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EEO & Legal EnvironmentCatalysts for change in legal context of HRM

Legislative initiativeCivil Rights Act 1964Americans with Disabilities Act 1990

Judicial rulingsGriggs v Duke Power 1971Watson, Hopkins, & Atonio rulings led to 1991 CRA

Social changeWorkplace demographicsNews events Family leave

Social change

Legislation

Judicial rulings

Prevailing attitudes & perceived social needs

Interpretation & legislative response

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A Brief Chronology of Benchmark Civil Rights Protections in the Workplace since 19601963: Equal Pay Act

Prohibited sex discrimination in pay4 compensable factors scheme

Skill, effort, responsibility, working conditionsPay for similarly classified job allowed to differ because of:

Seniority, performance, piece-rate, schedule effectsWomen earn approximately 80 cents per dollar of male pay (full-time, year-round) when aggregated across all jobsWhen limited to the “same job” the difference amounts to 7 cents on the dollar

Differences in seniority and assignments (e.g., travel) as well as potential discrimination or absence of advocacy have been cited as primary causes

http://www.eeoc.gov/laws/statutes/epa.cfm

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Graduating to a pay gapCollege education actually increases the pay gap

Larger differences in pay among better-paying jobsGreater pay-parity among lower paying jobs

Choice of major and industry employmentHumanities, social sciences, education

Among social science majors men work in different jobs (management 26% vs 11%) versus (social service 16% vs 9%)

The pay gap grows over the course of careersFrom near parity one year post graduation (93.4%)

Discrimination is but one factor among many

http://www.aauw.org/files/2013/02/graduating-to-a-pay-gap-the-earnings-of-women-and-men-one-year-after-college-graduation.pdf

http://www.consad.com/content/reports/Gender%20Wage%20Gap%20Final%20Report.pdf

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A Brief Chronology of Benchmark Civil Rights Protections in the Workplace

1964: Civil Rights ActTitle VII is portion of 1964 CRA that details employment opportunity & condition guaranteesProhibits discrimination based on race, color, religious beliefs, sex, or national origin

Any such discriminatory decision is labeled illegal discrimination; religious organizations exempted from religious provisionApplies to all organizations employing 15+ workers employed 20+ weeks per yearEstablishes an enforcement agency called the Equal Employment Opportunity Commission – EEOC

1960’s: Executive Orders (# 11246, notably) Regulate federal contractors and subcontractors (OFCCP)Provided for Affirmative Action Programs for non-compliance

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A Brief Chronology of Benchmark Civil Rights Protections in the Workplace

1967: Age Discrimination in Employment ActAmended in 1986, prohibits discrimination against those 40 years of age or olderHas effectively banished mandatory retirement ages

1978: Pregnancy Discrimination ActRegulates treatment resulting from pregnancy & fetal abortionPregnancy treated as a medical disability for purposes of paid leave, service in the position, & restoration of employment conditionsNovartis 2010

Discriminated in pay, promo, pregnancy (5,600 ee’s implicated)$250 million punitive damages

http://blogs.findlaw.com/decided/2010/05/250-million-plus-novartis-liable-in-sex-discrimination-suit.html

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A Brief Chronology of Benchmark Civil Rights Protections in the Workplace

1990: Americans with Disabilities ActProhibits discrimination based on physical or mental handicap

Extended to increasing physical accessibility for disabled to new building constructionRequires job analysis to detail critical functions and state requirements in job description (e.g., climbing ladders)

DisabilityIncludes wide spectrum of psychological disorders but not “elective” impairments or such pathologies as gambling, sexual behavior disorder, and pyromania.

Reasonable accommodationObligation of employers to accommodate employees with known disabilities unless this would produce “undue hardship”Allegedly often abused provision

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A Brief Chronology of Benchmark Civil Rights Protections in the Workplace

1991: Civil Rights ActProhibited race-norming & quotasProvided for punitive awards in instances of deliberate discrimination

Established the use of jury trials in cases where punitive damages are sought

Clarified culpability of “mixed motive” decisionsDefendants must identify specific discriminatory practice (process of disaggregation)Burden of proving job-relatedness remains with employer

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Benchmark Prima Facie CasesDisparate Treatment

Illegal discrimination directed at one employee resulting from the application of a different process This is an “isolated case” instance that may be supported by aggregate data showing a pattern of discriminatory practice

Disparate ImpactEvidence of adverse impact is based on aggregate data showing that protected class members were subject to disproportionately negative outcomes despite use of the same process4/5ths Rule

Sometimes distinguished as ‘intentional’ versus ‘incidental‘ discrimination.

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Origin of 3-phase evidentiary framework for DT cases– prima facie

– Plaintiff burden– productive defense

– Defense rebuttal– Pretext

– Plaintiff burden Mixed motive cases

Percy Green filed suit subsequent to being laid-off by MDD.

While laid-off he participated in several illegal work stoppages (‘stall-in’).

McDonnell Douglas v. Green (1973)

Disparate Treatment Cases

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Prima Facie Evidence for DT Cases

McDonnell Douglas v. Green (1973)

was a member of a relevant protected group applied for a position for which he was

qualified was rejected despite qualifications the position remained open (or was given) to

a person who was of equal or less qualified Green failed to demonstrate that MDD rehired

white applicants, but not black workers, who also committed similar acts against the company or that MDD had an established pattern of discrimination

Disparate Treatment Cases

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Griggs v. Duke Power (1971)

Willie Griggs, a black male, was excluded from the job of coal handler based on the absence of HS diploma or passing score on two cognitive ability tests

35% of white males held HS degrees whereas only 15% of black males did

3 phase disparate impact framework1. prima facie

– violation of 4/5ths rule– Plaintiff burden

2. job relatedness or BFOQ defense– Defendant burden

3. alternative practice rebuttal to defense– Plaintiff burden

Disparate Impact Cases

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Prima Facie Evidence for DI Cases

Griggs v. Duke Power (1971)

Demonstrated large differences in success rates between races on same criterion

White employees without HS diploma were as successful in the position as those with diploma

Failed to show job-relatedness of diploma No need for plaintiff rebuttal to defense as the

criterion (HS diploma) was not job-related

Disparate Treatment CasesDisparate Impact Cases

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Prima Facie Evidence for DI Cases

 GroupNumberApplied

NumberSelected

NumberEmployed

# Laid off

 whites  100  50  150  15

 blacks  20  8  40  10

 Hispanics  10  4 30  5

 Asians 5  3 10  0 A. Indians

 0 0 10  2

 Total  135  65 240 32

• In the distribution of favorable outcomes is the rate for the target group at least 80% that of the comparison group?

• In the distribution of unfavorable outcomes is the rate for the target group no more than 125% that of the comparison group?

1. Is there DI for hiring?15/35 .43_____ = ____ = .86 = 85%50/100 .50

2. Is there DI for layoffs?17/90 .19_____ = ____ = 1.86 = 186%15/150 .10

3. What is the 3-phase framework applied to this scenario?

I. Prima facieII. Job relatedness

defenseIII. Plaintiff rebuttal

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Most Recent High-Profile CaseRicci V. DeStefano (2009)

Frank Ricci and others denied promotion to Lieutenant and Captain ranks despite meeting test score requirements

City’s Civil Service Board refused to certify the test for fear of disparate impact that would result

White pass rate was twice that of blacks and Hispanics and resulted in no black candidates eligible for promotion

the suit alleged that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race; subjected Ricci and plaintiffs to disparate treatment

Court held 5–4 that New Haven's decision to ignore the test results violated Title VII

To forestall a DI circumstance, the city engaged in DT“once [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race”