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Chapter 2

2 THE LAW AND TALENT MANAGEMENT

Wayne F. Cascio, Herman Aguinis

Learning Goals

By the end of this chapter, you will be able to do the following:

· 2.1 Describe the framework of the U.S. legal system

· 2.2 Describe alternative legal routes for complaints against an employer’s employment practices

· 2.3 Explain the two major legal theories of unfair employment discrimination

· 2.4 Understand the major legal principles that define key civil rights laws

· 2.5 Identify the six exemptions to Title VII coverage

· 2.6 Define sexual harassment and identify preventive steps employers should take

· 2.7 Know when you can and cannot justify “English-only” rules in the workplace

· 2.8 Understand how to prevent age-discrimination claims when downsizing or terminating workers for cause

Comprehensive employment-related legislation, combined with increased motivation on the part of individuals to rectify unfair employment practices, makes the legal aspects of employment among the most dominant issues in human resource management today. All three branches of the federal government have been actively involved in ongoing efforts to guarantee equal employment opportunity (EEO) as a fundamental individual right, regardless of race, color, age, gender, religion, national origin, or disability.

All aspects of the employment relationship, including initial screening, recruitment, selection, placement, compensation, training, promotion, and performance management, have been addressed by legislative and executive pronouncements and by legal interpretations from the courts. With growing regularity, I/O psychologists and HR professionals are being called on to work with attorneys, the courts, and federal regulatory agencies. It is imperative, therefore, to understand thoroughly the rights as well as obligations of individuals and employers under the law and to ensure that these are translated into everyday practice in accordance with legal guidelines promulgated by federal regulatory agencies. Affirmative action involves a proactive examination of whether equality of opportunity exists. If it does not, a plan is implemented for taking concrete measures to eliminate the barriers and to establish true equality (Society for Human Resource Management, 2016b). Affirmative action has become a fact of modern organizational life. To ignore it is to risk serious economic, human, and social costs.

Every public opinion poll based on representative national samples drawn between 1950 and the present shows that a majority of Americans—black, brown, and white—support EEO and reject differential treatment based on race, regardless of its alleged purposes or results. There is agreement about the ends to be achieved, but there is disagreement about the means to be used (Von Drehle, 2003). EEO has been, and is still, an emotionally charged issue. Congress has provided sound legal bases for effecting changes in EEO through sweeping civil rights legislation. Subsequently, thousands of dissatisfied groups and individuals have won substantial redress on many issues by availing themselves of their legal rights. The combination of the motivation to rectify perceived inequities and an easily available legal framework for doing so has made the legal aspects of the employment relationship a dominant issue in HRM today.

It is imperative, therefore, that I/O psychologists and HR professionals understand the rights and obligations of individuals and employers in this most delicate area. They must be able to work with attorneys (and vice versa), for neither can succeed alone. Each group has a great deal to contribute in order to identify vulnerable employment policies and practices, to make required adjustments in them, and thus to minimize the likelihood of time-consuming and expensive litigation. Let’s begin, therefore, with an overview of the legal system, legal terminology, important laws and court decisions, and underlying legal and scientific issues.

The U.S. Legal System

Above the complicated network of local, state, and federal laws, the U.S. Constitution stands as the supreme law of the land. Certain powers and limitations are prescribed to the federal government by the Constitution; those powers not given to the federal government are considered to be reserved for the states. The states, in turn, have their own constitutions that are subject to, and must remain consistent with, the U.S. Constitution.

Whereas certain activities are regulated exclusively by the federal government (e.g., interstate commerce), other areas are subject to concurrent regulation by federal and state governments (e.g., equal employment opportunity). It should be emphasized, however, that in the event of a conflict between a state law and the U.S. Constitution (or the laws enacted by Congress in accordance with it), the federal requirements take precedence. Thus, any state or local law that violates the Constitution or federal law is, in effect, unconstitutional. Therefore, it is no defense to argue that one is acting according to such a state or local law.

The legislative branch of government (Congress) enacts laws, called statutes, which are considered primary authority. Court decisions and the decisions and guidelines of regulatory agencies are not laws, but interpretations of laws for given situations in which the law is not specific. Nevertheless, these interpretations form a complex fabric of legal opinion and precedent that must be given great deference by the public.

Let’s consider the judicial system, one of the three main branches of government (along with the executive and legislative branches), more closely. The judicial power of the United States is vested “in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish” according to Article III of the Constitution. The system of “inferior” (i.e., lower) courts includes the U.S. district courts, the federal trial courts in each state. These courts hear cases that fall under federal jurisdiction, usually either cases between citizens of different states or cases relevant to the Constitution or federal law.

Decisions of these lower federal courts may be appealed to 1 of 12 U.S. courts of appeals, corresponding to the geographic region or “circuit” in which the case arose (see  Figure 2.1 ). In turn, these courts’ decisions may be appealed to the U.S. Supreme Court—not as a matter of right, but only when the Supreme Court feels that the case warrants a decision at the highest level. Generally, the Supreme Court will grant certiorari (review) when two or more circuit courts have reached different conclusions on the same point of law or when a major question of constitutional interpretation is involved. If the Supreme Court denies a petition for a writ of certiorari, then the lower court’s decision is binding.

Figure 2.1 The System of Federal Appellate Courts in the United States

The state court structure parallels the federal court structure, with state district courts at the lowest level, followed by state appellate (review) courts, and finally by a state supreme court. State supreme court decisions may be reviewed by the U.S. Supreme Court when a question of federal law is involved or when the judicial power of the United States extends as defined by the U.S. Constitution. In all other instances, the state supreme court decision is final.

EEO complaints may take any one of several alternative routes (see  Figure 2.2 ). By far the simplest and least costly alternative is to arrive at an informal, out-of-court settlement with the employer. Often, however, the employer does not have an established mechanism for dealing with such problems. Or, if such a mechanism does exist, employees or other complainants are unaware of it or are not encouraged to use it. So the complainant must choose more formal legal means, such as contacting state and local fair employment practice agencies (where they exist), federal regulatory agencies (e.g., the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs), or the federal and state district courts. At this stage, however, solutions become time consuming and expensive. Litigation is a luxury that few can afford. Perhaps the wisest course of action an employer can take is to establish a sound internal complaint system to deal with problems before they escalate to formal legal proceedings.

Legal Systems Outside the United States

It is beyond the scope of this chapter to examine comparative legal systems or comparative employment law. At the same time, I/O psychologists and HR professionals might find useful perspectives from 22 countries on the legal environment for staffing (Myors et al., 2008a, 2008b). Those perspectives address issues such as (a) whether racial, ethnic, or religious subgroups are viewed as “disadvantaged,” (b) whether research supports mean differences between groups on individual difference measures relevant to job performance, (c) whether there are laws prohibiting discrimination against specific groups, (d) the evidence required to make and refute a claim of discrimination, (e) the consequences of violation of the laws, (f) whether particular selection methods are limited or banned, (g) whether preferential treatment of members of disadvantaged groups is permitted, and (h) whether the practice of I/O psychology has been affected by the legal environment. Of course, it is always wise to seek professional legal advice on specific questions relevant to any given country.

Unfair Discrimination: What Is It?

No law has ever attempted to define precisely the term discrimination. However, in the employment context, it can be viewed broadly as the giving of an unfair advantage (or disadvantage) to the members of a particular group in comparison to the members of other groups. The disadvantage usually results in a denial or restriction of employment opportunities or in an inequality in the terms or benefits of employment.

Whenever there are more candidates than available positions, it is necessary to select some candidates in preference to others. Selection implies exclusion. As long as the exclusion is based on what can be demonstrated to be job-related criteria, however, that kind of discrimination is entirely proper. It is only when candidates are excluded on a prohibited basis not related to the job (e.g., age, race, gender, or disability) that unlawful and unfair discrimination exists. Despite federal and state laws on these issues, they represent the basis of an enormous volume of court cases, indicating that stereotypes and prejudices do not die quickly or easily. Discrimination is a subtle and complex phenomenon that may assume two broad forms (see Figure 2.3):

Figure 2.3 Major Forms of Illegal Discrimination

1. Unequal (disparate) treatment is based on an intention to discriminate, including the intention to retaliateagainst a person who opposes discrimination, who has brought charges, or who has participated in an investigation or hearing. There are three major subtheories of discrimination within the disparate treatment theory:

· (a) Cases that rely on direct evidence of the intention to discriminate. Such cases are proven with direct evidence of pure bias based on an open expression of hatred, disrespect, or inequality, knowingly directed against members of a particular group. For example, a blanket exclusionary policy might deliberately exclude from employment an individual whose disability (e.g., an impairment of her ability to walk) has nothing to do with the requirements of the job she is applying for (financial analyst).

· (b) Cases that are proved through circumstantial evidence of the intention to discriminate (see Schwager v. Sun Oil Co. of Pa., 1979), including those that rely on statistical evidence as a method of circumstantially proving the intention to discriminate systematically against classes of individuals.

· (c) Mixed-motive cases (a hybrid theory) that often rely on both direct evidence of the intention to discriminate on some impermissible basis (e.g., gender, race, or disability) and proof that the employer’s stated legitimate basis for its employment decision is just a pretext for illegal discrimination.

2. Adverse impact (unintentional) discrimination occurs when identical standards or procedures are applied to everyone, even though they lead to a substantial difference in employment outcomes (e.g., selection, promotion, and layoffs) for the members of a particular group and they are unrelated to success on a job. An example is the use of a minimum height requirement of 5 feet, 8 inches for police cadets. This requirement would have an adverse impact on Asians, Hispanics, and women. The policy is neutral on its face, but it has an adverse impact. To use it, an employer would need to show that applicants must meet the height requirement in order to be able to perform the job.

Legal Framework for Civil Rights Requirements

Employers in the public and private sectors, employment agencies, unions, and joint labor–management committees controlling apprentice programs are subject to the various nondiscrimination laws. Government contractors and subcontractors are subject to executive orders. Presidential executive orders have the force of law even though they are issued unilaterally by the president, without congressional approval. They can be altered unilaterally as well. Many business organizations are employers as well as government contractors and, therefore, are directly subject both to nondiscrimination laws and to executive orders. It is beyond the scope of this chapter to analyze all the legal requirements pertaining to EEO, but HR professionals should at least understand the major legal principles as articulated in the following federal laws of broad scope:

· The U.S. Constitution—Thirteenth and Fourteenth Amendments

· Civil Rights Acts of 1866 and 1871

· Equal Pay Act of 1963

· Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972)

· Age Discrimination in Employment Act of 1967 (as amended in 1986)

· Immigration Reform and Control Act of 1986

· Americans with Disabilities Act of 1990 (as amended in 2008)

· Civil Rights Act of 1991

· Family and Medical Leave Act of 1993

· Uniformed Services Employment and Reemployment Rights Act of 1994

The U.S. Constitution—Thirteenth and Fourteenth Amendments

The Thirteenth Amendment prohibits slavery and involuntary servitude. Any form of discrimination may be considered an incident of slavery or involuntary servitude, and thus liable to legal action under this amendment. The Fourteenth Amendment guarantees equal protection of the law for all citizens. Both the Thirteenth and Fourteenth Amendments granted Congress the constitutional power to enact legislation to enforce their provisions. It is from this source of constitutional power that all subsequent civil rights legislation originates.

Civil Rights Acts of 1866 and 1871

These laws were enacted based on the provisions of the Thirteenth and Fourteenth Amendments. The Civil Rights Act of 1866 grants all citizens the right to make and enforce contracts for employment, and the Civil Rights Act of 1871 grants all citizens the right to sue in federal court if they feel they have been deprived of any rights or privileges guaranteed by the Constitution and laws. It applies only to “persons within the jurisdiction of the United States” and does not extend to discriminatory conduct occurring overseas (Peikes & Mitchell, 2006).

Until recently, both of these laws were viewed narrowly as tools for Reconstruction-era racial problems. This is no longer so. In Johnson v. Railway Express Agency (1975), the Supreme Court held that although Section 1981 of the Civil Rights Act of 1866 on its face relates primarily to racial discrimination in the making and enforcement of contracts, it also provides a federal remedy against discrimination in private employment on the basis of race. It is a powerful remedy. The Civil Rights Act of 1991 amended the Civil Rights Act of 1866 so that workers are protected from intentional discrimination in all aspects of employment, not just hiring and promotion. The Civil Rights Act of 1866 allows for jury trials and for compensatory and punitive damages1 for victims of intentionalracial and ethnic discrimination, and it covers both large and small employers, even those with fewer than 15 employees. The Supreme Court has ruled that employees are permitted to sue for retaliation under this law (Smith, 2008).

1 Punitive damages are awarded in civil cases to punish or deter a defendant’s conduct. They are separate from compensatory damages, which are intended to reimburse a plaintiff for injuries or harm.

The 1866 law also has been used to broaden the definition of racial discrimination originally applied to blacks. In a unanimous decision, the Supreme Court ruled in 1987 that race was equated with ethnicity during the legislative debate after the Civil War, and, therefore, Arabs, Jews, and other ethnic groups thought of as “white” are not barred from suing under the 1866 law. The Court held that Congress intended to protect identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Under the law, therefore, race involves more than just skin pigment (“Civil Rights Statutes Extended,” 1987).

Equal Pay for Equal Work Regardless of Sex

Equal Pay Act of 1963

This Act was passed as an amendment to the Fair Labor Standards Act (FLSA) of 1938. For those employers already subject to the FLSA, the Equal Pay Act requires that men and women working for the same establishment be paid the same rate of pay for work that is substantially equal in skill, effort, responsibility, and working conditions. Pay differentials are legal and appropriate if they are based on seniority, merit, systems that measure the quality or quantity of work, or any factor other than sex (e.g., shift differentials, completion of a job-related training program).

The Equal Employment Opportunity Commission (EEOC) administers the Equal Pay Act, the first in a series of federal civil rights laws passed during the 1960s. Wages withheld in violation of its provisions are viewed as unpaid minimum wages or unpaid overtime compensation under the FLSA. The EEOC receives about 1,000 equal-pay complaints per year, and, in 2016, it won $8.1 million for aggrieved individuals, excluding monetary benefits obtained through litigation (EEOC, 2017d). For individual companies, the price can be quite high, because in correcting any inequity under the act, a company must ordinarily raise the lower rate. In 2011, for example, Novartis Pharmaceutical Corporation settled a sex-discrimination lawsuit for $152.5 million (Society for Human Resource Management, 2011).

Equal Pay for Jobs of Comparable Worth

When women dominate an occupational field (such as nursing or secretarial work), the rate of pay for jobs in that field tends to be lower than the pay that men receive when they are the dominant incumbents (e.g., in construction or skilled trades). Is the market biased against jobs held mostly by women? Should jobs dominated by women and jobs dominated by men be paid equally if they are of “comparable” worth to an employer? Answering the latter question involves the knotty problem of how to make valid and accurate comparisons of the relative worth of unlike jobs. The key difference between the Equal Pay Act and the comparable-worth standard is this: The Equal Pay Act requires equal pay for men and women who do work that is substantially equal. Comparable worth would require equal pay for work of equal value to an employer (e.g., librarian and electrician).

Here is the crux of the issue: Are women underpaid for their work, or do they merely hold those jobs that are worth relatively less? Existing federal laws do not support the comparable-worth standard. However, several states and cities have enacted laws that require a comparable-worth standard for public employees (Newman, Gerhart, & Milkovich, 2016).

The ultimate resolution of the comparable-worth controversy remains to be seen, but there is an inescapable irony to the whole episode: The Equal Pay Act was passed for the express purpose of eliminating gender as a basis for the payment of wages. Comparable worth, by its very nature, requires that some jobs be labeled “male” and others “female.” In so doing, it makes gender the fundamental consideration in the payment of wages.

Is it possible that the goals of comparable worth can be accomplished through normal labor-market processes? Court decisions to date imply that pay differentials between dissimilar jobs will not be prohibited if the differences can be shown to be based on the content of the work, the value of that work to organizational objectives, and the employer’s ability to attract and retain employees in competitive external labor markets (Newman et al., 2016). In short, the appropriate response is to remove the barriers to equal pay for equal work, not to abolish supply and demand.

Equal Employment Opportunity: Title VII of the Civil Rights Act of 1964

The Civil Rights Act of 1964 is divided into several sections or titles, each dealing with a particular facet of discrimination (e.g., voting rights, public accommodations, and public education). For our purposes, Title VII is particularly relevant.

Title VII (as amended by the Equal Employment Opportunity Act of 1972) has been the principal body of federal legislation in the area of fair employment. It established the Equal Employment Opportunity Commission to ensure compliance with the law by employers, employment agencies, and labor organizations. We will consider the organization and operation of the EEOC in greater detail in a later section.

Nondiscrimination on the Basis of Race, Color, Religion, Sex, or National Origin

Employers are bound by the provisions of Section 703(a) of Title VII as amended, which states:

It shall be an unlawful employment practice for an employer—(1) to fail or to refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Note that race and color are not synonymous. Under federal law discriminating against people because of the shade of their skin—so-called intra-race or appearance discrimination—is distinct from, but just as illegal as, racial discrimination. For example, whites can be guilty of color discrimination, but not racial discrimination, if they favor hiring light-skinned over dark-skinned blacks. This issue is growing in importance as the sheer number of racial blends increases (EEOC, 2017e).

Retaliation, and Employment Advertising

Title VII, Section 704(a), prohibits discrimination against an employee or applicant because he or she has opposed an unlawful employment practice or made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing. This is retaliation. As defined by the EEOC in 2016: Federal EEO laws prohibit employers, employment agencies, or unions from punishing applicants or employees for asserting their rights to be free from employment discrimination, including harassment. Asserting EEO rights is called “protected activity” (EEOC, 2016b).

Retaliation claims, which account for more than two of every five claims filed with the EEOC, have now surpassed racial discrimination as the most common type of claim made. According to the EEOC, the vast majority of retaliation claims generally involve actions such as discharge and suspension (Smith, 2016a).

Finally, Section 704(b) prohibits notices or advertisements relating to employment from indicating any preference, limitation, specification, or discrimination on any of the prohibited factors unless it is in relation to a bona fide occupational qualification (see the “Exemptions to Title VII Coverage” section).

In 1973, the Equal Employment Opportunity Act expanded Title VII’s coverage to public and private employers (including state and local governments and public and private educational institutions) with 15 or more employees, labor organizations with 15 or more members, and both public and private employment agencies. These amendments provide broad coverage under Title VII, with the following exceptions: (a) private clubs, (b) places of employment connected with an Indian reservation, and (c) religious organizations (which are allowed to discriminate because of religion) (Title VII, Sections 701[a], 702, and 703[i]). The U.S. Office of Personnel Management and the Merit Systems Protection Board, rather than the EEOC, monitor nondiscrimination and affirmative action programs of the federal government.

Suspension of Government Contracts and Back-Pay Awards

Two other provisions of the 1973 law are noteworthy. First, denial, termination, or suspension of government contracts is proscribed (without a special hearing) if an employer has and is following an affirmative action plan accepted by the federal government for the same facility within the past 12 months. Second, back-pay awards in Title VII cases are limited to two years prior to the filing of a charge. Thus, if a woman filed a Title VII charge in 2014, but the matter continued through investigation, conciliation, trial, and appeal until 2018, she might be entitled to as much as six years of back pay, from 2012 (two years prior to the filing of her charge) to 2018 (assuming the matter was resolved in her favor).

Exemptions to Title VII Coverage

In addition to its basic objective of protecting the members of various subgroups against discrimination in employment, Title VII extends the prohibition against sex discrimination to all aspects of the employment relationship. At the same time, it contains several specific exemptions (see Figure 2.4), described in the sections that follow. Initially it appeared that these exemptions would significantly blunt the overall impact of the law. However, it soon became clear that they would be interpreted very narrowly both by the EEOC and by the courts.

Figure 2.4 The Six Exemptions to Title VII Coverage

Source: Permission granted by Pearson.

Bona Fide Occupational Qualifications (BFOQs).

Classification or discrimination in employment according to race, religion, sex, or national origin is permissible when such qualification is a bona fide occupational qualification “reasonably necessary to the operation of that particular business or enterprise.” The burden of proof rests with the employer to demonstrate this, and, as we shall see, the courts interpret BFOQs quite narrowly (Thompson, 2008). Preferences of the employer, coworkers, or clients are irrelevant, and BFOQ is not a viable defense to a race claim under Title VII.

Seniority Systems.

Bona fide seniority or merit systems and incentive pay systems are lawful “provided that such differences are not the result of an intention to discriminate.”

Preemployment Inquiries.

Such inquiries—for example, regarding sex and race—are permissible as long as they are not used as bases for discrimination. In addition, certain inquiries are necessary to meet the reporting requirements of the federal regulatory agencies and to ensure compliance with the law. Applicants provide this information on a voluntary basis.

Testing.

An employer may give or act on any professionally developed ability test, provided the test is not used as a vehicle to discriminate on the basis of race, color, religion, sex, or national origin. We will examine this issue in greater detail in a later section.

Preferential Treatment.

It is unlawful to interpret Title VII as requiring the granting of preferential treatment to individuals or groups because of their race, color, religion, sex, or national origin on account of existing imbalances. Such imbalances may exist with respect to differences between the total number or percentage of similar persons employed by an employer, or admitted to or employed in any training or apprenticeship program, and the total number or percentage of such persons in any geographic area or in the available workforce in any geographic area (see Wards Cove Packing v. Antonio, 1989).

In addition, veterans’ preference rights are not repealed or modified in any way by Title VII. In a 1979 ruling (Personnel Administrator of Massachusetts v. Feeney, 1979), the Supreme Court held that although veterans’ preference rights do have an adverse impact on women’s job opportunities, this is not caused by an intent to discriminate against women. Both male and female veterans receive the same preferential treatment, and male nonveterans are at the same disadvantage as female nonveterans.

National Security.

When it is deemed necessary to protect the national security, discrimination (e.g., against members of the Communist Party) is permitted under Title VII.

Age Discrimination in Employment Act of 1967 (as Amended in 1986)

As amended in 1986, the Age Discrimination in Employment Act (ADEA) specifically proscribes discrimination on the basis of age for employees age 40 and over unless the employer can demonstrate that age is a BFOQ for the job in question. For example, if a company claims that layoffs were based on factors other than age, such as performance criteria or needed skills, the Supreme Court has ruled that the employer bears the burden of proving that its policy was, in fact, based on those nonage factors (Winerip, 2013). This law is administered by the EEOC; in 2016 the agency won $88.2 million for aggrieved individuals, excluding monetary benefits obtained through litigation (EEOC, 2017c).

A key objective of this law is to prevent financially troubled companies from singling out older employees when there are cutbacks. However, the EEOC has ruled that when there are cutbacks, older employees can waive their rights to sue under this law (e.g., in return for sweetened benefits for early retirement). Under the Older Workers Benefit Protection Act, an individual employee who does not have a pending claim has 21 days to consider such a waiver (45 days if terminated during a group reduction in force or if leaving voluntarily through a group incentive program), and seven days after signing to revoke it. On the other hand, courts have made clear that severance agreements will be upheld against challenges when agreements follow the rules and are written clearly and in a manner that will enable employees to understand what it is that they are agreeing to (Parsons v. Pioneer Hi-Bred Int’l Inc., 2006).

Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act of 1986 applies to every employer in the United States—no matter how small—as well as to every employee—whether full time, part time, temporary, or seasonal. The act makes the enforcement of national immigration policy the job of every employer. It requires (a) that employers not hire or continue to employ persons who are not legally authorized to work in the United States; and (b) that within three days of the hire date employers verify the identity and work authorization of every new employee, and then sign (under penalty of perjury) a form I-9, attesting that the employee is lawfully eligible to work in the United States.

Experts advise firms to make copies of whatever documentation they accept for an individual’s employment, such as a work visa or Social Security card. In addition, to show a good-faith effort to abide by the law, employers should do a self-audit of all I-9 forms, not just those of a particular ethnic group (Heathfield, 2017).

Under this law, employers may not discriminate on the basis of national origin, but when two applicants are equally qualified, an employer may choose a U.S. citizen over a non-U.S. citizen. Penalties for noncompliance are severe. For example, failure to comply with the verification rules can result in fines ranging from $100 to $1,000 for each employee whose identity and work authorization have not been verified. The law also provides for criminal sanctions for employers who engage in a pattern of violations.

In fiscal year 2016, U.S. Immigration and Customs Enforcement (ICE) made 239 criminal arrests related to 1,279 inspections of I-9 forms. The arrests were primarily of company owners and managers who knowingly employed illegal workers. According to many legal experts, the single best approach to reducing illegal employment of workers is mandatory use of E-Verify by all employers. E-Verify is an Internet-based system that compares information from an applicant’s I-9 form to U.S. Department of Homeland Security, Social Security Administration, and U.S. Department of State records to confirm that the applicant is authorized to work in the United States (Morrissey, 2017; U.S. Citizenship & Immigration Services, 2017).

Americans with Disabilities Act of 1990 (as Amended in 2008)

Almost one in five people in the United States have at least one disability, according to the Centers for Disease Control and Prevention (Calfas, 2015). At the same time, the employment rate for working-age people with disabilities is less than half that of those without disabilities (19.1 percent versus 68.5 percent) (Schuman, 2017). Passed to protect people with disabilities from discrimination in employment, transportation, and public accommodation, the American with Disabilities Act (ADA) applies to all employers with 15 or more employees.

Provisions of the ADA

As a general rule, the ADA prohibits an employer from discriminating against a “qualified individual with a disability.” A “qualified individual” is one who is able to perform the “essential” (i.e., primary) functions of a job with or without accommodation. An employer’s written job description is key to determining essential functions (Danaher, 2013). The ADA Amendments Act of 2008 prohibits consideration of mitigating measures in determining whether an individual has a disability, with the exception of ordinary eyeglasses and contact lenses (Brennan, 2009). A disability is a 

 physical or mental impairment that substantially limits one or more major life activities, such as walking, talking, seeing, hearing, or learning. Persons are protected if they currently have an impairment, if they have a record of such an impairment, or if the employer thinks they have an impairment (e.g., a person with diabetes under control) (EEOC, 2017f).

Rehabilitated drug and alcohol abusers are protected, but current drug abusers may be fired. The alcoholic, in contrast, is covered and must be reasonably accommodated by being given a firm choice to rehabilitate himself or herself or face career-threatening consequences. The law also protects persons who have tested positive for the AIDS virus (ADA, 1990). At the same time, however, companies don’t have to lower work standards, tolerate misconduct, or give someone a make-work job (EEOC, 2017f; Gibson, 2016).

The ADA has five major implications for employers (Janove, 2003; Segal, 2010; Willman, 2003):

· Any factory, office, retail store, bank, hotel, or other building open to the public must be made accessible to those with physical disabilities (e.g., by installing ramps, elevators, telephones with amplifiers). “Expensive” is no excuse unless such modifications might lead an employer to suffer an “undue hardship” (Smith, 2016b).

· Employers must make “reasonable accommodations” for job applicants or employees with disabilities (e.g., by restructuring job and training programs, modifying work schedules, or purchasing new equipment that is “user friendly” to blind or deaf people) (Mook, 2007). Qualified job applicants (i.e., individuals with disabilities who can perform the essential functions of a job with or without reasonable accommodation) must be considered for employment. Practices such as the following may facilitate the process (Wells, 2008; Zellers, 2009):

· Obtain commitment from top management to accommodate workers with disabilities

· Partner with public and private disability agencies and community organizations

· Centralize recruiting, intake, and monitoring of hiring decisions

· Use technology to redesign jobs (For example, Walgreens replaced keyboards with touch screens based on large pictures and icons, not words, making it easier for people with cognitive disabilities to learn and complete tasks.)

· Develop an orientation process for workers with disabilities, supervisors, and coworkers

· Publicize successful accommodation experiences within the organization and among outside organizations

· Provide in-service training to all employees and managers about the firm’s “equal-access” policy and how to distinguish “essential” from “marginal” job functions

· Preemployment physicals are permissible only if all employees are subject to them, and they cannot be given until after a conditional offer of employment is made. That is, the employment offer is conditioned on passing the physical examination. Prior to the conditional offer of employment, employers are not permitted to ask about past workers’ compensation claims or about a candidate’s history of illegal drug use. However, even at the pre-offer stage, if an employer describes essential job functions, he or she can ask whether the applicant can perform the job in question (EEOC, 2017b). Here is an example of the difference between these two types of inquiries: “Do you have any back problems?” clearly violates the ADA because it is not job specific. However, the employer could say the following: “This job involves lifting equipment weighing up to 50 pounds at least once every hour of an eight-hour shift. Can you do that?”

· Medical information on employees must be kept separate from other personal or work-related information about them.

· Drug-testing rules remain intact. An employer can still prohibit the use of alcohol and illegal drugs at the workplace and can continue to give alcohol and drug tests. In 23 states, for example, medical marijuana use is legal, yet businesses still have the right to fire people who test positive for the drug, because state law does not extend employment protection to those engaged in activities that violate federal law, which provides no exception for the use of medicinal marijuana (Frosch, 2015; Stott & Kulpa, 2016).

Enforcement of the ADA

The EEOC enforces the ADA (EEOC, 2017b). In cases of intentional discrimination, the Supreme Court has ruled that individuals with disabilities may be awarded both compensatory and punitive damages up to $300,000 if it can be shown that an employer engaged in discriminatory practices “with malice or with reckless indifference” (Kolstad v. American Dental Association, 1999).

Civil Rights Act of 1991

The Civil Rights Act of 1991 overturned six Supreme Court decisions issued in 1989. The following sections describe some key provisions that are likely to have the greatest impact in the context of employment.

Monetary Damages and Jury Trials

A major effect of the Civil Rights Act of 1991 is to expand the remedies in discrimination cases. Individuals who feel they are the victims of intentional discrimination based on race, gender (including sexual harassment), religion, or disability can ask for compensatory damages for pain and suffering, as well as for punitive damages, and they may demand a jury trial. In the past, only plaintiffs in age-discrimination cases had the right to demand a jury.

Compensatory and punitive damages are available only from nonpublic employers (public employers are still subject to compensatory damages up to $300,000) and not for adverse impact (unintentional discrimination) cases. Moreover, they may not be awarded in an ADA case when an employer has engaged in good-faith efforts to provide a reasonable accommodation. The total amount of damages that can be awarded depends on the size of the employer’s workforce:

Number of Employees	Maximum Combined Damages per Complaint
15 to 100	$50,000
101 to 200	$100,000
201 to 500	$200,000
More than 500	$300,000

As we noted earlier, victims of intentional discrimination by race or national origin may sue under the Civil Rights Act of 1866, in which case there are no limits to compensatory and punitive damages. Note also that since intentional discrimination by reason of disability is a basis for compensatory and punitive damages (unless the employer makes a good-faith effort to provide reasonable accommodation), the 1991 Civil Rights Act provides the sanctions for violations of the ADA.

Adverse Impact (Unintentional Discrimination) Cases

The Civil Rights Act of 1991 clarifies each party’s obligations in unintentional discrimination cases. As we noted earlier, when an adverse impact charge is made, the plaintiff must identify a specific employment practice as the cause of discrimination. If the plaintiff is successful in demonstrating adverse impact, the burden of producing evidence shifts to the employer, who must prove that the challenged practice is “job related for the position in question and consistent with business necessity.”

Protection in Foreign Countries

Protection from discrimination in employment, under Title VII of the 1964 Civil Rights Act and the ADA, is extended to U.S. citizens employed in a foreign facility owned or controlled by a U.S. company. However, the employer does not have to comply with U.S. discrimination law if to do so would violate the law of the foreign country. To be covered under this provision, the U.S. citizen must be employed overseas by a firm controlled by an American employer (Lau, 2008).

Racial Harassment

As we noted earlier, the Civil Rights Act of 1991 amended the Civil Rights Act of 1866 so that workers are protected from intentional discrimination in all aspects of employment, not just hiring and promotion.

Challenges to Consent Decrees

Once a court order or consent decree is entered to resolve a lawsuit, nonparties to the original suit cannot challenge such enforcement actions.

Mixed-Motive Cases

In a mixed-motive case, an employment decision was based on a combination of job-related factors, as well as unlawful factors such as race, gender, religion, or disability. Under the Civil Rights Act of 1991, an employer is guilty of discrimination if it can be shown that a prohibited consideration was a motivating factor in a decision, even though other factors that are lawful were also used. In Gross v. FBL Financial Services Inc. (2009), the Supreme Court ruled that it is not enough for a plaintiff to prove that age was one of the motivating factors in a decision to terminate the employee. Instead, the plaintiff must prove that, but for his or her age, the adverse action would not have occurred.

Seniority Systems

The Civil Rights Act of 1991 provides that a seniority system that intentionally discriminates against the members of a protected group can be challenged within 180 days of any of the following three points: (1) when the system is adopted, (2) when an individual becomes subject to the system, or (3) when a person is injured by the system.

Race Norming

The Civil Rights Act of 1991 makes it unlawful “to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin.” Prior to the passage of this act, within-group percentile scoring (so-called race norming) had been used extensively to adjust minority candidates’ test scores to make them more comparable to those of nonminority candidates. When race norming was used, each individual’s percentile score on a selection test was computed relative only to others in his or her racial/ethnic group, and not relative to the scores of all examinees who took the test. However, a merged list of percentile scores (high to low) was presented to those responsible for hiring decisions.

Extension to U.S. Senate and Appointed Officials

The Civil Rights Act of 1991 extends protection from discrimination on the basis of race, color, religion, gender, national origin, age, and disability to employees of the U.S. Senate, political appointees of the president, and staff members employed by elected officials at the state level. Employees of the U.S. House of Representatives are covered by a House resolution adopted in 1988.

Family and Medical Leave Act of 1993

The Family and Medical Leave Act (FMLA) covers all private-sector employers with 50 or more employees, including part-timers, who work 1,250 hours over a 12-month period (an average of 25 hours per week). The law gives workers up to 12 weeks of unpaid leave each year for birth, adoption, or foster care of a child within a year of the child’s arrival; to care for a spouse, parent, or child with a serious health condition; or for the employee’s own serious health condition if it prevents him or her from working. The employer is responsible for designating an absence or leave as FMLA leave, on the basis of information provided by the employee (Rhodes, 2017).

Employers can require workers to provide medical certification of such serious illnesses and can require a second medical opinion. Employers also can exempt from the FMLA key salaried employees who are among their highest paid 10 percent. However, employers must maintain health insurance benefits for leave takers and give them their previous jobs (or comparable positions) when their leaves are over (McCutchen, 2013). Enforcement provisions of the FMLA are administered by the U.S. Department of Labor. The overall impact of this law was softened considerably by the exemption of some of its fiercest opponents—companies with fewer than 50 employees, or 95 percent of all businesses.

The FMLA was amended and expanded to include military families in 2008. Businesses are required to offer up to 26 weeks of unpaid leave to employees who provide care to wounded U.S. military personnel. Employers also must provide 12 weeks of FMLA leave to immediate family members (spouses, children, or parents) of soldiers, reservists, and members of the National Guard who have a “qualifying exigency.” Although the measure does not define that term, examples could include overseas assignments, recalls to active duty, and troop mobilizations (Leonard, 2008).

Many employers already offer more than the law requires. In a recent survey, for example, 44 percent of responding companies said they offer job-protected leave for absences that are not covered under the law. The most common examples include substituting sick/vacation leave for FMLA leave, allowing more than 12 weeks for job-protected leave, and offering such leaves for employees with fewer than 12 months’ service (Society for Human Resource Management, 2007).

Uniformed Services Employment and Reemployment Rights Act of 1994

Regardless of its size, an employer may not deny a person initial employment, reemployment, promotion, or benefits based on that person’s membership or potential membership in the uniformed services. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires both public and private employers promptly to reemploy individuals returning from uniformed service (e.g., National Guard or activated reservists) in the position they would have occupied and with the seniority rights they would have enjoyed had they never left. Employers are also required to maintain health benefits for employees while they are away, but they are not required to make up the often-significant difference between military and civilian pay (Smith, 2017a; Thelen, 2006).

To be protected, the employee must provide advance notice. Employers need not always rehire a returning service member (e.g., if the employee received a dishonorable discharge or if changed circumstances at the workplace, such as bankruptcy or layoffs, make reemployment impossible or unreasonable), but the burden of proof will almost always be on the employer. The Veterans’ Employment and Training Service of the U.S. Department of Labor administers this law (Kee, 2014).

Enforcement of the Laws—Regulatory Agencies

State Fair Employment Practices Agencies

Most states have nondiscrimination laws that include provisions expressing the public policy of the state, the persons to whom the law applies, and the prescribed activities of various administrative bodies. Moreover, the provisions specify unfair employment practices, procedures, and enforcement powers. Many states vest statutory enforcement powers in a state fair employment practices agency (FEPA).

Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission is an independent regulatory agency whose five commissioners (one of whom is the chair) are appointed by the president and confirmed by the Senate for terms of five years. No more than three of the commissioners may be from the same political party. Like the Office of Federal Contract Compliance Programs (OFCCP), the EEOC sets policy and in individual cases determines whether there is “reasonable cause” to believe that unlawful discrimination has occurred. It should be noted, however, that the courts give no legal standing to EEOC rulings on whether or not “reasonable cause” exists; each Title VII case constitutes a new proceeding.

The EEOC is the major regulatory agency charged with enforcing federal civil rights laws, and it is a busy one. In 2016, for example, individuals filed 91,503 complaints with the agency. It resolved 97,443 of them (some were from prior years) and secured more than $482 million for victims of unfair discrimination (EEOC, 2017a). Claims of retaliation by employers against workers who have complained of discrimination comprise the largest percentage of complaints (45.9 percent), followed by race (35.3 percent), disability (30.7 percent), sex (29.4 percent), and age (22.8 percent). These percentages add up to more than 100 because some charges allege multiple bases.

The Complaint Process

Complaints filed with the EEOC first are deferred to a state or local FEPA if there is one with statutory enforcement power. After 60 days, the EEOC can begin its own investigation of the charges, whether or not the state agency takes action. Of course, the state or local agency may immediately re-defer to the EEOC.

The EEOC follows a three-step approach to resolving complaints: investigation, conciliation, and litigation. Throughout the process, the commission encourages the parties to settle and to consider mediation. Although the percentage of employers agreeing to mediate is considerably lower than the percentage of charging parties agreeing to mediate, in 2016 the EEOC conducted 15,800 successful mediations, securing more than $20.3 million in remedies (EEOC, 2016c). If conciliation efforts fail, court action can be taken. If the defendant is a private employer, the case is filed with the appropriate federal district court; if the defendant is a public employer, the case is referred to the Department of Justice.

In addition to processing complaints, the EEOC is responsible for issuing written regulations governing compliance with federal workplace discrimination laws. Among those issued are guidelines on discrimination because of pregnancy, age, sex, religion, national origin (updated in 2016), and pay; retaliation; guidelines on employee selection procedures (in concert with three other federal agencies—see Appendix A); guidelines on affirmative action programs; and a policy statement on preemployment inquiries. These guidelines are not laws, although the Supreme Court indicated in Albemarle Paper Co. v. Moody (1975) that they are entitled to “great deference.” Although the purposes of the guidelines are more legal than scientific, violations will incur EEOC sanctions and possible court action.

The EEOC has one other major function: information gathering. Each organization with 100 or more employees must file annually with the EEOC an EEO-1 form, detailing the number of women and members of four different minority groups employed in nine different job categories from laborers to managers and officials. The specific minority groups tracked are African Americans; Americans of Cuban, Spanish, Puerto Rican, or Mexican origin; Asian Americans; and Native Americans (which in Alaska includes Eskimos and Aleuts). Through computerized analysis of EEO-1 forms, the EEOC is better able to uncover broad patterns of discrimination and to attack them through class-action suits.

Office of Federal Contract Compliance Programs

The Office of Federal Contract Compliance Programs is part of the U.S. Department of Labor. It is responsible for ensuring that the approximately 200,000 federal contractor employers doing business with the federal government comply with the laws and regulations requiring nondiscrimination. This mission is based on the underlying principle that employment opportunities generated by federal dollars should be available to all Americans on an equitable and fair basis. “Contract compliance” means that in addition to meeting the quality, timeliness, and other requirements of federal contract work, contractors and subcontractors must satisfy EEO and affirmative action requirements covering all aspects of employment, including recruitment, hiring, training, pay, seniority, promotion, and even benefits. Those with more than $50,000 in government business and with 50 or more employees must prepare and implement written affirmative action plans (U.S. Department of Labor, 2014).

Goals and Timetables

Whenever job categories include fewer women or minorities “than would reasonably be expected by their availability,” the contractor must establish goals and timetables (subject to OFCCP review) for increasing their representation. Goals are distinguishable from quotas in that quotas are inflexible, whereas goals are flexible objectives that can be met in a realistic amount of time. In determining representation rates, OFCCP suggests that contractors use eight criteria, including the population of women and minorities in the labor area surrounding the facility, the general availability of women and minorities having the requisite skills in the immediate labor area or in an area in which the contractor can reasonably recruit, and the degree of training the contractor is reasonably able to undertake as a means of making all job classes available to women and minorities.

How has the agency done? In 2016, the OFCCP conducted 1,391 compliance reviews and recovered roughly $6 million in back pay and other costs for employees. The number of companies debarred varies each year, from none to about eight (Beecher, 2016; Maurer, 2016e).

Employment Case Law—General Principles

Whereas the legislative and executive branches may write laws and provide for their enforcement, it is the responsibility of the judicial branch to interpret the laws and to determine how they will be enforced. Since judicial interpretation is fundamentally a matter of legal judgment, this area is changing constantly. Of necessity, laws must be written in general rather than specific form, and, therefore, they cannot possibly cover the contingencies of each particular case. Moreover, in any large body of law, conflicts and inconsistencies will exist as a matter of course. Finally, new scientific findings must be considered along with the letter of the law if justice is to be served.

Legal interpretations define what is called case law, which serves as a precedent to guide, but not completely to determine, future legal decisions. A considerable body of case law pertinent to employment relationships has developed. The intent of this section is not to document all of it, but merely to highlight significant developments in certain areas.

Testing

The 1964 Civil Rights Act clearly sanctions the use of “professionally developed” ability tests, but it took several landmark Supreme Court cases to spell out the proper role and use of tests. The first of these was Griggs v. Duke Power Company, decided in March 1971 in favor of Griggs.

Duke Power was prohibited from requiring a high school education or the passing of an intelligence test as a condition of employment or job transfer because it could not show that either standard was significantly related to job performance:

What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. … What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. (p. 428)

The ruling also included four other general principles:

· The law prohibits not only open and deliberate discrimination but also practices that are fair in form but discriminatory in operation. That is, Title VII prohibits practices having an adverse impact on protected groups, unless they are job related. This is a landmark pronouncement because it officially established adverse impact as a category of illegal discrimination. For example, suppose an organization wants to use prior arrests as a basis for selection. In theory, arrests are a “neutral” practice because all persons are equally subject to arrest if they violate the law. However, if arrests cannot be shown to be job related, and if a significantly higher proportion of, say, African Americans than whites are arrested, then the use of arrests as a basis for selection is discriminatory in operation.

· The employer bears the burden of proof that any requirement for employment is related to job performance. As affirmed by the Civil Rights Act of 1991, when a charge of adverse impact is made, the plaintiff must identify a specific employment practice as the cause of the discrimination. If the plaintiff is successful, the burden shifts to the employer.

· It is not necessary for the plaintiff to prove that the discrimination was intentional; intent is irrelevant. If the standards result in discrimination, they are unlawful.

· Job-related tests and other employment selection procedures are legal and useful.

As is well known, interviews are commonly used as bases for employment decisions to hire or to promote certain candidates in preference over others. Must such “subjective” assessment procedures satisfy the same standards of job relatedness as more “objective” procedures, such as written tests? If they produce an adverse impact against a protected group, the answer is yes, according to the Supreme Court in Watson v. Fort Worth Bank & Trust (1988).

As in its Griggs ruling, the Court held that it is not necessary for the plaintiff to prove that the discrimination was intentional. If the interview ratings result in adverse impact, they are presumed to be unlawful, unless the employer can show some relationship between the content of the ratings and the requirements of a given job. This need not involve a formal validation study, although the Court agreed unanimously that it is possible to conduct such studies when subjective assessment devices are used (McPhail, 2007; Schmitt, Arnold, & Nieminen, 2017).

The lesson for employers? Be sure that there is a legitimate, job-related reason for every question raised in an employment or promotional interview. Limit questioning to “need to know,” rather than “nice to know,” information, and monitor interview outcomes for adverse impact. Validate this selection method. It is unwise to wait until the selection system is challenged.

In two later rulings, Albemarle Paper Co. v. Moody (1975) and Washington v. Davis (1976), the Supreme Court specified in much greater detail what “job relevance” means: adequate job analysis; relevant, reliable, and unbiased job performance measures; and evidence that the tests used forecast job performance equally well for minorities and nonminorities.

To this point, we have assumed that any tests used are job related. But suppose that a written test used as the first hurdle in a selection program is not job related and that it produces an adverse impact against African Americans. Adverse impact refers to a substantially different rate of selection in hiring, promotion, or other employment decisions that works to the disadvantage of members of a race, sex, or ethnic group. Suppose further that among those who pass the test, proportionately more African Americans than whites are hired, so that the “bottom line” of hires indicates no adverse impact. This thorny issue faced the Supreme Court in Connecticut v. Teal (1982).

The Court ruled that Title VII provides rights to individuals, not to groups. Thus, it is no defense to discriminate unfairly against certain individuals (e.g., African American applicants) and then to “make up” for such treatment by treating other members of the same group favorably (i.e., African Americans who passed the test). In other words, it is no defense to argue that the bottom line indicates no adverse impact if intermediate steps in the hiring or promotion process do produce adverse impact and are not job related.

Decades of research have established that when a job requires cognitive ability, as virtually all jobs do, and tests are used to measures it, employers should expect to observe statistically significant differences in average test scores across racial/ethnic subgroups on standardized measures of knowledge, skill, ability, and achievement (Ones, Dilchert, Viswesvaran, & Salgado, 2017; Pyburn, Ployhart, & Kravitz, 2008). Alternatives to traditional tests tend to produce equivalent subgroup differences when the alternatives measure job-relevant constructs that require cognitive ability. What can be done? Begin by identifying clearly the kind of performance one is hoping to predict, and then measure the full range of performance goals and organizational interests, each weighted according to its relevance to the job in question (Aiken & Hanges, 2017b; De Corte, Lievens, & Sackett, 2007; Sackett, De Corte, & Lievens, 2010). That domain may include abilities, as well as personality characteristics, measures of motivation, and documented experience (Cascio, Jacobs, & Silva, 2010; Cleveland, Murphy, & Colella, 2017; Ployhart & Holtz, 2008). Chapter 8 provides a more detailed discussion of the remedies available. The end result may well be a reduction in subgroup differences.

Personal History

Frequently, qualification requirements involve personal background information or employment history, which may include minimum education or experience requirements, past wage garnishments, or previous arrest and conviction records. If such requirements have the effect of denying or restricting equal employment opportunity, they may violate Title VII.

This is not to imply that organizations should avoid considering education or experience requirements (Moyer, 2009). On the contrary, a review of 83 court cases indicated that educational requirements are most likely to be upheld when (a) a highly technical job, one that involves risk to the safety of the public, or one that requires advanced knowledge is at issue; (b) adverse impact cannot be established; and (c) evidence of criterion-related validity or an effective affirmative action program is offered as a defense (Meritt-Haston & Wexley, 1983).

Similar findings were reported in a review of 45 cases dealing with experience requirements (Arvey & McGowen, 1982). That is, experience requirements typically are upheld for jobs when there are greater economic and human risks involved with failure to perform adequately (e.g., airline pilots) or for higher level jobs that are more complex. They typically are not upheld when they perpetuate a racial imbalance or past discrimination or when they are applied differently to different groups. Courts also tend to review experience requirements carefully for evidence of business necessity.

Arrest records, by their very nature, are not valid bases for screening candidates because in our society a person who is arrested is presumed innocent until proven guilty. It might, therefore, appear that conviction records are always permissible bases for applicant screening. In fact, conviction records may not be used in evaluating applicants unless the conviction is directly related to the work to be performed—for example, when a person convicted of embezzlement applies for a job as a bank teller (cf. Hyland v. Fukuda, 1978). In addition, employers should consider carefully the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and whether the candidate is a repeat offender (Maurer, 2015a).

As of 2017, 24 states and more than 150 cities and counties have passed “ban the box” laws that require organizations to remove the check box that asks if a candidate has ever been convicted of a crime. Instead, they require employers first to conduct a job interview to see if someone is qualified, and then do a background investigation and analysis of whether a conviction is job related (Nagele-Piazza, 2017).

Despite such constraints, remember that personal history items are not unlawfully discriminatory per se, but to use them, an employer must show that they are relevant to the job in question. Just as with employment interviews, collect this information on a “need to know,” not on a “nice to know,” basis.

Sex Discrimination

Judicial interpretation of Title VII clearly indicates that in the United States both sexes must be given equal opportunity to compete for jobs unless it can be demonstrated that sex is a bona fide occupational qualification for the job (e.g., actor, actress). Sex-discrimination cases have been argued under both theories of unlawful discrimination: disparate treatment (e.g., sexual harassment) as well as adverse impact (e.g., physical ability tests). Many cases involve allegations of gender stereotyping (unwitting preferences by managers) (Randazzo, 2016; Smith, 2011). Gender stereotypes are not a thing of the past, and they will play important roles in future employment-law litigation.

What about sexual orientation? There is no federal law that specifically prohibits workplace discrimination on the basis of sexual orientation in the private sector, although federal government workers are protected from such discrimination. The EEOC has taken the position that sexual-orientation discrimination is necessarily a form of sex discrimination because it involves gender-based stereotypes of how men and women should behave and with whom they should be in romantic relationships (EEOC, 2017h). The Justice Department has argued the opposite, declaring that sex discrimination does not encompass bias based only on sexual orientation (Feuer, 2017). Federal appeals courts have issued contradictory rulings on this issue (Shivers, 2017; Smith, 2017b). Many state, county, and local laws already prohibit discrimination in private and public employment on the basis of sexual orientation, as well as on the basis of gender identity and gender expression. Ultimately the Supreme Court may have to determine if Title VII prohibits sexual-orientation discrimination outright as sex discrimination.

Illegal sex discrimination may manifest itself in several different ways. Consider pregnancy, for example. According to the EEOC (2017g), pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

Under the law, an employer is never required to give pregnant employees special treatment. If an organization provides no disability benefits or sick leave to other employees, it is not required to provide them to pregnant employees (EEOC, 2017g).

Many of the issues raised in court cases, as well as in complaints to the EEOC itself, were incorporated into the amended Guidelines on Discrimination Because of Sex (EEOC, 2016a). The guidelines state, “The bona fide occupational exception as to sex should be interpreted narrowly.” Assumptions about comparative employment characteristics of women in general (e.g., that turnover rates are higher among women than men); sex-role stereotypes; and preferences of employers, clients, or customers do not warrant such an exception. Likewise, the courts have disallowed unvalidated physical requirements—minimum height and weight, lifting strength, or maximum hours that may be worked.

Sexual harassment is a form of illegal sex discrimination prohibited by Title VII. According to the Guidelines on Discrimination Because of Sex (EEOC, 2016a), the term refers to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct when submission to the conduct is either explicitly or implicitly a term or condition of an individual’s employment; when such submission is used as the basis for employment decisions affecting that individual; or when such conduct creates an intimidating, hostile, or offensive working environment.

The “no frills” definition can be put into one word: unwelcome. According to the courts, for behavior to be treated as sexual harassment, the offender has to know that the behavior is unwelcome. If a person wants to file a grievance, therefore, it is important to be able to prove either that he or she told the perpetrator to back off or that the action was so offensive the harasser should have known it was unwelcome.

Although many behaviors may constitute sexual harassment, there are two main types: (1) quid pro quo (you give me this; I’ll give you that) and (2) hostile work environment (an intimidating, hostile, or offensive atmosphere). Quid pro quo harassment exists when the harassment is a condition of employment. Hostile-environment harassment was defined by the Supreme Court in its 1986 ruling in Meritor Savings Bank v. Vinson. Vinson’s boss had abused her verbally, as well as sexually. However, since Vinson was making good career progress, the U.S. district court ruled that the relationship was a voluntary one having nothing to do with her continued employment or advancement. The Supreme Court disagreed, ruling that whether the relationship was “voluntary” is irrelevant. The key question is whether the sexual advances from the supervisor are “unwelcome.” If so, and if they are sufficiently severe or pervasive to be abusive, then they are illegal. This case was groundbreaking because it expanded the definition of harassment to include verbal or physical conduct that creates an intimidating, hostile, or offensive work environment or interferes with an employee’s job performance.

The U.S. Supreme Court has gone even further. In two key rulings in 1998, Burlington Industries, Inc. v. Ellerthand Faragher v. City of Boca Raton, the Court held that an employer always is potentially liable for a supervisor’s sexual misconduct toward an employee, even if the employer knew nothing about that supervisor’s conduct. However, in some cases, an employer can defend itself by showing that it took reasonable steps to prevent harassment on the job.

More recently, the Supreme Court ruled in Vance v. Ball State University that an employee is a “supervisor” only if he or she is empowered by the employer to take tangible employment actions against the victim. The Court rejected the view that “supervisors” include those whom the employer vests with authority to direct and oversee the victim’s daily work. The distinction is important, because under Title VII, an employer’s liability for workplace harassment often depends on the harasser’s status (Deschenaux, 2013).

Special care is needed when handling a complaint of sexual harassment. As we noted earlier, the Civil Rights Act of 1991 permits victims of sexual harassment—who previously could be awarded only missed wages—to collect a wide range of punitive damages from employers who mishandled a complaint.

Preventive Actions by Employers

What can an employer do to avoid being liable for the sexually harassing acts of its managers or workers? An effective policy should include the following features:

· A statement from the chief executive officer that states firmly that sexual harassment will not be tolerated.

· A workable definition of sexual harassment that is publicized via staff meetings, bulletin boards, handbooks, and new-employee orientation programs. It should also include concrete examples of inappropriate behaviors (e.g., derogatory comments, demeaning jokes, visual messages, nicknames that refer to a person’s membership in any protected group).

· An effective complaint procedure that includes multiple ways to file complaints (supervisor, high-level manager, senior manager, HR representative, or hotline), because the more choices employees have, the less reasonable will be their failure to complain. Every employee must sign a written acknowledgment of receipt of the policy.

· A clear statement of sanctions for violators and protection for those who make charges.

· Prompt and confidential investigation of every harassment claim, no matter how trivial.

· Preservation of all investigative information and records of all such complaints in a central location.

· Regular training for all managers and supervisors, including top managers, to model appropriate behavior and instruct managers and supervisors on how to recognize and respond to complaints. Written materials should outline responsibilities and obligations when a complaint is made.

· Follow-up to determine if harassment has stopped. (Segal, 2016; Smith, 2017c)

Age Discrimination

To discriminate fairly against employees over 40 years old, an employer must be able to demonstrate a “business necessity” for doing so. That is, the employer must be able to show that age is a factor directly related to the safe and efficient operation of its business. It was not always so. When the ADEA was enacted in 1967, 45 percent of the job announcements included a maximum age listing, for example, saying that people over the age of 35 need not apply (McCann, in Grossman, 2003, p. 42). Today, age discrimination is usually less overt but it still happens, often after age 50 (Fisher, Truxillo, Finkelstein, & Wallace, 2017; Wanberg, Kanfer, Hamann, & Zhang, 2016).

For example, in job ads, some employers have begun listing “digital native” as a requirement for the position. To some observers, that term is a “code word” for young workers who have grown up with technology and will be able to use new systems with ease. It also plays into stereotypes that “digital immigrants”—usually older workers who came of age before the Internet—will be slow to adapt to technology, reluctant to learn, and costly to train (Rosenblatt, 2017).

To establish a prima facie case (i.e., a body of facts presumed to be true until proven otherwise) of age discrimination, an aggrieved individual must show that

· He or she is within the protected age group (over 40 years of age).

· He or she is doing satisfactory work.

· He or she was discharged despite satisfactory work performance.

· A younger person filled the position. (Schwager v. Sun Oil Co. of Pa., 1979)

If a case gets to a jury, aggrieved employees have a 78 percent success rate in both state and local jury trials. At the federal level, almost 21,000 charges of age discrimination were filed with the EEOC in 2016, and the agency recovered $88.2 million for aggrieved individuals (EEOC, 2017c). Described here is an example of a successful company defense against such a claim.

Optomec Inc., an additive manufacturer for 3-D printed electronics and metals, hired 54-year-old Thomas Nash for an internship position. Several months later, the company offered him a full-time position as its sole laboratory technician. Optomec’s vice president of engineering, John Lees, made the hiring decision, despite Nash’s “fairly tepid” evaluation as an intern. Lees was five years younger than Nash. Over the next six months, Lees became concerned that as the business grew, it needed a higher level of function skills than Nash could provide. He concluded that Nash could not “take it to the next level” and ended his employment. Nash’s tenure with the company lasted less than one year. Subsequently, Nash sued Optomec, alleging age discrimination.

A lower court dismissed Nash’s claim, and the Eighth Circuit Court of Appeals agreed. It concluded that the “overarching reason” for Nash’s firing was that he did not have the “skill set and potential” the company needed to support its anticipated growth. Nash’s short period of employment, coupled with the slight age difference between Nash and Lees, further supported the finding that discrimination did not occur (Thomas Nash v. Optomec, Inc., 2017).

Aside from termination, age-discrimination complaints are likely to arise following reductions in force, or employment decisions that involve discipline, selection, or promotion. They can be brought under disparate treatment or adverse impact theories of discrimination. Employers can still fire unproductive workers, but the key is to base employment decisions on ability, not on age (Winters, 2017).

“English Only” Rules—National Origin Discrimination?

Rules that require employees to speak only English in the workplace have come under fire in recent years. Employees who speak a language other than English claim that such rules are not related to the ability to do a job and have a harsh impact on them because of their national origin. In its Enforcement Guidance on National Origin Discrimination (EEOC, 2016d), the EEOC emphasizes that blanket English-only rules that lack business justification amount to unlawful national-origin discrimination. Many courts agree.

Employers should be careful when instituting such a rule. Doing so because of bias against employees of a particular national origin clearly violates Title VII. Although it is not necessarily illegal to make fluency in English a job requirement or to discipline an employee for violating an “English-only” rule, an employer must be able to show there is a legitimate business need for it. For example, it is a safety issue when medical workers or firefighters do not understand or cannot make themselves understood (Bell, 2017).

The legality of a restrictive language policy that is not applied at all times and in all areas of the workplace will depend on whether the employer can show the policy is job related and consistent with business necessity. There must be more justification for the policy than that it promotes business convenience (EEOC, 2016d). Employers should inform employees in advance of the circumstances in which speaking only in English is required and of the consequences of violating the rule. At the same time, many employers would be delighted to have a worker who can speak the language of a non-English-speaking customer.

Seniority

Seniority is a term that connotes length of employment. A seniority system is a scheme that, alone or in tandem with “non-seniority” criteria, allots to employees ever-improving employment rights and benefits as their relative lengths of pertinent employment increase (California Brewers Association v. Bryant, 1982).

Various features of seniority systems have been challenged in the courts for many years (Gordon & Johnson, 1982). However, one of the most nettlesome issues is the impact of established seniority systems on programs designed to ensure equal employment opportunity. Employers often work hard to hire and promote members of protected groups. If layoffs become necessary, however, those individuals may be lost because of their low seniority. As a result, the employer takes a step backward in terms of workforce diversity. What is the employer to do when seniority conflicts with EEO?

The courts have been quite clear in their rulings on this issue. In two landmark decisions, Firefighters Local Union No. 1784 v. Stotts (1984) (decided under Title VII) and Wygant v. Jackson Board of Education (1986) (decided under the equal protection clause of the Fourteenth Amendment), the Supreme Court ruled that an employer may not protect the jobs of recently hired African American employees at the expense of whites who have more seniority (Greenhouse, 1984).

Voluntary modifications of seniority policies for affirmative action purposes remain proper, but where a collective-bargaining agreement exists, the consent of the union is required. Moreover, in the unionized setting, courts have made it clear that the union must be a party to any decree that modifies a bona fide seniority system (Britt, 1984).

What about seniority systems and the ADA? In US Airways v. Barnett (2002), the Supreme Court ruled that an employer is not required to grant an employee with a disability a job in place of an employee with more seniority—if a seniority system typically is used as a fundamental factor in such decisions. The Court emphasized that seniority does not always trump the ADA, and that such a question must be resolved on a case-by-case basis (Americans with Disabilities Act, 2016).

Preferential Selection

An unfortunate side effect of programs designed to help minorities and women is that they may, in so doing, place qualified white males at a competitive disadvantage. However, social policy as embodied in Title VII emphasizes that so-called reverse discrimination (discrimination against whites and in favor of members of protected groups) is just as unacceptable as is discrimination by whites against members of protected groups (McDonald v. Santa Fe Transportation Co., 1976).

This is the riddle that has perplexed courts and the public since the dawn of affirmative action decades ago: How do you make things fair for oppressed groups while continuing to treat people as equal individuals (Von Drehle, 2003)? Court cases, together with the Civil Rights Act of 1991, have clarified a number of issues in this area:

· Courts may order, and employers voluntarily may establish, affirmative action plans, including goals and timetables, to address problems of underutilization of women and minorities. Individuals who were not parties to the original suit may not reopen court-approved affirmative action settlements.

· The plans need not be directed solely to identified victims of discrimination, but may include general class-wide relief.

· Although the courts will almost never approve a plan that would result in whites losing their jobs through layoffs, they may sanction plans that impose limited burdens on whites in hiring and promotions (i.e., plans that postpone them).

What about numerically based preferential programs? The U.S. Supreme Court issued two landmark rulings that clarified this issue. Both cases represented challenges to admissions policies at the University of Michigan, one involving undergraduate admissions (Gratz v. Bollinger, 2003) and the other involving law school admissions (Grutter v. Bollinger, 2003). The undergraduate admissions policy was struck down because it was too mechanistic. It awarded 20 points of the 150 needed for admission (and eight points more than is earned for a perfect SAT score) to any member of an officially recognized minority group. Such a disguised quota system denied other applicants the equal protection of the law guaranteed by the Fourteenth Amendment to the U.S. Constitution, and, thus, it was ruled illegal.

However, the Court also was mindful of arguments from leading businesses, educational institutions, and former military officials that a culturally diverse, well-educated workforce is vital to the competitiveness of the U.S. economy and that an integrated officer corps produced by diverse military academies and Reserve Officer Training Corps (ROTC) programs is vital to national security. The Court upheld the law school’s approach to enrolling a “critical mass” of African Americans, Latinos, and Native Americans, under which the school considers each applicant individually and sets no explicit quota. To be consistent with the constitutional guarantee of equal treatment for all under the law, race-conscious admissions must be limited in time. Thus, the Court noted, “We expect that 25 years from now the use of racial preferences will no longer be necessary.”

The Court emphasized that diversity is a “compelling state interest,” but that universities may not use quotas for members of racial or ethnic groups or put them on separate admissions tracks. The law school’s admissions policy satisfied these principles by ensuring that applicants are evaluated individually. Under that approach, the Court noted, a nonminority student with a particularly interesting contribution to make to the law school’s academic climate may sometimes be preferred over a minority student with better grades and test scores.

The net effect of the two rulings, together with a 2016 ruling involving the University of Texas, is to permit public and private universities to continue to use race as a “plus factor” in evaluating potential students—provided they take sufficient care to evaluate individually each applicant’s ability to contribute to a diverse student body (Liptak, 2014, 2016). The Court made clear that its rationale for considering race was not to compensate for past discrimination, but to obtain educational benefits from a diverse student body. Corporate hiring policies also will have to reflect the Court’s double message: Diversity efforts are acceptable, but quotas aren’t (Kronholz, Tomsho, & Forelle, 2003).

In Chapters 1 and 2, we have examined the legal and social environments within which organizations and individuals function. For both to function effectively, however, competent HRM is essential. In Chapter 3, therefore, we present fundamental tools (systems analysis and decision theory) that will enable the HR professional to develop a conceptual framework for viewing employment decisions and methods for assessing the outcomes of such decisions.

Evidence-Based Implications for Practice

· The intent of civil rights laws is to “level the playing field” by providing equal opportunities in all aspects of employment for individuals without regard to characteristics such as race, sex, age, national origin, or disability status.

· Employers must know and understand the regulations and guidance provided by federal civil rights enforcement agencies, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs.

· With regard to tests and interviews, employers should have a legitimate, job-related reason for every question asked. Limit questions to “need to know,” rather than “nice to know,” information, and monitor outcomes for adverse impact. Develop evidence of validity for all selection methods.

· Employers should be able to demonstrate the job relevance of all information related to a prospective employee’s personal history (e.g., conviction records).

· Sexual harassment (quid pro quo or hostile environment) is a form of illegal sex discrimination under Title VII. To avoid legal liability, employers should take proactive steps to ensure that all employees and supervisors know how to recognize it and that they receive training on company policies, complaint procedures, and sanctions for violators.

· With regard to age discrimination, recognize that employers can still fire unproductive workers, but the key is to base employment decisions on ability, not on age.

· To avoid charges of national-origin discrimination, employers should not require the use of English at all times and in all areas of the workplace. Inform employees in advance of the circumstances in which speaking only in English is required and of the consequences for violating the rule.

· Legitimate seniority systems generally take precedence over affirmative action considerations and disability accommodation, but that could change in light of particular circumstances.

· Diversity efforts are acceptable, but quotas are not.

CHAPTER 3

3 PEOPLE, DECISIONS, AND THE SYSTEMS APPROACH

Wayne F. Cascio, Herman Aguinis

Learning Goals

By the end of this chapter, you will be able to do the following:

· 3.1 Explain why it is important always to take into account the costs as well as the anticipated consequences of decisions

· 3.2 Identify what makes decision or utility theory unique

· 3.3 Understand the difference between organizations as open versus closed systems

· 3.4 Describe how concepts from supply-chain analysis might apply to the staffing process

· 3.5 Explain what it means to optimize staffing outcomes

· 3.6 Describe the employment process as a network of sequential, interdependent decisions

· 3.7 Identify key interactions among the various elements of the employment process

· 3.8 Explain how organizational exit influences, and is influenced by, prior phases in the employment process

Costs and Consequences of Decisions—A Way of Thinking

Decisions, decisions—which applicants should be hired, who should be promoted, how much money should be allocated to research and development? Any time a person or an organization is confronted with alternative courses of action, there is a decision problem. For managers and HR professionals, such problems occur daily in their work. Decisions to hire, not to hire, or to place on a waiting list are characteristic outcomes of the employment process, but how does one arrive at sound decisions that will ultimately spell success for the individual or organization affected? Principles are needed that will assist managers and individuals in making the most profitable or most beneficial choices among products, investments, jobs, curricula, and the like. The aim in this chapter is not to present a detailed, mathematically sophisticated exposition of decision or utility theory (cf. Boudreau, 1991; Cabrera & Raju, 2001; Cascio & Boudreau, 2011a; Cronbach & Gleser, 1965) but merely to arouse and to sensitize the reader to a provocative way of thinking.

Utility theory is engaging, for it insists that costs and expected consequences of decisions always be taken into account (Boudreau & Ramstad, 2003; Cascio & Boudreau, 2011a). It stimulates the decision maker to formulate what he or she is after, as well as to anticipate the expected consequences of alternative courses of action. The ultimate goal is to enhance decisions, and the best way to do that is to identify the linkages between employment practices and the ability to achieve the strategic objectives of an organization. For example, the management of a professional sports team must make a number of people-related decisions each year in the annual draft of the top college players. Size and speed are two common selection criteria; present ability and future potential are two others. In all cases, the decision maker must state clearly his or her overall objectives prior to actually making the decision, and then he or she must attempt to anticipate the expected consequences of alternative choices in terms of the strategic objectives of the organization.

It should serve as some comfort to know that all employment decision processes can be characterized identically (Cronbach & Gleser, 1965). In the first place, there is an individual about whom a decision is required. Based on certain information about the individual (e.g., aptitude or diagnostic test results), the decision maker may elect to pursue various alternative courses of action. Let’s consider a simple example. After an individual is hired for a certain job with an electronics firm, he or she may be assigned to one of three training classes. Class A is for fast learners who already have some familiarity with electronics. Those assigned to class B are slower learners who also possess a basic grasp of the subject matter. Class C individuals are those whose skills are either nonexistent (e.g., the hard-core unemployed) or so rusty as to require some remedial work before entering class B training.

The firm administers an aptitude test to each individual and then processes this diagnostic information according to some strategy or rule for arriving at decisions. For example, assuming a maximum score of 100 points on the aptitude test, the decision maker may choose the following strategy:

Test Score	Assignment
90–100	Class A
70–89	Class B
Below 70	Class C

In any given situation, some strategies are better than others. Strategies are better (or worse) when evaluated against possible outcomes or consequences of decisions (payoffs). Although sometimes it is extremely difficult to assign quantitative values to outcomes, this is less of a problem in business settings, since many outcomes can be expressed in economic (dollar) terms. Once this is accomplished, it becomes possible to compare particular decisions or general strategies, as Cronbach and Gleser (1965) noted:

The unique feature of decision theory or utility theory is that it specifies evaluations by means of a payoff matrix or by conversion of the criterion to utility units. The values are thus plainly revealed and open to criticism. This is an asset rather than a defect of this system, as compared with systems where value judgments are embedded and often pass unrecognized. (p. 121)

In the previous example, individuals were assigned to training classes according to ability and experience. Alternatively, however, all individuals could have been assigned to a single training class regardless of ability or experience. Before choosing one of these strategies, let’s compare them in terms of some possible outcomes.

If the trainees are assigned to different classes based on learning speed, the overall cost of the training program will be higher because additional staff and facilities are required to conduct the different classes. In all likelihood, however, this increased cost may be offset by the percentage of successful training graduates. For strategy I (differential assignment), therefore, assume a $150,000 total training cost and a 75% success rate among trainees. Alternatively, the overall cost of strategy II (single training class) would be lower, but the percentage of successful graduates may also be lower. For strategy II, therefore, assume that the total training cost is $110,000 and that 50% of the trainees successfully complete the training program. Payoffs from the two strategies may now be compared:

	Total Training Cost	Percentage of Successful Grads
Strategy I—differential assignment	$150,000	75%
Strategy II—single training	$110,000	50%
Program strategy II—total payoff	+ $40,000	–25%

At first glance, strategy II may appear cost effective. Yet, in addition to producing 25% fewer graduates, this approach has hidden costs. In attempting to train all new hires at the same rate, the faster-than-average learners will be penalized because the training is not challenging enough for them, while the slower-than-average learners will be penalized in trying to keep up with what they perceive to be a demanding pace. The organization itself also may suffer in that the fast learners may quit (thereby increasing recruitment and selection costs), regarding the lack of challenge in training as symptomatic of the lack of challenge in full-time jobs with the organization.

In summary, utility theory provides a framework for making decisions by forcing the decision maker to define clearly his or her goal, to enumerate the expected consequences or possible outcomes of the decision, and to attach differing utilities or values to each. Such an approach has merit, since resulting decisions are likely to rest on a foundation of sound reasoning and conscious forethought. As we will see in Chapters 9 through 16, the systematic consideration of the costs and consequences of decisions is an extremely useful tool for the I/O psychologist or HR professional. Another useful tool, one that forces the decision maker to think in terms of multiple causes and multiple effects, is systems analysis.

Organizations as Systems

In recent years, much attention has been devoted to the concept of “systems” and the use of “systems thinking” to frame and solve complex scientific and technological problems. The approach is particularly relevant to the social sciences, and it also provides an integrative framework for organization theory and management practice.

What is a system? One view holds that a system is a collection of interrelated parts, unified by design and created to attain one or more objectives. The objective is to be aware of the variables involved in executing managerial functions so that decisions will be made in light of the overall effect on the organization and its objectives. These decisions must consider not only the organization itself but also the larger systems (e.g., industry and environment) in which the organization operates (Kendall & Kendall, 2014). Classical management theories viewed organizations as closed or self-contained systems whose problems could be divided into their component parts and solved. The closed-system approach concentrated primarily on the internal operation of the organization (i.e., within its own boundary) and tended to ignore the outside environment.

This approach was criticized on several grounds. In concentrating solely on conditions inside the firm, management became sluggish in its response to the demands of the marketplace. Sadly, the strategy literature is littered with examples of firms that failed to react appropriately to developments in their external environments. As Lei and Slocum (2014) note, yesterday’s winners often morph into tomorrow’s dinosaurs. As examples, consider Circuit City, Borders, Filene’s Basement, Blockbuster, MCI Worldcom, and Tyco. Kodak failed to react to developments in digital photography. Neither Intel nor Microsoft gained a foothold in the mobile market, which was transformed after Apple introduced the iPhone in 2007. Indeed, since Apple’s iPad emerged in 2010 sales of personal computers have been mainly declining (Clark & Stynes, 2016). Obviously the closed-system approach does not describe organizational reality. In contrast, a systemic perspective requires managers to integrate inputs from multiple perspectives and environments and to coordinate the various components.

The modern view of organizations, therefore, is that of open systems in continual interaction with multiple, dynamic environments, providing for a continuous import of inputs (in the form of people, capital, raw material, and information) and a transformation of these into outputs, which are then exported back into these various environments to be consumed by clients or customers (see Figure 3.1).

Figure 3.1 Organizations Are Open Systems in Continual Interaction With Multiple Dynamic Environments

Subsequently, the environments (political, economic, social, technical, legal, and the natural environment) provide feedback on the overall process (Cascio, 2015; Hitt, Ireland, & Hoskisson, 2015). Senge (1990) described the process well:

Systems thinking is a discipline for seeing wholes. It is a framework for seeing interrelationships rather than things, for seeing patterns of change rather than “snapshots.” It is a set of general principles—distilled over the course of the twentieth century, spanning fields as diverse as the physical and social sciences, engineering, and management. It is also a specific set of tools and techniques …. [D]uring the last thirty years these tools have been applied to understand a wide range of corporate, urban, regional, economic, political, ecological, and even physiological systems. And systems thinking is a sensibility for the subtle interconnectedness that gives living systems their unique character. (pp. 68–69)1

1 Senge, P. M. (1990). The fifth discipline: The art and practice of the learning organization. New York City, NY: Doubleday.

The hierarchy of systems should be emphasized as well. A system comprises subsystems of a lower order and is also part of a supersystem. However, what constitutes a system or a subsystem is purely relative and depends largely on the level of abstraction or complexity on which one is focusing the analysis. As members of organizations, people are organized into groups, groups are organized into departments, departments are organized into divisions, divisions are organized into companies, and companies are part of an industry and an economy. There seems to be a need for this inclusive, almost concentric mode of organizing subsystems into larger systems and supersystems in order to coordinate activities and processes. It provides the macro-view from which to visualize events or actions in one system and their effects on other related systems or on the organization as a whole (Katz & Kahn, 1978).

In summary, systems theory has taken us to the edge of a new awareness—that everything is one big system with infinite, interconnected, interdependent subsystems. What we are now discovering is that managers need to understand systems theory, but they should resist the rational mind’s instinctive desire to use it to predict and control organizational events. Organizational reality will not conform to any logical, systemic thought pattern (Daft, 2016; Senge, 1990). Having said that, it is important to emphasize the implications that systems thinking has for organizational practice—specifically, the importance of the following:

· The ability to scan and sense changes in the outside environment

· The ability to bridge and manage critical boundaries and areas of interdependence

· The ability to develop appropriate strategic responses

Much of the widespread interest in corporate strategy is a product of the realization that organizations must be sensitive to what is occurring in the world beyond (Daft, 2016). The next section shows how systems thinking might be applied to a much narrower issue, the staffing process.

A Systems View of the Staffing Process

Staffing is a key element of talent management. Traditionally, activities like sourcing, recruitment, initial screening, selection, offers, onboarding of new hires, performance management, and retention tended to be viewed as independent activities, each separate from the others. Such a micro-level, or “silo,” orientation has dominated the area of staffing almost from its inception, and within it, the objective has been to maximize payoffs for each element of the overall process. Systems theory offers an opportunity to develop and apply an integrative framework whose objective is to optimize investments across the various elements of the staffing process, not simply to maximize payoffs within each element. Supply-chain logic illustrates this kind of thinking quite clearly (Cascio & Boudreau, 2011b).

Optimizing Staffing Investments

Supply-chain analysis seeks to optimize costs against price and time, to achieve levels of expected quality or quantity and risks associated with variations in quality or quantity. If the quality or quantity of acquired resources falls below standard or exhibits excessive variation, the organization can evaluate where investments in the process will make the biggest difference. Figure 3.2 illustrates the external staffing process from the perspective of a supply chain.

Figure 3.2 External Staffing Supply Chain

Groups of individuals (talent pools) flow through the various phases of the staffing process, with each phase serving as a filter that eliminates a subset of the original talent pool. The top row shows the results of the filtering process, beginning with a potential labor pool (individuals who might become qualified candidates) (Box 1), which is developed into an available labor pool (all qualified candidates) (Box 2). Organizations then winnow the labor pool through recruitment and selection (Boxes 8, 9, and 10) to a group that receives offers (Box 5). This group is then winnowed further as some accept offers (Box 11) and remain with the organization (Box 6).

The “staffing processes” in the lower row show the activities that accomplish the filtering sequence, beginning in Box 7 with building and planning (forecasting trends in external and internal labor markets, inducing potential applicants to develop qualifications to satisfy future talent demands), leading in Box 8 to recruiting (attracting applicants who wish to be considered), then in Box 9 to screening (identifying the clearly qualified and/or rejecting the clearly unqualified), moving in Box 10 to selecting (rating those who remain), and ending in Box 11 with offering and closing (creating and presenting offers, and getting candidates to accept).

Notice also the box at the bottom of Figure 3.2 that reflects various metrics. At every phase of the staffing process, one could evaluate the cost and time invested in staffing processes, against the price of the talent that flows from those processes, and the resulting average and variation in their quantity and quality. Cascio and Boudreau (2011b) described how this approach might be used to optimize staffing outcomes.

Optimizing Staffing Outcomes

Consider some potential process improvements at each phase of the talent flows shown in Figure 3.2. At the phase of enticing those in the labor pool to apply for openings, we might include the cost of enhanced recruitment so that an organization might become more attractive to the top candidates (is it a world-class destination for those who want to work with new technology, for example?), or employ more aggressive recruiting at the “top schools,” etc. Those enhancements might generate significant improvements in the average quality of those applying. However, an optimum system would also need to consider how to entice candidates to join, so it is necessary to consider the costs of various elements of each offer, such as salary, benefits, professional development, and work–life fit. It is necessary to consider the costs of these elements and their likely effect both on the mean and on the standard deviation of qualifications.

Depending on costs and effects on the average and variability of quality, it might be better for an organization to enhance its job offers so that it keeps more of the stars it already has recruited and selected. However, it might also discover that at a lower cost of more aggressive recruitment, it would be able to tap in to a much higher quality group of applicants who didn’t know about the organization, and they are as likely as current applicants to accept offers. With more complete data, one can imagine a very specific mathematical algorithm that would calculate the change in the average and standard deviation of test scores for a given investment at each phase, or that would allow an organization to calculate break-even levels. For example, if investing a million dollars in better technology for these professionals to use at work would increase both the quality of applicants and their likelihood of accepting offers, that might be superior to investing in enhanced selection that must strive to find better candidates from a rather mediocre pool of applicants.

Note the strong similarity between systems thinking and supply-chain logic, and their implications for optimizing staffing outcomes. There is great potential for this approach and its application to more enlightened talent management. The next section presents a systems view of the broader employment process, beyond staffing per se.

A Systems View of the Broader Employment Process

To appreciate more fully the relevance of applied psychology and talent management to organizational effectiveness, it is useful to view the employment process as a network or system of sequential, interdependent decisions (Cascio & Boudreau, 2011b; Cronbach & Gleser, 1965).

Each decision is an attempt to discover what should be done with one or more individuals, and these decisions typically form a long chain. Sometimes the decision is whom to hire and whom to reject, or whom to train and whom not to train, or for which job a new hire is best suited. While the decision to reject a job applicant is usually considered final, the decision to accept an individual is really a decision to investigate him or her further. The strategy is, therefore, sequential, since information gathered at one point in the overall procedure determines what, if any, information will be gathered next. This open-system, decision-theoretic model is shown graphically in Figure 3.3.

Although we will describe each link in the model more fully in later sections, it is important to point out two general features: (1) Different recruitment, selection, and training strategies are used for different jobs; and (2) the various phases in the process are highly interdependent, as the feedback loops indicate. Consider one such feedback loop—from performance management to work analysis. Suppose both supervisors and job incumbents determine that the task and personal requirements of a particular role have changed considerably from those originally determined in work analysis. Obviously, the original work analysis must be updated to reflect the newer requirements, but this may also affect the wage paid on that job. In addition, workforce planning strategies may have to be modified to ensure a continuous flow of qualified persons for the changed role, different recruiting strategies may be called for in order to attract new candidates for the role, new kinds of information may be needed in order to select or promote qualified individuals, and, finally, the content of training programs for the role may have to be altered. In short, changes in one part of the system have a “reverberating” effect on all other parts of the system. Now let’s examine each link in the model in greater detail.

Work Analysis

Work analysis is the fundamental building block on which all later decisions in the employment process must rest. Whether we are dealing with recruitment, selection, training, pay, or performance management, all require information about the task and personal requirements of a given job or role. The process of matching the individual and the job typically begins with a detailed specification by the organization of the work to be performed, the skills needed, and the training required by the individual jobholder in order to perform the job satisfactorily.2This is the purpose of work analysis.

2 One question that has taken on added significance, especially with the increase in mechanization (the replacement of a human skill by a machine) and in automation (not only replacement of a human skill by a machine, but also automatic control and integration of a process), is whether, in fact, people should be in the system at all (Cascio & Montealegre, 2016).

Work analysis supports many organizational activities, but one of the most basic is job evaluation. To pay people fairly for the work they do, organizations must make value judgments on the relative importance or worth of each job to the organization as a whole—that is, in monetary terms. Divisional managers are paid higher salaries than secretaries. Why is this? We may begin to answer this question by enumerating and then comparing jobs on certain factors (so-called compensable factors) or aspects of jobs that organizations are willing to pay for. Four such factors specified in the Equal Pay Act are skill, effort, responsibility, and working conditions.

When these differences among jobs are tallied across all jobs in the organization, the job-evaluation process becomes a rather formidable task requiring detailed methods and replicable procedures that can be applied to all jobs (Newman, Gerhart, & Milkovich, 2016). Alternative methods of job evaluation are available, but whichever method is adopted must be acceptable, as well as understandable, to employees, boards of directors, and other concerned groups.

Theoretically, both job analysis and job evaluation are performed independently of the particular individuals who currently happen to be performing the jobs. In theory at least, jobs and wages remain the same even though people come and go. This is job-based, as opposed to person-based, job evaluation. The latter focuses on skill-based or competency-based pay systems (Newman et al., 2016).

Strategic Workforce Planning

Strategic workforce planning (SWP) is concerned with anticipating future staffing requirements and formulating action plans to ensure that enough qualified individuals are available to meet specific staffing needs at some future time. SWP systems include four key elements. First, the organization must devise a talent inventory that reflects the available knowledge, abilities, skills, and experiences of present employees. Second, it must develop forecasts of the internal and external supply of and demand for talent. This requires a thorough understanding of strategic business plans (Gamble, Thompson, & Peteraf, 2017); hence, I/O psychologists and HR professionals must become full partners with those responsible for strategic business planning. Third, on the basis of information derived from the talent inventory and talent supply and demand forecasts, various action plans and programs can be formulated in order to meet predicted staffing needs; such programs may include training, transfers, promotions, or recruitment. Finally, control and evaluation procedures are necessary in order to provide feedback on the adequacy of the SWP effort. Adequate and accurate SWP is essential if organizations are to cope effectively with the radical macroeconomic, demographic, and technological changes that organizations are facing. By examining the systemwide ramifications of all talent-management activities, we can plan effectively, lending both direction and scope to subsequent phases in the employment process.

Recruitment

Equipped with the information derived from work analysis and strategic workforce planning, we can proceed to the next phase in the process—attracting potentially acceptable candidates to apply for the various jobs. The recruitment machinery is typically set into motion when the HR office receives a staffing requisition from a particular department. Questions such as the following often arise in recruitment: How and where should we recruit? What media or other information sources should we use? Assuming the recruiting will not be done in person, what type and how much information should we include in our advertisements? How much money should we spend in order to attract qualified or qualifiable applicants?

Two basic decisions that the organization must make at this point involve the cost of recruiting and the selection ratio (Aamodt, 2016; Yu & Cable, 2014). For example, the cost of recruiting a design engineer is likely to be high and may involve a nationwide effort. Furthermore, the demanding qualifications and skills required for the job imply that there will be few qualified applicants. In other words, the selection ratio (the number hired relative to the number that apply) will be high or unfavorable from the organization’s point of view. On the other hand, a majority of workers probably can perform a job involving scanning tickets at a concert venue. Therefore, a narrower search effort is required to attract applicants; perhaps an online ad or a bonus to current employees to refer a friend will do. Given a relatively loose labor market, the probabilities are high that many potentially qualified applicants will be available. That is, because the selection ratio will be low or favorable, the organization can afford to be more selective.

Recruitment is critically important in the overall selection and placement process. The impression left on an applicant by company representatives or by media and Internet advertisements can significantly influence the future courses of action both of the applicant and of the organization (Dineen & Soltis, 2011; Ryan & Delaney, 2017). For example, Cisco’s successful approach to attracting technical talent included low-key recruitment efforts at home and garden shows, microbrewery festivals, and bookstores—precisely the places that focus groups suggested were most likely to yield desirable prospects.

Initial Screening

Given relatively favorable selection ratios and acceptable recruiting costs, the resulting applications are then subjected to an initial screening process that is more or less intensive depending on the screening policy or strategy adopted by the organization.

As an illustration, let’s consider two extreme strategies for the ticket-scanner job and the design engineer’s job described earlier. Strategy I requires the setting of minimally acceptable standards. For example, no educational or experience requirements may be set for the ticket-scanner job. This strategy is acceptable when an individual need not have developed or perfected a particular skill at the time of hiring because the skill is expected to develop with training and practice. Such a policy may also be viewed as eminently fair by persons with disabilities (e.g., the blind worker who can probably scan tickets quickly and accurately as a result of his or her finely developed sense of hearing), and by members of other protected groups.

Strategy II, by contrast, may require the setting of very demanding qualifications initially, since it is relatively more expensive to pass an applicant along to the next phase. The design engineer’s job, for example, may require an advanced engineering degree plus several years’ experience, as well as demonstrated research competence. The job demands a relatively intense initial-screening process.

Because each phase in the employment process involves a cost to the organization and because the investment becomes larger and larger with each successive phase, it is important to consider the likely consequence of decision errors at each phase. Decision errors may be of two types: erroneous acceptances and erroneous rejections. An erroneous acceptance is an individual who is passed on from a preceding phase, but who fails at the following phase. An erroneous rejection, by contrast, is an individual who is rejected at one phase, but who can succeed at the following phase if allowed to continue.

Different costs are attached to each of these errors, but the costs of an erroneous acceptance are immediately apparent. If the organization has invested $20,000 in an applicant who subsequently fails, that $20,000 is also gone. The costs of erroneous rejections are much less obvious and, in many cases, are not regarded as “costly” at all to the employing organization—unless the rejected applicants go to work for competitors and become smashing successes for them!

Selection

Selection is the central phase in the process of matching individual and job. During this phase, information is collected judgmentally (e.g., by interviews), mechanically (e.g., by written tests), or in both ways. Scorable application forms, written or performance tests, interviews, personality inventories, and background and reference checks are several examples of useful data-gathering techniques. These data, however collected, must then be combined judgmentally, mechanically, or via some mixture of both methods (Aiken & Hanges, 2017a). The resulting combination is the basis for hiring, rejecting, or placing on a waiting list every applicant who reaches the selection phase. During the selection phase, considerations of utility and cost should guide the decision maker in his or her choice of information sources and the method of combining data. For example, the interviewers’ salaries, the time lost from production or supervision, and, finally, the very low predictive ability of the informal interview make it a rather expensive selection device. Tests, physical examinations, and credit and background investigations also are expensive, and it is imperative that decision makers weigh the costs of such instruments and procedures against their potential utility.

We point out the key considerations in determining payoffs, or utility, in Chapter 13, but it is important at this point to stress that there is not a systematic or a one-to-one relationship between the cost of a selection procedure and its subsequent utility. That is, it is not universally true that if a selection procedure costs more, it is a more accurate predictor of later job performance. Many well-intentioned operating managers are misled by this assumption. Procedures add genuine utility to the employment process to the extent that they enable an organization to improve its current hit rate in predicting success (at an acceptable cost), however success happens to be defined in that organization. Hence, the organization must assess its present success rate, the favorableness of the selection ratio for the jobs under consideration, the predictive ability of proposed selection procedures, and the cost of adding additional predictive information; then it must weigh the alternatives and make a decision.

Applicants who accept offers are now company employees who will begin drawing paychecks. After onboarding the new employees and exposing them to company policies and procedures (Bauer & Erdogan, 2011), the organization faces another critical decision. On which jobs should these employees be placed? In many, if not most, instances, individuals are hired to fill specific jobs (so-called one-shot, selection-testing programs). In a few cases, such as the military or some very large organizations, the decision to hire is made first, and the placement decision follows at a later time. Since the latter situations are relatively rare, however, we will assume that new employees move directly from onboarding to training for a specific job or assignment.

Training and Development

Organizations can increase significantly the effectiveness of their workers and managers by employing a wide range of training and development techniques. Payoffs will be significant, however, only when training techniques accurately match individual and organizational needs (Brown, 2017; Brown & Sitzmann, 2011; Noe, 2017). Most individuals have a need to feel competent (Lawler, 1969; Ryan & Deci, 2017; White, 1959)—that is, to make use of their valued abilities, to realize their capabilities and potential. In fact, competency models often drive training curricula. A competency is a cluster of interrelated knowledge, abilities, skills, attitudes, or personal characteristics that are presumed to be important for successful performance on a job (Noe, 2017). Training programs designed to modify or to develop competencies range from basic skill training and development for individuals, to team training, supervisory training, executive-development programs, and cross-cultural training for employees who will work in other countries.

Employee selection and placement strategies relate closely to training and development strategies. Trade-offs are likely. For example, if the organization selects individuals with minimal qualifications and skill development, then the onus of developing capable, competent employees moves to training. By contrast, if the organization selects only those individuals who already possess the necessary abilities and skills required to perform their jobs, then the burden of further skill development is minimal. Given a choice between selection and training, however, the best strategy is to choose selection. If high-caliber employees are selected, these individuals will be able to learn more and to learn faster from subsequent training programs than will lower-caliber employees.

Earlier we emphasized the need to match training objectives accurately to job requirements. In lower-level jobs, training objectives can be specified rather rigidly and defined carefully. The situation changes markedly, however, when training programs must be designed for jobs that permit considerable individual initiative and freedom (e.g., selling, research and development, product design) or jobs that require incumbents to meet and deal effectively with a variety of types and modes of information, situations, or unforeseen developments (e.g., managers, detectives, engineers, astronauts). The emphasis in these jobs is on developing a broad range of skills and competencies in several areas in order to cope effectively with erratic job demands. Because training programs for these jobs are expensive and lengthy, initial qualifications and selection criteria are likely to be especially demanding.

Performance Management

In selecting and training an individual for a specific job, an organization is essentially taking a risk in the face of uncertainty. Although most of us like to pride ourselves on being logical and rational decision makers, the fact is that we are often quite fallible. Equipped with incomplete, partial information about present or past behavior, we attempt to predict future job behavior. Unfortunately, it is only after employees have been performing their jobs for a reasonable length of time that we can evaluate their performance and our predictions.

In observing, evaluating, and documenting on-the-job behavior and providing timely feedback about it to individuals or teams, we are evaluating the degree of success of the individual or team in reaching organizational objectives. Although success in some jobs can be assessed partially by objective indices (e.g., dollar volume of sales, number of errors), in most cases, judgments about performance play a significant role.

Promotions, compensation decisions, transfers, disciplinary actions—in short, individuals’ livelihoods—are extraordinarily dependent on performance management. Performance management, however, is not the same as performance appraisal. The latter is typically done once or twice a year to identify and discuss the job-relevant strengths and weaknesses of individuals or teams. The objective of performance management, by contrast, is to focus on improving performance at the level of the individual or team every day. This requires a willingness and commitment on the part of managers to provide timely feedback about performance while constantly focusing attention on the ultimate objective (e.g., world-class customer service) (Aguinis, 2019; DeNisi & Murphy, 2017).

To be sure, performance appraisals are of signal importance to the ultimate success and survival of a reward system based on merit. It is, therefore, ethically and morally imperative that each individual is treated fairly. If supervisory ratings are used to evaluate employee performance and if the rating instruments themselves are poorly designed, are prone to bias and error, or focus on elements irrelevant or unimportant to effective job performance, or if the raters themselves are uncooperative or untrained, then our ideal of fairness will never be realized. Fortunately, these problems can be minimized through careful attention to the development and implementation of appraisal systems and to the thorough training of those who will use them. We have more to say about these issues in our treatment of performance management in Chapter 5, but, for the present, note the important feedback loops to and from performance management in Figure 3.3. All prior phases in the employment process affect and are affected by the performance management process. For example, if individuals or teams lack important, job-related competencies—for example, skill in troubleshooting problems—then work analyses may have to be revised, along with recruitment, selection, and training strategies. This is the essence of open-systems thinking.

Figure 3.3 Organizations Are Open Systems in Continual Interaction With Multiple Dynamic Environments

Organizational Exit

Eventually everyone who joins an organization must leave it. For some, the process is involuntary, as in the case of a termination for cause or a forced layoff. The timing of these events is at the discretion of the organization. For others, the process is voluntary, as in the case of a retirement after many years of service or a voluntary buyout in the context of employment downsizing. In these situations, the employee typically has control over the timing of his or her departure.

The topic of organizational exit may be addressed in terms of processes or outcomes at the level of the individual or organization (Hom, 2011; Lee, Hom, Eberly, Li, & Mitchell, 2017). Consider involuntary terminations, for example. Psychological processes at the level of the individual include anticipatory job loss; shock, relief, and relaxation; concerted effort; vacillation, self-doubt, and anger; and resignation and withdrawal. Organizational processes relevant to involuntary termination are communication, participation, control, planning, and support (De Meuse, Marks, & Dai, 2011; Dewitt, 2012). At the level of the individual, involuntary job loss tends to be associated with depression, hostility, anxiety, and loss of self-esteem (Hargrove, Cooper, & Quick, 2012).

A key outcome at the level of the organization is the reactions of survivors to layoffs. They experience stress in response to uncertainty about their ability to do much about the situation and uncertainty over performance and reward outcomes (Siegrist & Dragano, 2012). At the level of society, massive layoffs may contribute to high levels of cynicism within a nation’s workforce. Layoffs signal a lack of commitment from employers. As a result, employees are less likely to trust them, are less likely to commit fully to their organizations, and work to maximize their own outcomes (Cascio, 2002a; De Meuse et al., 2011).

Retirement is also a form of organizational exit, but it is likely to have far fewer adverse effects than layoffs or firings, especially when the process is truly voluntary, individuals perceive the financial terms to be fair, and individuals control the timing of their departures. Each of these processes includes personal control; due process, personal control, and procedural justice are key variables that influence reactions to organizational exit (Colquitt, Conlon, Wesson, Porter, & Ng, 2001; Rupp, Shapiro, Folger, Skarlicki, & Shao, 2017).

As shown in  Figure 3.3 , organizational exit influences, and is influenced by, prior phases in the employment process. For example, large-scale layoffs may affect the content, design, and pay of remaining jobs; the recruitment, selection, and training of new employees with strategically relevant skills; and changes in performance management processes to reflect work reorganization and new skill requirements.

In writing this book, we have attempted to frame our ultimate objectives realistically, for it would be foolish to pretend that a single volume holds the final solution to any of these nagging employment problems. Solutions are found in concerned people—those who apply what books can only preach. Nevertheless, by urging you to consider both costs and anticipated consequences in making decisions, we hope that you will feel challenged to make better decisions and thereby to improve considerably the caliber of talent management practice. Nowhere is systems thinking more relevant than in the talent management systems of organizations. As we noted earlier, the very concept of a system implies a design to attain one or more objectives. This involves a consideration of desired outcomes. In  Chapters 4 ,  5 , and  6 , we consider the special problems associated with developing reliable success criteria—that is, outcomes of the talent management process.

Evidence-Based Implications for Practice

Employment decisions always include costs and consequences. Utility theory makes those considerations explicit, and in doing so, makes it possible to compare alternative decisions or strategies. Such a framework demands that decision makers define their goals clearly, enumerate expected consequences of alternative courses of action, and attach different values to each one. This is a useful way of thinking. Here are three other useful frameworks:

· Open-systems theory, which regards organizations as interacting continually with multiple, dynamic environments—political, economic, social, technological, legal, and the natural environment

· Supply-chain analysis—an integrative framework whose objective is to optimize investments across the various elements of that process

· The employment process as a network of sequential, interdependent decisions, in which recruitment, staffing, training, performance management, and organizational exit are underpinned and reinforced by work analysis and strategic workforce planning