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Chapter 3, Legal Context of Employment Decisions

Legal Context of HR Decisions (74)

- Laws governing employment and agencies that enforce the laws
- 13th and 14th Amendments
o 13th prohibits slavery & involuntary servitude
o discrimination may be considered incident of slavery, liable to legal action
o 14th guarantees equal protection of the law
o both amendments give congress power to enact legislation to enforece
- Civil Rights acts of 1866 and 1971
o Provisions of 13th and 14th amendments
o 1866
 grants all citizens the right to make and enforce contracts for employ
o 1871
 grants all citizens the right to sue in fed court if they feel deprived of rights or
 does not extend to overseas discrimination
o used to be to solve reconstruction-era racial problems
o now governs how to deal with racial discrimination in private employment
o 1991 CRA amended 1866 so workers are protected from intentional discrim in all
aspects, not hiring and promotion only
 includes harassment
o 1866 allows for jury trials and compensatory + punitive damages for victims
o also used to broaden racial discrimination (original for blacks)
- Equal Pay act of 1963
o Requires men and women working for same establishment be paid the same rate of pay
for work that is substantially equal in skill, effort, responsibility, and working conditions
o Differentials are legal if based on seniority, merit, quality/quantity of work, or any other
factor other than sex
o Thousands of equal-pay suits filed since the act, 1000 a year received by EEOC
- Title VII of CRA of 1964
o CRA of 1964 divided into sections dealing with specific facet of discrim
o Title VII most relevant because it prohibits discrimination of race, color, religion, sex or
national origin
o Most important bc it has broadest coverage, prohibitions, and remedies
o Law passed to guarantee people would be considered for jobs on basis of abilities and
o 1972 Title VII expanded to include all public & private employers w/ more than 15
employees EXCEPT private clubs, religious organizations, Indian reservations
 also prevent denial, termination, or suspension of gov contracts if employer
followed an affirmative action plan
o Affirmative action = actions to overcome effects of past/present policies, practices, or
barriers to equal employment opportunity
o If a woman filed Title VII claim in 2008, matter should continue til 2013, she’s entitled to
as much as 7 years back pay from 2006 (2 years before charge) til when matter is
o Exemptions
 Bona fide occupational qualifications
 Discrimination permissible when prohibited factor is a BFOQ
 Meaning, when it’s considered “reasonably necessary to the operation
of the business or enterprise”
 Burden of proof on employer
 Preferences are irrelevant and do not constitute BFOQ
 BFOQ =/= viable defense to Title VII race claim
 Seniority systems
 Title VII explicitly permits bona fide seniority systems
 Pre-employment inquiries
 Inquiries about race, sex, ethnic group are permissible as long as they
are job related
 Even if not, some inquiries (voluntarily provided) are necessary to meet
reporting requirements
 Testing
 Employer may give professionally developed ability test
 If results impact against a protected group, test must be shown to be
job related
 Preferential treatment
 Title VII =/= require granting of preferential treatment to protected
 i.e. don’t maximize hiring of minority employees
 National Security
 Discrim permitted when deemed necessary to protect nat’l sec
o Litigating claims under Title VII
 Step 1: establish prima facie case of discrim
 Body of facts presumed to be true until proven otherwise
 Evidence differs depending on the case
 i.e. alleged adverse impact on all members of a class means prima facie ev is
presented when adverse impact is shown to exist
 like showing selection rate for group is less than 80% of the dominant
group (white males)
 plaintiff demonstrates the following:
 he/she asserted basis protected by Title VII, Age Discrimination in
Employment Act, Americans with Disabilities Act
 He/she was harmed or disadvantaged
 He/she was qualified to do the job
 Similarly situated individual was treated more fairly than the plaintiff
 Burden of proof shifts back and forth from plaintiff to defendant
 Employer given opportunity to articulate legitimate reason for practice
 Plaintiff has to show employer’s reason is illegal
- CRA of 1991
o Overturned 6 supreme court decisions from 1991
 Monetary Damages and Jury Trials
 Expanded remedies in discrimination cases
 Victims can ask for compensatory damages for pain and suffering &
punitive damages
 May demand jury trial
o In the past, only age discrim cases had right to demand a jury
 Compensatory and punitive damages available only from nonpublic
employers (public employers subject to compensatory damages up to
$300,000) and not for adverse impact (unintentional discrimination)
 Also not awarded in ADA (Americans with Disabilities Act) case when
employer has good faith efforts to accommodate disability
 Kolstad v. American Dental Association held that punitive damages
depend on motive of discriminator, not nature of conduct
 Adverse Impact (Unintentional Discrimination) Cases
 CRA 1991 clairifes that plaintiff must identify specific practice as a cause
of adverse impact cases
 Burden of producing evidences shifts to employer if plaintiff succeeds
 Protection in foreign countries
 Protection extended to US citizens employed in a foreign facility
owned/controlled by a US company
 However, employer doesn’t comply with US discrim law if doing so
violates law of the foreign country
 Racial Harrasment
 Act amended 1866 CRA so workers protected in all aspects of employ
 Challenges to consent decrees
 Once court order is entered to resolve a lawsuit, nonparities cannot
challenge the enforcement actions
 Mixed-motive cases
 Mixed motive case  employment decision based on combination of
job-related AND unlawful factors
 Employer is guilty if it can be shown that prohibited consideration was a
motivating factor, even though other factors are lawful
 BUT in Gross v FBL Financial Services the SC ruled that it’s not enough
for plaintiff to prove age is a motivating factor (instead must prove that
w/o his age, adverse action wouldn’t have occurred)
 Seniority Systems
 Seniority system that intentionally discrims can be challenged within
180 days when system is adopted, when individual becomes subject to
system, when person is injured by system
 Race-Norming and Affirmative action
 Act makes it unlawful to adjust scores based on race, color religion, sex,
national origin”
 “race norming” had been used to adjust test scores of minority
candidates to make them comparable to nonminorities
 percentile score was computed relative to only others in his/her
race/ethnic group
 Extension to US Senate and Appointed officials
 Act extends protection from discrim on race color religion etc. to
employees of US Senate, political appointees of the president, staff
members by elected officials
o Age Discrim in Employment act of 1967 (ADEA)
 Amended 1986, prohibits discrim in pay for employees 40 or over
 Winning this is difficult since 2009 SC ruling requires an employee to prove that
age was determining factor in layoff
 Workers can waive right to sue for this law, but even after if you are 40 and over
you can sue for age discrim
o Immigration Reform and Control act of 1986 (IRCA)
 Applies to every employer in the US and every employee
 1. Employers may not hire or employ “unauthorized aliens”
 2. Employers must verify the identity and work authorization of every new
 they may not require documentation but must examine documents
showing identity and work authorization
 sign I-9 attesting that employee is lawfully eligible to work in the US
 3. Employers with 4-14 employees may not discriminate on basis of citizenship
 those with 15 or more already prohibited by Title VII
 penalties for noncompliants are severe
o The Americans with Disabilities Act of 1990 (ADA)
 1/5 people in US have at least one disability (broad definition)
 employment rate for ppl with disabilities remains less than half of those without
disabilities (19.1% vs 68.5%)
 Title 1 of the ADA protects 86% of the workforce
 ADA prohibits employer from discrim against “qualified individual with a
 Qualified  able to perform essential funcitons of job w/ or w/o
 Disability  mental or physical impairment that substantially limits one
or more major life activities
 People protected if currently have impairment & record of that impairment
 Rehabilitated drug and alcohol abusers are protected
 ADA Amendments of 2008 broadened disability by expanding the term “major
life activities”
 List now includes conditions like cancer, diabetes, depression, epilepsy
 Companies do not have to lower work standards, tolerate misconduct, or give
someone a make-up cjob
 Implications
 Any building has to be accessible to those with physical abilities
o “expensive” aint an excuse
 employers must make reasonable accommodations
o qualified job applicants must be considered
o partner with public/private disability agents, provide info and
outreach, mandate increased awareness and education, use
tech to redesign jobs (walgreens replaced keyboards with touch
screens), establish pipelines to recruit people with disabilities
 pre-employment physcials permissible if all employees are subject to
o cannot be given until employment offer is made conditional
upon passing of the physical
o not permitted to ask about past compensation claims or
disabilities in general
o can’t ask “do you have back problems” but can ask “can you lift
equipment weighing 50 pounds at least once every hour”
 medical info on employees must be separate from other info
 drug-testing rules are intact
 train supervisors, HR prof, anyone else
o keep focus on performance and behavior without speculating
about cause of deficiency
 Enforcement
 EEOC (equal employment opp commission) enforces the ADA
 Individuals with disabilities may be awarded compensatory and punitive
damages up to $300,000
o Family and Medical leave Act of 1993 (FMLA)
 Covers all private-sector employers with 50 or more employees
 Also part-timers who work 1250 hours a year
 Law gives workers up to 12 weeks unpaid leave each year for birth, adoption,
foster care within a year of the child’s arrival; care for a spouse parent, or child
with health condition OR employee’s own serious health condition
 Employers can require medical certification and second medical opinion
 Can exempt from FMLA key salaried employees who are among highest-paid 10
 Employers must maintain health insurance benefits and give workers their
previous jobs when leaves are over
 Includes military families in 2008
 26 weeks of unpaid leave to employees who provide care to wounded
US military personnel
 12 weeks to immediate family members of military w/ qualifying
exigency (overseas assignments, active duty)
o Uniformed Services employment and Reemployment Rights of 1994
 Requires both public and private employers to reemploy individuals returning
from unified service in the position they would’ve occupied and seniority they
would’ve enjoyed had they never left
 Employee must provide advance notice
 Employers need not rehire always (i.e. if employee was dishonorably
- Federal Enforcement agencies: EEOC and OFCCP
o EEOC is independent regulatory agency whose five commissioners are appointed by the
president and confirmed by senate for terms of 5 years
o No more than 3 commissioners from same political party
o Gets involved if issue cannot be resolved internally
o Three-step process of investigation, conciliation, and litigation
o Can serve as a mediator
o Can refer complaints to state agency charged with enforcement of laws
o EEOC Guidelines
 On discrim bc of religion, national origin, gender, pregnancy
 On affirmative action programs, employment tests/ selection procedures
o Information Gathering
 Each organization in the US with 100 or more employees must file an annual
report (EEO-1) detailing numbers of employees by job category and by ethnicity,
race, gender
 EEOC then identifies braod patterns of discrimination (systemic discrimination)
and attacks them through class actions
o Office of Federal Contract Compliance Programs
 Contract compliance means that contractors and subcontractors must meet EEO
and affirmative action requirements
 Companies with federal contracts employee nearly a quarter of the US
 In jobs where women and minorities are underrepresented relative to their
availability in the labor force, employers must establish goals and timetables for
hiring and promotion
 Compliance review by the OFCCP that do indicate problems cause conciliation
agreements to be reached with the employer
 Agreement includes back pay, seniority credit, recruitment offers and special
o Affirmative action remedies
 SC found that congress endorsed non-victim-specific racial hiring goals to
achieve compliance
 SC noted the benefits of flexible, not rigid, affirmative action
o Courts interpret the laws and determine how they will be enforced (case law)
o Sex Discrimination
 Run an organization with 238 managerial positions filled by men
 Two-point difference in test scores separates best-qualified man and woman
 If you promoted woman, you’re invited a lawsuit by the man
 If you promoted the woman to correct past discrim, you acknowledge past bias
and invite class suits by women
 NO LONGER. SC ruled that qualified woman can be promoted over a marginally
better qualified man to promote balanced representation
 Many employers have not been proven guilty of past discrim but still have
underrepresentation of women
 Puts pressure on employers to institute voluntary AFF ACTION programs
o Pregnancy
 EEOC says “written/unwritten employment policy which excludes from
employement bc of pregnancy, childbirth, or related medical conditions is prima
facie violation of Title VII”
 Each year 4000 complaints related to pregnancy
 2013- 3580 complaints and $17 million recovered in monetary benefits
 employer never REQUIRED to give pregnant employees special treatment
 but must comply to maternity leave determined by physician
o Reproductive Hazards
 Sex discrim perpetuated by barring women from competing in jobs w/
occupational hazards to reprodutvie systems
 “fetal protection” policies are no a form of illegal sex discrim (UAW v. Johnson
Controls Inc)
 once used by GM, DuPont, Olin, Firestone
 Johnson Controls excluded women of childbearing age (unless sterile) from jobs
involving exposure to lead
 SC said “Women capable of doing jobs… may not be forced to choose having a
child over having a job”
 So businesses jshould just warn about fetal health risks and urge physician
consultations before signing up
o Sexual Harrassment
 More about absue of power than sex
 Females more than males suffer sexual abuse than work
 27000 complaints filed to the EEOC, $126.8 million recovered for chargingin
 90% of Fortune 500 companies dealt with complaints, 1/3 sued at least once
 Sexual harassment  unwelcome sexual advances, requests for sexual favors,
verbal/physical conduct of sexual nature that affects individual’s employment &
work performance as well as creates a hostile work environment
 “Unwelcome” is key, and offender has to know that the behavior is unwelcome
 plaintiff must prove that he/she told perpetrator to back off unless the action
was so offensive that the offender had to already know to back off
 1. Quid pro quo harassment
 harassment is a condition of employment
 Barnes v. Costle, plaintiff rebuffed director’s sexual overtures
o Ignored advice that intimacy improved career path, and director
abolished her job
 Burlington Industries INc. v Ellerth & Faragher v. City of Boca Raton
o SC held that employers are liable for supervisor’s sexual
misconduct, even if they knew nothing about it
 2. Hostile-environment harassment
 defined by Meritor Savings Bank v. Vinson
o vinson’s boss abused her verbally and sexually
o but vinson was making good career progress so district court
said relationship with voluntary and had nothing to do with
o SC disagreed, saying that voluntary relationhip was irrelevant
o Key is “unwelcome” which menas it’s “severe and abusive”
 Case expanded def of harassment to include conduct that creates
intimidating, hostile, or offensive environment
o Preventive Actions by Employers
 Firmly state that harassment is not tolerated
 Workable def of sexual harassment publicized in orientation, staff meetings,
 Include concrete examples of such behavior
 Create effective complaint procedure to include multiple ways to complain
 Clear statement of sanctions for violators and protection for those who charge
 Prompt, confidential investigation no matter how trivial
 Preservation of all investigative information, with records in central location
 Regular training of all managers and supervisors, even top managers, to model
appropriate behavior and respond to complaints
 Follow up to see if harassment stopped
o Age Discrimination
 EEOC guidelines emphasize that to defend action, employer must demonstrate
business necessity
 To establish prima facie case
 1. Show that he/she is 40 years or older
 2. He/she is doing satisfactory work
 3. He/she was discharged despite satisfactory work
 4. Positioned was filled by person younger than person replaced
 aggrieved employees have 78% success rate at state and local jury trials
 2013, 21,000 charges of age discrim filed, $97.6 million recovered
o “Overqualified” job applicants
 sometimes employers don’t hire individual who has the most experience for an
entry level job
 assume individual will be bored
 but appeals court ruled that rejection of older worker bc of overqualification
may be a pretext to mask rejection for employee’s age
 define overqualified and give applicants a realistic preview of what job will be
o Seniority
 Connotes length of employment
 Seniority system scheme that allots to employees ever-improving
employment rights and benefits as length of employment increases
 Impact of seniority systems on programs designed to ensure equal employment
 Employers work hard to hire and promote members of protected
 But if layoffs are necessary, those individuals may be lost because of low
 SC ruled that employer may not protect jobs of recently hired black employees
at the expense of whites who have more seniority
 Firefighters Local Union No. 1784 v Stotts & Wygant v Jackson BOE
 What about the ADA?
 US Airways v Barnett SC ruled that employers not required to grant
employee with disability a job to replace employee w/ more seniority
 Seniority does not always trump ADA, such a question must be resolved
on a case-by-case basis
o Testing and Interviewing
 Title VII sanctions use of professionally developed ability tests
 1. Prohibits not only open and deliberate discrim but practices that are fair in
form but discriminatory in operation
 i.e. having adverse impact on protected groups
 i.e. organization that wants to use prior arrests as basis for selection
o arrests are neutral practice but if arrests cannot be shown to be
job related and blacks are arrested more than whites, use of
arrests can be discriminatory
 2. Employer bears burden of proof that requirement for employment is related
to job performance
 3. not necessary for plaintiff to prove that discrim was intentional; intent is
 4. Job-related tests and other procedures are legal and useful
o Personal History
 Must be related to job performance
 Neutral practices that have been struck down by the courts on the basis of non-
job relevance
 Recruitment practices based on present employee referrals
 Heigh and weight requirements
 Arrest records bc they only show that person was accused, not guilty of
 Conviction records unless conviction is related to work (i.e. person
convicted of embezzlement applying as bank teller)
o Preferential selection
 Ideal world will have color blind selection and promotion decisions
 Reverse Discrimination (discrimination of whites in favor of protected groups) is
 How to make things fair for oppressed groups WHILE treating ppl equally??
 1. Courts may order affirmative action plans to address problems of
women and minorities. Individuals not parties to original suit may not
reopen court-approved AA settlements
 2. plans need not be directed to identified victims o f discrim
 3. courts will never approve plan that results in white people losing their
jobs, but may sanction plans that impose limited burdens on whites in
hiring and promotions