Legal Context in staffing

Session 4&5
 How Can Legal Compliance Be Strategic?
• Avoid the expense of lawsuits
• Avoid the negative public relations that comes with
litigation
• Allows companies to capitalize on the strengths of
diversity and perform better because they focus
more on performance and merit
• Be better able to hire quality people from all
segments of the labor force
 Why Do Employment Laws Exist?
• Because the employer typically has
disproportionate power in the employment
relationship
• Help to promote fairness and consistent
treatment among different employees by
prohibiting unfair discrimination in
employment and providing equal employment
opportunity for everyone
Complying With Employment Laws
• Enhances hiring quality
• Enhances the firm’s reputation and image as an employer
• Promotes Fairness perceptions among job candidates
• Reduces spillover effects (For example, rejected applicants not
becoming customers or discouraging others From applying For
jobs)
• Reinforces an ethical culture
• Enhances organizational performance by ensuring that people
are hired or not hired based on their qualifications, not biases
• Promotes diversity, which can enhance an organization's ability
to appeal to a broader customer base
 Types of Employment Relationships
• Employee: someone hired by another person or business for a wage
or Fixed payment in exchange for personal services, and who does
not provide the services as part of an independent business
• Independent contractor: performs services wherein the employer
controls or directs only the result of the work
• Contingent workers: any job in which an individual does not have a
contract for long-term employment
– Temporary workers
– Leased workers
– Part-time and seasonal workers
– Unionized workers
– Leased workers
– Outsourced work
 Employment at Will
• Definition: either party can terminate the
employment relationship at any time, for just
cause, no cause, or any cause that is not illegal,
with no liability as long as there is no contract
for a definite term of employment
• Following formal discipline and termination procedures
whenever possible is still advised to help avoid
discrimination and wrongful termination claims
• Best used as a legal defense to keep the organization
from being forced to follow its own policies inflexibly
• Signing an employment application or to acknowledge
receipt of an employee handbook produces a written
record that the policy has been read and understood
 Equal Employment Opportunity EEO
• EEO means that a firm’s employment practices must be
designed and used in a “ Facially Neutral” manner
means
All employees and applicants are treated consistently
regardless of their projected characteristics such as
• Age
• Disability
• Origin
• Pregnancy
• Race
• Religion
• Gender
 Affirmative action
• Affirmative action: A proactive method to
eliminate discrimination and its effects and to
ensure nondiscriminatory results in
employment practices in future.
• Affirmative action plan: A detailed plan and
actions to be taken , procedures to be
followed and standards to adhere to when it
comes to establish a affirmative program.
 Enforcement agencies-
Equal Employment Opportunity Commission
• EEOC was established to enforce provisions of Title VII of the Civil Rights
Act of 1964.
• Title VII forbids discrimination in the workplace based on
race, age, disability, religion, sex, or national origin.
• Title VII covers all phases and aspects of employment
including but not necessarily restricted to hiring,
termination of employment, layoffs, promotions, wages,
on-the-job training, and disciplinary action.
• Businesses covered by Title VII include employers in the
private sector with 15 or more employees, educational
institutions, state and local governments, labor unions
with 15 or more members, employment agencies, and,
under certain circumstances, labor-management
committees.
 Key amendments to EEOC
• Key amendments are
– the Equal Opportunity Act of 1972,
– the Pregnancy Discrimination Act of 1978,
– the Civil Rights Act of 1991.
The EEOC is also responsible for enforcing the Equal
Pay Act of 1963, the Age Discrimination in
Employment Act of 1967, the Rehabilitation Act of
1973
Today, the EEOC provides oversight and coordination
of all federal regulations, practices, and policies
affecting equal employment opportunity.
 Basis for Employment Lawsuits
• Recruiting, hiring, promotion and termination
procedures can all generate law suits.
• Employees who initiate lawsuits often reach
all the way back to hiring process to show that
a firms practices systematically discriminated
against them.
• The different types of staffing related law
suits are discussed
 Disparate treatment
• Disparate treatment is a way to prove illegal employment
discrimination. An employee who makes a disparate
treatment claim alleges that he or she as treated differently
than other employees who were similarly situated, and that
the difference was based on a protected characteristic.
• Disparate treatment : which could result from intentional
discrimination bases on a person’s protected characteristic.
• The employee must show that he or she was treated
differently than other employees who don't share the same
protected characteristic.
• If the employment decision would change if the applicants
race, religion, color, sex or disability …are different then
disparate treatment has taken place.
 Adverse or Disparate impact
• Disparate impact is often referred to as
unintentional discrimination, whereas
disparate treatment is
intentional. ... Disparate impact occurs when
policies, practices, rules or other systems that
appear to be neutral result in a
disproportionate impact on a protected
group.
 Adverse impact
• Adverse impact occurs when an action has a disproportionate
effect on the protected group regardless of its intent.
• The EEOC guidelines and the Uniform Guidelines on Employee
Selection Procedures define adverse impact as "a substantially
different rate of selection in hiring, promotion or other
employment decision which works to the disadvantage of
members of a race, sex or ethnic group."Sep 14, 2015

• Employment practices that are facially neutral in their treatment of

different groups but that a significantly adverse affect on a
protected group when compared with other practices can be
legally challenged.
• Adverse impact may occur in hiring, promotion, training and
development, transfer, layoff, and even performance appraisal.
 The Prima Facie Case

• The type of evidence an employee has to present to prove a prima facie case of disparate
treatment discrimination depends on the facts. If there is direct evidence of discrimination,
that’s enough. For example, if an employer hires only female bartenders or has said it will not
promote African Americans to management positions, that’s prima facie evidence of
discrimination.
• Absent this type of smoking gun, an employee has to make a prima facie case through
circumstantial evidence. The Supreme Court has laid out a four-part test for the employee’s
prima facie case of disparate treatment discrimination. What each part consists of depends on
the type of employment decision at issue, but the basic parts of the test are these:
• The employee is a member of a protected class (for example, the employee is African
American, female, or over the age of 40).
• The employee was qualified for a job benefit. For example, the employee applied—and was
qualified—for an open position, or the employee held a position that he or she was
performing adequately.
• The employee was denied the job benefit. In other words, the employee was fired, not hired,
or not promoted.
• The benefit remains available or was given to someone who is not in the employee’s protected
class. For example, if an Asian American employee claims that he was not hired because of his
race, he can pass this part of the test by showing either that he was rejected for the position
and the employer continued its job search or that the job was filled with an employee of a
different race
 Example of a Disparate treatment
• EXAMPLE: Horacio worked in a call center for a software developer, and
claims that he was fired because he is Latino.
• The employer claims that he was fired because he received three customer
complaints in the previous quarter.
• If Horacio can show that other employees who received three or more
complaints in a quarter were not fired, and that those employees were not
Latino, his argument looks better.
• On the other hand, if the employer can show that every employee who
gets three complaints in a quarter is fired, and that employees of all races
have been subjected to this rule, the employer’s defense looks stronger.
• Similarly, if Horacio can show that his supervisor made derogatory
comments about Latino employees or culture, his case is strengthened.
• On the other hand, if no such comments were made, and the employer can
show that it has a strong record of hiring and promoting Latino employees,
Horacio will have a tougher time.
 Mixed Motive case
• When an employer is accused of having both a legitimate and an
illegitimate reason for making an employment decision.
• In a mixed motive case, once a plaintiff establishes that
discrimination was a motivating factor in the employment
decision, the burden shifts to the employer to prove that it would
have made the same decision even without the unlawful factor.
• Unlike the after-acquired evidence defense, the employer must
prove that the lawful reason was a motivating factor in the
employment decision.
• If a mixed motive is shown, the employer may be able to limit its
exposure to damages, but it cannot avoid liability entirely
 Example of mixed motive case
• For example, in a federal case called Costa v. Desert
Palace, Inc., 299 F.3d 838 (9th Cir. 2002), the employer
fired an employee for her disciplinary history and for
fighting. The termination was upheld in a grievance
hearing. The fired employee sued under Title VII of the
Civil Rights Act, claiming sexual harassment. The suit
claimed, among other things, that she had been
discriminated against during her employment by being
subjected to verbal slurs that were sex-based, and that
the fight that lead to her termination was caused by an
employee who was sexually harassing her.
 Mixed motive case-impact
If the employer does establish that the employer would have made
the same decision in the absence of discriminatory conduct:
• The employer is still liable for the discriminatory conduct.
• The employee may not be entitled to damages such as lost
wages, back pay, etc.
• The employer may not be ordered to re-hire the employee.
• The employer will be liable for the employee’s attorney’s fees and
costs.
• An order may be entered providing declaratory relief, such as an
order prohibiting the employer from engaging in discriminatory
actions in the future.
 Utilization Analysis in HRM
• Utilization analysis compares the percentage of men, women, or
minorities employed in a job category with their availability in the
relevant population of qualified people in the position.

• The Utilization Analysis will compare the organizations workforce and

check how many of its employees are protected ie. the laws pertaining
to them are in compliance with the Equal Employment Opportunity or
Affirmative Action compliance. These employee conditions are
compared to the local market labor conditions in the particular sector.

• Utilization and workforce analysis together gives the cross dimensional

analysis to the employer

• The utilization analysis will also give results that tell how and to what
level certain minority groups are underutilized within the organisation.
 EEOC best practices
• https://www.eeoc.gov/eeoc/initiatives/e-
race/bestpractices-employers.cfm