Introduction to Legal Issues in
Human Resource Management
Basic HR Issues to Consider when
Creating New Ventures
Modified from Marie Mitchell (2006), UN Lincoln, Advanced HR Management
Terms: Equal Employment Opportunity
(EEO)

Provide Americans an equal opportunity to compete
for jobs for which they are qualified


Regardless of race, age, gender, religion, national origin, or
disability,
Implies


Evaluation of candidates for jobs based on characteristics
that determine success and failure
Fair and equal treatment on the job
Terms: Discrimination

Defined

Giving an unfair advantage (or disadvantage) to the members
of a particular group in comparison with the members of other
groups

Includes reverse discrimination

Discrimination implies excluding someone unfairly

Selection implies exclusion

Key is to select non-discriminately
Forms of Discrimination
1.
Disparate Treatment: treating applicants or employees
differently (e.g., discriminating) because of their
membership in a protected class

2.
Proved by

Direct method: defendant admitting disparate treatment,

Comparative evidence: others not in protected group treated differently

Mixed-motives: plaintiff only needs to prove that protected class
membership was a part of the reason for disparate treatment
Adverse Impact: discrimination has an “adverse impact”
on the protected group as a whole

4/5th Rule: adverse impact is indicated when less than 4/5ths of the
percentage of total people within the population is not represented in
the employees (see next slide)
Adverse Impact: Example
Federal Anti-Discrimination Laws

Civil Rights Act of 1866
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
Civil Rights Act 1871


Gave all citizens right to enter into contracts
No remedies for unjust treatment provided
Gave individuals rights to sue if they felt deprived of rights
guaranteed in Constitution or other laws
Equal Pay Act 1963


Prohibits wage discrimination based on gender
Equal pay for equal worth (equal skill, effort and responsibility
under similar working conditions)
Civil Rights Act (CRA, 1964), Title VII


Prohibits discrimination in employment based on race,
color, religion, sex and national origin
Covers



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


Private employers with 15+ employees
State and local governments
Private and public educational institutions
Private and public employment agencies
Labor unions with 15+ employees
Joint labor/management committees that govern apprenticeship
or training programs
Foreign subsidiaries of U.S. organizations employing U.S.
citizens
Created the Equal Employment Opportunity Commission
(EEOC)
CRA (1964), Title VII (Cont.)

1972 Amendments


Prohibit denial, termination or suspension of government
contracts to employers sustaining an accepted AA program
Affirmative Action (AA)


Actions appropriate to overcome effects of past or present
policies, practices or other barriers to EEO
AA Plans


Development, implementation and maintenance of special efforts to
ensure workforce is representative of society where business
operates
Required for employers with 100+ employees and with $50,000+
in federal contracts
Civil Rights Act (1991)



Extended Title VII coverage to federal employees
Allows for suing for compensatory and punitive
damages
Provided “extraterritorial enforcement,” protecting
U.S. employees on overseas assignments
Age Discrimination in Employment Act
(ADEA, 1967)



Prohibits discrimination in pay, benefits or continued
employment for those 40+, unless a BFOQ (bona fide
occupational qualification)
Prohibits mandatory retirement ages, except in cases of
public safety (e.g., airline pilots)
Amended by Older Workers Protection Act (1990)

Prohibits discrimination of benefits and requires signing age
discrimination waivers at layoff
Pregnancy Discrimination Act (1978)

Prohibits discrimination against pregnant employees



In hiring or employment decisions (promotion)
Employer cannot determine dates of leave
Employer cannot provide health plans that do not cover
pregnancy

Requires any pregnancy to be treated as any other medical
disability

Does not require reinstatement to the same job

Requires reinstatement to an equivalent job
Immigration Reform & Control Act
(IRCA, 1986)

Covers

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
Mandates
1.
2.
3.
4.

All employers in U.S.
All employees
Employer cannot hire or continue to employ “unauthorized—
illegal—aliens”
Employers must verify the identity and work authorization of
every new employee
Employers may not discriminate based on citizenship or national
origin provided workers are legal
Certain illegal aliens must have amnesty rights (e.g., been
pardoned)
Regulatory body = U.S. Department of Labor
Americans with Disabilities Act
(ADA, 1990)

Prohibits employers with 15+ employees from
discriminating against a qualified individual with a
disability

Qualified individual – one who is able to perform essential
functions of the job with or without accommodation



Employer required to make “reasonable accommodations” for
qualified, disabled, employees
“Reasonable” means that it must not put an undue hardship on
the employer
Disability – a physical or mental impairment that substantially
limits one or more major life activities


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If person has an impairment
If person has record of impairment
If employer thinks person has impairment
ADA (1990) (Cont.)

5 Implications for Employers
1.
Any company open to public will have to be made accessible to
those with physical disabilities

2.
Expenses and “undue hardship”
Reasonable accommodation for those qualified with disabilities

Reasonable accommodation include but are not limited to:



Making facilities readily accessible to/usable to disabled
Job restructuring, modifying work schedules, reassignment to other
position
Acquiring or modifying equipment or devices, adjusting or modifying
examinations, training materials or policies, and providing qualified
readers or interpreters
ADA (1990) (Cont.)
3.
Pre-employment testing is permissible only if all employees are
subjected to them and cannot be given until conditional offer of
employment is made
4.
Employee medical information must be kept separate
5.
Drug-testing rules remain intact
Family Medical Leave Act (FMLA, 1993)

Covers private employers with 50+ employees

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Provides employees up to 12 weeks’ unpaid leave/yr for:

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Employee must have min. of 25 hrs/wk or 1,250 hrs/yr
Birth, adoption or foster care of child w/in 1 year of child’s
arrival
Care for spouse, parent or child with serious health condition
Employees own health condition prevents working
Requires


Continuation of group health coverage during leave
Employee allow to return to same or equivalent job
Other Federal Laws to Keep in Mind
Law
Brief Description
Executive Order 11246 (1965)
Prohibits discrimination of race, color, religion or national origin
as condition of employment by federal agency, contractor or
subcontractor with contracts of $10,000+; employers must
maintain AA Program in each facility with 50+ employees
Executive Order 11375 (1967)
Amends E.O. 11246, prohibiting discrimination of sex
Executive Order 11478 (1967)
Amends E.O. 11246 and 11375, prohibiting discrimination based
on political affiliation, marital status or physical disability
Rehabilitation Act (1973)
Federal contractors, who receive $2,500+ in federal
contracts/annually and subcontractors must actively recruit
qualified disabled individuals
Vietnam Era Veterans Readjustment Federal contractors and subcontractors required AA Plan to
Act (1974)
ensure EEO for Vietnam-era veterans.
Uniformed Services
Employment and Reemployment Rights Act (1994)
Regardless of size of organization, cannot discriminate on
basis of person’s membership or potential membership in
armed forces; must reemploy returning uniformed service
members
Regulating Agencies

EEOC Regulates Many EEO Laws




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
CRA (1964, 1991) and Title VII
Equal Pay Act (1963)
ADEA (1967)
Pregnancy Discrimination Act (1978)
ADA (1990)
Office of Federal Contract Compliance Programs

Regulates Contract Compliance

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Executive Orders 11246, 11375 and 11478
Rehabilitation Act (1973)
Vietnam Era Veterans Readjustment Act (1974)
Guidelines to Employment Inquiries
Guidelines to Employment Inquiries (Cont.)
Guidelines to Employment Inquiries (Cont.)
Guidelines to Employment Inquiries (Cont.)
Responding to Claim of Unlawful
Discrimination


EEOC may

Make determination w/o request for additional information

Request additional information

Hold a fact-finding conference
Things to keep in mind with on-site investigation

Negotiate mutually agreeable date and time for inspection

Ask for description of investigation goals and try to prepare

Review list of employees EEOC wants to talk to, observe or
job/work areas they wish to see

Designate company rep to attend all EEOC interviews of
managerial employees