Federal Regulation of Human Resource Management

LEGISLATION AFFECTING DISCRIMINATION IN EMPLOYMENT

1964 CIVIL RIGHTS ACT (Title VII)

Protects based on: Race, Color, Religion, Sex, National Origin

Must employ >15 employees for 20+ weeks/yr, interstate commerce

Covers employers, employment agencies and labor unions

Equal Employment Opportunity Commission (EEOC)

1972 – Gave EEOC right to file charges directly

1978 – Added pregnancy discrimination protection

1991 – Clarified “business necessity” and “burden of proof” issues

Reversed several supreme court decisions, allowed for punitive damages

Extends coverage to international operations

Exceptions to Title VII

• Bona fide occupational qualifications (BFOQs)

• A valid seniority or merit system

• Validated tests or screening requirements

© 2008 by Prentice Hall 3-3

Persons Not Covered by Title VII

• Aliens not authorized to work in United States

• Members of Communist party

• Homosexuals

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Maximum Punitive Damages Allowed Under the Civil Rights Act of 1991

LEGISLATION AFFECTING DISCRIMINATION IN EMPLOYMENT, Contd

1967 AGE DISCRIMINATION IN EMPLOYMENT ACTDo you have >20 employees for 20+ weeks/yr, interstate commerce?

1967 – protected ages 40 – 651978 – protected ages 40 – 701986 – protects everyone over the age of 40

1986 IMMIGRATION REFORM & CONTROL ACTOnly hire workers with a legal right to work in the USA

Verify employment authorization (I-9) and keep records for 3 yearsFines for each illegal alien hired (from $375 to $16,000)Fines for each undocumented employee (from $110 to $1,100)

Age Can Be Bona Fide Occupational Qualification

• Federal Aviation Administration can force commercial pilots to retire at 60

• Greyhound did not violate ADEA when refused to hire persons 35 years or older as intercity bus drivers

• Likelihood of risk or harm to passengers was involved with both cases

© 2008 by Prentice Hall 3-7

Age Discrimination Complaints, 1991 – 2006EEOC

Immigration Reform and Control Act (IRCA) of 1986

• Established criminal and civil sanctions against employers who knowingly hire unauthorized aliens

• Reduces threshold coverage to 4 employees • Toughened criminal sanctions for employers who hire

illegal aliens

• Denied illegal aliens federally funded welfare benefits

• Legitimized some aliens through an amnesty program

• Candidates for employment are not required to be U. S. citizens but they must prove they are eligible to work in the United States

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Immigration Reform and Control Act (IRCA) of 1986 (Cont.)

• Employers must require all new employees to complete and sign a verification form (Form I-9) to certify their eligibility for employment

• Establish their eligibility for employment by presenting a U.S. passport, alien registration card with photograph, or a work permit that establishes the person’s identity and employment eligibility

© 2008 by Prentice Hall 3-10

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

• Passed partly in response to the fact that at least one of the terrorists who blew up World Trade Center (1993) had legally entered on a student visa

• Places severe limitations on persons who come to United States and remain in the country longer than permitted by their visas and/or persons who violate their nonimmigrant status

• Here illegally 180 days to less than 1 year = Three year ban

• Here illegally for more than 1 year = Ten year ban

© 2008 by Prentice Hall 3-11

LEGISLATION AFFECTING DISCRIMINATION IN EMPLOYMENT, Contd

1988 EMPLOYEE POLYGRAPH PROTECTION ACTSeverely restricts use of polygraph testing for hiring and termination decisionsPublic exceptions for law enforcement and federal government jobs ... spyingPrivate exceptions for security jobs and access to controlled substancesPolygraph can be used to investigate losses and injuries where there is a

reasonable suspicion that the employee was involved

1990 AMERICANS WITH DISABILITIES ACT>15 employees (7/94) … (was previously > 25 employees 7/92-7/94)Protects persons regarded as having a disability from employment discrimination. Building/work must be accessible to handicapped.

1992 FAIR CREDIT REPORTING ACTPlaces limits on employers who investigate prospective and current employeesMust notify applicants & get authorization for conducting reference checks

2008 GENETIC INFORMATION NONDISCRIMINATION ACT>15 employees Can’t use genetic information for employment decisions

Americans with Disabilities Act of 1990 (ADA)

• Prohibits discrimination against qualified individuals with disabilities

• Person who has, or is regarded as having, a physical or mental impairment that substantially limits one or more major life activities, and has a record of such an impairment, or is regarded as having such an impairment

• EEOC guidelines on pre-employment inquiries and tests regarding disabilities prohibit inquiries and medical examinations intended to gain information about applicants’ disabilities before a conditional job offer

• Ask only about potential employees’ ability to do the job, and not about their disabilities

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Disabilities Associated with Complaints Filed under ADA

DISCRIMINATION LEGISLATION APPLICABLE TO GOVERNMENT AGENCIES & CONTRACTORS

• 1973 – VOCATIONAL REHABILITATION ACT– Government contracts > $2,500.

• 1974 – VIETNAM VETERANS READJUSTMENT ACT– Contract > $10,000.

EXECUTIVE ORDERS

1965 – 11246 Discrimination on Race, Creed, Color or NationalOrigin Affirmative Action for Contractors > $10,000.

1968 – 11375 Changed “Creed” to Religion; and added “Sex”

1969 – 11478 US Gvmt itself must not discriminate on these bases

Vocational Rehabilitation Act 1973• Prohibits discrimination against disabled workers• Applies to Government contractors, subcontractors and

organizations• Government contracts > $2,500

– Must not discriminate ... required to post notices ... agree to take affirmative action to recruit, employ, and promote qualified disabled individuals

• If contract or subcontract > $50,000, or if contractor has 50 or more employees– Employer must prepare written affirmative action plan

• Administered by Office of Federal Contract Compliance Programs (OFCCP)

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STATE DISCRIMINATION LAWS

MICHIGAN (Elliot-Larson Civil Rights Act of 1976)

• APPLIES TO EMPLOYERS WITH ONE OR MORE EMPLOYEES

• COVERS DISCRIMINATION BASED ON:– Race, Color, Religion, Gender, Ancestry, Age, Disability, HIV/AIDS, Genetic Testing, Marital

Status, Height, Weight, Arrest Record

INDIANA

• APPLIES TO EMPLOYERS WITH SIX OR MORE EMPLOYEES

• COVERS DISCRIMINATION BASED ON:– Race, Color, Religion, Gender, Ancestry, Age (40-75 yrs old), Disability (>15 employees),

Off-duty Tobacco Use

ILLINOIS

• APPLIES TO EMPLOYERS WITH FIFTEEN OR MORE EMPLOYEES

• COVERS DISCRIMINATION BASED ON:– Race, Color, Religion, Gender, Ancestry, Age, Disability (>1 employee), HIV/AIDS, Genetic

Testing, Marital Status, Sexual Orientation, Citizenship, Military Status & Discharge, Gender Identity, Arrest Record, Domestic Violence Victim, Order of Protection Status

STATE DISCRIMINATION LAWS, CONTD

OREGON

• APPLIES TO EMPLOYERS WITH ONE OR MORE EMPLOYEES

• COVERS DISCRIMINATION BASED ON:– Race, Color, Religion, Gender, Ancestry, Age (18 and older), Disability (>6 employees), Marital

Status, Genetic Testing, Sexual Orientation, Credit History, Domestic Violence Victim, Etc.

WASHINGTON

• APPLIES TO EMPLOYERS WITH EIGHT OR MORE EMPLOYEES

• COVERS DISCRIMINATION BASED ON:– Race, Color, Religion, Gender (>1 employee), Ancestry, Age, Disability, HIV/AIDS, Genetic

Testing, Marital Status, Sexual Orientation, Genetic Testing, Hepatitis C Infection, Member of State Militia, Use of Trained Guide Dog, Gender Identity, Domestic Violence Victim

PENNSYLVANIA

• APPLIES TO EMPLOYERS WITH FOUR OR MORE EMPLOYEES

• COVERS DISCRIMINATION BASED ON:– Race, Color, Religion, Gender, Ancestry, Age (40-70 yrs old), Disability (or relationship to a

disabled person), GED rather than High School Diploma, Use of Trained Guide Dog

State and Local Laws• State and local laws affect

EEO

• When Federal EEOC regulations conflict with state or local civil rights regulations

• Legislation more favorable to women and minorities applies

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FEDERAL LEGISLATION AFFECTING COMPENSATION

• 1931 – DAVIS-BACON ACT– Must pay prevailing-area wages– Construction contracts > $2,000.

• 1936 --WALSH-HEALEY ACT– Pay prevailing area wages and overtime (40 hrs/wk or 8 hrs/day)– Manufacturing contracts > $10,000.– 1986 amends 8 hr reqmt for firms w compressed workweeks

• 1963 – EQUAL PAY ACT– Can’t pay differentials based on sex (gender)– CAN PAY differentials on seniority, merit, quality, quantity or shift– Everyone engaged in interstate commerce

FAIR LABOR STANDARDS ACT1938

• FEDERAL MINIMUM WAGE (orig $0.25/hr) See www.dol.gov/esa

– Current Federal Minimum Wage is $7.25/hr ($5.15 prior to 7-24-07,– $5.85/hr from 7-24-07 to 7-24-08, $6.55/hr from 7-24-08 to 7-24-09– Federal minimum wage was raised to $7.25/hr on 7-24-09.

• PAY OVERTIME (Time and a half after working 40 hrs/ wk)• CHILD LABOR RESTRICTIONS (< 18 yrs old)• RECORD KEEPING REQUIREMENTS (keep 2-3 years)• CREATED EXEMPT & NONEXEMPT CATEGORIES

EXEMPT = Don’t have to pay either minimum wage or overtime– Executives, Administrators, Professionals, Outside Sales

• MUST MEET A SALARY TEST and a JOB DUTIES TEST– Volunteer workers and independent contractors– Domestics, farm workers, seamen, taxi drivers– SUB-MIN WAGES ok for students, messengers, apprentices, waiters

NONEXEMPT = Must pay minimum wages and overtime

STATE COMPENSATION LAWSMICHIGAN• APPLIES TO EMPLOYERS WITH 2 OR MORE EMPLOYEES

• EXCLUDES ALL EMPLOYERS SUBJECT TO THE FLSA UNLESS THE STATE MINIMUM WAGE IS HIGHER THAN THE FEDERAL LAW.

• MINIMUM STATE WAGE – $8.15/hr as of 9-01-14 – Increases to $8.50 on 1-1-16… $8.90 on 1-1-17… and $9.25 on 1-1-18– Youth sub-minimum wage is $6.93/hr (85% of minimum)– $3.10/hr for job where tips are collected [38%] (assumes $5.05/hr in tips)*

* If sufficient tips not collected, employer must make up the difference

INDIANA• APPLIES TO EMPLOYERS WITH 2 OR MORE EMPLOYEES

• MINIMUM STATE WAGE – $7.25/hr (goes up when the federal minimum is raised) – $2.13/hr for jobs where tips are collected (assumes $5.12/hr in tips)**

** If sufficient tips not collected, employer must make up the difference

STATE COMPENSATION LAWS

OREGON• ADJUSTED FOR INFLATION ANNUALLY (See www.boli.state.or.us)

• MINIMUM STATE WAGE$9.25/hr as of 1-01-15 (no tip credit allowed)

– Premium pay required if >10 hours/day in non-farm canneries, packing plants, mills, factories, and manufacturing firms. (excludes sawmills, planning and shingle mills, etc)

WASHINGTON• ADJUSTED ANNUALLY FOR INFLATION (See www.lni.wa.gov)

• MINIMUM STATE WAGE $9.47/hr as of 1-01-15 (no tip credit allowed)Seattle $10 or $11/hr depending on company size

NEVADA• MINIMUM STATE WAGE

$7.25/hr as of 1-01-15 or $8.25/hr without qualified health benefits

STATE COMPENSATION LAWS

• US DEPT OF LABOR Employment Standards Administration

MINIMUM WAGE and OVERTIME, STATE BY STATE

– http://www.dol.gov/esa

• STATE OF MICHIGAN WAGE INFORMATION– http://www.michigan/gov/cis

• STATE OF INDIANA WAGE INFORMATION– http://www.in.gov/labor

• STATE OF OREGON WAGE INFORMATION– http://www.boli.state.or.us

• STATE OF WASHINGTON WAGE INFORMATION– http://www.lni.wa.gov

JOB SECURITY & INCOME PROTECTION LEGISLATION

1911 – WORKERS COMPENSATION– Covers injuries on-the-job… Managed by each state

1935 – UNEMPLOYMENT COMPENSATION– Loss of job through no fault of your own– Min 6.2% of first $7000 (5.4% reverts to the state)

1935 – SOCIAL SECURITY ACT– RETIREMENT, DISABILITY, SURVIVORS & HEALTH BENEFITS– 6.2% of first $106,800 to social security, plus 1.45% (unlimited) to medicare– Usually needs 40 quarters of coverage to qualify for benefits

1970 – OCCUPATIONAL SAFETY & HEALTH ACT– OSHA enforces safety in the workplace; reports required if n>11

1974 – EMPLOYEE RETIREMENT INCOME SECURITY ACT– ERISA – Pension reform; private plans must be funded annually

1985 – CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT – > 20 employees… Continued health care coverage for 18+ mos. after termination

1970 - Occupational Safety and Health Act

• Authorizes the federal government to establish and enforce occupational safety and health standards for all places of employment engaging in interstate commerce.

• Established the Occupational Safety and Health Administration (OSHA). Responsible for:– Inspecting employers– Applying safety and health standards– Levying fines for violation

Occupational Safety and Health Act of 1970

General Duty Clause

• Each employer has a general duty to furnish each employee a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm.

Specific Duties

• Employers must keep records of work-related injuries and illnesses.

• Employers must post an annual summary of these records from February 1 to April 30 in the following year.

Employee Rights Under OSHA

Employees have the right to:

1. Request an inspection.

2. Have a representative present at an inspection.

3. Have dangerous substances identified.

4. Be promptly informed about exposure to hazards and be given access to accurate records regarding exposure.

5. Have employer violations posted at the work site.

Enforcement of OSHA

• OSHA is responsible for inspecting businesses, applying safety and health standards, and levying fines for violations.

• OSHA regulations prohibit notifying employers of inspections in advance.

• Display posters in visible places at work.

What’s the priority?

• Which of the following has FIRST priority for inspection by OSHA officials?A. Catastrophes and fatal accidents

B. Employee complaints

C. High-hazard industries

D. Imminent danger

Rates of Occupational Injuries and Illnesses

Top 10 Causes of Workplace Injuries

Employer-Sponsored Safety and Health Programs: Identifying and Communicating Job Hazards

Job Hazard Analysis Technique

• Safety promotion technique that involves breaking down a job into basic elements, then rating each element for its potential for harm or injury.

Technic of Operations Review (TOR)

• Method of promoting safety by determining which specific element of a job led to a past accident.

Employer Safety and Health Programs, Contd

Reinforcing Safe Practices

• Implementing a safety incentive program to reward workers for their support of and commitment to safety goals.

• Start by focusing on monthly or quarterly goals.

• Encourage suggestions for improving safety.

Promoting Safety Internationally

• Cultural differences make this difficult.

• Laws, enforcement practices, and political climates vary from country to country.

• Companies may operate in countries where labor standards are far less strict than in the U.S.

JOB SECURITY & INCOME PROTECTION LEGISLATION - Contd

1988 – WORKER ADJUSTMENT & RETRAINING NOTIFICATION– WARN > 100 employees… Must give notice if significant layoff or plant closing is pending– Trigger is if layoff = min of 50, or >1/3 of workforce… give 60 day notice

1990 – OLDER WORKERS BENEFIT PROTECTION ACT – OWBPA - applies to workers > 40 yrs old, same as ADEA; EEOC enforces– In general, benefits provided to older workers must be equal to benefits for younger workers

1993 – FAMILY AND MEDICAL LEAVE ACT– FMLA > 50 employees… Must have previously worked for ~ 1 year– Unpaid leave for up to 12 weeks for family/medical reasons

1994 – UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT– USERRA – Employers must rehire and restore workers who have been on military leave for

up to five years… – Provides continuing health coverage for 24 mos.

1996 – PERSONAL RESPONSIBILITY & WORK OPPORTUNITY RECONCILIATION ACT– PRWORA - Employers must report all new hires within 20 days to appropriate state agency– Used to collect child support

LEGISLATION AFFECTING UNION RELATIONSHIPS

• 1926 – NATIONAL RAILWAY LABOR ACT• Procedures for collective bargaining & grievance resolution

• 1932 – ANTI-INJUNCTION ACT (NORRIS-LAGUARDIA)

• Banned “Yellow-dog” contracts; limited use of injunctions

• 1935 – NATIONAL LABOR RELATIONS ACT (WAGNER)

• Guaranteed unions rights to organize; established NLRB• Created a list on unfair management practices

• 1947 – LABOR MANAGEMENT RELATIONS ACT (TAFT-HARTLEY)

• Allows right to “not join” unions if the states take action• Creates a list of unfair union practices; balances mgmt & union activity

• 1959 – LABOR-MANAGEMENT REPORTING & DISCLOSURE ACT (LANDRUM-GRIFFIN)

• Requires union elections every 5 years and annual internal reports

• 1980 – AMMENDMENT TO WAGNER ACT• Conscientious objectors have a right to “not support” the union

PRECEDENT-SETTINGSUPREME COURT CASES

• 1971 – GRIGGS v. DUKE POWER CO.Coal shovelers needed a high school diploma for employmentDiscrimination wasn’t intentional---DISPARATE IMPACT foundEmployment standards must be job-related

• 1971 – DIAZ v. PAN AMERICAN WORLD AIRWAYS– Airline refused to hire a male flight attendant (DISPARATE TREATMENT)– Females were “better”/preferred by customers; but BFOQ defense not accepted– BFOQ defense only allowed if essence of operations would be undermined

• 1971 – PHILLIPS v. MARTIN MARIETTA CORP– Company refused to hire women with young children– Same employment standards must be applied to both men and women

• 1975 – ALBERMARLE PAPER CO. v. MOODY– Selection criteria used must be validated; based on thorough job analyses

SUPREME COURT CASES - 2

• 1976 – WASHINGTON v. DAVIS– Applicants for Washington DC police jobs did not pass screening tests– Tests are not illegal just because protected groups cannot pass them

• 1977 – TWA v. HARDISON– Religious accommodation not made if it violates union seniority rules– Employers only need to bear minimal costs to show religious accommodation

• 1977 – DOTHARD v. RAWLINGSON– Women failed to meet minimum height/weight requirements for prison jobs– Height and weight requirements must be job related

• 1978 – UNIV OF CALIFORNIA v. BAKKE– Reverse discrimination at medical school – less-qualified minorities admitted– Race can be considered, but it is only one of several legitimate criteria– Rigid quotas are not permissible

SUPREME COURT CASES – 3

• 1979 – WEBER v. UNITED STEEL WORKERS– Voluntary affirmative action programs ok if they fix past imbalances

• 1981 – COUNTY OF WASHINGTON v. GUNTHER– Jail matrons received less pay than guards – comparable worth?– discrimination suits allowed, even if jobs are not basically the same

• 1982 – AMERICAN TOBACCO CO v. PATTERSON– Union seniority system had unintended impact on minorities, but still allowed

• 1984 – FIREFIGHTERS LOCAL $ 1784 v. STOTTS– Layoffs of firefighters on the basis of seniority eroded minority representation– Valid seniority systems cannot be overridden by affirmative action decrees

• 1986 – MERITOR SAVINGS BANK v. VINSON– A hostile work environment can be viewed as sexual harassment– Employers are accountable for maintaining a harassment-free environment

SUPREME COURT CASES – 4

• 1987 – JOHNSON v. TRANSPORTATION AGENCY– Woman was promoted to correct a “manifest imbalance”– Sex can be used as a factor when facing an affirmative action ruling

• 1989 – CITY OF RICHMOND v. CROSON– 30% of construction contracts reserved exclusively for minorities– Preferential contracts unlawful if no previous discrimination shown

• 1989 – WARDS COVE PACKING CO v. ANTONIO– Can’t prove discrimination simply by statistical imbalances, plaintiff must

prove employment policies are the cause (shifts burden back to plaintiff)– Reversed by 1991 revision of Civil Rights Act

• 1990 – HOPKINS v. PRICE WATERHOUSE– Woman was denied partnership because she wasn’t “feminine”– Courts can intrude into ownership matters; stereotype is not tolerable

• 1991 – UAW v. JOHNSON CONTROLS– Women denied work in lead battery division; danger to unborn fetuses– Can’t bar women from job because of potential health risks

SUPREME COURT CASES - 5

• 1993 – HARRIS v. FORK LIFT SYSTEMS– Plaintiff doesn’t have to prove psychological injury to win a harassment suit– only that employer allowed a hostile or abusive work environment to exist

• 1995 – ADARAND CONTRACTORS v. PENA– Bonuses given if minority contractors used (reverse discrimination?)– Court questioned justification of affirmative action

• 1996 – OCONNOR v. CONSOLIDATED COIN CATERERS– Older worker replaced by another worker over 40 years old– This is still age discrimination

• 1998 – ONCALE v. SUNDOWNER OFFSHORE SERVICES– Male harassment victim on oil rig– Organization has the responsibility to control harassment

• 2003 – GRUTTER v. BOLLINGER (UNIV MICH)– Race can be a factor used in admission decisions in U Mich law school

• 2003 – GRATZ & HAMACHER v. BOLLINGER (UNIV MICH)– Can’t give “20 extra points” for all undergrad minority applicants

IS THERE EVIDENCE OF DISCRIMINATION?

DISPARATE TREATMENT (Deliberate Discrimination)Oral or written evidence of intentional bias

DISPARATE IMPACT (Unintentional Discrimination)Policies that restrict or limit an “equal opportunity” for consideration

THE 4/5ths RULE (Compare hiring success/or rejection rates)Disparate rejection/selection rates

POPULATION AND MARKET COMPARISONSLabor market representation and utilization…is our firm representative?

INTERNAL (CORPORATE) IMBALANCESStatistical differences by level or category within the firm

Adverse Impact (4/5th Rule)

Success rate for women applicants Determination of--------------------------------------------- =Success rate for male applicants Adverse Impact

• During 2007, 400 people were hired for a particular job. Of the total, 300 were men and 100 were women. There were 1,500 qualified applicants for these jobs, of whom 1,000 were men and 500 were women. Using the adverse impact formula, you have:

100 hired/500 women 0.2--------------------------- = ----- = 66.67% 300 hired/1,000 men 0.3

• Since this percentage is < 80%, we conclude that adverse impact exists. There appears to be a bias against hiring women in this organization.

Applying the Four-Fifths Rule

Underutilization Example

• Underutilization is defined as having fewer minorities or women in a particular job group than would reasonably be expected by their availability

• If utilization analysis shows the availability of blacks for a certain job group is 30%, the organization should have at least 30% black employment in that group. If actual employment is less than 30%, underutilization exists, and firm should set a goal of 30% black employment for that job group.

Equal Employment Opportunity Commission (EEOC)

• Responsible for enforcing most of the EEO laws.– Investigates and resolves complaints about discrimination– Gathers information– Issues guidelines– Monitors organizations’ hiring practices

• Complaints must be filed within 180 days of the incident.– EEOC has 60 days to investigate the complaint.

Charges filed with the EEOC - 2010

RACE 35,890SEX 29,029NATIONAL ORIGIN 11,304RELIGION 3,790RETALIATION (Title 7) 19,560

AGE 23,264DISABILITY 25,165EQUAL PAY ACT 1,044GENETIC INFO 201RETALIATION (Other) 16,698

TOTAL CHARGES 165,945

PEOPLE FILING 99,922

Office of Federal Contract Compliance Procedures (OFCCP)

• Responsible for enforcing the executive orders that cover companies doing business with the federal government.

• Audits government contractors to ensure they are actively pursuing the goals in their affirmative action plans.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

Investigates & resolves complaints, gathers info on employment patterns, and issues new employment guidelines.

• CHARGES MUST BE FILED WITHIN 180 DAYS Extended to 300 days if a state agency is involved

• EEOC DETERMINES IF THE CLAIM HAS MERITAn investigation to determine whether “Probable Cause” is established

• ATTEMPT AT CONCILIATIONWill employer agree to a consent decree? IF YES, the matter is resolved.

IF NOT, the EEOC will either initiate court action on behalf of the complainant, or will issue a “Right to Sue” letter.

Steps in Handling a Discrimination Case

Charge Filed

Investigation by the EEOC

Issue a Probable Cause or a No Probable Cause Statement

Attempt at Conciliation

Recommendations for or Against Litigation

Attempt at a No-Fault Settlement

Recommendation AgainstLitigation – Right to Sue Notice Issued

to Charging Party

Recommendation forLitigation – EEOC Initiates Action

Equal Employment Opportunity Commission

• Some factors that determine whether EEOC will pursue litigation are:

• 1) number of people affected by alleged practice

• 2) amount of money involved in charge

• 3) other charges against employer

• 4) type of charge.

• EEOC files suit in only about 1% of charges

UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES (originally 1978)

ANALYZE THESE GROUPS FOR ADVERSE IMPACT

GROUPSBlacks, Native Americans, Asians & Pacific Islanders, Hispanics, Women

ORGANIZATIONAL LEVELSManagers, Professionals, Technicians, Sales Workers, Clerical and Office Workers, Craft (skilled), Operatives (semi-skilled), Laborers (unskilled), and Service Workers.

IF ADVERSE IMACT IS FOUND, THE EMPLOYER CAN:Take action to immediately correct the adverse impactUse a BFOQ defense to justify the firm’s actionsOffer evidence of predictive validity studies in defense of the firm

THE EEOC IS CONCERNED WITH FIXING THE PROBLEM – THE NET EFFECT OF ALL OF THE SELECTION PROCEDURES IS WHAT THEY FOCUS THEIR ATTENTION ON.

REASONABLE ACCOMMODATION FOR RELIGION

EMPLOYER MUST ACCOMMODATE RELIGIOUS PRACTICES UNLESS HARDSHIP IS SHOWN.

TWA v HARDISON (1977) Undue hardship = anything more than a DE MINIMUS cost

GUIDELINES SAY: Regular payment of premium wages is undue hardship. (Temporary/infrequent overtime is not)

If firm has to vary from its seniority system or violate the union agreement – this is also undue hardship.

REMEDIES SUGGESTED:

Allow voluntary swaps or substitutions

Allow flexible scheduling of arrival and departure times

Allow lost hours to be made up (noon, evenings, weekends)

Allow use of holiday/vacation time to cover absences

Lateral transfers and changes in job assignments

PRIMA FACIE EVIDENCE OF RELIGIOUS DISCRIMINATION

TO ESTABLISH A PRIMA FACIE CASE OF ADVERSE ACTION DUE TO RELIGIOUS DISCRIMINATION AT WORK, THE FOLLOWING MUST BE SHOWN:

1. The employee has a bona fide religious belief that conflicts with an employment requirement

2. The employee has informed the employer of the conflict

3. The employee was discharged or otherwise injured because of refusal to comply with the employment requirement

CHECK THESE AREAS FOR SIGNS OF RELIGIOUS DISCRIMINATION

I. ADVERSE ACTION DUE TO RELIGIONA. EMPLOYMENTB. EVALUATION & PROMOTIONC. LAYOFF & TERMINATION

II. REASONABLE ACCOMMODATIONA. TIME OFF FOR WORSHIPB. JOINING UNIONS & PAYING DUESC. SINCERITY OF BELIEFSD. WORK DUTIES THAT CONFLICTE. CLOTHING, GROOMING & SYMBOLIC DISPLAYSF. UPSET COWORKERS

III. RELIGIOUS HARASSMENTA. MALICIOUS INTIMIDATIONB. PROSELYTIZING

FEDERAL COURT CASES ON RELIGIOUS DISCRIMINATION

EMPLOYMENTMYERS v. NY CITY TRANSIF AUTHORITY (1996)

KWASI OPUKU-BOATENG v. STATE OF CALIFORNIA (1997)RUSSELL v. BUTTE-SILVERBOW COUNTY (1997)BALINT v. CARSON CITY (1999)

EVALUATION & PROMOTIONSHAPOLA v. LAS ALAMOS NATIONAL LABORATORY (1993)SKORUP v. MODERN DOOR CORPORATION (1997)ADELMAN v. GMAC MORTGAGE CORPORATION (1997)EEOC v. PREFERRED MANAGEMETN CORPORATION (2002)

TIME OFF FOR WORSHIPUNITED STATES v. CITY OF ALBUQUERQUE (1975)TWA v. HARDISON (1977)HAMBY v. WALMART STORES (1995)HARRERA v. BOYD COATING RESEARCH CO (1997)JACKSON v. KMART CORPORATION (1997)SHRUM v. CITY OF COWETA, OK (2006)BURDETTE v. FEDERAL EXPRESS CORPORATION (2010)

RELIEF FROM JOINING/SUPPORTING A UNIONIAM v. BOEING (1988)EEOC v. UNIVERSITY OF DETROIT (1990)LEHNERT v. FERRIS FACULTY ASSOCIATION (1991)

FEDERAL COURT CASES ON RELIGIOUS DISCRIMINATION-2

SINCERITY OF BELIEFSGAY v. SUNY HEALTH SCIENCES CENTER OF BROOKLYN (1998)LARSEN v. GREAT EASTERN RESORT CORPORATION (1998)

WORK DUTIES THAT CONFLICT WITH RELIGIOUS PRINCIPLESRODRIGUEZ v. CITY OF CHICAGO (1998)

CLOTHING, GROOMING & SYMBOLIC DISPLAYSVARGAS v. SEARS (1998)KALSI v. NY CITY TRANSIT AUTHORITY (1998)EEOC v. THE GEO GROUP (2010)

UPSET COWORKERSEVERSLEY v. MBANK DALLAS (1988)WILSON v. US WEST COMMUNICATIONS (1995)

MALICIOUS INTIMIDATIONTURNER v. BARR (1993)EEOC v. SUNBELT RENTALS (2008)PROWEL v. WISE BUSINESS FORMS INC (2009)

PROSELYTIZATIONBROWN v. POLK COUNTY, IOWA (1995)VENTERS v. CITY OF DELPHI & LARRY IVES (1997)WAMIQ SATTAR v. MOTOROLA INC (1998)

GUIDELINES ON SEXUAL HARASSMENT

DELIBERATE, REPEATED, UNSOLICITED COMMENTS, GESTURES, OR PHYSICAL CONTACT OF A SEXUAL NATURE THAT IS UNWELCOME.

TWO TYPES OF HARASSMENT

THREATS OR OFFERS (QUID PRO QUO)

You’ll lose your job if you don’t cooperate!

If you cooperate, I’ll give you a promotion!

ENVIRONMENTAL INTIMIDATION

The comments, conditions and perceived actions in the workplace create a hostile, intimidating and offensive situation which interferes with the work performance and general psychological well-being of the victim.

In a recent survey, 42% of women and 15% of men reported they felt harassed on the job.

RESPONSES TO SEXUAL HARASSMENT

CORPORATE RESPONSES1. Establish a formal policy statement banning harassment2. Educate the workers; make them aware of the legal and corporate

consequences of harassment3. Encourage workers to report incidents to the firm4. Promptly and vigorously investigate harassment complaints5. Discipline those who have violated the policy

INDIVIDUAL – IF YOU ARE HARASSED1. Communicate clearly that the behavior/attention is unwanted2. Document the incidents (are there witnesses?)3. File a complaint with the firm; use the grievance channels4. See a lawyer, or contact the EEOC

AFFIRMATIVE ACTION PROGRAMS

REQUIRES– ACTIVE RECRUITMENT, GO OUT OF YOUR WAY TO FIND CANDIDATES– INTERNAL TRAINING PROGRAMS– PROMOTION TO SENIOR-LEVEL POSITIONS

• PROS:– WE HAVE AN OBLIGATION TO “SET THINGS RIGHT”– AA IS NECCESARY TO OFFSET HISTORIC DISADVANTAGES– AA BREAKS THE CYCLE THAT KEEPS MINORITIES LOCKED INTO POOR JOBS– IT WILL TAKE YEARS TO ACHIEVE BALANCE WITHOUT AA

• CONS:– SHOULDN’T THE BEST QUALIFIED GET THE JOB? – AA TOKENIZES MINORITIES AND ERODES THEIR SELF-ESTEEM – AA REDUCES PRODUCTIVITY BY PROMOTING MARGINAL PERFORMERS– INJURES WHITE MALES AND VIOLATES THEIR RIGHTS

• (What about the obstacles that poor whites face?)

FOUR POSTURES ON AFFIRMATIVE ACTION

PASSIVE NON-DISCRIMINATIONFAILS TO RECOGNIZE PAST DISCRIMINATION---USE STANDARD METHODS

SELECT THE MOST QUALIFIED APPLICANT (WITHOUT BIAS)

“PURE” AFFIRMATIVE ACTIONENLARGE THE POOL OF APPLICANTS—SEEK PROTECTED GROUP APPLICATIONS

SELECT THE MOST QUALIFIED APPLICANT (WITHOUT BIAS)

AFFIRMATIVE ACTION WITH PREFERENTIAL HIRINGDEVELOPS A DIVERSE POOL OF APPLICANTS

FAVORS PROTECTED GROUPS IF SKILLS ARE EQUAL (A “SOFT” QUOTA SYSTEM)

AFFIRMATIVE ACTION UNDER A CONSENT ORDERMUST DEVELOP A DIVERSE POOL OF APPLICANTSHAS A TIMETABLE (AND SPECIFIC GOALS) FOR ACHIEVING “BALANCE”FAVORS PROTECTED GROUPS AS LONG AS THEY ARE MINIMALLY QUALIFIED