examining the legal Environment

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LEGAL ISSUES

Richard J. Wagner, PhD

Part-time faculty

Updated: January 24, 2016

LAWS TELL US WHAT WE CAN’T DO

Not useful for attracting and hiring best people

Written to correct societal problems often caused by poor management practices

3 PERSPECTIVES

SELECTING PERSONNEL

WHAT IS THE “RIGHT” WAY TO SELECT PEOPLE TO HIRE?

Consider three points of view

From a performance perspective

From a legal perspective

From an ethical perspective

(1) THE PERFORMANCE PERSPECTIVE

Are decisions based on essential job requirements?

Or on something less rigorous and tangible?

(2) THE LEGAL PERSPECTIVE

Laws generate reports and endless documentation but must be followed.

But too much focus on laws can distract from job performance.

(3) THE ETHICAL PERSPECTIVE

What is the right thing to do?

What about Affirmative Action?

Helping those traditionally under-represented

What about reverse discrimination?

Affects those who would have been offered jobs except for Affirmative Action

ACRONYMS TO KNOW

TERMS TO KNOW

EEOC: Equal Employment Opportunity Commission

ADEA: Age Discrimination in Employment Act

FLSA: Fair Labor Standards Act

ADA: Americans With Disabilities Act

EPA: Equal Pay Act

AAP: Affirmation Action Plan

CR: Civil Rights

RECORDKEEPING

How long should personnel records be kept?

EEOC: 1 year from termination

ADEA: 3 years

FLSA: 3 years

But even that is not the complete answer.

ABOUT APPLICABLE LAWS

CR 1964 (TITLE VII)

Prohibits discrimination in employment on the basis of:

Race

Color

National origin

Religion

Gender

CIVIL RIGHTS LEGISLATION: FEDERAL STATUTORY LAW

CR 1866

Applies to race and national/ethnic origin only

Applies to private employers and labor unions

CR 1871

Applies to broad range of situations such as sex, religion, etc.

Applies only to state and local government employees

CR 1991 (AMENDMENT TO TITLE VII)

Negated shift of burden of proof to plaintiff

Plaintiff must identify specific section of selection process that caused adverse impact

Cap on compensatory damages but adds punitive damages for intentional discrimination (including sexual harassment)

Makes adjusting cutoff scores illegal

Prohibits race-norming (grouping scores by race)

EXECUTIVE ORDER 11246 (1965 AND 1968)

Requires affirmative action plans from federal contractors and subcontractors

AGE DISCRIMINATION IN EMPLOYMENT ACT (1967)

ADEA and amendments

Forbid discrimination in employment of workers older than 40 years

AMERICANS WITH DISABILITIES ACT (1990)

Affects organizations with 15 or more employees.

Covers:

25% of American workforce

900 disabilities

Excludes:

Homsexuality

Sexual behavior disorders

Kleptomania

Pyromania

Illegal drug use

Current alcoholics (but does cover those who are rehabilitated)

ADA

Must limit major life function

Or have record of such limitation

Requires reasonable accommodation in selection process (interviews, tests, etc.)

Must not create undue hardship for employer

Must be essential job activity

PREGNANCY DISCRIMINATION ACT (1978)

Pregnancy treated as short-term illness

IMMIGRATION REFORM AND CONTROL ACT (1986)

Verify applicant eligibility for employment

Familiar I-9 form

CIVIL RIGHTS LEGISLATION / STATE STATUTORY LAW

State (and local) governments may pass laws covering other issues

Setting a higher minimum wage

Sexual orientation or preference (not covered by federal law)

OTHER TERMS TO KNOW

(DEFEND AGAINST BY)

BFOQ (Bona Fide Occupational Qualification)

Race can never be a BFOQ

Example: Mandatory retirement age for pilots

Procedures must be job-related

Validate hiring process

Necessary for safe and efficient operation

Loss of business usually not acceptable reason

AFFIRMATIVE ACTION

Intended to correct effects of past discrimination

Considered temporary and should not be overly harmful to other applicants

Requires 3 steps:

Utilization analysis (where we are)

Action plan

Goals and timetables

REVERSE DISCRIMINATION

When affirmative action plans dictate hiring/promoting protected class over majority class

Various court cases

Affirmative Action court cases continue to be heard in courts

BURDEN OF PROOF

Shifts to organization if adverse impact is shown

Means that company must PROVE that its hiring/promotion procedures do NOT discriminate

EMPLOYMENT AT WILL

Either party (employee or employer) may terminate “at will”

Considered default “contract”

Watch out for “promises” implied such as promotion in two years

Put employment offers in writing

The end