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Employment LawsEmployment Laws
© NB Johnson 2000© NB Johnson 2000
http://www.workplacefairness.org/guide
Civil Rights Act, 1964Civil Rights Act, 1964(Title VII)(Title VII)
It is unlawful for an employer to It is unlawful for an employer to discriminate against an individual discriminate against an individual
with respect to his compensation, with respect to his compensation, terms, conditions, or privileges of terms, conditions, or privileges of employment employment
because of such individual’s race, because of such individual’s race, color, religion, sex or national color, religion, sex or national origin.origin.
Civil Rights ActCivil Rights Act
The act applies to:The act applies to:private employers with more than 15 private employers with more than 15 employeesemployees
unionsunions
employment agenciesemployment agencies
state and local governmentstate and local government
educational institutionseducational institutions
DiscriminationDiscrimination
Using prohibited factors to make an Using prohibited factors to make an employment decisionemployment decision
Discrimination allowed if based on:Discrimination allowed if based on: seniorityseniority veterans preferenceveterans preference national securitynational security job qualificationsjob qualifications
Discrimination TheoriesDiscrimination Theories
Disparate or Adverse Treatment - where Disparate or Adverse Treatment - where an employee(s) allege that he or she (as an employee(s) allege that he or she (as individuals) have been treated less individuals) have been treated less favorably than others because of sex, favorably than others because of sex, race, etc. race, etc. Individual cases. Individual cases. Motive or intent to discriminate must be Motive or intent to discriminate must be
shown.shown.
Disparate or Adverse Impact Disparate or Adverse Impact
Statistical discriminationStatistical discrimination
One class of employees is treated differently One class of employees is treated differently than another class of employees. than another class of employees.
Policy is neutral on its facePolicy is neutral on its face no discriminatory intentno discriminatory intent discriminatory effectdiscriminatory effect
Equal Employment Opportunity Equal Employment Opportunity Commission (EEOC)Commission (EEOC)
Enforces Title VIIEnforces Title VII - all charges must be - all charges must be brought with them. brought with them. investigate complaintsinvestigate complaints attempt to resolve disputes through attempt to resolve disputes through
conciliationconciliation bring legal action against organizationsbring legal action against organizations issues interpretive guidelinesissues interpretive guidelines
Filing a discrimination Filing a discrimination complaintcomplaint
Filed within 6 monthsFiled within 6 months
EEOC determines probable causeEEOC determines probable cause
No probable cause No probable cause civil court civil court
If probable cause then EEOC attempts If probable cause then EEOC attempts conciliation (settle)conciliation (settle)
If not settled then suit filed in district If not settled then suit filed in district court(private) or Justice Department (public)court(private) or Justice Department (public)
Prima FaciePrima Facie Case Case (burden of proof) (burden of proof)
Plaintiff:Plaintiff: Member of a protected classMember of a protected class Qualified for the positionQualified for the position Failure to be hiredFailure to be hired
Employer DefensesEmployer DefensesBona Fide Occupational Qualification Bona Fide Occupational Qualification (BFOQ)(BFOQ) reasonable reasonable exceptionexception to meet the needs of the to meet the needs of the
business. business. narrowly construed.narrowly construed.
Business necessityBusiness necessity reasonable reasonable qualificationqualification to meet the needs of the to meet the needs of the
businessbusiness job related tests OKjob related tests OK OK to use worker qualificationsOK to use worker qualifications
Uniform Guidelines on Uniform Guidelines on Selection- 80% RuleSelection- 80% Rule
The EEOC regulations to determine disparate The EEOC regulations to determine disparate impactimpact
80% rule - selection rate for protected group 80% rule - selection rate for protected group must not be less than 80% of non-protected must not be less than 80% of non-protected groupgroup
If < 80% then grounds for disparate impactIf < 80% then grounds for disparate impact
Example of 80% RuleExample of 80% RuleSelection Rate= Number Hired/Number AppliedSelection Rate= Number Hired/Number Applied Applicants -100 males, 100 femalesApplicants -100 males, 100 females Number of males hired - 70Number of males hired - 70 Number of women hired - 50Number of women hired - 50
Selection ratesSelection rates
Women 50%Women 50%
Men 70%Men 70%
50/70= 71%50/70= 71%
71%< 80%71%< 80%
Grounds for disparate impactGrounds for disparate impact
Ward’s Cove DecisionWard’s Cove Decision
Minority employees concentrated in low Minority employees concentrated in low paid jobs and poorer housingpaid jobs and poorer housing
Court ruled that employee must prove that Court ruled that employee must prove that statistical imbalances caused by specific statistical imbalances caused by specific policypolicy
Effect shifted burden of proof to the Effect shifted burden of proof to the employeeemployee
1991 Civil Rights Act 1991 Civil Rights Act AmendmentsAmendments
Reversed Ward’s Cove decisionReversed Ward’s Cove decision
Shifted burden of proof back to employerShifted burden of proof back to employer
Provided for punitive damagesProvided for punitive damages
Employer liable even if employment result Employer liable even if employment result the same in absence of discriminationthe same in absence of discrimination
Seniority SystemsSeniority Systems
Seniority systems OK even with Seniority systems OK even with discriminatory effects.discriminatory effects.
Last hired, first fired policy adversely Last hired, first fired policy adversely affects women and minorities.affects women and minorities.
””retroactive seniority" given when in retroactive seniority" given when in discriminatory company discriminatory company back to the time when they would have been back to the time when they would have been
hiredhired
Affirmative ActionAffirmative Action
Employer Plans to alleviate racial imbalance Employer Plans to alleviate racial imbalance of their company. of their company. Goals and timetables not quotasGoals and timetables not quotas
Active recruiting of protected groupsActive recruiting of protected groups
Diversity training to change attitudes Diversity training to change attitudes
Eliminating employment practices that negatively Eliminating employment practices that negatively affect protected employeesaffect protected employees
Who has AA plansWho has AA plans
Federal government contractors Federal government contractors required torequired to
Voluntarily adopt such plansVoluntarily adopt such plans Consent decree or settlement for Consent decree or settlement for
past discriminationpast discrimination
Affirmative ActionAffirmative Action
The courts have been gradually eroding The courts have been gradually eroding the concept of AAthe concept of AA
Texas and California have eliminated in Texas and California have eliminated in university admissionsuniversity admissions
AA Recommendations AA Recommendations for Firmsfor Firms
Address specific problem Address specific problem
Temporary - have definite timetable that Temporary - have definite timetable that expires when problem is addressed.expires when problem is addressed.
Remedy problems of pervasive and Remedy problems of pervasive and persistent past discriminationpersistent past discrimination
Diversity ManagementDiversity Management
Formal programs to promote diversityFormal programs to promote diversity
Include training and educationInclude training and education
Focus on cultureFocus on culture
Require top management supportRequire top management support
Sexual Harassment Sexual Harassment under Title VIIunder Title VII
Illegal under Title VII Illegal under Title VII constitutes discrimination constitutes discrimination
Illegal under common tort claimsIllegal under common tort claims assault, battery & infliction of emotional assault, battery & infliction of emotional
distressdistress jury trials & punitive damagesjury trials & punitive damages
1980 the EEOC Guidelines 1980 the EEOC Guidelines on Sexual Harassmenton Sexual Harassment
Unwelcome Unwelcome sexual advancessexual advances request for sexual favorsrequest for sexual favors other verbal or physical conduct of a sexual nature when:other verbal or physical conduct of a sexual nature when:
Submission is a term or condition of employment or affects Submission is a term or condition of employment or affects employment decisionsemployment decisions
Hostile working environment Hostile working environment conduct interferes with work performance or creates an conduct interferes with work performance or creates an
intimidating or hostile work environmentintimidating or hostile work environment
Hostile Working Hostile Working EnvironmentEnvironment
Conduct interferes with work performance Conduct interferes with work performance or creates an intimidating or hostile work or creates an intimidating or hostile work environmentenvironment Reasonable person standard - Reasonable person standard -
would a reasonable person be would a reasonable person be intimidated. intimidated.
Reasonable women standard - Reasonable women standard - more appropriate?more appropriate?
Affirmative DefenseAffirmative Defense
1. The employer reasonably acted to 1. The employer reasonably acted to correct and prevent the harassmentcorrect and prevent the harassment2. The employee unreasonably failed to 2. The employee unreasonably failed to use the employer’s anti-harassment use the employer’s anti-harassment mechanismsmechanisms3. No tangible employment action resulted 3. No tangible employment action resulted from harassmentfrom harassment4. The employer had no reason to 4. The employer had no reason to suspect harassmentsuspect harassment
Quid pro quoQuid pro quo
Submission is a term or condition of Submission is a term or condition of employment or employment or
Affects employment decisionsAffects employment decisions
Employers liable for Employers liable for employees, clients, or employees, clients, or
contractorscontractors
Courts side with employers when:Courts side with employers when:A policy on sexual harassmentA policy on sexual harassment
A company grievance procedure A company grievance procedure
The grievance procedure bypassing the The grievance procedure bypassing the alleged harasseralleged harasser
Training on sexual harassmentTraining on sexual harassment
On-going communicationOn-going communication
Employers Advised to:Employers Advised to:
Train employeesTrain employees Notify employees of sanctionsNotify employees of sanctions Investigate claimsInvestigate claims Discipline violatorsDiscipline violators
Equal Pay Act, 1963Equal Pay Act, 1963
Equal pay for men and women performing equal Equal pay for men and women performing equal workwork same skill, effort, responsibility & working conditionssame skill, effort, responsibility & working conditions
Pay discrimination on upon seniority, merit, Pay discrimination on upon seniority, merit, piece-rate OK.piece-rate OK.
Most imbalances addressedMost imbalances addressed
Gender Wage DifferencesGender Wage Differences
Women earn less than men after Women earn less than men after controlling for experience, education.controlling for experience, education.
Many women in female dominated Many women in female dominated occupations (e.g., nursing, education, occupations (e.g., nursing, education, social work)social work)
Wages in female occupations lower than Wages in female occupations lower than male occupationsmale occupations
Comparable WorthComparable Worth
Some argue that women should be paid Some argue that women should be paid based upon their organizational worthbased upon their organizational worth
Labor market criteria biasedLabor market criteria biased
Title VII has been found to cover these Title VII has been found to cover these claims.claims.
Labor market acceptable defense.Labor market acceptable defense.
Pregnancy Pregnancy Discrimination Act, 1978Discrimination Act, 1978No discrimination based on No discrimination based on pregnancy (fired, refused a job, or pregnancy (fired, refused a job, or promoted because of pregnancy).promoted because of pregnancy).
Pregnancy is to be treated like any Pregnancy is to be treated like any other disability.other disability.
Family and Medical Family and Medical Leave Act, 1993Leave Act, 1993
Up 12 workweeks leave (which may be Up 12 workweeks leave (which may be unpaid) in a 12 month period for any one unpaid) in a 12 month period for any one of the following:of the following: birth or adoption of childbirth or adoption of child care for seriously ill spouse, son, daughtercare for seriously ill spouse, son, daughter seriously ill employeeseriously ill employee
FMLAFMLA
Same job back or equivalent Same job back or equivalent position with equivalent benefits. position with equivalent benefits.
Maintains benefits during the Maintains benefits during the leaveleave
Exempts highly compensated Exempts highly compensated employeesemployees
American’s with American’s with Disabilities Act (ADA), Disabilities Act (ADA),
19901990Prohibits employment discrimination on Prohibits employment discrimination on the basis of disability. the basis of disability.
Reasonable Accommodation - 10% of Reasonable Accommodation - 10% of salary.salary.
making existing equipment accessible, special making existing equipment accessible, special equipment, training, arranging modified work equipment, training, arranging modified work schedules, providing readers for the blindschedules, providing readers for the blind
Courts are beginning to support claims of Courts are beginning to support claims of hostile working environmenthostile working environment
DisabilityDisability
Physical or mental impairment that Physical or mental impairment that substantially limits one or more major life substantially limits one or more major life activities. activities.
Includes: recovering from cancer, Includes: recovering from cancer, disfiguring injury, alcoholism, drug disfiguring injury, alcoholism, drug addition.addition.
QualificationsQualifications
Employers Employers can can inquire about the ability to inquire about the ability to do jobdo job essential job functionsessential job functions
Like Title VII, individual must qualifiedLike Title VII, individual must qualified
Decisions are made on a individual case Decisions are made on a individual case basisbasis
Catch 22: if you prove you are disabled, Catch 22: if you prove you are disabled, often suggesting can’t do joboften suggesting can’t do job
Age Discrimination in Age Discrimination in Employment, 1967Employment, 1967
Prohibits discrimination in employment for Prohibits discrimination in employment for workers over 40workers over 40
Performance is only justification for firing Performance is only justification for firing an employee of 30 years service an employee of 30 years service
Few performance appraisal systems will Few performance appraisal systems will stand up to judicial reviewstand up to judicial review
TrendsTrends
Older workers likely to sue because of Older workers likely to sue because of their financial resourcestheir financial resources
Many employers use attractive pension Many employers use attractive pension policies to encourage early retirement.policies to encourage early retirement.
Age can be a BFOQ for safety reasons Age can be a BFOQ for safety reasons must show most members of an age group must show most members of an age group
unable to performunable to perform no better criteria.no better criteria.
International HRMInternational HRM
Many countries discriminate on the basis Many countries discriminate on the basis of sex, religion, and race. of sex, religion, and race.
US employers must follow US lawUS employers must follow US law
Customer preference is not an excuse for Customer preference is not an excuse for discriminating. discriminating.
Must follow laws of host country Must follow laws of host country
What rights do you not haveWhat rights do you not have
Right to self expression except religiousRight to self expression except religious
Right to assemblyRight to assembly
Breaks for bathroom except where Breaks for bathroom except where requiredrequired
PrivacyPrivacy Belongings, computers, drug testingBelongings, computers, drug testing
Sexual orientationSexual orientation
Employment Law Employment Law SummarySummary
Bottom line: you can't treat people Bottom line: you can't treat people differently in employment based upon differently in employment based upon race, sex, religion, age, disability status.race, sex, religion, age, disability status.
Means employers need to review their Means employers need to review their personnel practices to make sure they use personnel practices to make sure they use nondiscriminatory practicesnondiscriminatory practices
EEO affects virtually all HR processes.EEO affects virtually all HR processes.