Chapter 4
What’s Legal and What’s Not
• Title VII
• Uniform Guidelines
• Affirmative Action
• Negligent Hiring
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Civil Rights Act 1964
• Unlawful Practices
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1. race, color, religion, gender, Nat’l origin
2. can’t segregate for employment opportunities
3. can’t refuse to refer (labor unions also)
4. applies to all employers, unions, training programs
5. can’t recruit to indicate preferences
• (can say “equal oppor employer, or “encourage minorities”
• 6. can’t retaliate against anyone who opposes unlawful practices
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EEOC
empowered to:
• Investigate charges
• Dismiss unfounded charges
• Persuade
• Work with authorities (state .e.g.)
• File suit in federal courts for
• “reasonable cause”
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Uniform Guidelines:
the legal context
• Adverse Impact and Disparate Treatment
• Action affects different groups differential
• Disparate Treatment
• Individual is treated differently
• Business Necessity:
• Practice must be related to job performance
• 80% rule (4/5) to determine adverse impact
• If 25% (25 of 100)of whites are hired, must hire 20 blacks (4/5 of 25)
• What is meant by a “trigger” ?
• Give an example of why one employer may have < 80% and another >80%
• What is meant by a “chilling effect”- give example
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Uniform Guidelines (con’t)
• Options under Adverse Impact
• With validation, an Adverse impact procedure may be
• Modified –
• Eliminated • Justified –
• What’s the most sound option?
• How about random selection?
• Guidelines three options:
• Cut scores (to screen only unqualified)
• What’s a problem with this? Hint: promotion after hire
• Banding
• Ranking top down
• What will this typically do?
• Or perhaps use an alternative
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Requirements for Validation
• Criterion related • What’s this?
• Content Validation
• Job analysis required!
• Construct Validation
• Job analysis required!
• Why is this “ruled out”?
• See p. 89 Guidelines provision
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Use of Valid Procedures
• “Transportability” of Validity Information
• VG – what kind of criterion relatedness is this?
• Requirements
• Same job
• Criterion relevance
• Demographic similarities
• Give a sports example
• Is broad similarity necessary? E.g. for GMA?
• Why is this still part of the legal context?
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Use of Valid Procedures (con’t)
• Testing for higher level jobs
• Why is hiring for higher level jobs a pretext for discrimination?
“…if a majority of those still employed after a ‘reasonable period of time’ (5 yrs)
progress to the higher level job.”
What are the implications of this?
use sports example: baseball farm clubs.
• Use of scores (four methods) -note diff in gov’t and private sector
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Ranking – evidence for variation needed (negates content val)
Banding – cannot have separate bands for protected groups
Pass/fail – low ones preferred by Guidelines (why?)
Combinations of tests (compensatory)
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• Issues:
• Should the cutoff be lowest score obtained (in validity study)?
• As “some enforcement agencies advocate” (Guion, p92)
• What are the implications for doing so or not doing so?
• How does the civil service sector differ from private sector in viewing cut scores?
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Reporting and Record keeping
• Extensive, but essential
• Consult DCI Consulting Group
• Eric Dunleavy
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Case Law – EEO Some Court Decisions
• Griggs v. Duke Power ‘71
• Intent v. effect <• Business necessity (job relatedness)
• Give examples
• Job-relatedness
• Deference to Guidelines
• Use of tests for job qualifications
• Must be job related
• Dothard v. Rawlinson (‘77) Alabama
• Height for correctional officers (5’2”)
• Disparate Impact v. treatment
• What’s the difference?
• Burden of production (prime facie)
• Burden of persuasion
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More cases…
• Regents, U. Ca v. Bakke (Title VI Education)
• Has implications for Title VII
• Blacks admitted at Davis Med School with lower scores
• Supreme Court Ruled:
• Admissions system was unacceptable – admit Bakke
• But race can be considered, just not a two track system
• How can consideration of race avoid discriminating against whites.
• Connecticut v. Teal (‘72) “individual” not “equality for a group”
• Any component (promotion test) that had adverse impact must be shown to
be job related
• Each hurdle in “multiple hurdles” must be considered
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Even more Legal cases…
• Watson v. Fort Worth Bank & Trust (‘88)
• Subjective assessments are covered
• What are some examples of subjective assessments?
• How could this possibly lead to adoption of surreptitious quotas?
• Why would not requiring it jeopardize the mandate not to discriminate?
• Decision:
• Plaintiff must identify the specific practice & provide statistical evidence that it caused
“loss”
• burden not shifted to defendant- who can refute the data or causal inference
• Expensive validation was not necessary when job relatedness was clear
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Even more…
• Wards Cove Packing Co. v. Atonio (‘89)
• Need to specify practice challenged
• Burden of persuasion proof on plaintiff
• Adverse impact must take into account the relevant labor market
• What are some implications for this for employer?
• Business necessity -> “justification” – (not necessarily essential)
• Provide an example
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1991 Amendment to Civil Rights Act
(Title VII affected)
• Concerns about the use of quotas led to:
• Prohibition of “race norming” (e.g. GATB for USTES used H/M/L)
• What’s the difference between quotas and goals?
• What’s race norming?
• Allowed for punitive as well as compensatory damages for intentional
discrimination
• What’s the difference between the two?
• What are the implications for an employer for adding punitive damages?
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Affirmative Action
(to reduce effects of prior discrimination)
• Some voluntary, some court ordered or consent decree
• Executive orders (11246)required federal contractors to have AA plans
• Philadelphia Plan EO 11246
• Why was this a problem for federal contractors in Philadelphia?
• What was the remedy applied?
• Again, what’s the difference between goals and quotas?
• How was AA changed when the appellate and Supreme Court upheld the plan?
• Reverse Discrimination• AA plan is ok (EEOC) if actual or potential adverse impact was caused from practices
in past or planned practices
• Shown by discrepancy between relevant labor market and available pool (protected groups)
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Affirmative Action (con’t)
• Developing Affirmative Action Plans
• Not restricted to hiring
• Include special training, recruiting, and other plans for advancing those with
underutilized abilities
• Must be limited in scope
• Now just for “do good” purposes of from fear of litigation
• Diversity as a Business Necessity
• Gratz v. Bollinger (2003) U. of MI use of bonus points for minority apps
• U MI awarded 20 (of 100) points for every minority applicant (to get proportionate
representation comparable to population).
• What was the argument here that goes beyond discrimination?
• How had the reason for AA changed?
• What are some implications for not being transparent about how diversity is achieved?
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Other Discriminations
• Age (‘67)
• 40 and over
• Mostly for firing, RIFs, forced early retirement (not for hiring)
• Sometimes age related BFOQs could be justified
• Persons with Disabilities (‘90)
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Focus should be on what they can do, not cannot do
No preferential treatment is encouraged
Reasonable accommodations (usually minimal costs)
General employment practices
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• Negligent Hiring, Defamation, Wrongful Discharge
• Injury to worker when employee should have been seen unfit
• Can you think of a situation?
• Grounds for Action under Negligent Hiring
• Usually physical unfitness, but also personality, mental disorders
• Appropriate Methods of Assessment
• Reference checks are relatively useless now (defamation)
• Employer must be able to prove the negative statement be true
• What are the up and downsides of this?
• Background investigations –similar risks
• Should the employer be able to use social media to investigate an applicant?
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