STRUCTURED INTERVIEW

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Chap03-LegalIssues_Aamodt_8e.ppt

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Employment Law

Judicial Pecking Order

U.S. Constitution
5th Amendment (federal government)
14th Amendment (state & local governments)
Federal Laws (CRA, ADA, ADEA, FMLA, EPA)
Executive orders (Executive Order 11246 – Federal Contractors)
Federal case law (interprets Constitution and federal laws)
U.S. Supreme Court
Circuit Courts of Appeal (12 circuits, Virginia is 4th)
U.S. District Courts
Federal administrative guidelines
EEOC
OFCCP

Federal Circuit States

1 ME, MA, NH, RI, Puerto Rico

2 NY, CT, VT

3 DE, NJ, PA, Virgin Islands

4 MD, NC, SC, VA, WV

5 LA, MS, TX

6 KY, MI, OH, TN\

7 IL, IN, WI

8 AR, IO, MN, MO, NE, ND, SD

9 AK, AZ, HI, CA, ID, MT, NV, OR, WA, Guam

Northern Mariana Islands

10 CO, KS, NM, OK, UT, WY

11 AL, FL, GA

D.C. District of Columbia

Problem Scope

*in millions

Year	Complaints	% Unwarranted	Monetary Benefits*
2013	93,727	81.9	$372.1
2012	99,412	82.7	$365.4
2011	99,947	82.0	$364.7
2010	99,222	80.8	$319.4
2009	93,277	79.7	$294.2
2008	95,402	78.7	$274.4
2007	82,792	78.1%	$290.6
2006	75,768	77.8	$229.9
2005	75,428	78.6	$276.1
2004	79,432	80.5	$251.7
2003	81,300	80.0	$269.0
2002	84,442	79.9	$257.7
2000	79,896	78.8	$245.7

Potential Legal Problems

Disparate treatment (intentional discrimination)
Disparate impact (adverse impact)
Invasion of privacy
Illegal search

Employee Complaint Process

Alleged discriminatory act
Internal investigation
Internal resolution process
Essential to have a formal policy
Options
Dictate a decision
Mediate a solution
Arbitrate a decision
Appeal procedure is important
External resolution process
State agencies in deferral states
EEOC
Law suit

Alternative Dispute Resolution

Mediation
Neutral third party
Disputants reach agreement
Arbitration
Neutral third party
Arbitrator makes decision
Binding
Nonbinding
Dictation
Third party makes decision

EEOC Complaint Process

1. Alleged discriminatory act

Complaint filed

a. 180 days for nondeferral states

b. 300 days for deferral states

3. Employer notified within 10 days

4. Investigation (goal is to complete in 120 days)

a. Reasonable cause found

1) attempt to reach agreement

2) if no agreement, EEOC can file suit

b. Reasonable cause not found

1) right to sue letter issued to employee

2) employee has 90 days to file suit

Civil Rights Act - Title VII

Who is Covered
Private employers with at least 15 employees
Federal, state, and local governments
Employment agencies
Unions
Americans working abroad for American companies

Who is Exempt
Bona fide tax exempt private clubs
Indian tribes
Individuals denied employment due to national security concerns
Publicly elected officials and their personal staff

Title VII Court Ordered Remedies

Disparate Impact Cases
Reinstatement
Back pay
Seniority
Front Pay
Affirmative Action
Attorneys’ Fees

Disparate Treatment Cases

Same as disparate impact +

Compensatory damages
psychological damage
actual expenses
damage to reputation
Punitive damages (private sector only)
Damage Limits (no limit for race)

Employees Limit

15-100 $ 50,000

101-200 $100,000

201-500 $200,000

>500 $300,000

Employment Decisions

Hiring
Placement
Promotion
Assignment (shift, patrol zone)
Salary
Discipline
Training opportunities

Does requirement directly refer to member of federally protected class?

Has case law, state law, or local law expanded definition of protected class?

Does requirement have adverse impact?

Is requirement subterfuge for discrimination?

Is requirement job related?

Were alternatives with less adverse impact considered?

Probably

Legal

Probably

Illegal

Probably

Illegal

Probably

Illegal

Probably

Illegal

Probably

Legal

BFOQ?

yes

Does Requirement Directly Refer to a Member of a Federally Protected Class?

Sex (Civil Rights Act)
Male
Female
Race (CRA)
African American
Asian American
White
Native American
National origin (CRA)

Color (CRA)
Age (over 40; ADEA)
Religion (CRA)
Disability (ADA)
Current
Previous
Regarded as such
Qualified veteran
Pregnant female

Federally Protected Classes
Exercise 3.1

Question	Answer	Reason
A	Yes	Recently retired veterans are qualified veterans
B	Yes	Religion (Civil Rights Act)
C	Yes	Potential disability (ADA)
D	No	Sexual preference is not a federally protected class
E	Yes	Sex (Civil Rights Act)
F	No	Only people over the age of 40 are protected
G	Yes	National Origin (Civil Rights Act)
H	Yes	Color (Civil Rights Act)
I	No	Education level is not a federally protected class
J	No	This is a grooming standard

Is the Requirement a Bona Fide Occupational Qualification (BFOQ)?

Only members of a particular class can perform the job
There can be no exceptions
According to the courts:
Race can never be a BFOQ
Religion has been (e.g., Nun, priest)
Gender seldom is
Customer preference doesn’t matter

Is gender a BFOQ for Hooters?

Has Local, State or Case Law Added Protected Classes?

State Law Examples
Virginia protects marital status
Wisconsin protects sexual orientation
17 states ban gender identity bias
Local Law Examples
Cincinnati protects people of Appalachian heritage
Santa Cruz, CA outlaws discrimination based on height and physical appearance
Case Law Examples
Former drug use is not a disability

Does the Requirement Have Adverse Impact on Members of a Protected Class?
Occurs when the selection rate for one group is less than 80% of the rate for the highest scoring group

Male Female

Number of applicants 50 30

Number hired 20 10

Selection ratio .40 .33

.33/.40 = .83 > .80 (no adverse impact)

Education Level

Adverse Impact - Example 2

Male Female

Number of applicants 40 20

Number hired 20 4

Selection ratio .50 .20

.20/.50 = .40 < .80 (adverse impact)

Computing Adverse Impact
Exercise 3.2

Exercise 3.2: Sex

Male Female

Number of applicants 25 5

Number hired 17 2

Selection ratio .68 .40

.40/.68 = .59 < .80 (adverse impact)

Exercise 3.2: Race

White Hispanic

Number of applicants 20 10

Number hired 14 5

Selection ratio .70 .50

.50/.70 = .71 < .80 (adverse impact)

Was the Requirement a Subterfuge for Intentional Discrimination?

Old voting requirements
Residency requirements
Height requirements

Can the Employer Prove that the Requirement is Exempt or Job Related?

Exemptions
Bona fide seniority system
Veteran’s preference rights
National security

Job Related
Types
BFOQ
Valid testing procedure
Methods
Content validity
Criterion validity
Validity generalization

Content Validity

Based on a solid job analysis
A method of rationally matching tasks with the necessary knowledge, skills, abilities, and other characteristics (KSAOs) to perform the job

Criterion Validity

Correlate test scores with relevant criteria
Two types
Concurrent
Predictive
Requirements
Reasonable sample size
Good range of test and criterion scores
A good criterion

Validity Generalization

Based on meta-analysis
Borrows validity from other studies or organizations
Job analysis results must be similar

Adverse Impact Exemptions
Exercise 3.3

Question	Legality	Exemption
A	Legal	Veterans preference
B	Legal	The valid testing procedure (r = .45) justifies the adverse impact
C	Legal	Bona fide seniority system

Did Employer Look for Reasonable Alternative with Less Adverse Impact?

A different test measuring the same construct
A different type of test
Changes to testing conditions
video rather than written
practice exams
conditioning programs
Job redesign

Exercise 3.4: Flow Chart Exercise

Q 1	Q 2	Q 3
Refer to federally protected class?	No	Yes (Sex)	No
BFOQ?	?
Adverse impact?	Probably not	Yes .10 ÷ .20 = .50
Job related?	Yes significant validity (r = .30)
Searched for test with less adverse impact?	Yes
Legal Status	Legal	It would depend on the BFOQ status	Legal

Harassment

Sexual Harassment

What examples of harassment have

you seen in the workplace?

EEOC Complaints - 2013

21,371 charges of harassment
7,256 were for sexual harassment charges of sexual harassment
17.6% of the charges were made by males
Harassment Charges
40% racial
34% sexual
26% other protected classes

Potential Victims of Harassment

Gender
Race
Religion
Age
National Origin
Alien status
Citizenship status
Disability
Sexual Preference

Types of Harassment

Quid Pro Quo

Hostile Environment

Quid Pro Quo
Harassment Claims

Granting of sexual favors is tied to employment decisions
Single incident is enough
Organization is always liable

http://www.youtube.com/watch?v=vm_YewSqOy8&feature=youtu.be

Hostile Environment
Harassment Claims

Pattern of conduct
Related to gender
Is unwanted
Is negative to the “reasonable person”
Affects a term, condition, or privilege of employment

Behaviors That Could Be
Sexual Harassment

Sexual comments
Undue attention
Verbal sexual abuse
Verbal sexual displays
Body language
Invitations
Physical advances
Explicit sexual invitations

Types of Harassing Behavior

Comments
Jokes
Posters
Cartoons
E-mail
Drawings

http://youtu.be/LBRAnQ8vzmo

http://www.youtube.com/watch?v=bojKifKPkPk&feature=related

http://youtu.be/LBRAnQ8vzmo

Behaviors are offensive if they:

Perpetuate stereotypes
Degrade another group
Build-up own group
Make others feel uncomfortable

Identifying Sexual Harassment
Exercise 3.5

Situation	Answer
A	Quid pro quo
B	No harassment. The behavior is not unwanted.
C	Hostile environment. Judy’s behavior is based on Brian’s sex, is a pattern, and is unwanted.
D	Hostile environment. John only calls the females “honey,” the behavior is a pattern, and it is unwanted.

What Causes Offensive Behavior?

Hatred toward a group
To express an emotion
Anger
Frustration
Ignorance
Attempts to gain power
To “fit in” with another group

Why is Harassment a Problem?

Hurts workplace relationships
Causes emotional distress
Causes physical distress
Decreases productivity
Increases turnover and absenteeism
Increases legal liability

Discouraging Harassment

Don’t laugh at offensive behavior
Speak your mind
Let employees know when they are crossing the line

What to do if you think you are being harassed

Talk to the individual
yellow light
red light
Talk to your supervisor or to the HR Director
all complaints are taken seriously
an investigation will occur
think about what you want the outcome to be
don’t publicize your complaint

Responding to a Complaint

Liability of the Organization

Victims must be encouraged to come forward
Every complaint or suspicion must be investigated
Appropriate action must follow the investigation

Investigating Complaints

Investigation must be prompt
Complaints must be kept confidential to protect the accused
Actions must be taken to protect the accuser during the investigation
Due process
Appropriate action must be taken

What is affirmative action?

Is it a good idea?

Affirmative Action Strategies

Intentional recruitment of minority applicants
Removal of supervisor and employee prejudices
Identification and removal of employment practices that work against minority employees
Preferential hiring and promotion of minorities

Reasons for Affirmative Action Plans

Involuntary
Government regulation
Court order
Voluntary
Consent decree
Desire to be a good citizen
community relations
customer relations
hope that diversity will increase productivity

Was there a history

of discrimination?

Does the plan only benefit

actual victims of discrimination?

What population was used

to establish goals?

Did plan trammel the

rights of nonminorities?

Is there an ending

point to the plan?

Plan is illegal

Plan is Legal

Plan is illegal

Plan is Legal

Area

Yes

Qualified Work Force

Yes

Legality of Preferential Hiring
Was there a history of discrimination?

A history of discrimination must be demonstrated
Numeric disparity
can establish history
numeric disparity by itself may not be enough
Affirmative action posture and efforts will also be considered
Other reasons, such as lack of interest in the position, must be considered along with the disparity

A. A history of previous discrimination must be demonstrated (Taxman v. Board of Education of the Township

of Piscataway, 1996; United Black Firefighters Association v. City of Akron, 1992)

B. Numeric disparity can establish history of discrimination

1. Long v. City of Saginaw (1988) - District Court upheld AA plan because black officers made up only 11%

of police department compared to 29% of the qualified work force

2. U.S. v. Phillip Paradise (1987)

3. Stuart v. Roache (1991) - only 1 of 222 Boston PD sergeants was Black

4. Adarand Constructors v. Pena (1994): U.S. Supreme Court found no history of discrimination and ruled

AA plan illegal

5. Majeske v. City of Chicago (1999)

Numeric disparity by itself may not be enough to establish the need for "a race conscious remedy" (Maryland

Troopers Association v. Evans, 1993)

1. African-Americans consisted of 22% of the qualified work force for police (hs grad, age 21-29)

2. African-Americans consisted of 17.1% of the state police

3. U.S. Court of Appeals (4th Circuit) found that the numeric disparity was too small by itself to justify

preferential hiring and stated "inferring past discrimination from statistics alone assumes the most dubious

conclusions: that the true measure of racial equality is always to be found in numeric proportionality.

The Fourteenth Amendment does not embody that view.“

Affirmative action posture and efforts will also be considered (Black Fire Fighters Association of Dallas v.

City of Dallas, 1994).

Other reasons such as a lack of interest in applying for positions must be considered along with the disparity

(Middleton v. City of Flint, 1996)

Legality of Preferential Hiring
Does the plan benefit people who were not the actual victims of discrimination?

Legality of Preferential Hiring
What population was used to establish hiring or promotion goals?

Area population
Qualified work force
minimum standards
minority interest in occupation

A. Two types of populations

1. Area population

2. Qualified work force

a. Census data are used

b. Minimum standards

c. Minority interest in occupation (e.g., females and policing -United States v. City of Miami,

1993)

B. Case Law

1. Wards Cove v. Antonio (1989)

2. Janowiak v. South Bend (1987) - U.S. Supreme Court refused to review lower court finding that

AA plan violated Title VII because it relied on general population statistics rather than the

qualified work force.

3. City of Richmond v. J. A. Croson Company (1989)

a. U.S. Supreme Court ruled that Richmond's minority set aside program was unconstitutional

b. 30% of construction contracts must be subcontracted to minority owned firms

c. 50% of Richmond population was African-American

d. Less than 5% of available contractors are minority owned

4. Adarand v. Pena (1995)

Legality of Preferential Hiring
Did the plan trammel the rights of nonminorities?

Magnitude of the goal must be reasonable
All people hired must be qualified
Race/gender can be used to break ties among equally qualified applicants
Promotion spots can be “double filled”

A. The magnitude of the goal must be reasonable

1. Detroit Police Officers v. Young (1991) - District Court ruled that Detroit's AA plan to use a

one-for-one promotion/hiring ratio until black representation was 50% was narrowly tailored.

2. Middleton v. City of Flint, Michigan (1996) - U. S. Court of Appeals for the 6th Circuit said

one-for-one promotion ratio was not narrowly tailored. The court questioned whether

lesser qualified minorities were promoted over more qualified non-minorities.

B. All people hired/promoted must be qualified

1. Stuart v. Roache (1991)

a. Consent decree involving the Boston Police Department ruled valid by the U.S. Court of

Appeals (First Circuit)

b. Pool of minorities entitled to relief consisted of 72 minority officers who had passed a

validated promotion exam.

2. Bishop v. District of Columbia (1986)

3. Higgins v. City of Vallejo (1987)

a. Affirmative action plan upheld when U.S. Supreme Court decided not to review finding of

Ninth Circuit Court

b. Facts:

1) Minorities were underrepresented in fire department

2) Voluntary AA plan allowed chief to select from the top three candidates and could

consider race

3) Chief chose minority firefighter who ranked third over Higgins who had the highest score.

C. Race/gender can be used if several people are equally qualified

1. Johnson v. Santa Clara (1987)

a. U.S. Supreme Court upheld use of gender as a consideration among equally qualified people

b. Diane Joyce scored 73 and was ranked third but was promoted over Paul Johnson who scored

75 and was tied for second

c. City promoted Joyce because there were no females in that position and they thought that her’s

and Johnson's scores were so close that they were essentially equal.

D. Race or gender must be only one of several factors that are considered (Dallas Fire Fighters v. City of Dallas, 1998)

E. Promotion spots cans be "double filled" (Youngblood v. Dalzell, 1986)

Legality of Preferential Hiring
Is there an ending point to the plan?

Progress must be periodically reviewed
Plan must end when goals have been achieved

1. Detroit Police Officers Association v. Coleman Young, Mayor (1993)

2. Brotherhood of Midwest Guardians v. City of Omaha (1993)

3. Hayes v. North State Law Enforcement Officers Association (1993)

Consequences of Affirmative Action Programs

People hired due to affirmative action:
are perceived by coworkers as being less competent
tend to devalue their own performance
behave negatively toward other AA people
Organizations using AA based hiring have lover levels of productivity (Silva & Jacobs, 1993)

Consequences of Affirmative Action Programs

I. People hired due to affirmative action programs

A. are perceived by coworkers as being less competent (Heilman, Block, &Lucas, 1992)

B. have a tendency to devalue their own performance (Heilman, Lucas, &Kaplow, 1990)

C. behave negatively toward others hired as a result of AA (Heilman, Kaplow, Amato, &

Stathatos, 1993)

II. These effects can be reduced by:

A. providing applicants with positive information about their abilities (Heilman et al, 1993)

III. Organizations using affirmative action based hiring:

A. have lower levels of productivity (Silva & Jacobs, 1993)

Exercise 3.6: Affirmative Action Flow Chart

Legal Consideration	Legal Status
History of discrimination?	Yes – 30% population numbers compared to 5% employment numbers
Population used to set goals	No – the qualified work force should have been used rather than the area population
Trammel rights of nonminorities?	? – It would depend on whether 3.4 GPA and 3 years experience are considered significantly higher than 3.2 GPA and 2 years experience

Is preferential hiring and promotion

a good idea?

Americans With Disabilities Act
(ADA) & 2008 ADA Amendments Act

Organizations must make reasonable accommodation for the physically or mentally disabled, unless to do so would impose an undue hardship

What experiences have you had

with disabled coworkers?

Definition of Disability

A physical or mental impairment that substantially limits one or more major life activities
A record of such impairment, or
Being regarded as having such an impairment

Reasonable Accommodations

Making facilities accessible
restructuring jobs
Reassignment to a vacant position
Modifying work schedules
Acquisition or modification of equipment or devices
Providing readers or interpreters
Changing examinations, training materials, or policies

Ways to Determine if a Job Function is Essential

Employer’s judgment
Written job description
Amount of time spent performing the function
Consequence of not requiring the incumbent to perform the function
Work experience of past job incumbents

Medical Exams and Inquiries

Prehire medical exams and inquiries are prohibited
Applicants may be asked if they are able to perform essential job related functions
Medical exams occur after a conditional offer of employment

Clarifications

Act does not require an organization to hire the disabled
Act does not require an organization to give preference to the disabled
Act requires that the disabled be given an equal opportunity, and if the best qualified, to be given the job

Privacy Issues

Drug testing
Office and locker searches
Psychological tests
Electronic surveillance

Employee Privacy Issues
Exercise 3.7

Exercise 3.8: Knowledge Test

Question	Answer
1	Yes, they can do that. A company must have 50 or more employees for FMLA to take effect.
2	No. The scaring is covered under the ADA definition of “considered to be disabled.”
3	No. Because it is done equally to men and women it would be annoying, but not illegal.
4	Yes, this is hostile environment sexual harassment. The behavior is related to sex, a pattern, and unwanted.
5	No, you can’t file a complaint. Although being Italian is covered by national origin, the 9-month period exceeds the 180 day time limit.

Applied Case Study: Keystone RV

Focus on Ethics
Workplace Privacy

Do you think the legal reasons for these workplace practices outweigh the ethical responsibilities of organizations?
Are companies being unfair, and therefore, unethical by engaging in such activities?
What are the ethical responsibilities to employees from companies who chose to use such practices?
What are some other ethical dilemmas that you think could arise from such practices?
Conduct an Internet search on the Genetic Information Nondiscrimination Act. Do you think that act is fair to employers and employees? Why or why not?

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Hispanic

Bachelor's DegreeHigh School Diploma

PortsmouthRichmondLynchburg

Black Population %

Black Officer %