Equal Employment Opportunity: The Legal Environment

1. Part 1 EqualEmploymentOpportunity:The LegalEnvironment

2. Equal Employment Opportunity Laws Equal employment opportunity – The right of all people to work and to advance on the basis of merit, ability, and potential Discrimination in society and in the workplace gave rise to the civil rights movement, which in turn resulted in the U.S. Congress’s passage of laws to ensure equal employment opportunity 2-2

3. Equal Pay Act (1963) Prohibits sex-based discrimination in rates of pay for men and women working on the same or similar jobs Part of the minimum wage section of the Fair Labor Standards Act (FLSA) Coverage of the Equal Pay Act is coextensive with the coverage of minimum wage provisions of FLSA Permits differences in wages if payment is based on seniority, merit, quantity and quality of production, or a differential due to any other factor than gender Prohibits employers from attaining compliance with the Act by reducing wage rate of any employee 2-3

4. Title VII, Civil Rights Act (1964) Keystone federal legislation; covers disparate treatment and disparate impact discrimination; and created the Equal Employment Opportunity Commission Section 703 covers two basic areas of discrimination Disparate treatment, Section 703(a)(1) – Intentional discrimination and treating one class of employees differently from other employees Disparate impact, Section 703(a)(2) – Unintentional discrimination involving employment practices that appear to be neutral but adversely affect a protected class of people 2-4

5. Title VII, Civil Rights Act (1964) Organizations covered by the provisions of Title VII: All private employers of 15 or more people who are employed 20 or more weeks per year All public and private educational institutions State and local governments Public and private employment agencies Labor unions that maintain and operate a hiring hall or hiring office or have 15 or more members Joint labor–management committees for apprenticeships and training Title VII created the Equal Employment Opportunity Commission (EEOC) to administer the act and to prohibit covered organizations from engaging in any unlawful employment practices 2-5

6. Age Discrimination in Employment Act (1967) Prohibits discrimination against employees over 40 years through 69 years of age by all companies employing 20 or more people in the private sector Amendment (Effective January 1, 1987) – Eliminates mandatory retirement at age 70 for employees of firms with 20 or more employees Organizations covered by the ADEA: Private employers of 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year Labor organizations Employment agencies State and local governments Federal government agencies, with certain differences; for example, federal employees cannot be forced to retire at any age 2-6

7. Age Discrimination in Employment Act (1967) Exception – Employees in bona fide executive or high policymaking positions Permits mandatory retirement at age 65 for high-level executives with pensions exceeding $44,000 a year Section 4(f) of the ADEA sets forth several conditions under which the act does not apply Age is a bona fide occupational qualification It is not illegal for an employer to discipline or discharge an individual within the protected age group for good cause 2-7

8. Rehabilitation Act (1973) Prohibits discrimination against handicapped individuals and contains these provisions Prohibits discrimination against handicapped individuals by employers with federal contracts and subcontracts in excess of $2,500 Requires written affirmative action plans (AAPs) from employers of 50 or more employees and federal contracts of $50,000 or more Prohibits discrimination against handicapped individuals by federal agencies Requires affirmative action by federal agencies to provide employment opportunities for handicapped persons Requires federal buildings to be accessible to handicapped persons Prohibits discrimination against handicapped individuals by recipients of federal financial assistance 2-8

9. Rehabilitation Act (1973) Section 7(7)(B) of the Rehabilitation Act defines a handicapped individual as a person who has a physical or mental impairment that substantially limits one or more of major life activities, has a record of such impairment, or is regarded as having such an impairment Primary responsibility for enforcing this act lies with the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor 2-9

10. Vietnam-Era Veterans Readjustment Assistance Act (1974) Prohibits federal government contractors and subcontractors with federal government contracts of $10,000 or more from discriminating in hiring and promoting Vietnam and disabled veterans Requires employers with 50 or more employees and contracts exceeding $50,000 to have written affirmative action programs for people protected by this act OFCCP enforces this act 2-10

11. Pregnancy Discrimination Act (1978) The Supreme Court decision, General Electric Co. v. Gilbert, had a significant impact on its passage Requires employers to treat pregnancy just like any other medical condition with regard to fringe benefits and leave policies EEOC (responsible for administering the act) has taken the view that An employer may not deny its unmarried employees pregnancy benefits If pregnancy benefits are given to female employees, they must also be extended to the spouses of male employees 2-11

12. Immigration Reform and Control Act (1986) Makes it illegal to hire, recruit, or refer for U.S. employment anyone known to be an unauthorized immigrant To avoid a penalty of perjury, a company must verify that an individual is not an unauthorized alien by one of these measures Examining the individual’s U.S. passport; certificate of U.S. citizenship; certificate of naturalization; unexpired foreign passport, if the passport has an appropriate, unexpired endorsement of attorney general authorizing individual’s employment in United States; or resident alien card Examining documents demonstrating employment authorization Examining documentation establishing identification 2-12

13. Americans with Disabilities Act (1990) Gives disabled persons sharply increased access to services and jobs Under this law, employers may not Discriminate, in hiring and firing, against disabled persons who are qualified for a job Inquire whether an applicant has a disability, although employers may ask about his or her ability to perform a job Limit advancement opportunity for disabled employees Use tests or job requirements that tend to screen out disabled applicants Participate in contractual arrangements that discriminate against disabled persons 2-13

14. Americans with Disabilities Act (1990) Employers Must provide reasonable accommodations for disabled employees Do not have to provide accommodations that impose an undue hardship on business operations Mental disability is defined broadly as a mental impairment that substantially limits one or more of the major life activities of an individual, or a record of such impairment or being regarded as having such an impairment In 1997, Equal Employment Opportunity Commission (enforces the ADA) issued guidelines specifying that qualified individuals with psychiatric disabilities are protected from discrimination and are entitled to reasonable accommodations on job 2-14

15. Suggestions for Making the Workplace Accessible to Disabled Workers 2-15

16. Older Workers Benefit Protection Act (1990) Provides protection for employees over 40 years of age in regard to fringe benefits and gives employees time to consider an early retirement offer Under this act, employers may integrate Disability and pension pay by paying retiree the higher of the two Retiree health insurance and severance pay by deducting former from latter In cases of plant closings or mass layoffs, pension and severance pay by deducting from severance pay the amount added to pension Coverage is the same as that under Age Discrimination in Employment Act 2-16

17. Civil Rights Act (1991) Permits women, persons with disabilities, and persons who are religious minorities to have a jury trial and sue for punitive damages if they can prove intentional hiring and workplace discrimination Requires companies to provide evidence that the business practice that led to discrimination was not discriminatory but was job related for the position in question and consistent with business necessity Covers all employers with 15 or more employees Places a cap on amount of damages a victim of nonracial, intentional discrimination can collect, based on the size of firm Concerns the burden of proof for companies with regard to intentional discrimination lawsuits 2-17

18. Family and Medical Leave Act (1993) Enables qualified employees to take prolonged unpaid leave for family and health-related reasons without fear of losing their jobs Under the law, employees can use this leave in the event That they are seriously ill Of an immediate family member is ill The birth, adoption, or placement for foster care of a child To qualify, employees must have been employed for at least a year and must have worked for no less than 1,250 hours within the previous 12-month period 2-18

19. State and Local Government Equal Employment Laws Most states have some form of protection against employment discrimination on the basis of disability See the Discrimination handbook of California from the office of the attorney general 2-19

20. Enforcement Agencies Equal Employment Opportunity Commission Federal agency created under Civil Rights Act of 1964 to administer Title VII of the act and to ensure equal employment opportunity; its powers were expanded in 1979 Composed of five members, not more than three of whom may be members of the same political party Members appointed by president of United States, by and with advice and consent of Senate, for a term of five years General counsel of commission, appointed by the president with advice of Senate for a term of four years, is responsible for conducting litigation under provisions of Title VII 2-20

21. Enforcement Agencies Responsibilities of Equal Employment Opportunity Commission Originally was responsible for investigating discrimination based on race, color, religion, sex, or national origin Now responsible for investigating equal pay violations, age discrimination, and discrimination against disabled persons Has authority not only to investigate charges and complaints in these areas but also to intervene through general counsel in a civil action on behalf of an aggrieved party Develops and issues guidelines to enforce nondiscriminatory practices in all of these areas 2-21

22. Enforcement Agencies Office of Federal Contract Compliance Programs Office within the U.S. Department of Labor that is responsible for ensuring equal employment opportunity by federal contractors and subcontractors Established by Executive Order 11246 to ensure federal contractors and subcontractors follow nondiscriminatory employment practices Prior to 1978, 11 different government agencies had contract compliance sections responsible for administering and enforcing Executive Order 11246; the OFCCP generally supervised and coordinated their activities In 1978, Executive Order 12086 consolidated administration and enforcement functions within OFCCP 2-22

23. Part 2 ImplementingEqualEmploymentOpportunity

24. EEOC Compliance – Legal Powers • All organizations with 20 or more employees must keep records that the EEOC or OFCCP can request 3-24

25. EEOC Posting Requirements Title VII requires employers, employment agencies, and labor organizations covered by act to post EEOC-prepared notices summarizing requirements of Title VII, the ADEA, Equal Pay Act, ADA, and Civil Rights Act of 1991 Willful failure to display it is punishable by a fine of not more than $100 for each offense 3-25

26. EEOC Poster 3-26

27. EEOC – Records and Reports Employer Information Report (EEO–1) – Employers with 100 or more employees are required to file with EEOC; requires a breakdown of employer’s workforce in specified job categories by race, sex, and national origin Other, similar types of forms are required of unions, political jurisdictions, educational institutions, school districts, and joint labor–management committees that control apprenticeship programs Title VII requires covered organizations to make and keep certain records that may be used to determine whether unlawful employment practices have been or are being committed EEOC allows organizations to use a separate form, often called an applicant diversity chart, for collecting certain data 3-27

28. Standard Form 100 3-28

29. Standard Form 100 (Concluded) 3-29

30. Applicant Diversity Chart 3-30

31. EEOC – Compliance Process An individual may file a discrimination charge at any EEOC office or with any representative of EEOC If charging party and respondent are in different geographic areas, the office where charging party resides forwards the charge to the office where respondent is located Class action charges or charges requiring extensive investigations are processed in EEOC’s Office of Systemic Programs To determine whether discrimination against groups protected by the law has occurred, EEOC uses employment parity and occupational parity 3-31

32. Affirmative Action Plans Written document outlining specific goals and timetables for remedying past discriminatory actions All federal contractors and subcontractors with contracts over $50,000 and 50 or more employees required to develop and implement written affirmative action plans, monitored by OFCCP All U.S. government agencies to prepare affirmative action plans While Title VII and the EEOC do not require any specific type of written affirmative action plan, court rulings have often required affirmative action when discrimination is found A number of basic steps are involved in the development of an effective affirmative action plan 3-32

33. Affirmative Action Plans Effective Affirmative Action Plans – EOCC Guidelines The CEO of organization should issue a written statement describing their personal commitment to plan, legal obligations, and importance of equal employment opportunity as an organizational goal A top official of organization should be given authority and responsibility for directing and implementing program. All managers and supervisors within organization should clearly understand their own responsibilities for carrying out equal employment opportunity Organization’s policy and commitment to that policy should be publicized both internally and externally Present employment should be surveyed to identify areas of concentration and underutilization and determine extent of underutilization 3-33

34. Affirmative Action Plans Goals and timetables for achieving goals should be developed to improve utilization of minorities and females in each area where underutilization has been identified Entire employment system should be reviewed to identify and eliminate barriers to equal employment. Areas for review include recruitment, selection, promotion systems, training programs, wage and salary structure, benefits and conditions of employment, layoffs, discharges, disciplinary actions, and union contract provisions affecting these areas An internal audit and reporting system should be established to monitor and evaluate progress in all aspects of program Company and community programs supportive of equal opportunity should be developed. Programs might include training supervisors in their legal responsibilities and organization’s commitment to equal employment, and job and career counseling programs 3-34

35. Business Necessity Condition that comes into play when an employer has a job criterion that is neutral but excludes members of one sex at a higher rate than members of the opposite sex. The focus in business necessity is on the validity of stated job qualifications and their relationship to work performed When BFOQ is established, an employer can refuse to consider all persons of protected group When business necessity is established, an employer can exclude all persons who do not meet specifications regardless of whether specifications have an adverse impact on a protected group 3-35

36. Sexual Harassment Unwelcome sexual conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment Nature of sexual harassment sometimes makes it difficult to prove Such conduct normally occurs secretly and outside employer’s wishes and can grow out of or be alleged to grow out of consensual relationships, making investigation of complaints difficult When deciding to impose liability on an employer for a supervisor’s sexual harassment, courts have considered an employer’s failure to investigate complaints of sexual harassment as significant 3-36

37. Sexual Harassment In Bundy v. Jackson, the District of Columbia Circuit Court established allocation of burden of proof in a sexual harassment case Employee must establish a prima facie case by proving he or she was Subjected to sexual harassment Denied a benefit for which he or she was eligible and of which he or she had a reasonable expectation Burden then shifts to employer to prove, by clear and convincing evidence, that its decision was based on legitimate, nondiscriminatory grounds If employer succeeds in meeting that stringent burden, the employee may then attempt to prove that the employer’s stated reasons are pretextual 3-37

38. Sexual Harassment Developing policies prohibiting sexual harassment and promptly investigating and responding to complaints of sexual harassment are essential to its prohibition At the least, an organization’s policy on sexual harassment should Define and prohibit sexual harassment Encourage any employee who believes that he or she has been a victim of sexual harassment to come forward to express those complaints to management It is important to note that acts of sexual harassment can be committed not only by men against women, but also by men against men, by women against women, and by women against men 3-38

39. Other Areas of Employment Discrimination – Religion Title VII, as originally enacted, prohibited discrimination based on religion but did not define the term Most frequent accommodation issues under Title VII’s religious discrimination provisions arise from conflict between religious practices and work schedules The EEOC’s Guidelines on Religious Discrimination proposes Arranging for voluntary substitutes with similar qualifications; promoting an atmosphere where such swaps are regarded favorably; and providing a central file, bulletin board, or other means of facilitating matching of voluntary substitutes Flexible scheduling of arrival and departure times; floating or optional holidays; flexible work breaks; and a plan for using lunch time and other time to make up hours lost due to the observation of religious practices Lateral transfers or changes in job assignments 3-39

40. Other Areas of Employment Discrimination Native Americans Native Americans are protected by Title VII; Section 703(i) of Title VII benefits Native Americans by exempting them from coverage by the act, in that preferential treatment can be given to Native Americans in certain employment HIV-Positive Status (Bragdon v. Abbott) Individuals diagnosed as HIV-positive, even if they haven’t developed symptoms, are considered to be disabled and entitled to protection of Americans with Disabilities Act (ADA) Sexual Orientation Title VII does not prohibit employment discrimination against effeminate males, homosexuals, or masculine acting females Adverse action against individuals who undergo or announce an intention to undergo sex-change surgery does not violate Title VII People who fall in those groups are protected only when a local or state statute is enacted to protect them 3-40

41. Part 3 EmployeeSafetyandHealth

42. Employee Safety and Health Employee safety and health are important concerns in today’s organizations Indirect costs include employers’ costs for health insurance and workers’ compensation Health costs have escalated dramatically in recent decades Occupational injuries and illnesses have always been common U.S. Congress passed Occupational Safety and Health Act in 1970 16-42

43. Occupational Safety and Health Act Occupational Safety and Health Act Federal law enacted in 1970 to ensure safe and healthful working conditions for every working person Applies to all businesses with one or more employees (except self-employed persons) General-duty clause Clause in the Occupational Safety and Health Act covering those situations not addressed by specific standards Requires employers to comply with the intent of the act 16-43

44. Occupational Safety and Health Administration (OSHA) Responsibilities Encourage employers and employees to reduce workplace hazards and to implement new safety and health management systems or improve existing programs Develop mandatory job safety and health standards and enforce them through worksite inspections, employer assistance, and, sometimes, by imposing citations, penalties, or both Promote safe and healthful work environments through cooperative programs, partnerships, and alliances Establish responsibilities and rights for employers and employees to achieve better safety and health conditions Support the development of innovative ways of dealing with workplace hazards 16-44

45. Occupational Safety and Health Administration (OSHA) Responsibilities Support the development of innovative ways of dealing with workplace hazards Establish requirements for employers to keep records of injury and illness and, monitor certain occupational illnesses Establish training programs to increase the competence of occupational safety and health personnel Provide technical and compliance assistance and training and education to help employers reduce worker accidents and injuries Work in partnership with states that operate their own occupational safety and health programs Support the Consultation Programs offered by all 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam and the Northern Mariana Islands 16-45

46. OSHA Standards Establishes legally enforceable standards relating to employee health and safety Currently OSHA issues standards for a wide variety of workplace hazards including Toxic substances Harmful physical agents Electrical hazards Fall hazards Hazardous wastes Infectious diseases Fire and explosion hazards Dangerous atmospheres Machine hazards 16-46

47. OSHA Standards Most OSHA standards and forms can be obtained online The Federal Register, regularly publishes all OSHA standards and amendments Human resource department is responsible for being familiar with these standards and ensuring that organization complies with them 16-47

48. Workplace Inspections OSHA compliance officers (inspectors) are authorized under the act to conduct workplace inspections It conducts inspections without advance notice Employers do have the right to require that OSHA obtain a search warrant before being admitted Originally employers were not given advance notice of inspections and could not refuse to admit OSHA inspectors Marshall v. Barlow’s Inc. – Court ruled that employers are not required to admit OSHA inspectors onto their premises without a search warrant At the same time, however, the court ruled that the probable cause needed to obtain a search warrant would be much less than what would be required in a criminal matter 16-48

49. Inspection Priorities The agency inspects under the following conditions Imminent danger, or any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before danger can be eliminated through normal enforcement procedures Catastrophes and fatal accidents resulting in the death of any employee or the hospitalization of three or more employees Employee complaints involving imminent danger or an employee violation that threatens death or serious harm Referrals from other individuals, agencies, organizations, or the media Planned, or programmed, inspections in industries with a high number of hazards and associated injuries Follow-ups to previous inspections 16-49

50. Inspection Procedures Representatives of employer should first ask to see the inspector’s OSHA credentials Inspector conducts a preliminary meeting with top management of organization Manager of human resource department is usually present At this time, the inspector explains the Purpose of the visit Scope of the inspection Standards that apply Inspector then usually requests an Employer representative – Often someone from human resource department Employee representative – Usually selected directly by employees or union if one is present 16-50