Understanding Equal
Opportunity and the Legal
Environment
Why Understanding the Legal
Environment is Important
• It is the right thing to do…
• Helps to understand the limitations of the
HR and Legal departments
• Facilitate a fair and humane environment
• Can limit potential liability
• Avoid creating a negative image for a
company
Challenges to Legal Compliance
• Dynamic legal landscape
• Complexity of laws
Challenges to Legal Compliance
(Cont.)
•Conflicting Strategies for fair employment
•
Equal Employment Opportunity
Laws – Equal Pay Act 1963
Competitive Position: Cost,
• Requires that male and female workers receive
equal pay for work requiring equal skill, effort
and responsibility, and performed under
similar working conditions
• Challenges:
• Determining whether 2 employees are doing same job
• Exceptions:
•
•
•
•
Merit Pay
Varying quality/quality of work
Seniority plans
Geographic regions
Equal Employment Opportunity Laws –
Title VII Civil Rights Act 1964
• General Provisions:
• Prohibits discrimination based upon a person’s race,
color, religion, sex or national origin
• Theory of Protected Class - group of people who have
suffered discrimination in the past and who are given
special protection by the judicial system:
–
–
–
–
–
African Americans
Asian Americans
Latinos
Native Americans
Women
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Two Types of Illegal Discrimination
Disparate
Treatment
Intentional
discrimination, when
an employer treats an
employee differently
because of their
protected status
Disparate
Impact
Equal application of an
employment standard
that has an unequal
effect on one or more
in a protected class
(adverse impact)
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Disparate Impact Important Cases:
Griggs v. Duke Power Company: Supreme Court case in which the
plaintiff argued that his employer’s requirement that coal handlers be high school
graduates was unfairly discriminatory. In finding for the plaintiff, the Court ruled
that discrimination need not be overt to be illegal, that employment practices must
be related to job performance, and that the burden of proof is on the employer to
show that hiring standards are job related.
•Discrimination by the employer need not be overt; employer’s intent is
irrelevant.
•An employment practice must be job related and valid if it has an unequal
impact on members of a protected class.
•The burden of proof is on the employer to show that the employment practice
is job related.
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Disparate Impact Important Cases (Cont.):
Albemarle Paper Company v. Moody: Reaffirmed the idea that any
test used in the selection process or in promotion decisions must be validated if it
is found that its use has had an adverse impact on women and minorities
•If an employer uses a test to screen candidates, then the job’s specific duties
and responsibilities must be carefully analyzed and documented
•The performance standards for employees on the job in question should be
clear and unambiguous
•Test must be a valid predictor of job performance, burden on employer
•EEOC (now federal) guidelines on validation are to be used for validating
employment practices
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Defense of Discrimination Charges:
Burden on employee to prove there is a Prima Facie case:
McDonnell Douglas Test to Establish a Prima Facie
(legally sufficient) Case of Discrimination:
•The person is a member of a protected class
•The person applied for a job for which he or she
was qualified
•The person was rejected, despite being qualified
•After rejection, the employer continued to seek
other applicants with similar qualifications
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Defense of Discrimination Charges:
Burden on employee to prove there is a Prima Facie case:
•Restricted company policy: Plaintiff proves that the company
has a formal policy that restricts the selection of a protected
group.
•Discriminatory remarks: Plaintiff must produce evidence that
certain biased remarks were made by the employer regarding the
protected group.
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Defense of Discrimination Charges (Cont.):
Four-Fifths Rule:
•EEOC’s Uniform Guidelines on Employee Selection
Procedures
•A selection rate for any race, sex, or ethnic group
which is less than four-fifths or 80 percent of the rate
for the group with the highest rate generally is regarded
as evidence of adverse impact
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Defense of Discrimination Charges (Four-Fifths Rule):
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Defense of Discrimination Charges – Employer Burden
Job
Relatedness:
BFOQ:
• Business can show that the decision was made for job- related reasons.
• Bona Fide Occupational Qualification. Requirement that an employee be of a certain religion, sex,
or national origin where that is reasonably necessary to the organization’s normal operation. Argues
all or nearly all, authenticity, propriety, or safety defense
• Formal seniority systems are permitted - must be well established and applied universally
Seniority:
Business
necessity:
Discriminatory
Remarks
• Defense created by the courts, which requires an employer to show an overriding business purpose
for the discriminatory practice and that the practice is therefore acceptable. (drug testing)
• Requires the employer to argue that the remarks were not very derogatory or that the person who
made the remarks had no influence on the hiring decision
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Pregnancy Act of 1978:
A Title VII amendment that prohibits sex discrimination
based on “pregnancy, childbirth, or related medical
conditions.”
•An employer must treat pregnancy and childbirth
like any other medical condition
•Must include pregnancy related conditions in
benefit plan if other conditions are allowed
Equal
Equal
Employment
Employment
Opportunity
Opportunity
Laws –
Title VII CivilLaws
Rights
(Cont.)
Act 1964 (Cont.)
Title VII has been interpreted to prohibit sexual
harassment:
•Harassment on the basis of sex that has the purpose
or effect of substantially interfering with a person’s
work performance or creating an intimidating, hostile,
or offensive work environment
•Employers have an affirmative duty to maintain
workplaces free of sexual harassment and
intimidation
Civil Right Act of 1991
Burden of
Proof
Quotas
• Once plaintiff shows disparate impact (prima facie
case) , the employer has the burden of proving
that the challenged practice is job related
• Explicitly forbidden
Damages &
Jury Trails
• permits compensatory and punitive damages makes it easier to sue for money damages in
certain cases
Expanded
Coverage
• amending the definition of employee to mean a
U.S. citizen employed in a foreign country by a
U.S.-owned or -controlled company
Other EEO Laws
•Immigration Reform and Control Act
of 1986
•Genetic Information Nondiscrimination
Act (2008)
Age Discrimination in Employment
Act of 1967 (ADEA)
•The act prohibiting arbitrary age discrimination and
specifically protecting individuals over 40 years old
•Majority of complaints come from terminated
workers
•Amendment to ADEA – Older Workers’ Protection
Act of 1990:
•Illegal for employers to discriminate by
providing benefits to employees based on age
Americans With Disabilities Act of
1990 (ADA)
People with
disabilities
Forbids
Employment
Discrimination
Against
Who are able
to perform
the essential
functions of
the job
With or
without
reasonable
accommodation
Americans With Disabilities Act of
1990 (ADA) (Cont.)
Individual with a Disability = A person with
a physical or mental impairment that
substantially affects one or more major life
activities
Americans With Disabilities Act of
1990 (ADA) (Cont.)
Essential Functions = Job duties that each
person in a certain position must do or be
able to do to be an effective employee vs.
marginal functions
Americans With Disabilities Act of
1990 (ADA) (Cont.)
Reasonable Accommodation = If the
individual can’t perform the job as currently
structured, the employer must make a
“reasonable accommodation” unless doing so
would present an “undue hardship.”
EEO Enforcement and Compliance
The Equal Employment Opportunity Commission
(EEOC):
•Consists of five members appointed by the President with the
advice and consent of the Senate
•Each member serves a five-year term
•The EEOC has a staff of thousands to assist it in administering
the Civil Rights law in employment settings
•EEOC may file discrimination charges and go to court on
behalf of aggrieved individuals.
EEO Enforcement and Compliance
(Cont.)
The Office of Federal Contract Compliance Programs
(OFCCP):
•Carries out Executive Order 11246
•Similar to EEOC except:
•Monitors compliance with regulations
•Great enforcement power
EEO Enforcement and Compliance
(Cont.)
Affirmative Action Programs - applies to
organizations who are government contractors or
subcontractors
EEO Enforcement and Compliance
(Cont.)
•Affirmative action programs aim to redress past
discrimination against protected classes and
correct racial and gender imbalances in the
workforce.
•It attempts to accomplish this aim through
initiatives that are ‘‘color-conscious.’’
•Some firms are under no obligation to implement
affirmative action programs.
EEO Enforcement and Compliance
(Cont.)
Affirmative action is implemented through
two primary steps:
•Utilization analysis
•Developing an affirmative action plan
(AAP)
EEO Enforcement and Compliance
(Cont.)
Utilization analysis
•A statistical procedure that compares the
percentage of each protected group for each
job category within the organization to that in
the available labor market.
•If the organizational percentage is less than
the labor market percentage, the group is
classified as being “underutilized.”
EEO Enforcement and Compliance
(Cont.)
Affirmative action plan (AAP)
•Affirmative action plans target the underutilized
protected groups.
•An AAP is a written statement that specifies how the
organization plans to increase the utilization of
targeted groups.
•The AAP consists of three elements – goals,
timetables, and action steps.
•An AAP practice sometimes involves the use of
preferential treatment.
Avoiding EEO Pitfalls
•Providing training – supervisors, managers and
executives
•Communication plan to employees explaining
commitment to a discrimination-free work
environment
•Establish a complaint resolution procedure
•Document decisions
•Be honest