Psy case study

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LEGAL ISSUES IN

EMPLOYEE SELECTION

Chapter 3

THE LEGAL PROCESS

JUDICIAL PECKING ORDER

⦿ U.S. Constitution

◼ 5th Amendment (federal government)

◼ 14th Amendment (state & local governments)

⦿ Federal Laws (CRA, ADA, ADEA, FMLA, EPA)

⦿ Executive orders (Executive Order 11246 – Federal

Contractors)

⦿ Federal case law (interprets Constitution and federal laws)

◼ U.S. Supreme Court

◼ Circuit Courts of Appeal (12 circuits, Virginia is 4th)

◼ U.S. District Courts

⦿ Federal administrative guidelines

◼ EEOC

◼ OFCCP

POTENTIAL LEGAL PROBLEMS

⦿ Disparate treatment (intentional

discrimination)

⦿ Disparate impact (adverse impact)

⦿ Invasion of privacy

⦿ Illegal search

EMPLOYEE COMPLAINT

PROCESS

⦿ Alleged discriminatory act

⦿ Internal investigation

⦿ Internal resolution process

◼ Essential to have a formal policy

◼ Options

Dictate a decision

Mediate a solution

Arbitrate a decision

◼ Appeal procedure is important

⦿ External resolution process

◼ State agencies in deferral states

◼ EEOC

◼ Law suit

ALTERNATIVE DISPUTE

RESOLUTION

⦿ Mediation

◼ Neutral third party

◼ Disputants reach agreement

⦿ Arbitration

◼ Neutral third party

◼ Arbitrator makes decision

Binding

Nonbinding

⦿ Dictation

◼ Third party makes decision

EEOC COMPLAINT PROCESS

⦿ Alleged discriminatory act

⦿ Complaint filed

◼ 180 days for nondeferral states

◼ 300 days for deferral states

⦿ Employer notified within 10 days

⦿ Investigation (goal is to complete in 120 days)

◼ Reasonable cause found

Attempt to reach agreement

If no agreement, EEOC can file suit

◼ Reasonable cause not found

Right to sue letter issued to employee

Employee has 90 days to file suit

EMPLOYMENT DECISIONS

⦿ Hiring

⦿ Placement

⦿ Promotion

⦿ Assignment (shift, patrol zone)

⦿ Salary

⦿ Discipline

⦿ Training opportunities

Does requirement directly refer to member of federally

protected class?

Has case law, state law, or local law expanded definition of

protected class?

Does requirement have adverse impact?

Is requirement subterfuge for discrimination?

Is requirement job related?

Were alternatives with less adverse impact considered?

Probably Legal

Probably Illegal

Probably Legal

BFOQ ?

yes

no no

DETERMINING WHETHER

AN EMPLOYMENT DECISION

IS LEGAL

DOES PRACTICE DIRECTLY REFER TO A

MEMBER OF A FEDERALLY PROTECTED

CLASS?

⦿ Sex (Civil Rights

Act)

◼ Male

◼ Female

⦿ Race (CRA)

◼ African American

◼ Asian American

◼ White

◼ Native American

⦿ National origin

(CRA)

⦿ Color (CRA)

⦿ Age (over 40;

ADEA)

⦿ Religion (CRA)

⦿ Disability (ADA)

◼ Current

◼ Previous

◼ Regarded as such

⦿ Qualified veteran

⦿ Pregnant female

Questio

Answer Reason

A Yes Recently retired veterans are qualified veterans

B Yes Religion (Civil Rights Act)

C Yes Potential disability (ADA)

D No Sexual preference is not a federally protected

class

E Yes Sex (Civil Rights Act)

F No Only people over the age of 40 are protected

G Yes National Origin (Civil Rights Act)

H Yes Color (Civil Rights Act)

I No Education level is not a federally protected class

J No This is a grooming standard

WAS THE REQUIREMENT A SUBTERFUGE

FOR INTENTIONAL DISCRIMINATION?

⦿ Old voting requirements

⦿ Residency requirements

⦿ Height requirements

DID EMPLOYER LOOK FOR REASONABLE

ALTERNATIVE WITH LESS ADVERSE

IMPACT?

⦿ A different test measuring the same

construct

⦿ A different type of test

⦿ Changes to testing conditions

◼ video rather than written

◼ practice exams

◼ conditioning programs

⦿ Job redesign

HARASSMENT

EEOC COMPLAINTS - 2013

⦿ 21,371 charges of harassment

◼ 7,256 were for sexual harassment charges of sexual harassment

17.6% of the charges were made by males

⦿ Harassment Charges

◼ 40% racial

◼ 34% sexual

◼ 26% other protected classes

POTENTIAL VICTIMS OF

HARASSMENT

⦿ Gender

⦿ Race

⦿ Religion

⦿ Age

⦿ National Origin

◼ Alien status

◼ Citizenship status

⦿ Disability

⦿ Sexual Preference

TYPES OF HARASSMENT

⦿ Quid Pro Quo

⦿ Hostile Environment

QUID PRO QUO

HARASSMENT CLAIMS

⦿ Granting of sexual favors is tied to

employment decisions

⦿ Single incident is enough

⦿ Organization is always liable

HOSTILE ENVIRONMENT

HARASSMENT CLAIMS

⦿ Pattern of conduct

⦿ Related to gender

⦿ Is unwanted

⦿ Is negative to the “reasonable person”

⦿ Affects a term, condition, or privilege of

employment

BEHAVIORS THAT COULD BE

SEXUAL HARASSMENT

⦿ Sexual comments

⦿ Undue attention

⦿ Verbal sexual abuse

⦿ Verbal sexual displays

⦿ Body language

⦿ Invitations

⦿ Physical advances

⦿ Explicit sexual invitations

TYPES OF HARASSING

BEHAVIOR

⦿ Comments

⦿ Jokes

⦿ Posters

⦿ Cartoons

⦿ E-mail

⦿ Drawings

BEHAVIORS ARE OFFENSIVE IF

THEY:

⦿ Perpetuate stereotypes

⦿ Degrade another group

⦿ Build-up own group

⦿ Make others feel uncomfortable

Situation Answer

A Quid pro quo

B No harassment. The behavior is not unwanted.

C Hostile environment. Judy’s behavior is based

on Brian’s sex, is a pattern, and is unwanted.

D Hostile environment. John only calls the

females “honey,” the behavior is a pattern, and

it is unwanted.

WHAT CAUSES OFFENSIVE

BEHAVIOR?

⦿ Hatred toward a group

⦿ To express an emotion

◼ Anger

◼ Frustration

⦿ Ignorance

⦿ Attempts to gain power

⦿ To “fit in” with another group

WHY IS HARASSMENT A

PROBLEM?

⦿ Hurts workplace relationships

⦿ Causes emotional distress

⦿ Causes physical distress

⦿ Decreases productivity

⦿ Increases turnover and absenteeism

⦿ Increases legal liability

DISCOURAGING HARASSMENT

⦿ Don’t laugh at offensive behavior

⦿ Speak your mind

⦿ Let employees know when they are crossing

the line

WHAT TO DO IF YOU THINK YOU

ARE BEING HARASSED

⦿ Talk to the individual

◼ yellow light

◼ red light

⦿ Talk to your supervisor or to the HR Director

◼ all complaints are taken seriously

◼ an investigation will occur

◼ think about what you want the outcome to be

◼ don’t publicize your complaint

RESPONDING TO A

COMPLAINT

LIABILITY OF THE

ORGANIZATION

⦿ Victims must be encouraged to come forward

⦿ Every complaint or suspicion must be

investigated

⦿ Appropriate action must follow the

investigation

INVESTIGATING COMPLAINTS

⦿ Investigation must be prompt

⦿ Complaints must be kept confidential to

protect the accused

⦿ Actions must be taken to protect the

accuser during the investigation

⦿ Due process

⦿ Appropriate action must be taken

AFFIRMATIVE ACTION

STRATEGIES

1. Intentional recruitment of minority

applicants

2. Removal of supervisor and employee

prejudices

3. Identification and removal of employment

practices that work against minority

employees

4. Preferential hiring and promotion of

minorities

REASONS FOR AFFIRMATIVE

ACTION PLANS

⦿ Involuntary

◼ Government regulation

◼ Court order

⦿ Voluntary

◼ Consent decree

◼ Desire to be a good citizen

community relations

customer relations

hope that diversity will increase productivity

Was there a history of discrimination?

Does the plan only benefit

actual victims of discrimination? What population

was used to establish goals?

Did plan trammel the rights of

nonminorities?

Is there an ending point to the plan?

Plan is illegal

Plan is Legal

Plan is illegal

Plan is Legal

N o

Area

N o

Yes

Qualified Work Force

Yes

LEGALITY OF PREFERENTIAL HIRING

WAS THERE A HISTORY OF

DISCRIMINATION?

⦿ A history of discrimination must be

demonstrated

⦿ Numeric disparity

◼ can establish history

◼ numeric disparity by itself may not be enough

⦿ Affirmative action posture and efforts will

also be considered

⦿ Other reasons, such as lack of interest in the

position, must be considered along with the

disparity

LEGALITY OF PREFERENTIAL HIRING

WHAT POPULATION WAS USED TO

ESTABLISH HIRING OR PROMOTION GOALS?

⦿ Area population

⦿ Qualified work force

◼ minimum standards

◼ minority interest in occupation

LEGALITY OF PREFERENTIAL HIRING

DID THE PLAN TRAMMEL THE RIGHTS OF

NON-MINORITIES?

⦿ Magnitude of the goal must be reasonable

⦿ All people hired must be qualified

⦿ Race/gender can be used to break ties

among equally qualified applicants

⦿ Promotion spots can be “double filled”

LEGALITY OF PREFERENTIAL HIRING

IS THERE AN ENDING POINT TO THE PLAN?

⦿ Progress must be periodically reviewed

⦿ Plan must end when goals have been

achieved

CONSEQUENCES OF

AFFIRMATIVE ACTION PROGRAMS

⦿ People hired due to affirmative action:

◼ are perceived by coworkers as being less competent

◼ tend to devalue their own performance

◼ behave negatively toward other AA people

⦿ Organizations using AA based hiring have

lover levels of productivity (Silva & Jacobs,

1993)

Legal Consideration Legal Status

History of discrimination? Yes – 30% population

numbers compared to 5%

employment numbers

Population used to set goals No – the qualified work force

should have been used

rather than the area

population

Trammel rights of

nonminorities?

? – It would depend on

whether 3.4 GPA and 3 years

experience are considered

significantly higher than 3.2

GPA and 2 years experience

AMERICANS WITH DISABILITIES ACT

(ADA) & 2008 ADA AMENDMENTS ACT

⦿ Organizations must make reasonable

accommodation for the physically or

mentally disabled, unless to do so would

impose an undue hardship

DEFINITION OF DISABILITY

⦿ A physical or mental impairment that

substantially limits one or more major life

activities

⦿ A record of such impairment, or

⦿ Being regarded as having such an impairment

REASONABLE

ACCOMMODATIONS

⦿ Making facilities accessible

⦿ restructuring jobs

⦿ Reassignment to a vacant position

⦿ Modifying work schedules

⦿ Acquisition or modification of equipment or

devices

⦿ Providing readers or interpreters

⦿ Changing examinations, training materials,

or policies

WAYS TO DETERMINE IF A JOB

FUNCTION IS ESSENTIAL

⦿ Employer’s judgment

⦿ Written job description

⦿ Amount of time spent performing the

function

⦿ Consequence of not requiring the incumbent

to perform the function

⦿ Work experience of past job incumbents

MEDICAL EXAMS AND INQUIRIES

⦿ Prehire medical exams and inquiries are

prohibited

⦿ Applicants may be asked if they are able to

perform essential job related functions

⦿ Medical exams occur after a conditional

offer of employment

CLARIFICATIONS

⦿ Act does not require an organization to hire

the disabled

⦿ Act does not require an organization to give

preference to the disabled

⦿ Act requires that the disabled be given an

equal opportunity, and if the best qualified,

to be given the job

PRIVACY ISSUES

⦿ Drug testing

⦿ Office and locker searches

⦿ Psychological tests

⦿ Electronic surveillance

FOCUS ON ETHICS

WORKPLACE PRIVACY

⦿ Do you think the legal reasons for these workplace

practices outweigh the ethical responsibilities of

organizations?

⦿ Are companies being unfair, and therefore, unethical by

engaging in such activities?

⦿ What are the ethical responsibilities to employees from

companies who chose to use such practices?

⦿ What are some other ethical dilemmas that you think

could arise from such practices?

⦿ Conduct an Internet search on the Genetic Information

Nondiscrimination Act. Do you think that act is fair to

employers and employees? Why or why not?