Legal Issues Overview
When in the least bit of doubt, consult with an attorney who specializes in employment law! You and your organization can be sued for your actions as an HR manager!
Protected Class: Any group identified by discrimination laws, executive orders, or regulations
Examples include, but are not necessarily limited to:
•Race •Color •Sex (Gender) •Religion •National origin •Age •Disability status •Veterans
Some states and municipalities recognize additional protected groups
Major Components in Legal Environment for HRM at Federal Level
• U.S. Constitution • Acts of Congress (“Laws”) • Executive Orders • Case Law • Guidelines/Regulations*
*Note: Guidelines from regulatory agencies are NOT “laws,” but because of the way court rulings have treated them, the guidelines/regulations often have the “force of law.”
Societal Problems
Constitution, Laws, & Executive Orders
Regulatory Agencies - Regulations &
Enforcement Actions
Courts – Case Law (Adapted from Ledvinka, 1982)
Primary Regulatory Agencies for EEO
• Equal Employment Opportunity Agency (EEOC; an independent agency)
• Office of Federal Contract Compliance Programs (OFCCP; housed in U.S. Dept. of Labor)
• Department of Justice (DOJ)
Example: Genetic Information Nondiscrimination
Act of 2008
Current EEOC Litigation Statistics
Six Dimensions for EEO Laws
1. Protected classes (Who has rights?)
2. Covered entities (Who has duties?)
3. Covered practices (Which practices are prohibited?)
4. Administrative procedures (How do claims reach court?)
5. Remedies (What are the penalties for breaking the law?)
6. Judicial scenarios (How are claims decided at trial?)
(Gutman, Koppes, & Vodanovich, 2011, p. xxvi)
Example: Six Dimensions Applied to 1964 CRA – Title VII
Dimension Title VII Example
Protected classes Race, color, religion, sex, & national origin. All
members of each class are protected.
Covered entities Private, state, local, and federal entities that employ 15
or more employees in each of 20 weeks of current or
prior year.
Covered practices Nondiscrimination (terms/conditions,
segregation/classification, and retaliation) and religious
accommodation.
Administrative
procedures
EEOC procedures: statute of limitations = 300 days in
“deferral” states & 180 days in “nondeferral” states.
Remedies Equitable relief and capped legal relief.
Judicial scenarios McDonnell-Burdine and mixed-motive scenarios for
individuous disparate treatment, class-wide pattern or
practice; adverse impact; statutory defenses, including
BFOQ, BFSS, and undue hardship for sincerely held
religious beliefs.
(Gutman, Koppes, & Vodanovich, 2011, Table 1.1, p. 5)
Disparate Treatment & Disparate Impact
Disparate
Treatment
Differing treatment of individuals based on
the individuals’ race, color, religion, sex,
national origin, age, or disability status.
Often implies intent. (Noe et al., 2009)
Disparate or
Adverse
Impact
“…facially neutral selection criteria that
disproportionately exclude higher
percentages of one group relative to
another.” (Gutman et al, 2011, p. 9).
Plaintiffs do not have to show discrimination
was intentional.
Applying the
Four-Fifths
Rule to
Indicate
Disparate
Impact
(Noe, Hollenbeck, Gerhart, & Wright, 2009, p. 70)
Defense
Typical defenses in Title VII and other EEO cases include,
but are not limited to:
– Job relatedness of selection procedures
– “Business necessity”
– Bona Fide Occupational Qualifications (BFOQs)
– Bona Fide Seniority Systems (BFSS)
– National security
(Gutman, Koppes, & Vodanovich, 2011)
Example: “Shifting Burden of Proof” in a Federal “Title VII” Case
(Guion & Highhouse, 2006, p. 97)
“Adverse impact may appear at any or all stages of a multistage selection or promotion decision process. It should be examined at every point at which it may appear. If there is no adverse impact at a particular step, there is no requirement that a selection procedure represented in that step be job-related. MQs [Minimum Qualifications] represent a ‘stage’ in a selection process and should be considered as vulnerable to challenge as a traditional predictor would be.”
Example of Current Legal Principles in Employment
(Landy, Gutman, & Outtz, 2010, p. 630)
Affirmative Action
“Equal employment opportunity” and “affirmative action” are NOT the same thing in the world of HR! Legal origin for affirmative action programs is Executive Order #11246
Categories of Affirmative Action
(Seligman, 1973)
Passive Nondiscrimination Eliminate discriminatory procedures and irrelevant barriers.
Active Recruiting Take steps to actively seek out qualified members of protected groups
Minority preference Explicitly use protected status as a factor in decision making; special consideration due to societal debt
Proportional Hiring (“Quota Approach”) Set explicit numerical objectives; reserve openings for protected group members; issues of “absolute bar” and “past history of discrimination”; unless under a court order, this approach is barred in the U.S. for most circumstances
Supreme Court Tests on Voluntary Affirmative Action Programs – Title VII Cases
Affirmative Action Program…
• … purpose as “remedial in nature” – but company does not have to admit past history of discrimination
• … may not “unnecessarily trample interests” of fellow workers
• … may not constitute an “absolute bar” to majority group members
• … parts must be “reasonable.”
(Kleiman & Faley, 1988)
Sexual Harassment is:
Any sexually-based behavior that is knowingly unwanted and either:
• has an adverse effect on a person’s employment status,
• interferes with a person’s job performance, or
• creates a hostile or intimidating work environment
Prepared by the Society for Industrial and Organizational Psychology - SIOP
The Law on Sexual Harassment
• Illegal under the Civil Rights Act of 1964
• 1977 - First quid pro quo ruling
• 1986 - First Supreme Court hostile environment ruling
• 1991 - Clarence Thomas/Anita Hill hearings
Prepared by the Society for Industrial and Organizational Psychology - SIOP
How Frequently Does it Occur?
• 1989: between 42 and 92% of working women have been sexually harassed
• 1988 & 1995 DOD survey – women reporting being harassed dropped from 64%
to 55%
• 1991 & 1998 CNN/Time Poll – “Is SH of women a big problem?”
• 1991 - 37% said yes
• 1998 - 26% said yes
Prepared by the Society for Industrial and Organizational Psychology - SIOP
Personal and Situational Characteristics Affecting Perceptions of Harassment
Harassment is more likely to be perceived when:
• the target is female and the perpetrator is male
• the target has less power than the perpetrator
• the behavior is repeated
• request by the target for behavior to stop
• negative consequences follow
• the target suffers emotional or stress-related symptoms
• the organization has been “soft” on perpetrators in the past
Prepared by the Society for Industrial and Organizational Psychology - SIOP
Example of Principles to Make Employment Decisions
Defensible
• Organizations must be prepared to defend job descriptions and
procedures used to screen applicants – even online applicants
• Adverse impact may appear at any stage of a multi-stage
screening process.
• “Minimum qualifications” are considered a stage in the selection
process and may be challenged.
• Consider alternative procedures that may have similar validity
and less adverse impact.
• Work analysis should proceed use of any selection procedure.
• Validation and criterion evidence can come in many forms.
• Cut scores should have a rational basis.
(Landy, Gutman, & Outtz, 2010, pp. 629- 638)
Things to Do
• Provide a clear description to all employees of prohibited conduct
• Assure that those who provide information or file complaints will be protected against retaliation
• Have a clear, well-known process to handle complaints
• The complaint process needs to handle investigations in a timely, thorough, and fair manner
• If complaint is supported, take immediate and appropriate corrective action.
(Landy, Gutman, & Outtz, 2010, p. 643)