Presentation Transcript

1. OBHR-E100Human Resource ManagementThe Legal Environment Workplace Discrimination What are some employee interests protected by employment laws? How might the employer benefit from employment laws? In the context of employment discrimination, what are HR’s goals when bringing together the interests of “the people” and “the organization”? People Organization OBHR-E100 - Human Resource Management
2. OBHR-E100Human Resource ManagementThe Legal Environment Legal Framework -- A Balancing Act “People Terms” Protected Class Reasonable Person Disabled Person “Operational Terms” Bona Fide Occupational Qualification (“BFOQ”) Business Necessity Essential Functions of the Job “Work Environment Terms” Reasonable Accommodation Disparate Treatment Disparate Impact Hostile or Abusive Working Environment OBHR-E100 - Human Resource Management
3. OBHR-E100Human Resource ManagementThe Legal Environment Scenario 1 A twenty-year employee of your company is passed over for a promotion. The successful candidate is hired from outside of your company. The twenty-year employee is African-American and 55 years old. The successful candidate is white and 40 years old. When asked to explain the hiring decision, the hiring manager states that both were provided an interview and that the successful candidate just seemed like a better fit. The hiring manager also thought the successful candidate would bring new ideas to the company. You are the VP of HR. What concerns do you have? What more would you like to know? OBHR-E100 - Human Resource Management
4. OBHR-E100Human Resource ManagementThe Legal Environment Employment Discrimination Defined: Where an employee is treated or impacted differently (typically worse) than others in the workplace due to their: Race Gender National Origin Religion Age Disability Employer Actions: Failure to promote, demotion, termination Hostile work environment Failure to reasonably accommodate qualified employee with disability OBHR-E100 - Human Resource Management
5. Disparate Treatment Key case – McDonnell Douglass v. Green, 1973 USC Direct discrimination Unequal treatment Intentional Prejudiced actions Different standards for different groups Source: Adapted from Managing Human Resources, Englewood Cliffs, New Jersey, Prentice-Hall, 1995 Disparate Impact Key case – Griggs v. Duke Power, 1971 USC Indirect discrimination Unequal results Unintentional Neutral actions Same standards but different consequences Types of Illegal Racial Discrimination OBHR-E100 - Human Resource Management
6. Proving Disparate Treatment Burden Shifting Test – Prima Facie Case Member of protected class Applied for job for which she was qualified She was rejected Employer continued to seek applicants Employer to Rebut with a Legitimate, Non-Discriminatory Reason Back to Employee to show Pretext OBHR-E100 - Human Resource Management
7. Proving Illegal Discrimination Rebuttals Requirement is “job related” Bona Fide Occupational Qualification Bona Fide Seniority System Business Necessity OBHR-E100 - Human Resource Management
8. Disparate Impact Data Used to Show Prima Facie Case Internal Hiring External Labor Market Workforce v. External Population EEOC – 4/5ths Rule for Prima Facie Case OBHR-E100 - Human Resource Management
9. Sexual Harassment Scenario 1 A team travels to Seattle to successfully present a new advertising campaign to Starbucks. They head out for dinner at a pub for a celebration that lasts well into the night. You’re the HR director. You get a call the next morning from two women on the team. They were alarmed by the sexual innuendos of the conversation from their male colleagues as the night wore on. And, one cornered them both asking for a congratulatory kiss and hug (which they declined). What’s your next step? What’s the obligation of the organization? OBHR-E100 - Human Resource Management
10. Sexual Harassment Scenario 2 A consensual romantic relationship between a staff assistant in marketing and a middle manager in production ends because she decides to move on. He sends a few emails asking to see her again, and then approaches her with a flower and note to say “no hard feelings – let’s be friends,” She runs into your office when she sees him approaching with the flowers in the hall. She says she wants to file a complaint, wants him moved to a new building and is thinking of filing a restraining order. What is your advice to her? What steps should you take on behalf of the organization? OBHR-E100 - Human Resource Management
11. Sexual Harassment Sub section of Title VII Illegal Sexual Harassment Defined Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature constitute sexual harassment when: Submitting to or rejecting such conduct is an explicit or implicit term or condition of employment or employment decisions affecting the individual (quid pro quo) The conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment (hostile environment) Hostile Environment – Reasonable Person Test Frequency of discriminatory conduct Severity of conduct Physically threatening or humiliating, or merely offensive utterance Unreasonably interferes with employees’ work performance NOTE No need to show concrete psychological harm OBHR-E100 - Human Resource Management
12. ADA – The Americans with Disabilities Act of 1990 Scenario 1 Staff member with diagnosed depression. She has a history of inconsistent use of medication. Doctor recommends structure of workplace as useful in her recovery. Her attendance is spotty, on occasion she weeps at her desk, she spends weekly meeting with manager discussing meds/condition/therapy, and she periodically lashes out at co-workers. She is a talented writer with a long history of great performance. How do you advise the manager who is at wit’s end? How do you handle the two co-workers who come in worried about her, but also to say this is very disruptive and team morale is suffering? OBHR-E100 - Human Resource Management
13. ADA – The Americans with Disabilities Act of 1990 Scenario 2 Employee with adult attention deficit syndrome (AADS). He requests a private office, phone calls to be screened, and 30 minute breaks every two hours to ensure less stress in the job. What is your next step? OBHR-E100 - Human Resource Management
14. ADA – The Americans with Disabilities Act of 1990 Coverage: Employers with 15 or more employees Administration: Equal Employment Opportunity Commission (EEOC) Disability Defined: Any mental or physical impairment that substantially limits one or more of the major life activities of an individual; A record of such impairment; Being regarded as having such an impairment Reasonable Accommodation; Affirmative obligation on the part of the employer to make reasonableaccommodation for covered persons. Employers not expected to incur ‘undue hardship’ to accommodate the individual Legal Considerations – Nature of the job itself (job descriptions needed) Size of the company or organization Union agreements preventing work rule or schedule change Cost Recent ADA Case Law: Sutton v. United Airlines, Inc. Supreme Court narrowed the definition of a ‘disability’ under the Act. OBHR-E100 - Human Resource Management
15. Family and Medical Leave Act of 1993 (FMLA) Eligibility Employers with 50+ employees (multiple worksites must be within 75 miles to aggregate employee pool) Employee must have worked 1,250 hours in the preceding 12-month period 12 weeks unpaid or paid (covered by existing policies) for Birth and/or care of a child of the employee Adoption or foster care of a child of the employee Caring for a spouse, child, parent with a serious health condition Employee’s own serious health condition Guarantee return to the same or equivalent position provided under the Act Serious Health Condition Illness, injury, physical or psychological/psychiatric condition Inpatient incapacity or treatment Outpatient incapacity requiring 3+ days of absence from work Continuing, intermittent treatment of a chronic condition OBHR-E100 - Human Resource Management
16. Key Federal Employment Discrimination Laws Title VII of the Civil Rights Act of 1964 Prohibits discrimination based on race, color, religion, sex, or national origin. Age Discrimination in Employment Act of 1967 (ADEA) Prohibits discrimination against workers age 40 and over. Pregnancy Discrimination Act of 1978 (PDA) Protects pregnant women regarding job status and benefits. Americans with Disabilities Act of 1990 (ADA) Sweeping legislation to prohibit discrimination against disabled employees. OBHR-E100 - Human Resource Management
17. Management Response What an organization can do Take Control Make Procedures Objective and Job-Related Develop Grievance Procedures Act Affirmatively If a Complaint is Filed, respond as completely and with as much data and accurate record keeping as possible. OBHR-E100 - Human Resource Management