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LEGALITY OF PREFERENTIAL HIRING AND PROMOTION PLANS

Emily Vivien Laurente

³Another technical used by SM to

weaken or avoid unions is the preference for hiring of Iglesia ni Cristo 150 over other religious denomination. Iglesia ni Cristo members are prohibited by their religion from joining unions. According to Rene, there was a time last year where almost all the batches regularized were Iglesia ni Cristo members.´

³Working mothers or married women are discriminated against because employers do not want to hire us. It is for the simple reason that working mothers are more prone to absences because when their children get sick, they decide to stay home to take care of them.´ them.´
Workers¶ Protection in a New Employment Relationship by Bach M. Macaraya

Affirmative Action
‡ positive steps taken to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded ‡ involve preferential selection ² selection on the basis of race, gender, or ethnicity²affirmative action generates intense controversy

Preferential Hiring
‡ A hiring practice that favors an identified group for employment ‡ devised to create harmony between the different races and sexes has sexes, divided the lines even more

Preferential Hiring
‡ 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 may actually fuel, rather than extinguish, feelings of racial hostility

Preferential Hiring
‡ Applying the concept of preferential hiring to another situation may help elucidate its shortcoming ‡ In the Philippines, preferential hiring is seen when an applicant is a relative/kumpares or kumadres daughter/son or tungod sa koneksyon ‡ Also seen on classified ads: preferably single (familiar, diba?) diba?)

Legality
‡ the state or quality of being in conformity with the law; lawfulness. ‡ attachment to or observance of law
± 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 group 5. Endpoint of the plan

‡

HISTORY OF DISCRIMINATION 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 ILLEGAL ‡ However, if 25% of the qualified workforce is AfricanAmerican and there are no African-American state troopers ± preferential hiring is JUSTIFIABLE

‡

HISTORY OF DISCRIMINATION 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 full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. ‡ ARTICLE 79. When employable. - Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards.

Exceptions
‡ ARTICLE 130. Nightwork prohibition. - No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation: a) In any industrial undertaking or branch thereof between ten 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, between midnight and six o¶clock in the morning of the following day; or c) In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours.

Exceptions
‡ ARTICLE 139. Minimum employable age. ‡ (a) No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling. ‡ (b) Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations. ‡ (c) The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.

‡ Concerns the extent to which the plan benefits people who were not actual victims of the discrimination

BENEFICIARIES OF THE PLAN

‡ 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

‡

BENEFICIARIES OF THE PLAN Example: Jigzpi-Pilapil T-Shirt Corporation has 100
male workers, but no female managers. Twenty female assistant managers, after being denied promotions for many years, file suit charging discrimination, making the organization to hire ten of the females to fill the next 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 the management 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. :)

POPULATION USED TO SET GOALS
‡ 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

POPULATION USED TO SET GOALS
‡ 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.

IMPACT ON NONMINORITIES
‡ 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, the organization is under no obligation to hire unqualified applicants.

IMPACT ON NONMINORITIES
‡ 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 a Ph.D in Guidance and Counseling. Yet they hired Jet.

‡

IMPACT ON NONMINORITIES Another example (Philippine setting):
Mr. Gencianos and Ms. Pizarro are both graduates of BS Education, have the same age and similar qualifications. Both work in Barnum University - IBED as Grade 6 teachers and both work on the same hours with the same load. But Mr. Barnum gives 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 years ago and promoted him as assistant school master after just two years of work.

Diba walang specific provision ang Labor Code about this kind of promotion? What can Ms. Pizarro do?

IMPACT ON NONMINORITIES for Article 135. Discrimination Prohibited. ± It shall be unlawful
any employer to discriminate against any woman employee 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 or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and ‡ (b) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes.

Ms. Pizarro can sue Mr. Barnum

ENDPOINT OF THE PLAN
‡ Setting an endpoint of the plan ‡ The affirmative action cannot continue indefinitely ‡ Must END with the certain goals obtained ‡ In the US, 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