Federal Regulation of Human Resource
Management
LEGISLATIVE
BRANCH
EXECUTIVE
BRANCH
JUDICIAL
BRANCH
• Has enacted a
number of laws
governing HR
activities.
• Responsible for
enforcing the
laws.
• Includes the
regulatory
agencies that
the president
oversees.
• Interprets the
law.
• The Supreme
Court is the
court of final
appeal.
• Its decisions are
binding.
LEGISLATION AFFECTING
DISCRIMINATION IN EMPLOYMENT
1964 CIVIL RIGHTS ACT (Title VII)
Protects based on: Race, Color, Religion, Sex, National Origin
Must employ >15 employees for 20+ weeks/yr, interstate commerce
Covers employers, employment agencies and labor unions
Equal Employment Opportunity Commission (EEOC)
1972 – Gave EEOC right to file charges directly
1978 – Added pregnancy discrimination protection
1991 – Clarified “business necessity” and “burden of proof” issues
Reversed several supreme court decisions, allowed for punitive damages
Extends coverage to international operations
Exceptions to Title VII
• Bona fide occupational
qualifications (BFOQs)
• A valid seniority or merit
system
• Validated tests or
screening requirements
© 2008 by Prentice Hall
3-3
Persons Not Covered by Title VII
• Aliens not authorized to work in
United States
• Members of Communist party
• Homosexuals
© 2008 by Prentice Hall
3-4
Maximum Punitive Damages Allowed
Under the Civil Rights Act of 1991
LEGISLATION AFFECTING
DISCRIMINATION IN EMPLOYMENT, Contd
1967 AGE DISCRIMINATION IN EMPLOYMENT ACT
Do you have >20 employees for 20+ weeks/yr, interstate commerce?
1967 – protected ages 40 – 65
1978 – protected ages 40 – 70
1986 – protects everyone over the age of 40
1986 IMMIGRATION REFORM & CONTROL ACT
Only hire workers with a legal right to work in the USA
Verify employment authorization (I-9) and keep records for 3 years
Fines for each illegal alien hired (from $375 to $16,000)
Fines for each undocumented employee (from $110 to $1,100)
Age Can Be Bona Fide Occupational
Qualification
• Federal Aviation Administration can
force commercial pilots to retire at 60
• Greyhound did not violate ADEA
when refused to hire persons 35
years or older as intercity bus drivers
• Likelihood of risk or harm to
passengers was involved with both
cases
© 2008 by Prentice Hall
3-7
Age Discrimination Complaints, 1991 – 2006
EEOC
Immigration Reform and Control
Act (IRCA) of 1986
• Established criminal and civil sanctions against employers
who knowingly hire unauthorized aliens
• Reduces threshold coverage to 4 employees
• Toughened criminal sanctions for employers who hire
illegal aliens
• Denied illegal aliens federally funded welfare benefits
• Legitimized some aliens through an amnesty program
• Candidates for employment are not required to be U. S.
citizens but they must prove they are eligible to work in the
United States
© 2008 by Prentice Hall
3-9
Immigration Reform and Control
Act (IRCA) of 1986 (Cont.)
• Employers must require all new employees to
complete and sign a verification form (Form I-9)
to certify their eligibility for employment
• Establish their eligibility for employment by
presenting a U.S. passport, alien registration card
with photograph, or a work permit that establishes
the person’s identity and employment eligibility
© 2008 by Prentice Hall
3-10
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996
• Passed partly in response to the fact that at least one of the
terrorists who blew up World Trade Center (1993) had legally
entered on a student visa
• Places severe limitations on persons who come to United
States and remain in the country longer than permitted by their
visas and/or persons who violate their nonimmigrant status
• Here illegally 180 days to less than 1 year = Three year ban
• Here illegally for more than 1 year = Ten year ban
© 2008 by Prentice Hall
3-11
LEGISLATION AFFECTING
DISCRIMINATION IN EMPLOYMENT, Contd
1988 EMPLOYEE POLYGRAPH PROTECTION ACT
Severely restricts use of polygraph testing for hiring and termination decisions
Public exceptions for law enforcement and federal government jobs ... spying
Private exceptions for security jobs and access to controlled substances
Polygraph can be used to investigate losses and injuries where there is a
reasonable suspicion that the employee was involved
1990 AMERICANS WITH DISABILITIES ACT
>15 employees (7/94) … (was previously > 25 employees 7/92-7/94)
Protects persons regarded as having a disability from employment
discrimination. Building/work must be accessible to handicapped.
1992 FAIR CREDIT REPORTING ACT
Places limits on employers who investigate prospective and current employees
Must notify applicants & get authorization for conducting reference checks
2008 GENETIC INFORMATION NONDISCRIMINATION ACT
>15 employees Can’t use genetic information for employment decisions
Americans with Disabilities Act of 1990 (ADA)
• Prohibits discrimination against qualified individuals with
disabilities
• Person who has, or is regarded as having, a physical or
mental impairment that substantially limits one or more
major life activities, and has a record of such an
impairment, or is regarded as having such an impairment
• EEOC guidelines on pre-employment inquiries and tests
regarding disabilities prohibit inquiries and medical
examinations intended to gain information about
applicants’ disabilities before a conditional job offer
• Ask only about potential employees’ ability to do the job,
and not about their disabilities
© 2008 by Prentice Hall
3-13
Disabilities Associated with Complaints
Filed under ADA
DISCRIMINATION LEGISLATION APPLICABLE
TO GOVERNMENT AGENCIES & CONTRACTORS
• 1973 – VOCATIONAL REHABILITATION ACT
– Government contracts > $2,500.
• 1974 – VIETNAM VETERANS READJUSTMENT ACT
– Contract > $10,000.
EXECUTIVE ORDERS
1965 – 11246 Discrimination on Race, Creed, Color or NationalOrigin
Affirmative Action for Contractors > $10,000.
1968 – 11375 Changed “Creed” to Religion; and added “Sex”
1969 – 11478 US Gvmt itself must not discriminate on these bases
Vocational Rehabilitation Act 1973
• Prohibits discrimination against disabled workers
• Applies to Government contractors, subcontractors and
organizations
• Government contracts > $2,500
– Must not discriminate ... required to post notices ... agree to take
affirmative action to recruit, employ, and promote qualified disabled
individuals
• If contract or subcontract > $50,000, or if contractor has 50 or
more employees
– Employer must prepare written affirmative action plan
• Administered by Office of Federal Contract Compliance
Programs (OFCCP)
© 2008 by Prentice Hall
3-16
STATE DISCRIMINATION LAWS
MICHIGAN
(Elliot-Larson Civil Rights Act of 1976)
•
APPLIES TO EMPLOYERS WITH ONE OR MORE EMPLOYEES
•
COVERS DISCRIMINATION BASED ON:
– Race, Color, Religion, Gender, Ancestry, Age, Disability, HIV/AIDS, Genetic Testing, Marital
Status, Height, Weight, Arrest Record
INDIANA
•
APPLIES TO EMPLOYERS WITH SIX OR MORE EMPLOYEES
•
COVERS DISCRIMINATION BASED ON:
– Race, Color, Religion, Gender, Ancestry, Age (40-75 yrs old), Disability (>15 employees),
Off-duty Tobacco Use
ILLINOIS
•
APPLIES TO EMPLOYERS WITH FIFTEEN OR MORE EMPLOYEES
•
COVERS DISCRIMINATION BASED ON:
– Race, Color, Religion, Gender, Ancestry, Age, Disability (>1 employee), HIV/AIDS, Genetic
Testing, Marital Status, Sexual Orientation, Citizenship, Military Status & Discharge, Gender
Identity, Arrest Record, Domestic Violence Victim, Order of Protection Status
STATE DISCRIMINATION LAWS, CONTD
OREGON
•
APPLIES TO EMPLOYERS WITH ONE OR MORE EMPLOYEES
•
COVERS DISCRIMINATION BASED ON:
– Race, Color, Religion, Gender, Ancestry, Age (18 and older), Disability (>6 employees), Marital
Status, Genetic Testing, Sexual Orientation, Credit History, Domestic Violence Victim, Etc.
WASHINGTON
•
APPLIES TO EMPLOYERS WITH EIGHT OR MORE EMPLOYEES
•
COVERS DISCRIMINATION BASED ON:
– Race, Color, Religion, Gender (>1 employee), Ancestry, Age, Disability, HIV/AIDS, Genetic
Testing, Marital Status, Sexual Orientation, Genetic Testing, Hepatitis C Infection, Member of
State Militia, Use of Trained Guide Dog, Gender Identity, Domestic Violence Victim
PENNSYLVANIA
•
APPLIES TO EMPLOYERS WITH FOUR OR MORE EMPLOYEES
•
COVERS DISCRIMINATION BASED ON:
– Race, Color, Religion, Gender, Ancestry, Age (40-70 yrs old), Disability (or relationship to a
disabled person), GED rather than High School Diploma, Use of Trained Guide Dog
State and Local Laws
• State and local laws affect
EEO
• When Federal EEOC
regulations conflict with
state or local civil rights
regulations
• Legislation more
favorable to women and
minorities applies
© 2008 by Prentice Hall
3-19
FEDERAL LEGISLATION AFFECTING
COMPENSATION
• 1931 – DAVIS-BACON ACT
– Must pay prevailing-area wages
– Construction contracts > $2,000.
• 1936 --WALSH-HEALEY ACT
– Pay prevailing area wages and overtime (40 hrs/wk or 8 hrs/day)
– Manufacturing contracts > $10,000.
– 1986 amends 8 hr reqmt for firms w compressed workweeks
• 1963 – EQUAL PAY ACT
– Can’t pay differentials based on sex (gender)
– CAN PAY differentials on seniority, merit, quality, quantity or shift
– Everyone engaged in interstate commerce
FAIR LABOR STANDARDS ACT
1938
• FEDERAL MINIMUM WAGE (orig $0.25/hr) See www.dol.gov/esa
– Current Federal Minimum Wage is $7.25/hr ($5.15 prior to 7-24-07,
– $5.85/hr from 7-24-07 to 7-24-08, $6.55/hr from 7-24-08 to 7-24-09
– Federal minimum wage was raised to $7.25/hr on 7-24-09.
•
•
•
•
PAY OVERTIME
(Time and a half after working 40 hrs/ wk)
CHILD LABOR RESTRICTIONS (< 18 yrs old)
RECORD KEEPING REQUIREMENTS (keep 2-3 years)
CREATED EXEMPT & NONEXEMPT CATEGORIES
EXEMPT = Don’t have to pay either minimum wage or overtime
– Executives, Administrators, Professionals, Outside Sales
• MUST MEET A SALARY TEST and a JOB DUTIES TEST
– Volunteer workers and independent contractors
– Domestics, farm workers, seamen, taxi drivers
– SUB-MIN WAGES ok for students, messengers, apprentices, waiters
NONEXEMPT = Must pay minimum wages and overtime
STATE COMPENSATION LAWS
MICHIGAN
• APPLIES TO EMPLOYERS WITH 2 OR MORE EMPLOYEES
•
EXCLUDES ALL EMPLOYERS SUBJECT TO THE FLSA UNLESS
THE STATE MINIMUM WAGE IS HIGHER THAN THE FEDERAL
LAW.
•
MINIMUM STATE WAGE
–
–
–
–
$8.15/hr as of 9-01-14
Increases to $8.50 on 1-1-16… $8.90 on 1-1-17… and $9.25 on 1-1-18
Youth sub-minimum wage is $6.93/hr (85% of minimum)
$3.10/hr for job where tips are collected [38%] (assumes $5.05/hr in tips)*
* If sufficient tips not collected, employer must make up the difference
INDIANA
• APPLIES TO EMPLOYERS WITH 2 OR MORE EMPLOYEES
•
MINIMUM STATE WAGE
– $7.25/hr (goes up when the federal minimum is raised)
– $2.13/hr for jobs where tips are collected (assumes $5.12/hr in tips)**
** If sufficient tips not collected, employer must make up the difference
STATE COMPENSATION LAWS
OREGON
•
ADJUSTED FOR INFLATION ANNUALLY (See www.boli.state.or.us)
• MINIMUM STATE WAGE
$9.25/hr as of 1-01-15 (no tip credit allowed)
– Premium pay required if >10 hours/day in non-farm canneries, packing plants,
mills, factories, and manufacturing firms. (excludes sawmills, planning and
shingle mills, etc)
WASHINGTON
•
ADJUSTED ANNUALLY FOR INFLATION (See www.lni.wa.gov)
• MINIMUM STATE WAGE
$9.47/hr as of 1-01-15 (no tip credit allowed)
Seattle $10 or $11/hr depending on company size
NEVADA
• MINIMUM STATE WAGE
$7.25/hr as of 1-01-15 or $8.25/hr without qualified health benefits
STATE COMPENSATION LAWS
• US DEPT OF LABOR
Employment Standards Administration
MINIMUM WAGE and OVERTIME, STATE BY STATE
– http://www.dol.gov/esa
• STATE OF MICHIGAN WAGE INFORMATION
– http://www.michigan/gov/cis
• STATE OF INDIANA WAGE INFORMATION
– http://www.in.gov/labor
• STATE OF OREGON WAGE INFORMATION
– http://www.boli.state.or.us
• STATE OF WASHINGTON WAGE INFORMATION
– http://www.lni.wa.gov
JOB SECURITY & INCOME PROTECTION
LEGISLATION
1911 – WORKERS COMPENSATION
– Covers injuries on-the-job… Managed by each state
1935 – UNEMPLOYMENT COMPENSATION
– Loss of job through no fault of your own
– Min 6.2% of first $7000 (5.4% reverts to the state)
1935 – SOCIAL SECURITY ACT
– RETIREMENT, DISABILITY, SURVIVORS & HEALTH BENEFITS
– 6.2% of first $106,800 to social security, plus 1.45% (unlimited) to medicare
– Usually needs 40 quarters of coverage to qualify for benefits
1970 – OCCUPATIONAL SAFETY & HEALTH ACT
– OSHA enforces safety in the workplace; reports required if n>11
1974 – EMPLOYEE RETIREMENT INCOME SECURITY ACT
– ERISA – Pension reform; private plans must be funded annually
1985 – CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT
– > 20 employees… Continued health care coverage for 18+ mos. after termination
1970 - Occupational Safety and Health Act
• Authorizes the federal government to establish
and enforce occupational safety and health
standards for all places of employment engaging
in interstate commerce.
• Established the Occupational Safety and Health
Administration (OSHA). Responsible for:
– Inspecting employers
– Applying safety and health standards
– Levying fines for violation
Occupational Safety and Health Act of 1970
General Duty Clause
• Each employer has a general
duty to furnish each
employee a place of
employment free from
recognized hazards that
cause or are likely to cause
death or serious physical
harm.
Specific Duties
• Employers must keep
records of work-related
injuries and illnesses.
• Employers must post an
annual summary of these
records from February 1 to
April 30 in the following
year.
Employee Rights 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
exposure.
5. Have employer violations posted at the work site.
Enforcement of OSHA
• OSHA is responsible for
inspecting businesses,
applying safety and
health standards, and
levying fines for
violations.
• OSHA regulations
prohibit notifying
employers of
inspections in advance.
• Display posters in
visible places at work.
What’s the priority?
• Which of the following has FIRST priority for
inspection by OSHA officials?
A.
B.
C.
D.
Catastrophes and fatal accidents
Employee complaints
High-hazard industries
Imminent danger
Rates of
Occupational
Injuries and
Illnesses
Top 10 Causes of Workplace Injuries
Employer-Sponsored Safety and Health Programs:
Identifying and Communicating Job Hazards
Job Hazard Analysis Technique
• Safety promotion technique
that involves breaking down
a job into basic elements,
then rating each element for
its potential for harm or
injury.
Technic of Operations Review
(TOR)
• Method of promoting safety
by determining which
specific element of a job led
to a past accident.
Employer Safety and Health Programs, Contd
Reinforcing Safe Practices
• Implementing a safety
incentive program to reward
workers for their support of
and commitment to safety
goals.
• Start by focusing on
monthly or quarterly goals.
• Encourage suggestions for
improving safety.
Promoting Safety Internationally
• Cultural differences make
this difficult.
• Laws, enforcement
practices, and political
climates vary from country
to country.
• Companies may operate in
countries where labor
standards are far less strict
than in the U.S.
JOB SECURITY & INCOME PROTECTION
LEGISLATION - Contd
1988 – WORKER ADJUSTMENT & RETRAINING NOTIFICATION
– WARN > 100 employees… Must give notice if significant layoff or plant closing is pending
– Trigger is if layoff = min of 50, or >1/3 of workforce… give 60 day notice
1990 – OLDER WORKERS BENEFIT PROTECTION ACT
– OWBPA - applies to workers > 40 yrs old, same as ADEA; EEOC enforces
– In general, benefits provided to older workers must be equal to benefits for younger workers
1993 – FAMILY AND MEDICAL LEAVE ACT
– FMLA > 50 employees… Must have previously worked for ~ 1 year
– Unpaid leave for up to 12 weeks for family/medical reasons
1994 – UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT
– USERRA – Employers must rehire and restore workers who have been on military leave for
up to five years…
– Provides continuing health coverage for 24 mos.
1996 – PERSONAL RESPONSIBILITY & WORK OPPORTUNITY RECONCILIATION ACT
– PRWORA - Employers must report all new hires within 20 days to appropriate state agency
– Used to collect child support
LEGISLATION AFFECTING UNION
RELATIONSHIPS
•
1926 – NATIONAL RAILWAY LABOR ACT
• Procedures for collective bargaining & grievance resolution
•
1932 – ANTI-INJUNCTION ACT
(NORRIS-LAGUARDIA)
• Banned “Yellow-dog” contracts; limited use of injunctions
•
1935 – NATIONAL LABOR RELATIONS ACT
(WAGNER)
• Guaranteed unions rights to organize; established NLRB
• Created a list on unfair management practices
•
1947 – LABOR MANAGEMENT RELATIONS ACT
(TAFT-HARTLEY)
• Allows right to “not join” unions if the states take action
• Creates a list of unfair union practices; balances mgmt & union activity
•
1959 – LABOR-MANAGEMENT REPORTING & DISCLOSURE ACT
(LANDRUM-GRIFFIN)
• Requires union elections every 5 years and annual internal reports
•
1980 – AMMENDMENT TO WAGNER ACT
• Conscientious objectors have a right to “not support” the union
PRECEDENT-SETTING
SUPREME COURT CASES
•
1971 – GRIGGS v. DUKE POWER CO.
Coal shovelers needed a high school diploma for employment
Discrimination wasn’t intentional---DISPARATE IMPACT found
Employment standards must be job-related
•
1971 – DIAZ v. PAN AMERICAN WORLD AIRWAYS
– Airline refused to hire a male flight attendant (DISPARATE TREATMENT)
– Females were “better”/preferred by customers; but BFOQ defense not accepted
– BFOQ defense only allowed if essence of operations would be undermined
•
1971 – PHILLIPS v. MARTIN MARIETTA CORP
– Company refused to hire women with young children
– Same employment standards must be applied to both men and women
•
1975 – ALBERMARLE PAPER CO. v. MOODY
– Selection criteria used must be validated; based on thorough job analyses
SUPREME COURT CASES - 2
•
1976 – WASHINGTON v. DAVIS
– Applicants for Washington DC police jobs did not pass screening tests
– Tests are not illegal just because protected groups cannot pass them
•
1977 – TWA v. HARDISON
– Religious accommodation not made if it violates union seniority rules
– Employers only need to bear minimal costs to show religious accommodation
•
1977 – DOTHARD v. RAWLINGSON
– Women failed to meet minimum height/weight requirements for prison jobs
– Height and weight requirements must be job related
•
1978 – UNIV OF CALIFORNIA v. BAKKE
– Reverse discrimination at medical school – less-qualified minorities admitted
– Race can be considered, but it is only one of several legitimate criteria
– Rigid quotas are not permissible
SUPREME COURT CASES – 3
•
1979 – WEBER v. UNITED STEEL WORKERS
– Voluntary affirmative action programs ok if they fix past imbalances
•
1981 – COUNTY OF WASHINGTON v. GUNTHER
– Jail matrons received less pay than guards – comparable worth?
– discrimination suits allowed, even if jobs are not basically the same
•
1982 – AMERICAN TOBACCO CO v. PATTERSON
– Union seniority system had unintended impact on minorities, but still allowed
•
1984 – FIREFIGHTERS LOCAL $ 1784 v. STOTTS
– Layoffs of firefighters on the basis of seniority eroded minority representation
– Valid seniority systems cannot be overridden by affirmative action decrees
•
1986 – MERITOR SAVINGS BANK v. VINSON
– A hostile work environment can be viewed as sexual harassment
– Employers are accountable for maintaining a harassment-free environment
SUPREME COURT CASES – 4
•
1987 – JOHNSON v. TRANSPORTATION AGENCY
– Woman was promoted to correct a “manifest imbalance”
– Sex can be used as a factor when facing an affirmative action ruling
•
1989 – CITY OF RICHMOND v. CROSON
– 30% of construction contracts reserved exclusively for minorities
– Preferential contracts unlawful if no previous discrimination shown
•
1989 – WARDS COVE PACKING CO v. ANTONIO
– Can’t prove discrimination simply by statistical imbalances, plaintiff must
prove employment policies are the cause (shifts burden back to plaintiff)
– Reversed by 1991 revision of Civil Rights Act
•
1990 – HOPKINS v. PRICE WATERHOUSE
– Woman was denied partnership because she wasn’t “feminine”
– Courts can intrude into ownership matters; stereotype is not tolerable
•
1991 – UAW v. JOHNSON CONTROLS
– Women denied work in lead battery division; danger to unborn fetuses
– Can’t bar women from job because of potential health risks
SUPREME COURT CASES - 5
• 1993 – HARRIS v. FORK LIFT SYSTEMS
– Plaintiff doesn’t have to prove psychological injury to win a harassment suit
– only that employer allowed a hostile or abusive work environment to exist
• 1995 – ADARAND CONTRACTORS v. PENA
– Bonuses given if minority contractors used (reverse discrimination?)
– Court questioned justification of affirmative action
• 1996 – OCONNOR v. CONSOLIDATED COIN CATERERS
– Older worker replaced by another worker over 40 years old
– This is still age discrimination
• 1998 – ONCALE v. SUNDOWNER OFFSHORE SERVICES
– Male harassment victim on oil rig
– Organization has the responsibility to control harassment
• 2003 – GRUTTER v. BOLLINGER (UNIV MICH)
– Race can be a factor used in admission decisions in U Mich law school
• 2003 – GRATZ & HAMACHER v. BOLLINGER (UNIV MICH)
– Can’t give “20 extra points” for all undergrad minority applicants
IS THERE EVIDENCE OF
DISCRIMINATION?
DISPARATE TREATMENT (Deliberate Discrimination)
Oral or written evidence of intentional bias
DISPARATE IMPACT (Unintentional Discrimination)
Policies that restrict or limit an “equal opportunity” for consideration
THE 4/5ths RULE (Compare hiring success/or rejection rates)
Disparate rejection/selection rates
POPULATION AND MARKET COMPARISONS
Labor market representation and utilization…is our firm representative?
INTERNAL (CORPORATE) IMBALANCES
Statistical differences by level or category within the firm
Adverse Impact
th
(4/5
Rule)
Success rate for women applicants
Determination of
--------------------------------------------- =
Success rate for male applicants
Adverse Impact
• During 2007, 400 people were hired for a particular job. Of the total, 300
were men and 100 were women. There were 1,500 qualified applicants for
these jobs, of whom 1,000 were men and 500 were women. Using the
adverse impact formula, you have:
100 hired/500 women
--------------------------- =
300 hired/1,000 men
0.2
----- = 66.67%
0.3
• Since this percentage is < 80%, we conclude that adverse impact exists.
There appears to be a bias against hiring women in this organization.
Applying the Four-Fifths Rule
Underutilization Example
• Underutilization is defined as having fewer minorities or
women in a particular job group than would reasonably be
expected by their availability
• If utilization analysis shows the availability of blacks for a
certain job group is 30%, the organization should have at
least 30% black employment in that group. If actual
employment is less than 30%, underutilization exists, and
firm should set a goal of 30% black employment for that
job group.
Equal Employment Opportunity Commission (EEOC)
• Responsible for enforcing most of the EEO laws.
–
–
–
–
Investigates and resolves complaints about discrimination
Gathers information
Issues guidelines
Monitors organizations’ hiring practices
• Complaints must be filed within 180 days of the
incident.
– EEOC has 60 days to investigate the complaint.
Charges filed with the EEOC - 2010
RACE
SEX
NATIONAL ORIGIN
RELIGION
RETALIATION (Title 7)
35,890
29,029
11,304
3,790
19,560
AGE
23,264
DISABILITY
25,165
EQUAL PAY ACT
1,044
GENETIC INFO
201
RETALIATION (Other) 16,698
TOTAL CHARGES
PEOPLE FILING
165,945
99,922
Office of Federal Contract Compliance Procedures
(OFCCP)
• Responsible for enforcing the executive orders
that cover companies doing business with the
federal government.
• Audits government contractors to ensure they
are actively pursuing the goals in their
affirmative action plans.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION (EEOC)
Investigates & resolves complaints, gathers info on employment
patterns, and issues new employment guidelines.
• CHARGES MUST BE FILED WITHIN 180 DAYS
Extended to 300 days if a state agency is involved
• EEOC DETERMINES IF THE CLAIM HAS MERIT
An investigation to determine whether “Probable Cause” is established
• ATTEMPT AT CONCILIATION
Will employer agree to a consent decree? IF YES, the matter is resolved.
IF NOT, the EEOC will either initiate court action on behalf of the
complainant, or will issue a “Right to Sue” letter.
Steps in Handling a Discrimination Case
Charge Filed
Attempt at a No-Fault Settlement
Investigation by the EEOC
Issue a Probable Cause or a No Probable Cause Statement
Attempt at Conciliation
Recommendations for or Against Litigation
Recommendation Against
Litigation – Right to Sue Notice Issued
to Charging Party
Recommendation for
Litigation – EEOC Initiates Action
Equal Employment Opportunity
Commission
• Some factors that determine whether EEOC will
pursue litigation are:
•
•
•
•
1) number of people affected by alleged practice
2) amount of money involved in charge
3) other charges against employer
4) type of charge.
• EEOC files suit in only about 1% of charges
UNIFORM GUIDELINES ON EMPLOYEE
SELECTION PROCEDURES (originally 1978)
ANALYZE THESE GROUPS FOR ADVERSE IMPACT
GROUPS
Blacks, Native Americans, Asians & Pacific Islanders, Hispanics, Women
ORGANIZATIONAL LEVELS
Managers, Professionals, Technicians, Sales Workers, Clerical and Office
Workers, Craft (skilled), Operatives (semi-skilled), Laborers (unskilled),
and Service Workers.
IF ADVERSE IMACT IS FOUND, THE EMPLOYER CAN:
Take action to immediately correct the adverse impact
Use a BFOQ defense to justify the firm’s actions
Offer evidence of predictive validity studies in defense of the firm
THE EEOC IS CONCERNED WITH FIXING THE PROBLEM – THE NET EFFECT OF ALL OF THE
SELECTION PROCEDURES IS WHAT THEY FOCUS THEIR ATTENTION ON.
REASONABLE ACCOMMODATION FOR RELIGION
EMPLOYER MUST ACCOMMODATE RELIGIOUS PRACTICES UNLESS
HARDSHIP IS SHOWN.
TWA v HARDISON (1977) Undue hardship = anything more than a DE MINIMUS cost
GUIDELINES SAY:
Regular payment of premium wages is undue hardship. (Temporary/infrequent overtime is not)
If firm has to vary from its seniority system or violate the union agreement – this is also undue hardship.
REMEDIES SUGGESTED:
Allow voluntary swaps or substitutions
Allow flexible scheduling of arrival and departure times
Allow lost hours to be made up (noon, evenings, weekends)
Allow use of holiday/vacation time to cover absences
Lateral transfers and changes in job assignments
PRIMA FACIE EVIDENCE OF RELIGIOUS DISCRIMINATION
TO ESTABLISH A PRIMA FACIE CASE OF ADVERSE ACTION DUE
TO RELIGIOUS DISCRIMINATION AT WORK, THE FOLLOWING
MUST BE SHOWN:
1.
The employee has a bona fide religious belief that conflicts with
an employment requirement
2.
The employee has informed the employer of the conflict
3.
The employee was discharged or otherwise injured because of
refusal to comply with the employment requirement
CHECK THESE AREAS FOR SIGNS OF RELIGIOUS
DISCRIMINATION
I.
ADVERSE ACTION DUE TO RELIGION
A.
B.
C.
II.
EMPLOYMENT
EVALUATION & PROMOTION
LAYOFF & TERMINATION
REASONABLE ACCOMMODATION
A.
B.
C.
D.
E.
F.
III.
TIME OFF FOR WORSHIP
JOINING UNIONS & PAYING DUES
SINCERITY OF BELIEFS
WORK DUTIES THAT CONFLICT
CLOTHING, GROOMING & SYMBOLIC DISPLAYS
UPSET COWORKERS
RELIGIOUS HARASSMENT
A.
B.
MALICIOUS INTIMIDATION
PROSELYTIZING
FEDERAL COURT CASES ON RELIGIOUS DISCRIMINATION
EMPLOYMENT
MYERS v. NY CITY TRANSIF AUTHORITY (1996)
KWASI OPUKU-BOATENG v. STATE OF CALIFORNIA (1997)
RUSSELL v. BUTTE-SILVERBOW COUNTY (1997)
BALINT v. CARSON CITY (1999)
EVALUATION & PROMOTION
SHAPOLA v. LAS ALAMOS NATIONAL LABORATORY (1993)
SKORUP v. MODERN DOOR CORPORATION (1997)
ADELMAN v. GMAC MORTGAGE CORPORATION (1997)
EEOC v. PREFERRED MANAGEMETN CORPORATION (2002)
TIME OFF FOR WORSHIP
UNITED STATES v. CITY OF ALBUQUERQUE (1975)
TWA v. HARDISON (1977)
HAMBY v. WALMART STORES (1995)
HARRERA v. BOYD COATING RESEARCH CO (1997)
JACKSON v. KMART CORPORATION (1997)
SHRUM v. CITY OF COWETA, OK (2006)
BURDETTE v. FEDERAL EXPRESS CORPORATION (2010)
RELIEF FROM JOINING/SUPPORTING A UNION
IAM v. BOEING (1988)
EEOC v. UNIVERSITY OF DETROIT (1990)
LEHNERT v. FERRIS FACULTY ASSOCIATION (1991)
FEDERAL COURT CASES ON RELIGIOUS DISCRIMINATION-2
SINCERITY OF BELIEFS
GAY v. SUNY HEALTH SCIENCES CENTER OF BROOKLYN (1998)
LARSEN v. GREAT EASTERN RESORT CORPORATION (1998)
WORK DUTIES THAT CONFLICT WITH RELIGIOUS PRINCIPLES
RODRIGUEZ v. CITY OF CHICAGO (1998)
CLOTHING, GROOMING & SYMBOLIC DISPLAYS
VARGAS v. SEARS (1998)
KALSI v. NY CITY TRANSIT AUTHORITY (1998)
EEOC v. THE GEO GROUP (2010)
UPSET COWORKERS
EVERSLEY v. MBANK DALLAS (1988)
WILSON v. US WEST COMMUNICATIONS (1995)
MALICIOUS INTIMIDATION
TURNER v. BARR (1993)
EEOC v. SUNBELT RENTALS (2008)
PROWEL v. WISE BUSINESS FORMS INC (2009)
PROSELYTIZATION
BROWN v. POLK COUNTY, IOWA (1995)
VENTERS v. CITY OF DELPHI & LARRY IVES (1997)
WAMIQ SATTAR v. MOTOROLA INC (1998)
GUIDELINES ON SEXUAL HARASSMENT
DELIBERATE, REPEATED, UNSOLICITED COMMENTS, GESTURES, OR
PHYSICAL CONTACT OF A SEXUAL NATURE THAT IS UNWELCOME.
TWO TYPES OF HARASSMENT
THREATS OR OFFERS (QUID PRO QUO)
You’ll lose your job if you don’t cooperate!
If you cooperate, I’ll give you a promotion!
ENVIRONMENTAL INTIMIDATION
The comments, conditions and perceived actions in the workplace create a hostile,
intimidating and offensive situation which interferes with the work performance and
general psychological well-being of the victim.
In a recent survey, 42% of women and 15% of men reported they felt harassed on the job.
RESPONSES TO SEXUAL HARASSMENT
CORPORATE RESPONSES
1.
Establish a formal policy statement banning harassment
2.
Educate the workers; make them aware of the legal and corporate
consequences of harassment
3.
Encourage workers to report incidents to the firm
4.
Promptly and vigorously investigate harassment complaints
5.
Discipline those who have violated the policy
INDIVIDUAL – IF YOU ARE HARASSED
1.
Communicate clearly that the behavior/attention is unwanted
2.
Document the incidents (are there witnesses?)
3.
File a complaint with the firm; use the grievance channels
4.
See a lawyer, or contact the EEOC
AFFIRMATIVE ACTION PROGRAMS
REQUIRES
–
–
–
ACTIVE RECRUITMENT, GO OUT OF YOUR WAY TO FIND CANDIDATES
INTERNAL TRAINING PROGRAMS
PROMOTION TO SENIOR-LEVEL POSITIONS
• PROS:
–
–
–
–
WE HAVE AN OBLIGATION TO “SET THINGS RIGHT”
AA IS NECCESARY TO OFFSET HISTORIC DISADVANTAGES
AA BREAKS THE CYCLE THAT KEEPS MINORITIES LOCKED INTO POOR JOBS
IT WILL TAKE YEARS TO ACHIEVE BALANCE WITHOUT AA
• CONS:
–
–
–
–
SHOULDN’T THE BEST QUALIFIED GET THE JOB?
AA TOKENIZES MINORITIES AND ERODES THEIR SELF-ESTEEM
AA REDUCES PRODUCTIVITY BY PROMOTING MARGINAL PERFORMERS
INJURES WHITE MALES AND VIOLATES THEIR RIGHTS
•
(What about the obstacles that poor whites face?)
FOUR POSTURES ON AFFIRMATIVE ACTION
PASSIVE NON-DISCRIMINATION
FAILS TO RECOGNIZE PAST DISCRIMINATION---USE STANDARD METHODS
SELECT THE MOST QUALIFIED APPLICANT (WITHOUT BIAS)
“PURE” AFFIRMATIVE ACTION
ENLARGE THE POOL OF APPLICANTS—SEEK PROTECTED GROUP APPLICATIONS
SELECT THE MOST QUALIFIED APPLICANT (WITHOUT BIAS)
AFFIRMATIVE ACTION WITH PREFERENTIAL HIRING
DEVELOPS A DIVERSE POOL OF APPLICANTS
FAVORS PROTECTED GROUPS IF SKILLS ARE EQUAL (A “SOFT” QUOTA SYSTEM)
AFFIRMATIVE ACTION UNDER A CONSENT ORDER
MUST DEVELOP A DIVERSE POOL OF APPLICANTS
HAS A TIMETABLE (AND SPECIFIC GOALS) FOR ACHIEVING “BALANCE”
FAVORS PROTECTED GROUPS AS LONG AS THEY ARE MINIMALLY QUALIFIED