Employment LawsEmployment Laws

© NB Johnson 2000© NB Johnson 2000

http://www.workplacefairness.org/guide

Civil Rights Act, 1964Civil Rights Act, 1964(Title VII)(Title VII)

It is unlawful for an employer to It is unlawful for an employer to discriminate against an individual discriminate against an individual

with respect to his compensation, with respect to his compensation, terms, conditions, or privileges of terms, conditions, or privileges of employment employment

because of such individual’s race, because of such individual’s race, color, religion, sex or national color, religion, sex or national origin.origin.

Civil Rights ActCivil Rights Act

The act applies to:The act applies to:private employers with more than 15 private employers with more than 15 employeesemployees

unionsunions

employment agenciesemployment agencies

state and local governmentstate and local government

educational institutionseducational institutions

DiscriminationDiscrimination

Using prohibited factors to make an Using prohibited factors to make an employment decisionemployment decision

Discrimination allowed if based on:Discrimination allowed if based on: seniorityseniority veterans preferenceveterans preference national securitynational security job qualificationsjob qualifications

Discrimination TheoriesDiscrimination Theories

Disparate or Adverse Treatment - where Disparate or Adverse Treatment - where an employee(s) allege that he or she (as an employee(s) allege that he or she (as individuals) have been treated less individuals) have been treated less favorably than others because of sex, favorably than others because of sex, race, etc. race, etc. Individual cases. Individual cases. Motive or intent to discriminate must be Motive or intent to discriminate must be

shown.shown.

Disparate or Adverse Impact Disparate or Adverse Impact

Statistical discriminationStatistical discrimination

One class of employees is treated differently One class of employees is treated differently than another class of employees. than another class of employees.

Policy is neutral on its facePolicy is neutral on its face no discriminatory intentno discriminatory intent discriminatory effectdiscriminatory effect

Equal Employment Opportunity Equal Employment Opportunity Commission (EEOC)Commission (EEOC)

Enforces Title VIIEnforces Title VII - all charges must be - all charges must be brought with them. brought with them. investigate complaintsinvestigate complaints attempt to resolve disputes through attempt to resolve disputes through

conciliationconciliation bring legal action against organizationsbring legal action against organizations issues interpretive guidelinesissues interpretive guidelines

Filing a discrimination Filing a discrimination complaintcomplaint

Filed within 6 monthsFiled within 6 months

EEOC determines probable causeEEOC determines probable cause

No probable cause No probable cause civil court civil court

If probable cause then EEOC attempts If probable cause then EEOC attempts conciliation (settle)conciliation (settle)

If not settled then suit filed in district If not settled then suit filed in district court(private) or Justice Department (public)court(private) or Justice Department (public)

Prima FaciePrima Facie Case Case (burden of proof) (burden of proof)

Plaintiff:Plaintiff: Member of a protected classMember of a protected class Qualified for the positionQualified for the position Failure to be hiredFailure to be hired

Employer DefensesEmployer DefensesBona Fide Occupational Qualification Bona Fide Occupational Qualification (BFOQ)(BFOQ) reasonable reasonable exceptionexception to meet the needs of the to meet the needs of the

business. business. narrowly construed.narrowly construed.

Business necessityBusiness necessity reasonable reasonable qualificationqualification to meet the needs of the to meet the needs of the

businessbusiness job related tests OKjob related tests OK OK to use worker qualificationsOK to use worker qualifications

Uniform Guidelines on Uniform Guidelines on Selection- 80% RuleSelection- 80% Rule

The EEOC regulations to determine disparate The EEOC regulations to determine disparate impactimpact

80% rule - selection rate for protected group 80% rule - selection rate for protected group must not be less than 80% of non-protected must not be less than 80% of non-protected groupgroup

If < 80% then grounds for disparate impactIf < 80% then grounds for disparate impact

Example of 80% RuleExample of 80% RuleSelection Rate= Number Hired/Number AppliedSelection Rate= Number Hired/Number Applied Applicants -100 males, 100 femalesApplicants -100 males, 100 females Number of males hired - 70Number of males hired - 70 Number of women hired - 50Number of women hired - 50

Selection ratesSelection rates

Women 50%Women 50%

Men 70%Men 70%

50/70= 71%50/70= 71%

71%< 80%71%< 80%

Grounds for disparate impactGrounds for disparate impact

Ward’s Cove DecisionWard’s Cove Decision

Minority employees concentrated in low Minority employees concentrated in low paid jobs and poorer housingpaid jobs and poorer housing

Court ruled that employee must prove that Court ruled that employee must prove that statistical imbalances caused by specific statistical imbalances caused by specific policypolicy

Effect shifted burden of proof to the Effect shifted burden of proof to the employeeemployee

1991 Civil Rights Act 1991 Civil Rights Act AmendmentsAmendments

Reversed Ward’s Cove decisionReversed Ward’s Cove decision

Shifted burden of proof back to employerShifted burden of proof back to employer

Provided for punitive damagesProvided for punitive damages

Employer liable even if employment result Employer liable even if employment result the same in absence of discriminationthe same in absence of discrimination

Seniority SystemsSeniority Systems

Seniority systems OK even with Seniority systems OK even with discriminatory effects.discriminatory effects.

Last hired, first fired policy adversely Last hired, first fired policy adversely affects women and minorities.affects women and minorities.

””retroactive seniority" given when in retroactive seniority" given when in discriminatory company discriminatory company back to the time when they would have been back to the time when they would have been

hiredhired

Affirmative ActionAffirmative Action

Employer Plans to alleviate racial imbalance Employer Plans to alleviate racial imbalance of their company. of their company. Goals and timetables not quotasGoals and timetables not quotas

Active recruiting of protected groupsActive recruiting of protected groups

Diversity training to change attitudes Diversity training to change attitudes

Eliminating employment practices that negatively Eliminating employment practices that negatively affect protected employeesaffect protected employees

Who has AA plansWho has AA plans

Federal government contractors Federal government contractors required torequired to

Voluntarily adopt such plansVoluntarily adopt such plans Consent decree or settlement for Consent decree or settlement for

past discriminationpast discrimination

Affirmative ActionAffirmative Action

The courts have been gradually eroding The courts have been gradually eroding the concept of AAthe concept of AA

Texas and California have eliminated in Texas and California have eliminated in university admissionsuniversity admissions

AA Recommendations AA Recommendations for Firmsfor Firms

Address specific problem Address specific problem

Temporary - have definite timetable that Temporary - have definite timetable that expires when problem is addressed.expires when problem is addressed.

Remedy problems of pervasive and Remedy problems of pervasive and persistent past discriminationpersistent past discrimination

Diversity ManagementDiversity Management

Formal programs to promote diversityFormal programs to promote diversity

Include training and educationInclude training and education

Focus on cultureFocus on culture

Require top management supportRequire top management support

Sexual Harassment Sexual Harassment under Title VIIunder Title VII

Illegal under Title VII Illegal under Title VII constitutes discrimination constitutes discrimination

Illegal under common tort claimsIllegal under common tort claims assault, battery & infliction of emotional assault, battery & infliction of emotional

distressdistress jury trials & punitive damagesjury trials & punitive damages

1980 the EEOC Guidelines 1980 the EEOC Guidelines on Sexual Harassmenton Sexual Harassment

Unwelcome Unwelcome sexual advancessexual advances request for sexual favorsrequest for sexual favors other verbal or physical conduct of a sexual nature when:other verbal or physical conduct of a sexual nature when:

Submission is a term or condition of employment or affects Submission is a term or condition of employment or affects employment decisionsemployment decisions

Hostile working environment Hostile working environment conduct interferes with work performance or creates an conduct interferes with work performance or creates an

intimidating or hostile work environmentintimidating or hostile work environment

Hostile Working Hostile Working EnvironmentEnvironment

Conduct interferes with work performance Conduct interferes with work performance or creates an intimidating or hostile work or creates an intimidating or hostile work environmentenvironment Reasonable person standard - Reasonable person standard -

would a reasonable person be would a reasonable person be intimidated. intimidated.

Reasonable women standard - Reasonable women standard - more appropriate?more appropriate?

Affirmative DefenseAffirmative Defense

1. The employer reasonably acted to 1. The employer reasonably acted to correct and prevent the harassmentcorrect and prevent the harassment2. The employee unreasonably failed to 2. The employee unreasonably failed to use the employer’s anti-harassment use the employer’s anti-harassment mechanismsmechanisms3. No tangible employment action resulted 3. No tangible employment action resulted from harassmentfrom harassment4. The employer had no reason to 4. The employer had no reason to suspect harassmentsuspect harassment

Quid pro quoQuid pro quo

Submission is a term or condition of Submission is a term or condition of employment or employment or

Affects employment decisionsAffects employment decisions

Employers liable for Employers liable for employees, clients, or employees, clients, or

contractorscontractors

Courts side with employers when:Courts side with employers when:A policy on sexual harassmentA policy on sexual harassment

A company grievance procedure A company grievance procedure

The grievance procedure bypassing the The grievance procedure bypassing the alleged harasseralleged harasser

Training on sexual harassmentTraining on sexual harassment

On-going communicationOn-going communication

Employers Advised to:Employers Advised to:

Train employeesTrain employees Notify employees of sanctionsNotify employees of sanctions Investigate claimsInvestigate claims Discipline violatorsDiscipline violators

Equal Pay Act, 1963Equal Pay Act, 1963

Equal pay for men and women performing equal Equal pay for men and women performing equal workwork same skill, effort, responsibility & working conditionssame skill, effort, responsibility & working conditions

Pay discrimination on upon seniority, merit, Pay discrimination on upon seniority, merit, piece-rate OK.piece-rate OK.

Most imbalances addressedMost imbalances addressed

Gender Wage DifferencesGender Wage Differences

Women earn less than men after Women earn less than men after controlling for experience, education.controlling for experience, education.

Many women in female dominated Many women in female dominated occupations (e.g., nursing, education, occupations (e.g., nursing, education, social work)social work)

Wages in female occupations lower than Wages in female occupations lower than male occupationsmale occupations

Comparable WorthComparable Worth

Some argue that women should be paid Some argue that women should be paid based upon their organizational worthbased upon their organizational worth

Labor market criteria biasedLabor market criteria biased

Title VII has been found to cover these Title VII has been found to cover these claims.claims.

Labor market acceptable defense.Labor market acceptable defense.

Pregnancy Pregnancy Discrimination Act, 1978Discrimination Act, 1978No discrimination based on No discrimination based on pregnancy (fired, refused a job, or pregnancy (fired, refused a job, or promoted because of pregnancy).promoted because of pregnancy).

Pregnancy is to be treated like any Pregnancy is to be treated like any other disability.other disability.

Family and Medical Family and Medical Leave Act, 1993Leave Act, 1993

Up 12 workweeks leave (which may be Up 12 workweeks leave (which may be unpaid) in a 12 month period for any one unpaid) in a 12 month period for any one of the following:of the following: birth or adoption of childbirth or adoption of child care for seriously ill spouse, son, daughtercare for seriously ill spouse, son, daughter seriously ill employeeseriously ill employee

FMLAFMLA

Same job back or equivalent Same job back or equivalent position with equivalent benefits. position with equivalent benefits.

Maintains benefits during the Maintains benefits during the leaveleave

Exempts highly compensated Exempts highly compensated employeesemployees

American’s with American’s with Disabilities Act (ADA), Disabilities Act (ADA),

19901990Prohibits employment discrimination on Prohibits employment discrimination on the basis of disability. the basis of disability.

Reasonable Accommodation - 10% of Reasonable Accommodation - 10% of salary.salary.

making existing equipment accessible, special making existing equipment accessible, special equipment, training, arranging modified work equipment, training, arranging modified work schedules, providing readers for the blindschedules, providing readers for the blind

Courts are beginning to support claims of Courts are beginning to support claims of hostile working environmenthostile working environment

DisabilityDisability

Physical or mental impairment that Physical or mental impairment that substantially limits one or more major life substantially limits one or more major life activities. activities.

Includes: recovering from cancer, Includes: recovering from cancer, disfiguring injury, alcoholism, drug disfiguring injury, alcoholism, drug addition.addition.

QualificationsQualifications

Employers Employers can can inquire about the ability to inquire about the ability to do jobdo job essential job functionsessential job functions

Like Title VII, individual must qualifiedLike Title VII, individual must qualified

Decisions are made on a individual case Decisions are made on a individual case basisbasis

Catch 22: if you prove you are disabled, Catch 22: if you prove you are disabled, often suggesting can’t do joboften suggesting can’t do job

Age Discrimination in Age Discrimination in Employment, 1967Employment, 1967

Prohibits discrimination in employment for Prohibits discrimination in employment for workers over 40workers over 40

Performance is only justification for firing Performance is only justification for firing an employee of 30 years service an employee of 30 years service

Few performance appraisal systems will Few performance appraisal systems will stand up to judicial reviewstand up to judicial review

TrendsTrends

Older workers likely to sue because of Older workers likely to sue because of their financial resourcestheir financial resources

Many employers use attractive pension Many employers use attractive pension policies to encourage early retirement.policies to encourage early retirement.

Age can be a BFOQ for safety reasons Age can be a BFOQ for safety reasons must show most members of an age group must show most members of an age group

unable to performunable to perform no better criteria.no better criteria.

International HRMInternational HRM

Many countries discriminate on the basis Many countries discriminate on the basis of sex, religion, and race. of sex, religion, and race.

US employers must follow US lawUS employers must follow US law

Customer preference is not an excuse for Customer preference is not an excuse for discriminating. discriminating.

Must follow laws of host country Must follow laws of host country

What rights do you not haveWhat rights do you not have

Right to self expression except religiousRight to self expression except religious

Right to assemblyRight to assembly

Breaks for bathroom except where Breaks for bathroom except where requiredrequired

PrivacyPrivacy Belongings, computers, drug testingBelongings, computers, drug testing

Sexual orientationSexual orientation

Employment Law Employment Law SummarySummary

Bottom line: you can't treat people Bottom line: you can't treat people differently in employment based upon differently in employment based upon race, sex, religion, age, disability status.race, sex, religion, age, disability status.

Means employers need to review their Means employers need to review their personnel practices to make sure they use personnel practices to make sure they use nondiscriminatory practicesnondiscriminatory practices

EEO affects virtually all HR processes.EEO affects virtually all HR processes.