Legal Issues in Human Resources Management Equal Employment Opportunity ADA Sexual Harassment 1 Some key terms : Understand meaning & application EEO Undue hardship Prejudice Reasonable accommodation Discrimination: Sexual harassment Disparate treatment Disparate effect Quid pro quo Hostile work environment Discrimination under the ADA Protected class Job related / job-relatedness Essential job function OUCH test Reasonable accommodation 2
Equal Employment Opportunity (EEO) 3 Prejudice An attitude of hostility directed at an individual or a group because of their apparent characteristics. Many sources, including history, socio-cultural context, and individual experience. Grounded in emotion, no matter how much people attempt to justify it by appeals to fact. An attitude held by an individual, not a behavior. Prejudice may or may not be expressed in the individual s behavior. When expressed as behavior, prejudice becomes discrimination. The manager s task is to prevent prejudice from being expressed through discriminatory behavior. 4
Discrimination Discrimination a behavior or action by an individual, a group, or organization. Earliest definition of discrimination emphasized intent to harm someone because of her/his membership in a particular group. A very difficult standard to meet Definition of discrimination therefore restated as differential treatment of someone because of her/his membership in a particular group. Focus shifted from intent to harm to actual behavior. Unspoken assumption in second definition: Everyone is already equal. Discrimination has two possible sources: disparate treatment how people are actually treated disparate effect the actual effects of this treatment 5 The OUCH test A rule of thumb intended to help maintain fairness & equity in HRM decisionmaking Four questions to ask whenever contemplating any actions that affect employees 6
The OUCH test Objective Is the intended action objective? Fact-based & quantifiable, not subjective or emotional Uniform application Is the application applied uniformly to all employees & applicants? Apply the same tests & requirements in the same ways Often more difficult than it first appears Consistent in effect Does the intended action have a significantly different effect on a protected class than on everyone else? Has job relatedness Is the intended action directly related to primary aspects of the job in question? Action must relate to primary & essential job tasks or elements 7 ADA & Employment 8
Disability defined A physical or mental impairment that substantially limits one or more major life activities A record of having such an impairment Being regarded as having such an impairment 9 What the ADA says Under Title I of the ADA, covered entities which for practical purposes now means all organizations may not discriminate against otherwise qualified individuals on the basis of disability in regard to job application procedures hiring, advancement or discharge employee compensation job training other terms, conditions & privileges of employment 10
What counts as discrimination (1) Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee Participating in a contractual or other arrangement or relationship that has the effect of subjecting an organization s qualified applicants or employees to discrimination Utilizing standards, criteria, or other methods of administration that have the effect of discrimination on the basis of disability; Not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the organization can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the organization; 11 What counts as discrimination (2) Denying employment opportunities to a job applicant or employee who is otherwise qualified, if such denial is based on the need to make reasonable accommodation; Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criterion is shown to be job related for the position in question and is consistent with business necessity; and Subjecting applicants or employees to prohibited medical inquiries examinations. Source: Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended. Federal Register (vol. 76 #58) (25 March 2011), 16978-17017 at p. 17003. 12
What the ADA requires from employers An employer must make reasonable accommodations to the physical and/or mental limitations of any disabled person who is otherwise qualified to perform the essential functions of the job, except when this imposes undue hardship on an employer s operations. 13 Reasonable accommodation Creating conditions in which a disabled but otherwise qualified person can perform a job Adaptive equipment (keyboards, desks, computers) or conditions (lighting, barrier-free work areas) Usually relatively modest steps required 14
Essential functions of the job Done routinely and frequently as part of the job Done occasionally, but an important part of the job Might never be done by a specific employee, but if it is necessary, it is critical that it be done right 15 Undue hardship When difficulty of providing an accommodations poses a significant burden Based on comparison of the nature and cost of the accommodation overall financial resources of the organization 16
Sexual Harassment 17 Sexual harassment defined Unwelcome sexual advances, requests for sexual favors, and other verbal, visual or physical conduct of a sexual nature when: Submission to or rejection of such conduct either explicitly or implicitly affects an individual's employment, academic status or ability to participate in or benefit from a school program or activity. The conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance. The conduct creates an intimidating or hostile work, academic or student living environment. 18
Definition & guidelines are not clear cut To determine whether the conduct rises to the level of sexual harassment, a court will consider: Whether the behavior, activity and/or attitudes are pervasive (taking into consideration severity and frequency). Whether a reasonable person in like circumstances would find the behavior, activity, and/or attitudes offensive or intimidating. 19 Important! Intent does not matter! Only the perspective of the victim, not the intent of the alleged harasser, is considered in evaluating complaints. 20
Sexual harassment may occur between men and women men and men women and men women and women 21 The harasser may be the victim s own supervisor a supervisor in another area a co-worker a subordinate any agent of the employer a third party such as a visitor, customer, contractor, or vendor 22
The victim may be the person directly affected by the harassment any person negatively affected by the harassing conduct, including anyone made uncomfortable by the conduct anyone who is disadvantaged because of preferences given to another person for sexual reasons 23 Sexual harassment may occur even if the harassed individual suffers no economic injury and is not disadvantaged in her/his employment. 24
Harassment may occur at the workplace away from the workplace, including commuting business-related travel social events 25 Harassing conduct must be unwelcome The victim must find the alleged harassing conduct unwelcome. IMPORTANT! Even though a complainant at one time accepted, tolerated, welcomed and/or encouraged the behavior, if the behavior at some point becomes unwelcome to the complainant and continues, it may be regarded as sexual harassment. 26
Two forms of sexual harassment Quid pro quo Hostile work environment 27 Quid pro quo sexual harassment Quid pro quo = This for that or Something for something Implies an exchange between two parties Quid pro quo sexual harassment occurs when employment decisions affecting an individual are made based on whether or not that individual submits to the sexual advances or conduct of a sexual nature from someone in a position of authority over that individual, or perceived by the individual to be in such a position of authority. If the individual's submission to such conduct is made an explicit or implicit condition of employment, the conduct constitutes quid pro quo sexual harassment. 28
To demonstrate quid pro quo sexual harassment It is sufficient to show a threat either clearly stated or implied of economic loss or educational harm to prove quid pro quo sexual harassment. A single sexual advance may constitute harassment if it is linked to the granting or denial of employment. A subordinate who submits willingly to sexual advances, then changes her/his mind and refuses, may still bring quid pro quo sexual harassment charges. A subordinate who submits, but claims that the submission was only because of the threat of an adverse employment or educational action, may still bring quid pro quo sexual harassment charges. Courts have held employers strictly liable for quid pro quo sexual harassment initiated by supervisory employees. 29 Hostile work environment sexual harassment Does not require any clearly stated or implied threat regarding employment or employment benefits. Exists when: Conduct by a superior, peer, subordinate or third-party creates a hostile, intimidating or offensive work environment that unreasonably interferes with an individual's job performance. 30
Employer liability for hostile work environment sexual harassment Employer liability for hostile workplace environment sexual harassment exists when: The employer knew or should have known about the harassment. The employer failed to take effective corrective action. Employers are expected to know about workplace environment if: A complaint was made. The employer failed to establish and make known a policy against sexual harassment. The harassment is openly practiced or well known among employees. 31