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LEGAL FRAMEWORK

OF HR / EEO ANDOTHERS

Edwin N. Torres, Ph.D.

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Legality, and Morality

Why do we have laws that regulate HRUnsafe work conditions

Discrimination

Low wagesOverall negative working conditions

Legality vs. Morality / Ethics Just because something is legal, does not make it

moral / ethical You should also use your own sense of morality

and business ethics in dealing with employmentissues

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Federal Vs. State Laws

The federal government regulates manyaspects of labor

States also have their own laws

States can secure additional benefits for theiremployees

Example: Federal law may say that minimum

wage is $7.25, but a state may require $8

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Legal & Illegal Discrimination

Legal Discrimination

Work Experience

Education

Personality

Knowledge

Skills

Illegal Discrimination

Race

Religion

National Origin

Veteran Status

Marital Status

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Equal Employment Opportunity(EEO)

One of the most important pieces of legislationis Title VII of the Civil Rights Act (1964,amended in1972) Equal Employment

Opportunity Act It deems certain forms of employment

discrimination illegal

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Protected Class

Protected class - Individuals who areafforded protection under equal employmentlaws and regulation

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EEO

Laws vs. Regulations

The law establishes the purpose of thelegislation (i.e. dont discriminate on race)

Regulations establish the specific

(i.e. how will this law be implemented)

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EEO

Who is covered?

Private employers with 15 persons or more

All educational institutions

State and local governments

Labor unions with 15 employees or more

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EEO

Prohibits discrimination in hiring,compensation, and terms, and conditions ofemployment based on:

RaceReligion

Color

SexNational Origin

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EEO

The EqualEmploymentOpportunity

Commission(EEOC) is chargedwith administeringEEO laws and

regulations.

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Important Terms

Business NecessityA practice that isnecessary for the safe and efficientorganizational operations (Mathis & Jackson,

2003).A criteria used to discriminate needs to be Job

Related

Example: A company ask a writing sample fora magazine writer position Job Related

Example 2: The same company asks theapplicant to take a test on auto mechanics

Not Job Related

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Bona Fide OccupationalQualification

BFOQ - A legitimate reason why an employercan discriminate against an employee

An exception to the rule if you will

May be used for sex, religion, national origin

May not be used for race or color

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Examples of BFOQ

Hooters case Female waitresses

A male attendant on

a male locker roomA Modeling Job that

requires a female

A Catholic Priestrequired to beCatholic

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Disparate Treatment & Impact

Disparate treatment is when members of aprotected class are treated differently

Disparate impact happens from employer

decisions that work to the disadvantage of theemployees

Griggs Vs. Duke Power (1971)

It is not enough to show lack of discriminatoryintent

Employer has the burden of proof that anemployment requirement is a business necessity

(Mathis & Jackson, 2003)

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Retaliation

Takes place whenan employer takes anegative action

because of anemployee filing acharge

Not legal

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Equal Employment Opportunity Actof 1991

Allows employees tosue for punitivedamages for cases

of intentionaldiscrimination

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Affirmative Action

Employers identify areas in which protectedclasses have been underrepresented

Set goals, and take steps to enhance

opportunities for protected class members The concern: this can lead to quotas, may

result in reverse discrimination

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Brief Discussion

Article # 1 in blackboard Disney sued forreligious discrimination

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Age Discrimination in EmploymentAct (ADEA) - 1967

May not discriminateagainst individuals40 and over

Eliminates practiceof mandatoryretirement age

Exceptions: Pilots(age 60 by FAAregulation), police,firefighter

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Pregnancy Discrimination Act(1978)

Cannot refuse tohire

Cant terminate

Cant denyinsurance

Must give a

reasonable amountof time off (no setamount; thoughtypically is 6 weeks)

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Pregnancy Discrimination Act(1978)

Employers cannot discriminate in the offeringof benefits (i.e. offer insurance to men and notwomen)

If the employer offers insurance, it must coverpregnancy

Employer may not mandate a given date of

maternity May not demote employee

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Equal Pay Act (1963)

Pay similar rates forsimilar work,regardless of gender

What justifies a paydifference? Seniority

Performance

Quality/ Quantity Skill, effort, work

conditions, etc.

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Americans with Disabilities Act(1990)

Protects most forms of disability

Key controversy: who is disabled?

"a physical or mental impairment that substantially

limits one or more major life activities of suchindividual," "a record of such an impairment," and"being regarded as having such an impairment.""Major life activities" involves such things as self-

care, basic bodily functions, seeing, walking, andcommunicating.

Any mental or psychological disorder, such asmental retardation, organic brain syndrome,emotional or mental illness, and specific learning

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ADA

Requires employees to make reasonableaccommodation for qualified individuals

Individual must perform essential job

functions Unique hardship: accommodation imposes

significant difficulty or expense in the company

Most accommodations are inexpensive Employers may also receive certain tax credits

f (

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List of Disabilities (notexhaustive) Asthma (or other breathing

problems)

Blindness (& partial blindness)

Deafness (& partial deafness)

Diabetes

Dizziness/Balance problems

Epilepsy

General Hearing Difficulty

Mobility Problems

Neurological Problems Paralysis

Physical Weakness

Speech Problems

Seizures

Age-Related Cognitive Decline

Any Psychiatric Condition (seeexclusions below)

Autism

Depression

Dyslexia

Bipolar Disorder

Emotionally Overwhelmed

Panic Attacks

Post Traumatic Stress Disorder(PTSD)

Separation Anxiety

Social Phobia

Stress Problems

Source:http://www.nsarco.com/listofdisabilities.

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Sexual Harassment

Employer liability: employers are liable foractions by its management team, employees,and customers (DeCenzo & Robins, 1999)

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Reduction of legal liability

Create policies & inform employees

Institute procedures to investigate charges

Train management personnel on how to deal with

charges Investigate charges immediately

Take corrective action if necessary

Follow-up and make sure retaliation does not

occur Review turnover situations to make sure this is not

one of the causes

(DeCenzo & Robins, 1999)

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The office and HR

http://www.youtube.com/watch?v=AeW7XC5-c00

http://www.youtube.com/watch?v=AeW7XC5-c00http://www.youtube.com/watch?v=AeW7XC5-c00http://www.youtube.com/watch?v=AeW7XC5-c00http://www.youtube.com/watch?v=AeW7XC5-c00http://www.youtube.com/watch?v=AeW7XC5-c00http://www.youtube.com/watch?v=AeW7XC5-c00

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Other forms of harassment

Employers are to take steps to avoid thatemployees are harassed on the basis of:

Age

ReligionRace

Others covered by EEO

Harassment on these can result in court cases fordiscrimination

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Other forms of harassment

EEO requires that employees makereasonable accommodations regarding anemployees religious believes

Example: Muslim employees needing time topray may be a reasonable accommodation

Scheduling: If a job requires an employee to

work on weekends regularly, this may not fallunder religious accommodation

FAMILY MEDICAL LEAVE ACT

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FAMILY MEDICAL LEAVE ACT(FMLA)

Provides unpaid leave up to 90 days

May be for ones personal illness / injury or for

the care of a close relative (i.e. children,

parents) Upon return, the individual is to get the same

or similar position

More on this on the compensation class

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Genetic Information Nondiscrimination act(2008)

Employers many not discriminate based ongenetic information

May not discriminate based on family medical

history

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Employment Verification

Currently, we use paper-based forms (I-9) andmatch to employees documentation

This system has frequently been abused (i.e.

false social security numbers, etc) The Dept. Homeland Security has established

a pilot program for nationwide employment

verification. You might hear more on this in the future.

E i t l t d b f d l

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Emerging not regulated by federallaw

Class discussion:

Discrimination based on weight (some states)

Aesthetic discrimination (based on looks)

Sexual orientation (some states)

Breastfeeding (some states)

Unemployment status

Screening through social media

Others?

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Article Discussion # 2

Article # 2Hooters and weight / aestheticdiscrimination

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How not to interview

http://www.youtube.com/watch?NR=1&feature=endscreen&v=Z2OJX68BuvI

http://www.youtube.com/watch?NR=1&feature=endscreen&v=Z2OJX68BuvIhttp://www.youtube.com/watch?NR=1&feature=endscreen&v=Z2OJX68BuvIhttp://www.youtube.com/watch?NR=1&feature=endscreen&v=Z2OJX68BuvIhttp://www.youtube.com/watch?NR=1&feature=endscreen&v=Z2OJX68BuvIhttp://www.youtube.com/watch?NR=1&feature=endscreen&v=Z2OJX68BuvI

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What not to ask?

Date of birth ADEA

Date of HS graduation ADEA

Birthplace of applicant EEO

Ethnic association of name EEO

Marital Status - EEO

Applicants child care arrangements EEO

Native language EEO

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What not to ask?

Political affiliation

Number and kinds of arrest EEO

May not ask for a photograph beforehand

EEO

Height or weight unless BFOQ

Illness, past operations, etc. - ADA

Applicants debt or assets(Mathis & Jackson, 2003)

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Why is EEO important?

From an ethical perspective, it does not seemright to discriminate on the basis of race, sex,age, etc.

Lawsuits are expensive and can be avoided Operations managers are to observe EEO in

their daily lives in hiring, training,

compensation, performance appraisals, etc. HR is to serve as consultants in the process;

offering advice, training and guidelines asneeded

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Advertising and Recruitment

See adds in Pg. 32 of book

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Wrongful Discharge

Contract Theory the employee has acontract and it was terminated without justcause

Public Policy Theory the employee wasterminated because of the refusal to brake thelaw

What is a just cause? Employer must have a clear policy

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Employment at Will

Florida is an employment-at-will state

Therefore an employer may terminate anemployment relationship with or without just

cause at any time (except for the case ofdiscrimination / violation of federal statutes).

If the contract has a specific term (i.e. 1yr), it

ceases to be an at will relationship.

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Class Discussion

Do you agree with the employment at willphilosophy? Why or why not?

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Mini-Cases

As needed

Textbook Pg. 49-53

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Later in class

Labor and unionization (Wagner Act andothers)

Compensation (FLSA, Presidents healthcare

law, and others) Recruitment (fair credit reporting act,

polygraph protection act, and others)