legality of preferential hiring and promotion plans

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LEGALITY OFLEGALITY OF

PREFERENTIAL HIRING ANDPREFERENTIAL HIRING AND

PROMOTION PLANSPROMOTION PLANS

Emily VivienEmily Vivien LaurenteLaurente



³³ Another technical used by SM to Another technical used by SM to

weakenweaken or avoid unions isor avoid unions is thethepreference for preference for hiringhiring of of IglesiaIglesia nini

CCristoristo 150150 over other over other religiousreligious

denomination.denomination. IglesiaIglesia nini CCristoristo

membersmembers are prohibitedare prohibited by their by their religion from joining unions.religion from joining unions.

According to According to Rene, there was a timeRene, there was a time

last year where almost all thelast year where almost all the batchesbatchesregularized wereregularized were IglesiaIglesia nini CCristoristo

members.´members.´



³Working mothers or married women are³Working mothers or married women are

discriminated against because employersdiscriminated against because employersdo not want to hire us. It is for the simpledo not want to hire us. It is for the simple

reason that working mothers are morereason that working mothers are more

prone to absences because when their prone to absences because when their

children get sick, they decide to staychildren get sick, they decide to stayhome to take care of themhome to take care of them.´.´

Workers¶ Pr otecti on in a New Empl oyment Workers¶ Pr otecti on in a New Empl oyment Relati onshipRelati onship

by by Bach M.Bach M. MacarayaMacaraya



Affirmative Action Affirmative Action

positive steps taken to increase thepositive steps taken to increase the

representation of women and minoritiesrepresentation of women and minorities in

areas of employment, education, and

business from which they have beenhistorically excluded

involve preferential selection ²

selection on the basis of race, gender, or ethnicity²affirmative action generates

intense controversy



Preferential HiringPreferential Hiring

A hiring practice that favors anthat favors an

identified group for employmentidentified group for employment

devised to create harmony betweencreate harmony betweenthe different races and sexesthe different races and sexes, has

divided the lines even moredivided the lines even more




Race and sex should not be issues in

today's society, yet preferential hiring

continues to make these factors issues by

treating minorities as a group rather than

as individuals

More importantly preferential hiring maymay

actually fuel, rather than extinguish,actually fuel, rather than extinguish,feelings of racial hostilityfeelings of racial hostility




Applying the concept of preferential hiringto another situation may help elucidate its

shortcoming

In the Philippines, preferential hiring isseen when an applicant is a

relative/kumpares or kumadres

daughter/son or tungod sa koneksyon

Also seen on classified ads: preferably Also seen on classified ads: preferably

single (familiar,single (familiar, dibadiba?)?)



LegalityLegality

the state or quality of being in conformity with the law;lawfulness.

attachmentattachment toto or or observanceobservance of of lawlaw

± In the US, if a plan does not meet a compelling government interest,

it is considered illegal. What is the plan? DIVERSITY in work

settings (universities, police departments etc).

± If the plan does not meet a compelling interest using a 5 criteria to

³strictly scrutinize´ the extent to which an affirmative action plan

involving preferential hiring is narrowly tailored

± ALWAYS LEGAL = Hiring minorities, discouraging barriers against

women and minorities in hiring and promotion



IN THE US COURTS, they consider

five criteria in assessing action plan

1. History of the organization

2. Beneficiaries of the plan

3.Population to be considered

4. Impact on the nonminority group5. Endpoint of the plan



DISCRIMINATIONDISCRIMINATION There is a history of discrimination by a particular organization

If no discrimination has previously occurred, then an

affirmative action plan is neither necessary nor legal

For example: if 30% of the qualified workforce is African-American, as is 30% of a police department¶s

officers ± preferential hiring is ILLEGALILLEGAL

However, if 25% of the qualified workforce is African-

American and there are no African-American state

troopers ± preferential hiring is JUSTIFIABLE



DISCRIMINATIONDISCRIMINATION In the Philippines, there is discrimination against

women, members of the LGBT community and disabled

(deeply-rooted sa culture natin)

But there are Philippines Laws that caters with regards

to this issue (see appendix)

P.D. 442: Articles 3, 79, 80, 135

Articles 130 and 139 ± Justify preferential hiring

± For the LGBT Community ± Senate Bill No. 1738 (authored by

Sen. Bong Revilla) ± THE ANTI-GENDER DISCRIMINATION

ACT - pero 1st reading pa lang and it¶s still pending ± Issue of age preference ± Senate Bill No. 2652 (authored by Pia

Cayetano) ± Anti-Age Discrimination Act of 2011 ± still on its

first reading



ARTICLE 3. Declaration of basic policy. - The State shall afford protection to labor, promote fullemployment, ensure equal work opportunitiesregardless of sex, race or creed and regulate the relations betw een work ers and employ ers. The State shall assure the rights of work ers to self -organization,collectiv e bargaining, security of tenure, and just and

humane conditions of work. ARTICLE 79. When employable. - Handicapped

work ers may be employ ed w hen their employment isnecessary to pre v ent curtailment of employment

opportunities and w hen it does not create unfaircompetition in labor costs or impair or low er working standards.



Exceptions ARTICLE 130. Nightwork prohibition. - No woman,

regardless of age, shall be employ ed or permitted orsuff ered to work, with or without compensation:

a) In any industrial undertaking or branch thereof betw eenten o¶clock at night and six o¶clock in the morning of the

following day; or b) In any commercial or non-industrial undertaking or

branch thereof, other than agricultural, betw eenmidnight and six o¶clock in the morning of the following

day; orc) In any agricultural undertaking at nighttime unless she

is giv en a period of rest of not less than nine (9)consecutiv e hours.



Exceptions ARTICLE 139. Minimum employable age.

(a) No child below fifteen (15) y ears of age shall be employ ed,except w hen he works directly under the sole responsibility of his parents or guardian, and his employment does not in any

way interf ere with his schooling.

(b) Any person betw een fifteen (15) and eighteen (18) y ears of age may be employ ed for such number of hours and such periods of the day as determined by the Secretary of Labor andEmployment in appropriate regulations.

(c) The foregoing provisions shall in no case allow the

employment of a person below eighteen (18) y ears of age in anundertaking w hich is hazardous or deleterious in nature asdetermined by the Secretary of Labor and Employment.



PL ANPL AN Concerns the extent to which the plan

benefits people who were not actual

victims of the discrimination

If plan benefits only actual victims, it will

probably considered legal

But benefits people not directly

discriminated by the organization, other

criteria will be considered



PL ANPL AN

Ex ample: Jigzpi-Pilapil T-Shirt Corporation has 100male workers, but no female managers. Twenty female

assistant managers, after being denied promotions formany years, file suit charging discrimination, makingthe organization to hire ten of the females to fill the ne x t

ten openings.

Because the beneficiaries of this plan were the actual victims of the organization¶s previous discrimination,

the plan would be legal. But if it involved promoting females who have not previously applied for themanagement positions, they will consider other factors.



Note: Walay specific provision sa Labor Code of the Philippines na naga-tackle about

promotions, tungod kay sariling discretion nah

na sa company. But then again, ang discretion

sa company, pwede ma-challenge. Also,pwede pud nimo gamiton ang ubang provisions

sa labor code to check the legality of hiring and

promoting people inside the company. :)



POPUL ATION USED TO SETPOPUL ATION USED TO SET

GOALSGOALS Concerns which of two types of populations was used to

statistically determine discrimination and to set affirmative

action goals

An organization compares the number of minorities in the

general area with the number of minorities in each position

in the organization

Hiring goals ± remedy discrepancy

Example: The area population is comprised of 80%

Hispanics, yet the salaried workers of Hispanic origin in

TresPsycholo Inc. are 20% only Solution: The TresPsycholo International might set hiring

goals for Hispanics at 90% until the workforce becomes

80% Hispanics



POPUL ATION USED TO SETPOPUL ATION USED TO SET

GOALSGOALS In the US, the use of area population has been used as

traditional basis, but recently, the population that must be

used in goal setting is that of the qualified workforce in the

area rather than the area population as a whole

Philippine setting: We all know that being a call center

agent is one of the most popular jobs today. If we look at the

Davaoenos who are in the working age, maka-ingon jud ta

na daghan, and yet we all know that not all of these people

are qualified as call center agents. Kaya mamili jud ka ug

mga tao na naa dira sa given population aron mahimong

call center agents.



NONMINORITIESNONMINORITIES Does the plan unnecessary trammel the rights of

nonminorities?

Preference can be given to a qualified minority over a

qualified nonminority, but an unqualified minority can

never be hired over a qualified nonminority. Affirmative action becomes controversial when an

organization realizes it has discriminated against a

particular protected group

Should only a small number of minority applicants test

highly enough to be considered qualified, thethe

organization is under no obligation to hire unqualifiedorganization is under no obligation to hire unqualified

applicants.applicants.



IMPA T NIMPA T N

NONMINORITIESNONMINORITIES Reverse discrimination - a controversial term referring

to discrimination against members of a dominant or

majority group, including the city or state, or in favor of

members of a minority or historically disadvantaged

group

Example: Jet (pure Chinese but grew up in Davao) and

Wes (pure Pinoy) both apply as guidance counselors in

SuJu Institute of Technology ± ComVal Annex. Jet is a

fresh graduate of BS Psychology, whereas Wes has aPh.D in Guidance and Counseling. Yet they hired Jet.



IMPA T NIMPA T N

NONMINORITIESNONMINORITIES Another example (Philippine setting):

Mr. Gencianos and Ms. Pizarro are both graduates of BS Education,hav e the same age and similar qualifications. Both work in BarnumUniv ersity - IBED as Grade 6 teachers and both work on the same

hours with the same load.

But Mr. Barnum giv es Mr. Gencianos bigger pay simply because (according to Mr. Barnum) Mr. Gencianos is a descendant of a rare tribe from Thailand that settled in the country 500 y ears ago and

promoted him as assistant school master after just two y ears of work.

Diba walang specific provision ang Labor Code about this kind

of promotion? W hat can Ms. Pizarro do?



NONMINORITIESNONMINORITIES Article 135. Discriminat ion P r ohibited. ± It shall be unlawful for

any employ er to discriminate against any woman employ ee with respect to terms and conditions of employment solely on account of her sex.

The following are acts of discrimination:

(a) Payment of a lesser compensation, including wage, salary orother form of remuneration and fringe benefits, to a f emale employ ee as against a male employ ee, for work of equal value; and

(b) Favoring a male employ ee ov er a f emale employ ee with respectto promotion, training opportunities, study and scholarship grantssolely on account of their sexes.

Ms. Pizarro can sue Mr. BarnumMs. Pizarro can sue Mr. Barnum



ENDPOINT OF THE PL ANENDPOINT OF THE PL AN

Setting an endpoint of the plan The affirmative action cannot continue

indefinitely

Must END with the certain goals obtainedMust END with the certain goals obtained

In the US, continuing the plan would be illegal,continuing the plan would be illegal,

reasoned by the court, because it would now

result in a substantial hardship on nonminority

group applicants If the percentage of the minorities in an

organization will drop, the plan can be

reinstated

legality of preferential hiring and promotion plans

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