CHAPTER 3:

Legal Issues in Employee Selection

LEGAL PROCESS
 To know whether a given employment is legal, it is important to understand the legal process as it relates to
employment law.
 Firm legal ground, it is important to be aware of state and local news as well as federal legislation.

Resolving the Complaint Internally

 Before a complaint can be filled with DOLE, an employee must utilize whatever internal resolution is available
within the organization.
 As a result most organizations have formal policies regarding how discrimination complaints will be internally.
 Typically, these policies involve such forms of alternative dispute resolution (ADR) as a grievance process,
mediation and arbitration.

Grievance system. A process in which an employee files a complaint with the organization and a person or committee
within the organization makes a decision regarding the complaint.

Mediation. A method of resolving conflict in which a third part is asked to help the two parties reach an agreement.

Arbitration. A method of resolving conflicts in which a neutral party is asked to choose which side is correct.

Binding arbitration. A method of resolving conflicts in which a neutral third party is asked to choose which side is correct
and in which neither party is allowed to appeal the decision.

Nonbinding arbitration. A method of resolving conflicts in which a neutral third party is asked to choose which side is
correct but in which either party may appeal the decision.

The Department of Labor and Employment (DOLE) started as a small bureau in 1908. It became a department on
December 8, 1933 with the passage of Act 4121. The DOLE is the national government agency mandated to formulate
and implement policies and programs, and serve as the policy-advisory arm of the Executive Branch in the field of labor
and employment.

VISION - Every Filipino worker attains full, decent and productive employment.
MISSION - To promote gainful employment opportunities, develop human resources, protect workers and promote their
welfare, and maintain industrial peace.
Case Law. The interpretation of a law by a court through a verdict in a trial, setting precedent for subsequent court
decisions.

Protected class. Any group of people for whom protective legislation has been passed.
 Race - it is illegal to discriminate against a person based on race.
 Color - the reference to color protects individuals against discrimination based specifically on variations in skin
color.
 Sex - prohibit discrimination based on sex. The courts have ruled that intentional discrimination against either
women or men is illegal.
 National Origin - One of the most common complaints is about “English only” or “understandable English”
speaking requirements. The courts have generally ruled that language requirements are legal if they are job
related (Quinn & Petrick, 1993) and limited to communication.
 Religion - It is illegal to use an individual’s religion as a factor in an employment decision unless the nature of the
job is religious.
 Days of Worship
 Worship of Practices
 Religious Attire
 Age - and its later amendments forbid an employer or union from discriminating against an individual over the age
of 40.
 Disability - discrimination against people with disabilities.
 Pregnancy - states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment related purposes, including receipt of benefit programs, as other persons not so

Bona fide occupational qualification (BFOQ). A selection requirement that is necessary for the performance of job-
related duties and for which there is no substitute.

Adverse impact. An employment practice that results in members of a protected class being negatively affected at a
higher rate than members of the majority class. Adverse impact is usually determined by the four- fifths rule.
Types of Harassment
 Quid Pro Quo. A type of sexual harassment in which the granting of sexual favors is tied to an employment
decision.
 Hostile environment. A type of harassment characterized by a pattern of unwanted conduct related to gender
that in-terferes with an individual’s.

 Pattern of Behavior. It becomes harassment if the coworker continually makes unwanted romantic or sexual
overtures or repeatedly makes inappropriate remarks.

 Negative to the Reasonable Pattern. Any pattern of behavior based on gender that causes an employee
discomfort might constitute sexual harassment.

Correcting Sexually Harassing Behavior

 If an employee complains of sexual harassment, it is essential that the organization investigate the complaint
quickly and them promptly take any necessary action to rectify and punish the offender.