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1Chapter 4 What’s Legal and What’s Not

Title VII

Uniform Guidelines

Affirmative Action

Negligent Hiring

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2Civil Rights Act 1964

Unlawful Practices 1. race, color, religion, gender, Nat’l origin

2. can’t segregate for employment opportunities

3. can’t refuse to refer (labor unions also)

4. applies to all employers, unions, training programs

5. can’t recruit to indicate preferences

(can say “equal oppor employer, or “encourage minorities”

6. can’t retaliate against anyone who opposes unlawful practices

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3EEOCempowered to:

Investigate charges

Dismiss unfounded charges

Persuade

Work with authorities (state .e.g.)

File suit in federal courts for

“reasonable cause”

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4Uniform Guidelines:the legal context

Adverse Impact and Disparate Treatment Action affects different groups differential

Disparate Treatment Individual is treated differently

Business Necessity: Practice must be related to job performance

80% rule (4/5) to determine adverse impact If 25% (25 of 100)of whites are hired, must hire 20 blacks (4/5 of 25)

What is meant by a “trigger” ?

Give an example of why one employer may have < 80% and another >80%

What is meant by a “chilling effect”- give example

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5Uniform Guidelines (con’t)

Options under Adverse Impact With validation, an Adverse impact procedure may be

Modified –

Eliminated -

Justified –

What’s the most sound option?

How about random selection?

Guidelines three options: Cut scores (to screen only unqualified)

What’s a problem with this? Hint: promotion after hire

Banding

Ranking top down What will this typically do?

Or perhaps use an alternative

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6Requirements for Validation

Criterion related - What’s this?

Content Validation Job analysis required!

Construct Validation Job analysis required! And evidence from criterion-related study(s)

Why does this rule out construct validity as acceptable?

See p 89 or 75 “Guidelines” provision

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7Use of Valid Procedures

“Transportability” of Validity Information VG – what kind of criterion relatedness is this?

Requirements

Similar job –with same method of JA used

Is broad similarity necessary? E.g. for GMA?

Criterion relevance to the local job

Applicant pool – similar demographics

Why? Should it be?

Give a sports example

Why is this still part of the legal context?

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8Use of Valid Procedures (con’t)

Testing for higher level jobs Why is hiring for higher level jobs a pretext for discrimination?

“…if a majority of those still employed after a ‘reasonable period of time’ (5 yrs) progress to the higher level job.”

What are the implications of this?

use sports example: baseball farm clubs.

Use of scores (four methods) -note diff in gov’t and private sector Ranking – evidence for variation needed (negates content val)

Banding – cannot have separate bands for protected groups

Pass/fail – low ones preferred by Guidelines (why?)

Combinations of tests (compensatory)

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9

Issues:

Should cut scores be set higher or lower? For what reasons?

As “some enforcement agencies advocate” (Guion, p92)

What are the implications for doing so or not doing so?

Ask me about the example of a agency using an eligibility list for parole and probation officers.

How does the civil service sector differ from private sector in viewing cut scores?

In which one is the de facto score even more pronounced?

Do the Guidelines assume that cut point should be firm?

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10Reporting and Record keeping

Extensive, but essential – employers need help!

Consult DCI Consulting Group Eric Dunleavy

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11Case Law – EEO - Some Court Decisions Judicial interpretations of statues

Griggs v. Duke Power ‘71 Intent v. effect <-

Business necessity & job relatedness (essential)

Give examples

Job-relatedness (is not necessarily the same as business necessity)

Deference to Guidelines (in subsequent cases)

Use of tests for job qualifications

Must be job related

McDonald Douglas Corp. v. Green (1973) Percy Green was fired for illegal acts against the company

He reapplied for same position and when rejected, filed discrimination suit

Supreme court held that he me the burden necessary for a “prima facie” claim under “disparate treatment”

What’s the difference between the burden of “production” (prima facie case) .v burden of “persuasion” (Preponderance of evidence) ?

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12More cases… Dothard v. Rawlinson (‘77) Alabama

Height for correctional officers (5’2”)

Disparate Impact v. treatment

What’s the difference?

Burden of production (prime facie)

Burden of persuasion

Regents, U. Ca v. Bakke (Title VI Education) Has implications for Title VII

Blacks admitted at Davis Med School with lower scores

Supreme Court Ruled:

Admissions system was unacceptable – admit Bakke

But race can be considered, just not a two track system

How can consideration of race avoid discriminating against whites?.

Connecticut v. Teal (‘72) “individual” not “equality for a group” Any component (promotion test) that had adverse impact must be shown to be job related

Each hurdle in “multiple hurdles” must be considered

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13Even more Legal cases…

Watson v. Fort Worth Bank & Trust (‘88) Subjective assessments are covered

What are some examples of subjective assessments?

How could this possibly lead to adoption of surreptitious quotas?

Why would not requiring it jeopardize the mandate not to discriminate?

Decision:

Plaintiff must identify the specific practice & provide statistical evidence that it caused “loss”

burden not shifted to defendant- who can refute the data or causal inference

Expensive validation was not necessary when job relatedness was clear

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14Even more…

Ricci v. DeStefano (2009) Civil Rights Act (‘91)

Prohibits altering test based on group norms

Firefighters promotional test in New Haven CT

What happened? Why did they try to throw it out?

Wall Mart Stores, Inc. v. Dukes (2011)

Betty Dukes on a class action suit for 1.6 million women

-claimed discrimination on pay and promotion

Supreme court did not certify mainly because

The “lack of commonality among members of the class”

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151991 Amendment to Civil Rights Act

(Title VII affected) Concerns about the use of quotas led to: Prohibition of “race norming” (e.g. GATB for USTES used H/M/L)

What’s the difference between quotas and goals?

What’s race norming?

Allowed for punitive as well as compensatory damages for intentional discrimination

What’s the difference between the two?

What are the implications for an employer for adding punitive damages?

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16Affirmative Action(to reduce effects of prior discrimination)

Some voluntary, some court ordered or consent decree

Executive orders (11246)required federal contractors to have AA plans

Philadelphia Plan EO 11246 Why was this a problem for federal contractors in Philadelphia?

What was the remedy applied?

Again, what’s the difference between goals and quotas?

How was AA changed when the appellate and Supreme Court upheld the plan?

Reverse Discrimination- AA plan is ok (EEOC) if actual or potential adverse impact was caused from

practices in past or planned practices

Shown by discrepancy between relevant labor market and available pool (protected groups)

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17Affirmative Action (con’t)

Developing Affirmative Action Plans Not restricted to hiring

Include special training, recruiting, and other plans for advancing those with underutilized abilities

Must be limited in scope

Now just for “do good” purposes of from fear of litigation

Diversity as a Business Necessity Gratz v. Bollinger (2003) U. of MI use of bonus points for minority apps

U MI awarded 20 (of 100) points for every minority applicant (to get proportionate representation comparable to population).

What was the argument here that goes beyond discrimination?

How had the reason for AA changed?

What are some implications for not being transparent about how diversity is achieved?

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18Other Discriminations

Age (‘67) 40 and over

Mostly for firing, RIFs, forced early retirement (not for hiring)

Sometimes age related BFOQs could be justified

Persons with Disabilities (‘90) Focus should be on what they can do, not cannot do

No preferential treatment is encouraged

Reasonable accommodations (usually minimal costs)

General employment practices

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19Even more legal issues Negligent Hiring, Defamation, Wrongful Discharge

Injury to worker when employee should have been seen unfit

Can you think of a situation?

Grounds for Action under Negligent Hiring Usually physical unfitness, but also personality, mental disorders

Appropriate Methods of Assessment Reference checks are relatively useless now (defamation)

Employer must be able to prove the negative statement be true

What are the up and downsides of this?

Background investigations –similar risks

Should the employer be able to use social media to investigate an applicant?