The HRM Legal Environment

1. The HRM Legal Environment Equal Employment Opportunity

2. Legal Considerations Shape HR practice and policies

3. Business Law The rules, statutes, codes & regulations, enforceable by court action, that are established to provide a legal framework within which business may be conducted

4. Wal-Mart Class Action Lawsuit • Gender discrimination • Title VII of the 1964 U.S. Civil Rights Act • Compensation • Women’s total earnings in similar jobs 5-15% less than men’s • Promotion • Women account for 33% of management positions despite accounting for 65% of total hourly positions

5. Discrimination Employment decision-making or working conditions that are advantageous or disadvantageous to members of one group compared to members of another group

6. In 2005 75,000 claims of discrimination were filed in the U.S.

7. Basis of Discrimination Claims • Race • Gender • Age • Disability • National origin • Religion

8. EEO: Historical Perspective • Civil Rights Act of 1866 • Covered employment contracts & membership in unions • Enforceable by state employers only • Civil rights movement • Civil Rights Act of 1964 • Title VII

9. Major Employment Laws • Title VII of the 1964 U.S. Civil Rights Act (CRA) • Age Discrimination in Employment Act of 1967 (ADEA) • Americans with Disabilities Act of 1990 (ADA)

10. Title VII Of the Civil Rights Act of 1964; amended in 1972 & 1991

11. Coverage Under Title VII • Intentional & effectual practices • Race, color, sex, religion or national origin • Hiring, firing, compensation, advertisement, promotion, transfer, training, apprenticeship, fringe benefits, pay, retirement, use of facilities, harassment, retaliation • Conditions, terms or privileges of employment

12. Illegal Practices under Title VII • Disparate treatment • Disparate impact • Employment verification only for certain groups • Mandate English only in jobs not requiring English • Screening based on marital status or children • Loss of opportunity due to pregnancy • Sexual harassment

13. Title VII Exceptions • Bona fide occupational qualifications • Religion, sex, national origin, NOT race • Wage/hiring differences • Veterans’ preference rights • National security • Job qualifications based on background, test scores or experience • Quantity/quality of production • Merit • Seniority • Burden of proof: employer

14. Persons Exempt from Protection Under Title VII* • Aliens not authorized to work in U.S. • Members of the communist party • Homosexuals *State differences

15. Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature that occur: • When submission to such conduct is made either explicitly or implicitly a term or condition of employment affecting an individual • When submission to or rejection of such contact by an individual is used as the basis for employment decisions affecting such individual • When such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working condition

16. Title VII protection from sexual harassment Covers men, women and same-sex harassment

17. Burden of Proof • Harassment involved physical contact of a sexual nature • Propositions linked to threats or promises affecting job status • Management notified prior to filing • Corroboration of claims • No formal policy

18. Equal Employment Opportunity Commission (EEOC) • CRA of 1964 • U.S. Department of Labor • 5 members • Monitor & enforce compliance • Investigate, conciliate & litigate • Issue procedural regulations & interpretations • Uniform Guidelines on Employer Selection Procedures

19. Filing a Discrimination Charge • Disparate treatment or adverse impact • Must occur within 180 days of alleged violation • If state or local agency is involved, then 300 days • Interview at nearest EEOC office • Name, address, telephone # & # of employees of alleged violator • Complaintant’s contact info • Description, date(s) of the violation • Supporting documentation, if any • Contact info for witness(es), if any

20. Resolution Process • Charge filed • Attempt no-fault settlement • Investigation • Probable cause decision/statement • Conciliation attempt • Decision to recommend litigation • EEOC initiates action • Decision not to recommend litigation • Right to sue notice to charging party

21. Legal Outcomes for Proven Violations • Back pay • Hiring • Promotion • Reinstatement • Front pay • Reasonable accommodation • Attorney’s/expert witness fees • Court costs • Compensatory & punitive damages for intentional discrimination or acting with malice/reckless indifference (except in the case of federal, state, local governments)

22. Affirmative Action • Executive order 11246, 1965; amended 1968 • Prohibit discrimination based on race, gender, religion, color or national origin • Equal opportunity in federal employment for all qualified people • Covers all organizations that administer programs involving federal assistance • Adherence to non-discrimination in employment policy to receive federal grants, contracts, loans, insurance • HR concerns: recruitment, advertising, hiring, upgrading, demotion, transfer, layoffs, termination, compensation, training

23. Affirmative Action/Diversity Program The organization’s personnel practices demonstrating “good faith effort” to attract, retain & upgrade members of Title VII protected classes

24. Affirmative Action Controversy • Reverse discrimination • Gratz v. Bollinger • Race cannot be an overriding factor in admissions decisions

25. Is Affirmative Action Necessary in the 21st Century?

26. ADEA of 1967 • 40 or older • Employers with 20 or more employees for 20 or more calendar weeks • Allows for trial by jury & criminal penalties

27. Age Discrimination Suits Are the fastest growing category of discrimination complaints filed with the EEOC, and are the most expensive

28. Burden of Proof • Employee is 40 or older • Employee has the ability to perform satisfactorily relative to other employees • Employee was not hired, promoted, compensated, or was discharged, laid off or forced to retire • Position was filled or maintained by a younger person

29. Can age be a bona fide occupational qualification?

30. Rehabilitation Act of 1973 Employers with 15 or more employees, employment agencies, labor organizations Covers application, hiring, firing, advancement, compensation, training & other employment terms & conditions Qualified employee: can perform job functions with or without reasonable accommodation(s) Worker must be unable to perform activities that are of central importance to most people’s daily lives, such as walking, seeing and hearing. ADA of 1990

31. A Person with a Disability • Has a physical or mental impairment that substantially limits one or more major life activity • Has a record of such an impairment • Is regarded as having such an impairment

32. Reasonable Accommodation* • Facilities accessible to and usable by persons with disabilities • Job restructuring, modifying work schedules, reassignment to a vacant position • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies & providing qualified readers or interpreters * If the accommodation(s) would not impose an “undue hardship” on the operation of the employer’s business

33. Pregnancy Discrimination Act of 1978 • Covers pregnancy, childbirth or related medical conditions • Illegal to deny, downgrade employment status or benefits, or force leave of absence • $12 - $13 million per year • AT&T settlement

34. Equal Pay Act of 1963 (EPA) • Prohibits employer from paying employee of one gender less than employee of opposite gender • Covers work within the same physical place of business

35. EPA Exceptions • Unequal responsibility • Dissimilar working conditions • Seniority differences • Merit pay system differences • Quantity of quality of production differences

36. Gender Income Disparity, 2005

37. Earnings Gap

38. Occupational Safety and Health Act of 1970 • OSHA • “to ensure worker safety and health in the United states by working with employers and employees to create better working environments” • Ensure worker safety & health • Provide safe, healthy workplace • Provide safe employees • Develop enforceable safety standards • State programs

39. Additional Considerations • Workplace violence • Domestic violence • Substance use/abuse • Stress • Burnout • Fitness

40. Right-To-Work Laws • State options • Taft-Hartley Act of 1947 • Illegal for management & unions to require membership as condition of employment • 22 states • Mainly in South & West

41. Employment At Will Doctrine • Unwritten contract created when an employee agrees to work for an employer, but no agreement exists as to how long the parties expect the employment to last • Common law that states a private institution has the right to terminate it employees, with or without just cause in the absence of a written contract • Exceptions • State’s public policy • Implied contracts • Covenant of good faith & fair dealing