instill symbolic and substantive changes to a safety program.

3 Components of a Safety Awareness Program:1. Identify and Communicate Job Hazards

Job hazard analysis technique Technic of Operations Review (TOR)

2. Reinforce Safe Practices3. Promote Safety Internationally

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Summary

One of HRM’s major challenges is the legal constraints imposed by the government.

HR and line managers need to understand legal requirements and prohibitions to manage in ways that are financially and ethically sound, and in so doing create a competitive advantage.

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