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Employment Law

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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

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Potential Legal Problems

• Disparate treatment
(intentional discrimination)
• Disparate impact (adverse
impact)
• Invasion of privacy
• Illegal search

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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 (reach a judgement)
– Appeal procedure is important
• External resolution process
– State agencies in deferral states
– EEOC
– Law suit

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Alternative Dispute Resolution

• Mediation
– Neutral third party
– Disputants reach agreement
• Arbitration
– Neutral third party
– Arbitrator makes decision
• Binding (either party may
not appeal)
• Nonbinding (either party
may appeal)
• Dictation
– Third party makes decision
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EEOC Complaint Process

1. 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
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Civil Rights Act - Title VII:
Title VII prohibits employment discrimination based on race,
color, religion, sex and national origin

• Who is Covered • Who is Exempt

– Private employers with
at least 15 employees
– Federal, state, and local
governments
– Employment agencies
– Unions
– Americans working
abroad for American
companies
• Bona fide tax
exempt private clubs
– Indian tribes
– Individuals denied
employment due to
national security
concerns
– Publicly elected officials
and their personal staff
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Protected Class Federal Law

Age (over 40 years) Age Discrimination in Employment Act
Disability Americans with Disabilities Act
Americans with Disability Amendment Act
Vocational Rehabilitation Act of 1973
Race Civil Rights Act of 1964; 1991
National Origin
Religion
Sex
Pregnancy Pregnancy Discrimination Act
Qualified military veterans Vietnam era Veterans readjustment Act of 1974;
Jobs for Veterans Act of 2002

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BFOQ
• Bonafide Occupational
Qualification (BFOQ) is a
selection requirement that is
necessary for the performance of
job related duties
• Only members of a particular
class can perform the job
• Wet nurse, sperm donor
• According to the courts:
– Race can never be a BFOQ
– Religion has been (e.g., Nun, priest)
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Has Local, State or Case Law Added

Protected Classes?
• An employment decision cannot violate federal
law but it could violate state laws like
– 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

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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)

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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)

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Computing Adverse Impact

Exercise

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Exercise 1: Sex
Male Female
Number of applicants 25 5
Number hired 17 2
Selection ratio .68 .40

.40/.68 = .59 < .80 (adverse impact)

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Exercise 2: Race
White Hispanic
Number of applicants 20 10
Number hired 14 5
Selection ratio .70 .50

.50/.70 = .71 < .80 (adverse impact)

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Can the Employer Prove that the

Requirement is Exempt or Job Related?
• Exemptions • Job Related
– Bona fide seniority – Types
system • BFOQ
– Veteran’s preference • Valid testing procedure
rights – Methods
– National security • Content validity
• Criterion validity
• Validity generalization

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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

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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
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Validity Generalization
• Based on meta-analysis
• Borrows validity from other studies
or organizations
• Job analysis results must be similar

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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

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Harassment

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Potential Victims of Harassment

• Gender
• Race
• Religion
• Age
• National Origin
– Alien status
– Citizenship status
• Disability
• Sexual Preference
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Types of Harassment

• Quid Pro Quo

• Hostile Environment

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Quid Pro Quo

Harassment Claims
• Granting of sexual favors is
tied to employment decisions
• Single incident is enough
• Organization is always liable

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Hostile Environment
Harassment Claims
• Pattern of conduct
• Related to gender
• Is unwanted
• Is negative to the
“reasonable person”
• Affects a term, condition, or
privilege of employment

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Behaviors That Could Be

Sexual Harassment
• Sexual comments
• Undue attention
• Verbal sexual abuse
• Verbal sexual displays
• Body language
• Invitations
• Physical advances
• Explicit sexual invitations
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Types of Harassing Behavior

• Comments
• Jokes
• Posters
• Cartoons
• E-mail
• Drawings

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Behaviors are offensive if they:

• Perpetuate stereotypes
• Degrade another group
• Build-up own group
• Make others feel uncomfortable

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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

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Why is Harassment a Problem?

• Hurts workplace relationships
• Causes emotional distress
• Causes physical distress
• Decreases productivity
• Increases turnover and absenteeism
• Increases legal liability

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Discouraging Harassment
• Don’t laugh at offensive
behavior
• Speak your mind
• Let employees know when
they are crossing the line

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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
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Responding to a Complaint

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Liability of the Organization

• Victims must be
encouraged to come
forward
• Every complaint or
suspicion must be
investigated
• Appropriate action must
follow the investigation

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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

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Reasons for Affirmative Action

Plans
• Involuntary (when public agency found
guilty of not hiring enough members of
protected class they are forced to have
AA program)
– Government regulation
– Court order
• Voluntary (if a complaint has been filed
public agency themselves can start AA
program)
– Consent decree
– Desire to be a good citizen
• community relations
• customer relations 37
• hope that diversity will increase productivity
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Affirmative Action Strategies

1. Monitoring Hiring an Promotion Statistics: Intentional
recruitment of minority applicants
2. Intentional recruitment of minorities: Target
unrepresented groups in advertisements
3. Identification and removal of employment practices that
work against minority employees
Removal of supervisor and employee prejudices
4. Preferential hiring and promotion of minorities: Does
not mean that unqualified minority will be given preference
over a non-minority member

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Legality of Preferential Hiring

1.Was 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
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Legality of Preferential Hiring

2.Does the plan benefit people who were
not the actual victims of discrimination?
• If the plan benefits actual victims then
it is legal
• Otherwise other criteria is considered
such as population, purpose of the
plan etc.

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Legality of Preferential Hiring

3.What population was used to establish
hiring or promotion goals?
• Area population: Ratio of number of
minorities in the area to the number in
the organization
• Major discrepancy results in revision
of hiring goals
• Qualified work force
– minimum standards
– minority interest in occupation

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Legality of Preferential Hiring

4.Did the plan trammel the rights of nonminorities?

• Unqualified minority cannot be

hired
– All people hired must be qualified
• Cannot use “quotas”

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Legality of Preferential Hiring

Is there an ending point to the plan?

• Progress must be periodically reviewed

• Plan must end when goals have been achieved

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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

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Privacy Issues
• Drug Testing (if it affects safety and trust;
results should be confidential)
• Office and office locker searches (as long as
they have a reasonable cause)
• Psychological tests (tests are illegal if they
invade privacy)
• Electronic surveillance (to track unproductive
behavior)

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