© 2013 cengage learning 1 employee selection and legal issues
TRANSCRIPT
© 2013 Cengage Learning
2
Judicial Pecking Order• U.S. Constitution
– 5th Amendment (federal government)– 14th Amendment (state & local governments)
• Federal Laws (CRA, ADA, ADEA, FMLA, EPA)• Executive orders (Executive Order 11246 – Federal Contractors)
• Federal case law (interprets Constitution and federal laws)– U.S. Supreme Court– Circuit Courts of Appeal (12 circuits, Virginia is 4th)– U.S. District Courts
• Federal administrative guidelines– EEOC– OFCCP
© 2013 Cengage Learning
3
Problem ScopeYear Complaints % Unwarranted Monetary Benefits*2010 99,222 80.8 $319.4
2009 93,277 79.7 $294.2
2008 95,402 78.7 $274.4
2007 82,792 78.1% $290.6
2006 75,768 77.8 $229.9
2005 75,428 78.6 $276.1
2004 79,432 80.5 $251.7
2003 81,300 80.0 $269.0
2002 84,442 79.9 $257.7
2001 80,840 77.9 $247.8
2000 79,896 78.8 $245.7
1999 77,444 83.6 $210.5
*in millions
© 2013 Cengage Learning
4
Potential Legal Problems
• Disparate treatment (intentional discrimination)
• Disparate impact (adverse impact)
• Invasion of privacy• Illegal search
© 2013 Cengage Learning
5
Employee Complaint Process
• Alleged discriminatory act• Internal investigation• Internal resolution process
– Essential to have a formal policy– Options
• Dictate a decision• Mediate a solution• Arbitrate a decision
– Appeal procedure is important
• External resolution process– State agencies in deferral states– EEOC– Law suit
© 2013 Cengage Learning
6
Alternative Dispute Resolution
• Mediation– Neutral third party
– Disputants reach agreement
• Arbitration– Neutral third party
– Arbitrator makes decision• Binding
• Nonbinding
• Dictation– Third party makes decision
© 2013 Cengage Learning
7
EEOC Complaint Process1. Alleged discriminatory act
2. Complaint filed
a. 180 days for nondeferral states
b. 300 days for deferral states
3. Employer notified within 10 days
4. Investigation (goal is to complete in 120 days)
a. Reasonable cause found
1) attempt to reach agreement
2) if no agreement, EEOC can file suit
b. Reasonable cause not found
1) right to sue letter issued to employee
2) employee has 90 days to file suit
© 2013 Cengage Learning
8
Civil Rights Act - Title VII
• Who is Covered– Private employers with
at least 15 employees
– Federal, state, and local governments
– Employment agencies
– Unions
– Americans working abroad for American companies
• Who is Exempt– Bona fide tax exempt
private clubs– Indian tribes– Individuals denied
employment due to national security concerns
– Publicly elected officials and their personal staff
© 2013 Cengage Learning
9
Title VII Court Ordered Remedies• Disparate Impact Cases
– Reinstatement
– Back pay
– Seniority
– Front Pay
– Affirmative Action
– Attorneys’ Fees
• Disparate Treatment CasesSame as disparate impact +– Compensatory damages
• psychological damage• actual expenses• damage to reputation
– Punitive damages (private sector only)
– Damage Limits (no limit for race)
Employees Limit
15-100 $ 50,000
101-200 $100,000
201-500 $200,000
>500 $300,000
© 2013 Cengage Learning
10
Employment Decisions• Hiring• Placement• Promotion• Assignment (shift, patrol zone)• Salary• Discipline• Training opportunities
© 2013 Cengage Learning
11
Does requirement directly refer to member of federally protected class?
Has case law, state law, or local law expanded definition of protected
class?
Does requirement have adverse impact?
Is requirement subterfuge for discrimination?
Is requirement job related?
Were alternatives with less adverse impact considered?
Probably Legal
Probably Illegal
Probably Illegal
Probably Illegal
Probably Illegal
Probably Legal
BFOQ?
yes
no
yes
no
yes
yes
yes
yes
no
no
yes
no
no
no
© 2013 Cengage Learning
12
Does Requirement Directly Refer to a Member of a Federally Protected Class?
• Sex (Civil Rights Act)– Male– Female
• Race (CRA)– African American– Asian American– White– Native American
• National origin (CRA)
• Color (CRA)• Age (over 40; ADEA)• Religion (CRA)• Disability (ADA)
– Current– Previous– Regarded as such
• Qualified veteran• Pregnant female
© 2013 Cengage Learning
13
Is the Requirement a Bona Fide Occupational Qualification (BFOQ)?• Only members of a particular
class can perform the job• There can be no exceptions• According to the courts:
– Race can never be a BFOQ
– Religion has been (e.g., Nun, priest)
– Gender seldom is
– Customer preference doesn’t matter
© 2013 Cengage Learning
15
Has Local, State or Case Law Added Protected Classes?
• State Law Examples– Virginia protects marital status– Wisconsin protects sexual orientation
• Local Law Examples– Cincinnati protects people of Appalachian heritage– Santa Cruz, CA outlaws discrimination based on height and
physical appearance
• Case Law Examples– Transsexuals are not a sex– Former drug use is not a disability
© 2013 Cengage Learning
16
Does the Requirement Have Adverse Impact on Members of a Protected Class?Occurs when the selection rate for one group is less than 80% of the rate for the highest scoring group
Male Female
Number of applicants 50 30
Number hired 20 10
Selection ratio .40 .33
.33/.40 = .83 > .80 (no adverse impact)
© 2013 Cengage Learning
17
01020304050607080
Asian White AfricanAmerican
Hispanic
Bachelor's Degree High School Diploma
Education Level
© 2013 Cengage Learning
18
Adverse Impact - Example 2
Male Female
Number of applicants 40 20
Number hired 20 4
Selection ratio .50 .20
.20/.50 = .40 < .80 (adverse impact)
© 2013 Cengage Learning
19
Was the Requirement a Subterfuge for Intentional Discrimination?
• Old voting requirements
• Residency requirements
• Height requirements
© 2013 Cengage Learning
20
Can the Employer Prove that the Requirement is Exempt or Job Related?
• Exemptions– Bona fide seniority
system
– Veteran’s preference rights
– National security
• Job Related– Types
• BFOQ
• Valid testing procedure
– Methods• Content validity
• Criterion validity
• Validity generalization
© 2013 Cengage Learning
21
Content Validity
• Based on a solid job analysis• A method of rationally
matching tasks with the necessary knowledge, skills, abilities, and other characteristics (KSAOs) to perform the job
© 2013 Cengage Learning
22
Criterion Validity
• Correlate test scores with relevant criteria
• Two types– Concurrent– Predictive
• Requirements– Reasonable sample size– Good range of test and criterion
scores– A good criterion
© 2013 Cengage Learning
23
Validity Generalization
• Based on meta-analysis• Borrows validity from other studies
or organizations• Job analysis results must be similar
© 2013 Cengage Learning
24
Did Employer Look for Reasonable Alternative with Less Adverse Impact?
• A different test measuring the same construct
• A different type of test• Changes to testing
conditions– video rather than written
– practice exams
– conditioning programs
• Job redesign
© 2013 Cengage Learning
27
EEOC Complaints - 2010• 30,989 charges of harassment
– 11,717 were for sexual harassment charges of sexual harassment
• 16.4% of the charges were made by males
• Harassment Charges– 27% racial
– 38% sexual
– 35% other protected classes
© 2013 Cengage Learning
28
Potential Victims of Harassment
• Gender• Race• Religion• Age• National Origin
– Alien status
– Citizenship status
• Disability• Sexual Preference
© 2013 Cengage Learning
30
Quid Pro QuoHarassment Claims
• Granting of sexual favors is tied to employment decisions
• Single incident is enough• Organization is always liable
http://www.youtube.com/watch?v=vm_YewSqOy8&feature=youtu.be
© 2013 Cengage Learning
31
Hostile EnvironmentHarassment Claims
• Pattern of conduct• Related to gender• Is unwanted• Is negative to the
“reasonable person”• Affects a term, condition, or
privilege of employment
© 2013 Cengage Learning
32
Behaviors That Could Be Sexual Harassment
• Sexual comments• Undue attention• Verbal sexual abuse• Verbal sexual displays• Body language• Invitations• Physical advances• Explicit sexual invitations
© 2013 Cengage Learning
33
Types of Harassing Behavior• Comments• Jokes• Posters• Cartoons• E-mail• Drawings
http://youtu.be/LBRAnQ8vzmo
http://www.youtube.com/watch?v=bojKifKPkPk&feature=related
http://youtu.be/LBRAnQ8vzmo
© 2013 Cengage Learning
34
Behaviors are offensive if they:
• Perpetuate stereotypes• Degrade another group• Build-up own group• Make others feel uncomfortable
© 2013 Cengage Learning
35
What Causes Offensive Behavior?
• Hatred toward a group• To express an emotion
– Anger
– Frustration
• Ignorance• Attempts to gain power• To “fit in” with another
group
© 2013 Cengage Learning
36
Why is Harassment a Problem?
• Hurts workplace relationships• Causes emotional distress• Causes physical distress• Decreases productivity• Increases turnover and absenteeism• Increases legal liability
© 2013 Cengage Learning
37
Discouraging Harassment
• Don’t laugh at offensive behavior
• Speak your mind• Let employees know when
they are crossing the line
© 2013 Cengage Learning
38
What to do if you think you are being harassed
• Talk to the individual– yellow light
– red light
• Talk to your supervisor or to the HR Director– all complaints are taken seriously
– an investigation will occur
– think about what you want the outcome to be
– don’t publicize your complaint
© 2013 Cengage Learning
40
Liability of the Organization
• Victims must be encouraged to come forward
• Every complaint or suspicion must be investigated
• Appropriate action must follow the investigation
© 2013 Cengage Learning
41
Investigating Complaints
• Investigation must be prompt• Complaints must be kept confidential to
protect the accused• Actions must be taken to protect the
accuser during the investigation• Due process• Appropriate action must be taken
© 2013 Cengage Learning
44
Affirmative Action Strategies
• Intentional recruitment of minority applicants• Removal of supervisor and employee prejudices• Identification and removal of employment
practices that work against minority employees• Preferential hiring and promotion of minorities
© 2013 Cengage Learning
45
Reasons for Affirmative Action Plans
• Involuntary– Government regulation
– Court order
• Voluntary– Consent decree
– Desire to be a good citizen• community relations
• customer relations
• hope that diversity will increase productivity
© 2013 Cengage Learning
46
Was there a history of discrimination?
Does the plan only benefitactual victims of discrimination?
What population was usedto establish goals?
Did plan trammel therights of nonminorities?
Is there an endingpoint to the plan?
Plan is illegal
Plan is Legal
Plan is illegal
Plan is illegal
Plan is illegal
Plan is Legal
No
Area
No
Yes
Yes
Yes
No
Qualified Work Force
No
Yes
© 2013 Cengage Learning
47
Legality of Preferential HiringWas there a history of discrimination?
• A history of discrimination must be demonstrated
• Numeric disparity – can establish history
– numeric disparity by itself may not be enough
• Affirmative action posture and efforts will also be considered
• Other reasons, such as lack of interest in the position, must be considered along with the disparity
© 2013 Cengage Learning
48
0
10
20
30
40
50
60
70
Por
tsm
outh
Roa
nok
e
Ric
hm
ond
Va.
Bea
ch
Lyn
chb
urg
Pet
ersb
urg
Black Population %
Black Officer %
© 2013 Cengage Learning
49
Legality of Preferential HiringDoes the plan benefit people who were
not the actual victims of discrimination?
© 2013 Cengage Learning
50
Legality of Preferential HiringWhat population was used to establish
hiring or promotion goals?
• Area population• Qualified work force
– minimum standards
– minority interest in occupation
© 2013 Cengage Learning
51
Legality of Preferential HiringDid the plan trammel the rights of nonminorities?
• Magnitude of the goal must be reasonable
• All people hired must be qualified• Race/gender can be used to break
ties among equally qualified applicants
• Promotion spots can be “double filled”
© 2013 Cengage Learning
52
Legality of Preferential HiringIs there an ending point to the plan?
• Progress must be periodically reviewed• Plan must end when goals have been achieved
© 2013 Cengage Learning
53
Consequences of Affirmative Action Programs
• People hired due to affirmative action:– are perceived by coworkers as being less
competent– tend to devalue their own performance– behave negatively toward other AA people
• Organizations using AA based hiring have lover levels of productivity (Silva & Jacobs, 1993)
© 2013 Cengage Learning
55
Americans With Disabilities Act(ADA) & 2008 ADA Amendments Act
Organizations must make reasonable accommodation for the physically or
mentally disabled, unless to do so would impose an undue hardship
© 2013 Cengage Learning
57
Definition of Disability
• A physical or mental impairment that substantially limits one or more major life activities
• A record of such impairment, or• Being regarded as having such an impairment
© 2013 Cengage Learning
58
Reasonable Accommodations• Making facilities accessible• restructuring jobs• Reassignment to a vacant position• Modifying work schedules• Acquisition or modification of equipment or devices• Providing readers or interpreters• Changing examinations, training materials, or
policies
© 2013 Cengage Learning
59
Ways to Determine if a Job Function is Essential
• Employer’s judgment• Written job description• Amount of time spent performing the function• Consequence of not requiring the incumbent
to perform the function• Work experience of past job incumbents
© 2013 Cengage Learning
60
Medical Exams and Inquiries
• Prehire medical exams and inquiries are prohibited
• Applicants may be asked if they are able to perform essential job related functions
• Medical exams occur after a conditional offer of employment
© 2013 Cengage Learning
61
Clarifications• Act does not require an organization to hire
the disabled• Act does not require an organization to give
preference to the disabled• Act requires that the disabled be given an
equal opportunity, and if the best qualified, to be given the job
© 2013 Cengage Learning
62
Privacy Issues
• Drug testing
• Office and locker searches
• Psychological tests
• Electronic surveillance
http://www.youtube.com/watch?v=PWfydTrfhCs&feature=youtu.be
© 2013 Cengage Learning
64
Focus on EthicsWorkplace Privacy
• Do you think the legal reasons for these workplace practices outweigh the ethical responsibilities of organizations?
• Are companies being unfair, and therefore, unethical by engaging in such activities?
• What are the ethical responsibilities to employees from companies who chose to use such practices?
• What are some other ethical dilemmas that you think could arise from such practices?
• Conduct an Internet search on the Genetic Information Nondiscrimination Act. Do you think that act is fair to employers and employees? Why or why not?