mgmt e-4240 - human resource management1 mgmt e-4240 human resource management the legal environment...

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MGMT E-4240 - Human Resource Management 1 MGMT E-4240 Human Resource Management The Legal Environment – February 1, 2010 Class Objectives Define key legal terms. Become familiar with some essential federal laws, executive orders, and court decisions relevant to equal employment opportunity and discrimination. Understand standards for proving illegal discrimination. People Organizati on

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MGMT E-4240 - Human Resource Management

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MGMT E-4240Human Resource ManagementThe Legal Environment – February 1, 2010

Class Objectives

Define key legal terms. Become familiar with

some essential federal laws, executive orders, and court decisions relevant to equal employment opportunity and discrimination.

Understand standards for proving illegal discrimination.

People Organization

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MGMT E-4240Human Resource ManagementThe Legal Environment

Source: From Federal Regulation of Personnel and Human Resource Management, 2nd ed., by Ledvinka/Scarpello. Copyright © 1991 PWS-Kent. Reprinted by permission of South-Western College Publishing,

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MGMT E-4240Human Resource ManagementThe Legal Environment – Discrimination and Protected Classes

Defining illegal discrimination:Who is protected?

To discriminate is to “distinguish clearly or differentiate” Illegal discrimination occurs when actions taken that unfairly

distinguish or differentiate members of a “protected class” to their detriment.

“Protected class” refers to groups of people that share a particular characteristic who are protected by law prohibiting discrimination.

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MGMT E-4240Human Resource ManagementThe Legal Environment – Key Legislation

Illegal Discrimination Protections:Where are the protections found in our

legislation?

Title VII of the Civil Rights Act of 1964 Pregnancy Discrimination Act of 1978 Age Discrimination in Employment Act of 1967 and Older

Workers Protection Act of 1990 Americans with Disabilities Act of 1990

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MGMT E-4240Human Resource ManagementThe Legal Environment – Affirmative Action

Affirmative Action Executive Orders

11246 (prohibits discrimination based on race, color, religion or national origin);

11375 (prohibits discrimination based on sex) Both require employers with federal contracts to act

affirmatively in hiring employees. Question: So what’s the difference between not

discriminating and acting affirmatively?

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MGMT E-4240Human Resource ManagementThe Legal Environment – The Hiring Process

Legal or Illegal Questions?

1. Where were you born?

2. We need a two-year commitment when hiring for this position. Are you planning on taking any maternity leave over the next two years?

3. How many days were you out sick last year?

4. This job requires fluency in Spanish. Are you fluent in Spanish?

5. When did you graduate from high school?

6. Would your spouse be willing to relocate?

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MGMT E-4240Human Resource ManagementThe Legal Environment – The Hiring Process (cont’d)

Some Topics to Avoid Pregnancy plans Location of birth Marital status Health or medical history Age or number of children Childcare arrangements Religion Sexual orientation

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MGMT E-4240Human 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 38 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?

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MGMT E-4240Human 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

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MGMT E-4240Human Resource Management

The Legal Environment – Proving Illegal Discrimination

Disparate TreatmentKey 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 ImpactKey cases – Griggs v. Duke Power,

1971 USC and Ricci v. DeStefano 2009 USC

Indirect discrimination Unequal results Unintentional Neutral actions Same standards but different

consequences

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MGMT E-4240Human Resource Management

The Legal Environment – Proving Illegal Discrimination

Burden Shifting Test – Prima Facie Case in Treatment Case

Member of protected classApplied for job for which she was qualifiedShe was rejectedEmployer continued to seek applicants

Employer to Rebut with a Legitimate, Non-Discriminatory Reason

Back to Employee to show Pretext

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MGMT E-4240Human Resource Management

The Legal Environment – Proving Illegal Discrimination

RebuttalsRequirement is “job related” Bona Fide Occupational QualificationBona Fide Seniority SystemBusiness Necessity

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MGMT E-4240Human Resource Management

The Legal Environment – Proving Disparate Impact

Data Used to Show Prima Facie Case in Disparate Impact Case Internal HiringExternal Labor MarketWorkforce v. External Population

EEOC – 4/5ths Rule for Prima Facie Case

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Ricci v. DeStefano (2009 S.Ct)

“Catch 22” – Conflict between Title VII’s Disparate Treatment and Disparate Impact Provisions.

Facts – Fire Fighter promotional exams Prima Facie case of disparate impact

established City of New Haven threw out test results to the

detriment of white applicants who would have been promoted.

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Ricci v. DeStefano (cont’d)

Supreme court concludes that race-based action like the City of New Haven’s actions impermissible under Title VII unless:

Employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.

No evidence that tests were flawed because they were not job related or because other, equally valid and less discriminatory tests were available.

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MGMT E-4240Human Resource Management

The Legal Environment – 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?

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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?

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Sexual Harassment

Sub section of Title VIIIllegal 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

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ADA – The Americans with Disabilities Act of 1990

Scenario 1Staff member with diagnosed depression. She has a history of inconsistent use of medication. Doctor recommends structure ofworkplace 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?

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ADA – The Americans with Disabilities Act of 1990

Interviewing Under the ADA – Legal or Illegal Questions?

1. How many days were you sick last year?

2. What physician-prescribed medications are you currently taking?

3. Are you able to lift things?

4. How well can you handle stress?

5. Can you perform this job function with or without reasonable accommodation?

6. When do you expect to recover completely from your broken arm?

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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 reasonable

accommodation 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.

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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

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Key Federal Employment Discrimination Laws

Title VII of the Civil Rights Act of 1964Prohibits 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.

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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.