Management 351 – Class 2
Chapters 3 and 14 Revisions to syllabus
Change/confirm paper length: 4-6 pagesRework schedule
Matewan is now extra credit
Room change requested Notes/website reminder
Chapter 3 – EEO and Legal
What’s the point?Doing the right thing“Managing risk”
Protecting employer rights
Employee advocate Protecting employee rights
Employment law – shifting sands
“A dynamic legal landscape”Courts constantly change foundationsLegislative changes less frequent
Proposed FLSA revisions
Complexity is an issueADA: 1,000 disabilities affecting 43MM
Color blind vs color conscious
Fair employmentDecisions are made without regard to “color”Broadly speaking, protected classes* are
protected Affirmative Action
Seeks to right past wrongsDecisions, themselves, NOT affectedProcesses ARE affected
Equal Pay Act
Essentially equal pay for equal work Applies broadly to men and women Exceptions
Does not prohibit merit payQuantity and quality of productionBona fide seniority plans
Has it worked???
Title VII of the 1964 Civil Rights Act
Often referred to as the CRA Most important employment legislation on
the booksPassed one year after MLK’s “I have a dream”
Applies to employers with 15+ employees Established protected class categories
Protected classes Race Color National origin Age Religion Disability Gender/sex Pregnancy
Sexual orientation Marital status Familial status Family leave Injured workers Whistle blowers
Retaliation Association
Discrimination defined
Discrimination: making distinctionsDiscrimination happens all the time!
Discrimination based on protected class status is the key (remember this!)
Disparate treatment: intentional Adverse impact (disparate impact):
unintentional (chart page 92)
Griggs v Duke Power
Companies may be guilty despite their best efforts to not discriminate
Burden of proof placed on employersMust show that “tests” are not
discriminatory in their impact
Defending against discrimination charges Plaintiff establishes “prima facie” case
“On its face” the actions appear discriminatoryDisparate treatment uses McDonnell-Douglas
test Applicant not hired Applicant was qualified Applicant is a member of a protected class Company hired someone in another class after
rejecting the applicant
Prima facie and four-fifths rule
UGESP EEOC provision for establishing evidence
of discriminationCompares hiring rates of protected classes to
those of majority classes (example on page 93)
Whites hired at 50%; African Americans at 25%: four-fifths (80%) of 80% of 50% is 40% which is more than 25% (!)
After prima facie
After prima facie case is established (i.e. the employer appears to have discriminated) the burden of proof shifts
Employer defensesJob relatedness (most common)BFOQSeniorityBusiness necessity
Title VII and pregnancy
Protects women based either on:Their ability to become pregnantTheir actual pregnancy
Or a related condition
Harassment
Based on any protected class Includes general harassment Includes sexual harassment Has this suddenly become an issue?
EEOC statistics FY 2001
59,631 Charges filed with EEOC$146.8 million in monetary benefits
FY 200214,396 Harassment Charges filed with EEOCTen year increase of 249% (1989 to 1999)
FY 200122,257 Retaliation Charges filedTen year increase of 201%
How pervasive is harassment? Some statistics:
31% of females and 7% of males62% of those harassed took no action100% of women report it was a man59% of men report it was a woman43% report it was a supervisor27% report it was someone senior to them19% report it was a peer-level employee8% report it was a junior-level employee
Two broad categories
Quid pro quo: literally this for that Hostile work environment
Teresa Harris v Forklift Systems The behavior need only be such that a “reasonable
person” would be offended
EEOC definition of harassment (page 95) Supreme Court guidance (page 96) Same sex-sexual harassment
Managing risk
Employers may be held liable for actions of their managers even if they were unaware of the actions
Employer defense:Reasonable care to preventPlaintiff failed to report
Personal liability exists for managers and co-workers alike
Civil Rights Act of 1991
Amended 1964 CRA Burden of proof: returned to Griggs standard
(shifted BOP back to employers) Quotas: specifically outlawed Damages and jury trials
Enabled bothPunitive damagesCompensatory damages
Executive order 11246
Established affirmative action “50 and 50” rule: 50 employees and $50k+
in federal contracts or subcontracts
Other laws
ADEA of 1967Protects those over 40 (originally 40-65)
ADA of 1990Employment discrimination is prohibited
against individuals with disabilities who are able to perform the essential functions of the job with or without reasonable accommodation
Individuals with disabilities
(sample list on page 100) Definition: substantially limits a major life
(NOT WORK) activityToyota employee with carpal tunnel not
successful in ADA case Extends to those perceived as disabled Excludes drug and alcohol unless under
treatement
Essential Functions
The reason the job exists is to perform the essential functions
Marginal functions:Secondary job requirementsJob functions done on an ad hoc basisDuties that are performed as a back up
Reasonable accommodation
No “bright line” test Varies depending on situation and
employer’s resources
Enforcement
EEOC enforces civil rights laws EEOC roles
InvestigationConciliationLitigation
OFCCP enforces laws and executive orders (affirmative action)
Affirmative Action Plans
Essentially a comparative document with corrective action
Compares:Workforce availability toWorkforce utilization
Includes specific actions to address gaps in utilization
Chapter 14 – Your rights
A right: the ability to engage in conduct that is protected by law or social sanction free from interference by another party.
Statutory rights: protected by law Contractual rights: protected by… wait for
it… contracts
Comparison of rights
Statutory, contractual and “other” rights (table page 467)
Wrongful discharge: discharge based on protected class statusConstructive discharge
Limited right to privacy Limited right to free speech
Management rights
Essentially to run a business as seen fit and to retain profits
Employment at will: Either party can, Enter into or dissolve the employment relationship, At any time, For any reason, Without or without notice.
Legal limitations to at-will
Public policy exceptions Filing workers’ compensation claim Exercising legal duty (i.e. jury duty) Refusing to violate professional ethics Refusing to lobby for a political candidate favored by
an employer Implied contracts: what you say CAN hurt you! Pages 472 to end of chapter: skim and be
familiar – light coverage