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 (Adapted from Ledvinka, 1982) Courts Case Law
Primary Regulatory Agencies for EEO Equal Employment Opportunity Commission (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 Protected classes Title VII Example 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 Administrative procedures Remedies Judicial scenarios Nondiscrimination (terms/conditions, segregation/classification, and retaliation) and religious accommodation. EEOC procedures: statute of limitations = 300 days in deferral states & 180 days in nondeferral states. Equitable relief and capped legal relief. 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)
Example of Current Legal Principles in Employment 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. (Landy, Gutman, & Outtz, 2010, p. 630)
Example of Current Legal Principles in Employment Companies using Internet recruitment should understand the definition of Applicant and be prepared to defend qualifications listed in the job description as well as procedures used to screen applicants. (Landy, Gutman, & Outtz, 2010, p. 629)
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 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 (Seligman, 1973)
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)
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)
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
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
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)