Chapter 03

The Legal Environment: Equal Employment Opportunity

and Safety

Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin

Human Resource Management:Gaining a Competitive Advantage

Learning Objectives

Identify the three branches of government and the role each plays in influencing HRM legal environment.

List major federal laws that require equal employment opportunity (EEO) and the protections provided by each of these laws.

Discuss the roles, responsibilities, and requirements of the federal agencies responsible for EEO laws.

Identify four theories of discrimination under Title VII of the Civil Rights Act and apply these theories to different discrimination situations.

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Learning Objectives, cont.

Discuss the legal issues involved with preferential treatment programs.

Identify behavior that constitutes sexual harassment and list things than an organization can do to eliminate or minimize it.

Identify the major provisions of the Occupational Safety and Health Act (OSHA) (1970) and the rights of employees guaranteed by this act.

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U.S. Legal System

Executive Branch

Judicial Branch

Legislative Branch

3 Branches

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Equal Employment Opportunity (EEO)

EEO– the government's attempt to ensure that all individuals have an equal chance for employment, regardless of race, color, religion, sex or national origin.

Constitutional Amendments:13th Amendment - abolished slavery14th Amendment – provides equal protection for all citizens and requires due process in state action.

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Congressional Legislation

Civil Rights Acts (1866 and 1871)

Equal Pay Act of 1963

Title VII of the Civil Rights Act of 1964

Age Discrimination in Employment Act of 1967

Rehabilitation Act of 1973

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Congressional Legislation

Vietnam Era Veteran’s Readjustment Act of 1974

Pregnancy Discrimination Act

Civil Rights Act of 1991

Americans with Disabilities Act of 1990

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Disability

According to EEOC, a disability is a physical or mental impairment that

“substantially limits one or more major life activity;

a record or past history of such an impairment;

and/or being ‘regarded as’ having a disability by an employer whether you have one or not, usually in terms or hiring, firing or demotion

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Executive Orders

Executive Order 11246 - Prohibits government contactors from discrimination

Executive Order 11478 - government employment policies based on merit and fitness

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Enforcement of EEO

Two agencies responsible for the enforcement of these laws and executive orders:

Equal Employment Opportunity Commission (EEOC)

Office of Federal ContractCompliance Programs

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Equal Employment Opportunity Commission

3 major responsibilities of EEOC:1. Investigate and resolve

discrimination complaints2. Gather information3. Issue guidelines (ex. –

Uniform Guidelines on Employee Selection Procedures)

Lilly Ledbetter Fair Pay Act3-12

Office of Federal Contract Compliance Programs (OFCCP)

3 components:1. Utilization analysis2. Goals and timetables 3. Action steps

The OFCCP annually audits government contractors.

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Reasonable Accommodation

DisparateTreatment

Disparate Impact3 Types

of Discrimination

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Disparate Treatment

Disparate treatment exists when individuals in similar situations are treated differently based upon race, color, religion, sex, national origin, age, or disability status.

Bona fide occupational qualifications (BFOQ)

UAW v. Johnson Controls, Inc.McDonnell Douglas Corp. v. Green

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Bona Fide Occupational Qualification (BFOQ)

BFOQ is a job qualification based on race, sex, religion, etc. that an employer asserts is a necessary qualification for the job.

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Disparate Impact

Disparate impact occurs when a neutral employment practice disproportionately excludes a protected group from employment opportunities.

• Four-fifths rule• Standard deviation rule (Prima Facie case established where the difference between actual and expected representations is greater than 2 standard deviations from the mean – 95% confidence interval)

Wards Cove Packing Co. v. AntonioGriggs v. Duke Power 3-18

Four Fifths Rule Examples

Example I:

Applicant Number

Pool of Number Hiring

Race Applicants Hired Rate

White 100 80 80.00%

Black 60 20 33.33%

------- -------

Total: 160 100

Hiring Rate, Minority over Majority: 41.67%

Less than 80%: Prima Facie Discriminatory

Example II:

Applicant Number

Pool of Number Hiring

Race Applicants Hired Rate

White 100 50 50.00%

Black 60 25 41.67%

------- -------

Total: 160 80

Hiring Rate, Minority over Majority: 83.33%

Greater than 80%: No Prima Facie Discrimination3-19

Reasonable Accommodation

Reasonable Accommodation - places a special obligation on an employer to affirmatively accommodate an individual’s disability or religion.

Religion and AccommodationDisability and Accommodation

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Retaliation for Participation and Opposition

Title VII states that employers cannot retaliate against employees for either "opposing" a perceived illegal employment practice or "participating in a proceeding” related to an alleged illegal employment practice.

Employees do not have an unlimited right to talk about how racist or sexist their employers are.

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Diversity and EEO ISSUES

Sexual Harassment

Affirmative Action and

Reverse Discrimination

Outcomes of Americanswith Disabilities Act

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Sexual Harassment

Sexual harassment -unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

2. Submission to or rejection of such conduct by an individual is used as the basis of employment decisions affecting such individual, or

3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

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Sexual Harassment

Quid Pro Quo harassmentBundy v. Jackson

Hostile Working Environment

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Sexual Harassment

3 critical conditions for Sexual Harassment cases:1. The plaintiff cannot have "invited or incited" the

advances2. Harassment must have been severe3. The court must determine the liability of the

organization for actions of its employees

See Meritor v. Vinson

Preventative steps include development of a policy statement, training, a reporting mechanism and disciplinary policy.

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Affirmative Action and Reverse Discrimination

Affirmative Action was conceived of as a way of taking extra effort to attract and retain minority employees.

Imposed quota programs.

The entire debate over affirmative action continues to evoke attention. See Ricci v. DeStefano

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Americans with Disabilities Act (ADA) Outcomes

Under ADA, a firm must make "reasonable accommodation" to a physically or mentally disabled individual unless doing so would impose "undue hardship.”

Consequences of ADA: Increased litigation Cases being filed do not reflect Congressional

intent Act was passed to protect people with major

disabilities The law has not resulted in a major increase in

the proportion of people with disabilities who are working.

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Employee Safety

Employee safety is regulated by both federal and state governments.

Research into workplace safety is conducted by NIOSH (National Institute for Occupational Safety and Health)

The Occupational Safety and Health Act (OSHA) authorized federal regulation of workplace safety General Duty Clause – general duty to furnish each employee with a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm

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Employee Rights under OSHA

1. Request an inspection.2. Have a representative present at

inspection. 3. Have dangerous substances

identified.4. Be promptly informed about

exposure to hazards and given access to accurate records regarding

exposures.5. Have employer violations

posted at work-site.

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OSHA Inspections Citations and Penalties

OSHA inspections are conducted by compliance officers, specially trained Department of Labor agents.

Violation results in a citation to the employer.

Criminal and civil penalties

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Safety Awareness Programs

Safety Awareness Programs attempt to instill symbolic and substantive changes to a safety program.

3 Components of a Safety Awareness Program:1. Identify and Communicate Job Hazards

Job hazard analysis technique Technic of Operations Review (TOR)

2. Reinforce Safe Practices

3. Promote Safety Internationally

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Summary

One of HRM’s major challenges is the legal constraints imposed by the government.

HR and line managers need to understand legal requirements and prohibitions to manage their businesses in ways that are financially and ethically sound, and in so doing they will also create a competitive advantage.

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