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LEGAL ISSUES

MGMT 351

Fall 2015

David Caughlin, Ph.D.

October 12, 2015

Week 3

Outline

Legal Issues & Equal Opportunity

Federal Legislation

Employment Discrimination

Project Questions

Legal Issues & Equal Opportunity

Equal Employment Opportunity

EEO: Government’s attempt to ensure all individuals have equal chance for employment, regardless of their membership in certain protected groups

This is accomplished using:

Constitutional amendments

Congressional legislation

Executive orders

State legislation

Equal Employment Opportunity

EEO enforced by EEOC (commission)

The commission ensures all individuals have an equal opportunity for employment

EEOC responsibilities:

Investigate & resolve complaints filed

Monitor and gather information on the hiring practices of organizations

Issue guidelines that help employers determine when their decisions violate laws enforced by EEOC

http://www.uniformguidelines.com/uniformguidelines.html

Federal Legislation

Equal Pay Act of 1963

Civil Rights Act of 1964 (Title VII)

Age Discrimination in Employment Act

Americans with Disabilities Act

Civil Rights Act of 1991

Equal Pay Act of 1963

An amendment to Fair Labor Standards Act of 1938

Forbids wage discrimination on the basis of gender if employees perform equal work in the same establishment

Jobs are considered equal if they require similar skill, effort, and responsibility and are performed under similar working conditions

Equal Pay Act of 1963

Three major provisions:

Equal work

Differences in pay legal if based on one of the following criteria:

Seniority

Merit or quality of performance

Quality/quantity of production

Some factor other than sex

Not permitted are defenses such as union rules or the wage is prevailing pay for market

Time of day does not constitute dissimilar working conditions; however, if a differential for working at night is paid, it must be clearly separated from the base wage for the job

Civil Rights Act of 1964 (Title VII)

It is illegal for an employer to:

Fail or refuse to hire or discharge any individual, or otherwise discriminate any individual with respect to his/her compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin

Civil Rights Act of 1964 (Title VII)

It is illegal for an employer to:

Limit, segregate, or classify its employees or applicants for employment in such a way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee because of such individual’s race, color, religion, sex, or national origin

Age Discrimination in Employment Act

Prohibits discrimination against employees over the age of 40

Firms cannot hire only younger workers, unless it is a business necessity without other valid alternatives

Firms cannot coerce employees into taking early retirement

If employees accept early retirement, they sign an agreement waiving their right to sue under ADEA

Americans with Disabilities Act

Prohibits discrimination against employees with disabilities (subject to specific exceptions) in all employment practices

Including application procedures, hiring, firing, promotions, compensation, and training

So, what is a disability?

Americans with Disabilities Act

Definition of disability:

A long-lasting physical or mental impairment that substantially limits one or more major life activities…

For example: blindness, deafness, paralysis, etc.

…a record of having such an impairment…

For example: cancer in remission, history of mental illness

…and/or being regarded as having such by employer whether you have one or not

For example: severely disfigured

Americans with Disabilities Act

Employers must define “essential” and “marginal” job functions

Essential: Fundamental duties of the position, as defined by the frequency and criticalness ratings in a job analysis. Must be performed by all job holders.

Marginal: Less important duties. Need not be performed by all job holders.

Americans with Disabilities Act

Key distinction:

Cannot refuse employment if disability affects marginal job functions

Can refuse employment if disability affects essential job functions, but only if a “reasonable accommodation” cannot be made without “undue hardship”

20% of accommodations cost nothing, median cost only $240

Americans with Disabilities Act

Video: Casey Martin: 10 Years Later

Casey Martin: At the time of legal challenge, he was a 25 year old golfer with circulatory disorder

Leg swells during any aerobic activity, especially on uneven terrain

Used a golf cart in college and on the minor league version of the PGA tour

PGA tour did not allow carts

Casey sued to be able to drive a cart

Americans with Disabilities Act

ADA Example: Casey Martin

Is walking an “essential job function?”

If not, Casey cannot be discriminated against under the ADA

Answering the question requires a job analysis of a PGA golfer

Even if walking is “essential” rather than “marginal,” does a cart constitute a reasonable accommodation without undue hardship?

Discussion

According to the article, what are some advantages of being attractive and/or penalties for being unattractive?

Given these advantages, do you think being unattractive should be considered a disability under the ADA? Why or why not?

Ugly? You May Have a Case

Daniel S. Hamermesh

August 27, 2011

Civil Rights Act of 1991

Amends Title VII

Adds compensatory and punitive damages in cases of discrimination under Title VII and Americans with Disabilities Act

Compensatory damages: include future monetary loss, emotional pain, suffering, and loss of enjoyment of life

Punitive damages: discourage future discrimination by providing payments to the plaintiff beyond actual damages suffered

Employment Discrimination

If a process discriminates against anyone protected under Title VII, then the process may be illegal

Two types of illegality are possible:

Disparate Treatment

Adverse (Disparate) Impact

Employment Discrimination

Disparate Treatment: intention to treat people differently based on protected group status (i.e., race, color, religion, sex, national origin, age, disability)

Adverse (Disparate) Impact: facially neutral employment practice adversely affects different groups

Questions to Avoid as an Interviewer

Do you have children? Who will watch your children while you’re working?

Is this your maiden name?

How old are you?

What is your race, gender, religion, sexual orientation, disability, etc.?

Where were you born?

What is your native language?

What is your login information for Facebook?

Disparate Treatment

Disparate Treatment: intention to treat people differently based on protected group status (i.e., race, color, religion, sex, national origin, age, disability)

Intentional discrimination on the part of an organization or decision maker

Proving Disparate Treatment

Bona Fide Occupational Qualifications

Characteristic that is necessary (rather than preferred) for a job

Bona Fide Occupational Qualifications

Example: BFOQ and Hooters

EEOC sued Hooters for refusing to hire male waiters

Hooters claimed, “since the restaurant provides vicarious sexual recreation, female sexuality is a bona fide occupational qualification.”

Do you think this is an adequate rebuttal to a disparate treatment claim?

Bona Fide Occupational Qualifications

Example: BFOQ and Hooters

Actual Result: after the savvy PR claim by Hooters, EEOC backed off of the lawsuit but not before getting a $3.75 million settlement, and requiring Hooters to create new “gender-neutral” positions

Adverse (Disparate) Impact

Adverse (Disparate) Impact: facially neutral employment practice adversely affects different groups

Does not imply intention on the part of the employer, but simply that a practice favors one group over another

Proving Adverse Impact

4/5ths Rule

There is adverse impact if the selection (hiring) rate for a protected group is less than 4/5ths (80%) of the selection rate for the majority group

Example One: 4/5 Rule

1,000 White men and 100 Black men apply for job openings. If the organization hires 100 of the Whites and 9 of the Blacks, is it in violation of the 4/5 rule?

Steps:

Calculate selection ratio for each group

Blacks: 9/100 = .09

Whites: 100/1,000 = .10

Divide the selection ratio for Blacks by the selection ratio for Whites

.09/.10 = 9/10 = 90% (or greater than 80%)

Employer not in violation of 4/5 rule

Example Two: 4/5 Rule

1,000 White men and 100 Black men apply for job openings. If the organization hires 900 of the Whites and 70 of the Blacks, is it in violation of the 4/5 rule?

Steps:

Calculate selection ratio for each group

Blacks: 70/100 = .70

Whites: 900/1,000 = .90

Divide the selection ratio for Blacks by the selection ratio for Whites

.70/.90 = 7/9 = 78% (or less than 80%)

Employer in violation of 4/5 rule

ACTIVITY

4/5 Rule

See handout and work in groups of 3-4.

END ACTIVITY

Project Questions

Of your selection measures, which is most likely to have adverse (disparate) impact? Which federally protected groups are likely to be advantaged or disadvantaged by the measure? If you were to be sued by someone in a disadvantaged group, what information would you use in your defense?

Project Questions

Would it be legal to deny employment to someone who was deaf? Someone who had the use of one arm? Explain exactly why it would be legal or illegal under the ADA, using all of the necessary terms.

Outline

Legal Issues & Equal Opportunity

Federal Legislation

Employment Discrimination

Project Questions

LEGAL ISSUES

MGMT 351

Fall 2015

David Caughlin, Ph.D.

October 12, 2015

Week 3