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Noe11e_ch_03_FINAL.pptxChapter 3
The Legal Environment: Equal Employment Opportunity and Safety
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Learning Objectives 1 of 2
LO 3-1 Identify the three branches of government and the role each plays influencing the legal environment of human resource management.
LO 3-2 List the major federal laws that require equal employment opportunity and the protections provided by each of these laws.
LO 3-3 Discuss the roles, responsibilities, and requirements of the federal agencies responsible for enforcing equal employment opportunity laws.
LO 3-4 Identify the three theories of discrimination under Title VII of the Civil Rights Act and apply these theories to different discrimination situations.
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Learning Objectives 2 of 2
LO 3-5 Identify behavior that constitutes sexual harassment, and list things that an organization can do to eliminate or minimize it.
LO 3-6 Discuss the legal issues involved with preferential treatment programs.
LO 3-7 Identify the major provisions of the Occupational Safety and Health Act (1970) and the rights of employees that are guaranteed by this act.
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The Legal System in the United States
Three branches
Legislative Branch
House of Representatives
Senate
Executive Branch
President
Regulatory Agencies
Judicial Branch
U.S. District Courts
U.S. Courts of Appeals
Supreme Court
LO 3-1
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The legislative branch of the federal government consists of the House of Representatives and the Senate. These bodies enact laws that govern many HR activities.
The executive branch consists of the President of the United States and regulatory agencies the president oversees. The judicial branch consists of the federal court system, which is made up of three levels. The first level consists of the U.S. District Courts and quasi-judicial administrative agencies.
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Equal Employment Opportunity 1 of 7
Equal Employment Opportunity
Enforced through constitutional amendments, legislation, executive orders, and court decisions
LO 3-2
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Equal employment opportunity refers to the government's attempt to ensure that all individuals have an equal chance for employment, regardless of race, color, religion, sex, or national origin (see Table 3.1 in the text for a summary of EEO laws).
Equal Employment Opportunity 2 of 7
Constitutional Amendments
Thirteenth Amendment
Abolished slavery
Fourteenth Amendment
Provides equal protection for all citizens and requires due process in state action
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Thirteenth Amendment of the Constitution abolished slavery in the United States. The Reconstruction Civil Rights Acts were attempts to further this goal.
Fourteenth Amendment forbids the state to take life, liberty, or property without due process of law and prevents the states from denying the equal protections of the law.
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Equal Employment Opportunity 3 of 7
Congressional Legislation
Reconstruction Civil Rights Acts of 1866 and 1871
Grants all citizens the right to make, perform, modify, and terminate contracts and enjoy all benefits, terms, and conditions of the contractual relationship
Equal Pay Act of 1963
Requires that men and women performing equal jobs receive equal pay
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Equal Employment Opportunity 4 of 7
Congressional Legislation continued
Title VII of the Civil Rights Act of 1964
Forbids discrimination based on race, color, religion, sex, or national origin
Age Discrimination in Employment Act of 1967
Prohibits discrimination in employment against individuals 40 years of age and older
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Equal Employment Opportunity 5 of 7
Congressional Legislation continued
Rehabilitation Act of 1973
Requires affirmative action in the employment of individuals with disabilities
Vietnam Era Veteran’s Readjustment Assistance Act of 1974
Requires federal contractors and subcontractors to take affirmative action toward employing Vietnam veterans
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Figure 3.1 Age Discrimination Complaints, 1991–2014
SOURCE: Equal Employment Opportunity Commission, “Age Discrimination in Employment Act (Charges Filed with EEOC),” https://www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.
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Equal Employment Opportunity 6 of 7
Congressional Legislation continued
Pregnancy Discrimination Act
Prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions
Civil Rights Act of 1991
Prohibits discrimination (same as Title VII)
Americans with Disabilities Act of 1990
Prohibits discrimination against individuals with disabilities
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Table 3.2 Maximum Punitive Damages Allowed under the Civil Rights Act of 1991
| EMPLOYER SIZE | DAMAGE LIMIT |
| 14 to 100 employees | $ 50,000 |
| 101 to 200 employees | $ 50,000 |
| 201 to 500 employees | $ 200,000 |
| More than 500 employees | $ 300,000 |
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Equal Employment Opportunity 7 of 7
Executive Orders
Executive Order 11246
Prohibits government contractors and subcontractors from discrimination based on race, color, religion, sex, and national origin.
Executive Order 11478
Requires the federal government to base all its employment policies on merit and fitness, and specifies that race, color, sex, religion, and national origin should not be considered.
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Executive Orders are directives issued and amended unilaterally by the president. Two affect HRM practice:
Executive Order 11246 Requires affirmative action in hiring women and minorities It covers Federal contractors and subcontractors with contracts greater than $10,000
Executive Order 11478 Requires the federal government to base all its employment policies on merit and fitness and specifies that race, color, sex, religion, and national origin should not be considered.
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Enforcement of Equal Employment Opportunity 1 of 3
Equal Employment Opportunity Commission (EEOC)
Investigation and Resolution
Lilly Ledbetter Fair Pay Act
Information Gathering
Issuance of Guidelines
Uniform Guidelines on Employee Selection Procedures
LO 3-3
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Equal employment opportunity (EEO) refers to the government’s attempt to ensure that all individuals have an equal chance for employment, regardless of race, color, religion, sex, age, disability, or national origin.
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Enforcement of Equal Employment Opportunity 2 of 3
Lilly Ledbetter Fair Pay Act
Congress passed the act specifying that an “illegal act” occurs when
a discriminatory compensation decision is adopted
an employee becomes subject to the decision or
an employee is affected by it application, including each time compensation is paid
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Lilly Ledbetter Fair Pay Act - Congress passed the act specifying that an “illegal act” occurs when (1) a discriminatory compensation decision is adopted; (2) an employee becomes subject to the decision; or (3) an employee is affected by it application, including each time compensation is paid.
Enforcement of Equal Employment Opportunity 3 of 3
Office of Federal Contract Compliance Programs (OFCCP)
Utilization analysis
Goals and timetables
Action steps
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These plans have three basic components.17 First, the utilization analysis compares the race, sex, and ethnic composition of the employer’s workforce with that of the available labor supply. Second, the employer must develop specific goals and timetables for achieving balance in the workforce concerning these characteristics (particularly where underutilization exists). Third, employers with federal contracts must develop a list of action steps they will take toward attaining their goals to reduce underutilization.
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Types of Discrimination 1 of 6
Disparate Treatment
Disparate Impact
Reasonable Accommodation
LO 3-4
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Table 3.3 Comparison of Discrimination Theories 1 of 2
| DISPARATE TREATMENT | DISPARATE IMPACT | REASONABLE ACCOMMODATION | |
| Show Intent? | Yes | NO | Yes |
| Show Intent? | Individual is a member of a protected group, was qualified for the job, and was turned down for the job, and the job remained open | Statistical disparity in the effects of a facially neutral employment practice | Individual has a belief or disability, provided the employer with notice (request to accommodate), and was adversely affected by a failure to be accommodated |
| Employer’s defense | Produce a legitimate, nondiscriminatory reason for the employment decision or show bona fide occupational qualification (BFOQ) | Prove that the employment practice bears a manifest relationship with job performance | Job-relatedness and business necessity, undue hardship, or direct threat to health or safety |
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Table 3.3 Comparison of Discrimination Theories 2 of 2
| DISPARATE TREATMENT | DISPARATE IMPACT | REASONABLE ACCOMMODATION | |
| Plaintiff’s rebuttal | Reason offered was merely a “pretext” for discrimination | Alternative procedures exist that meet the employer’s goal without having disparate impact | |
| Monetary damages | Compensatory and punitive damages | Equitable relief (for example: back pay) | Compensatory and punitive damages (if discrimination was intentional or employer failed to show good-faith efforts to accommodate) |
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Types of Discrimination 2 of 6
Disparate treatment
When individuals are treated differently because of their race, sex, or the like
The Plaintiff’s Burden
Prima facie
The Defendant’s Rebuttal
Bona fide occupational qualification
The Plaintiff’s Rebuttal
Mixed Motive Cases
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Disparate treatment exists when individuals in similar situations are treated differently based upon race, color, religion, sex, national origin, age, or disability status. Whenever individuals are treated differently because of their race, sex, or the like, and there is an actual intent to treat them differently; the plaintiff must prove that there was a discriminatory motive—that is, that the employer intended to discriminate.
Bona fide occupational qualifications (BFOQ) - Characteristic that is necessary, rather than preferred, for a job.
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Types of Discrimination 3 of 6
Disparate Impact
Occurs when a neutral employment practice disproportionately excludes a protected group from employment opportunities
The plaintiff’s burden
Four-fifths rule
Standard deviation rule
Wards Cove Packing Co. v. Antonio
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Disparate impact occurs when a facially neutral employment practice disproportionately excludes a protected group from employment opportunities.
Four-fifths rule - a test has disparate impact if the hiring rate for the minority group is less than four-fifths (80 percent) of the hiring rate for the majority group.
Standard deviation rule - uses actual probability distributions to determine adverse impact.
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Types of Discrimination 4 of 6
Disparate Impact continued
Defendant’s Rebuttal
Must show that the employment practice is a “business necessity.”
Plaintiff’s Rebuttal
Argue that other employment practices could sufficiently meet the employer’s goal without adverse impact
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Types of Discrimination 5 of 6
Pattern and Practice
Plaintiffs attempt to show three things in class action pattern and practice lawsuits
Statistical disparities between composition of some group within the company compared to some other relevant group
Individual acts of intentional discrimination that suggest statistical disparity is a function of the larger culture
Promotion and/or pay procedures leave too much discretion to managers, providing the avenue through which unconscious biases can play a part
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Plaintiffs attempt to show three things in showing class action pattern and practice lawsuits:
Statistical disparities between the composition of some group within the company compared to some other relevant group
Plaintiff tries to show individual acts of intentional discrimination that suggest that the statistical disparity is a function of the larger culture.
Plaintiff usually tries to make the case that the promotion and/or pay procedures leave too much discretion to managers, providing the avenue through which their unconscious biases can play a part.
Types of Discrimination 6 of 6
Reasonable Accommodation
Religion and accommodation
An employee must demonstrate that he or she has a legitimate religious belief and provided the employer with notice of the need to accommodate the religious practice, and that adverse consequences occurred due to the employer’s failure to accommodate.
Disability and accommodation
The plaintiff must show that she or he is a qualified applicant with a disability and that adverse action was taken by a covered entity
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Reasonable Accommodation - places a special obligation on an employer to affirmatively do something to accommodate an individual’s disability or religion. Reasonable accommodation is making facilities readily accessible to and usable by individuals with disabilities.
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Retaliation for Participation and Opposition
Title VII
Employers cannot retaliate against employees for either "opposing" a perceived illegal employment practice or "participating in a proceeding” related to an alleged illegal employment practice
Opposition
Expressing to someone through proper channels that you believe that an illegal employment act has taken place or is taking place.
Participation
Testifying in an investigation, hearing, or court proceeding regarding an illegal employment act
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Title VII of the Civil Rights Act of 1964 protects you. It states that employers cannot retaliate against employees for either “opposing” a perceived illegal employment practice or “participating in a proceeding” related to an alleged illegal employment practice. Opposition refers to expressing to someone through proper channels that you believe that an illegal employment act has taken place or is taking place. Participation refers to actually testifying in an investigation, hearing, or court proceeding regarding an illegal employment act. Clearly, the purpose of this provision is to protect employees from employers’ threats and other forms of intimidation aimed at discouraging the employees from bringing to light acts they believe to be illegal.
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Current Issues Regarding Diversity and Equal Employment Opportunity 1 of 3
Sexual harassment
Refers to unwelcome sexual advances
Charges have been decreasing since 2010
Hostile working environment
Filings by men have increased
LO 3-5
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Summary
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Organizational demography is changing, and therefore issues regarding diversity are increasingly important. The important issue are: sexual harassment, affirmative action and reverse discrimination, and outcomes of American’s with Disabilities Act.
A more subtle, and possibly more pervasive, form of sexual harassment is a “hostile working environment.” This occurs when someone’s behavior in the workplace creates an environment that makes it difficult for someone of a particular sex to work.
Figure 3.3 Sexual Harassment Charges, 2010–2016
SOURCE: Equal Employment Opportunity Commission, “Charges Alleging Sex-Based Harassment (Charges Files with EEOC),” https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm
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Table 3.4 EEOC Definition of Sexual Harassment
| Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when |
| 1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, |
| 2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or |
| 3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. |
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Current Issues Regarding Diversity and Equal Employment Opportunity 2 of 3
Affirmative Action and Reverse Discrimination
Imposed quota programs
Ricci v. DeStefano
Outcomes of the Americans with Disabilities Act
Increased litigation
Many cases being filed are not based on the rights that Congress intended to protect
Does not appear to have had its anticipated impact on the employment of Americans with disabilities
LO 3-6
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Summary
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Current Issues Regarding Diversity and Equal Employment Opportunity 3 of 3
LGBT Issues
Most businesses are more inclusive.
The state of employment law has not caught up.
The Equality Act of 2017
Unlikely to pass
The courts have not made a definitive decision
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Employee Safety 1 of 6
The Occupational Safety and Health Act (OSHA)
Authorizes federal government to establish and enforce occupational safety and health standards for all places of employment engaging in interstate commerce.
Employee rights under OSHA
General Duty Clause
LO 3-7
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Table 3.6 Rights Granted to Workers Under OSHA
| Employees have the right to |
| 1. Request an inspection. |
| 2. Have a representative present at an inspection. |
| 3. Have dangerous substances identified. |
| 4. Be promptly informed about exposure to hazards and be given access to accurate records regarding exposures. |
| 5. Have employer violations posted at the work site. |
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Employee Safety 2 of 6
The Occupational Safety and Health Act (OSHA) continued
OSHA inspections
The compliance officer reviews the employer’s records of deaths, injuries, and illnesses.
The officer, typically accompanied by a representative of the employer (and perhaps by a representative of the employees), conducts a “walkaround” tour of the employer’s premises.
Employee interviews may take place during the tour.
In a closing conference, the compliance officer discusses the findings with the employer, noting any violations.
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Employee Safety 3 of 6
The Occupational Safety and Health Act (OSHA) continued
Citations and penalties
The compliance officer can issue a citation to the employer that specifies the exact practice or situation that violates the act.
The employer must post the citation.
Fines may be assessed against the employer.
Criminal penalties may also be assessed.
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Employee Safety 4 of 6
The Occupational Safety and Health Act (OSHA) continued
The Effect of OSHA
Raised level of awareness
Does not directly regulate employee behavior
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Employee Safety 5 of 6
Safety Awareness Programs
Identifying and Communicating Job Hazards
The job hazard analysis technique
The technic of operations review (TOR)
Reinforcing Safe Practices
Safety incentive programs
Focus on specific injuries or disabilities
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Safety Awareness Programs attempt to instill symbolic and substantive changes to a safety program. There are three primary components of a safety awareness program:
--Identifying and Communicating Job Hazards
The job hazard analysis technique breaks jobs down into basic elements that are then rated for their potential for harm.
Technic of operations review (TOR) focuses on past accidents and their causes.
Table 3.8 A 10-Step Program for Reducing Eye-Related Injuries
| 1. Conduct an eye hazard job analysis. |
| 2. Test all employees’ vision to establish a baseline. |
| 3. Select protective eyewear designed for specific operations. |
| 4. Establish a 100% behavioral compliance program for eyewear. |
| 5. Ensure that eyewear is properly fitted. |
| 6. Train employees in emergency procedures. |
| 7. Conduct ongoing education programs regarding eye care. |
| 8. Continually review accident prevention strategies. |
| 9. Provide management support. |
| 10. Establish written policies detailing sanctions and rewards for specific results. |
SOURCE: From T. W. Turrif, “NSPB Suggests 10-Step Program to Prevent Eye Injury,” Occupational Health and Safety 60 (1991), pp. 62–66. Copyright © Media Inc. Reprinted with permission.
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Employee Safety 6 of 6
Promoting Safety Internationally
Cultural differences
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