Legal Issues Overview

When in the least bit of doubt, consult with an attorney who specializes in employment law!

You and your organization can be sued for your actions as an HR manager!

Protected Class:

Any group identified by discrimination laws, executive orders, or regulations

Examples include, but are not necessarily limited to:

• Race• Color• Sex (Gender)• Religion• National origin• Age• Disability status• Veterans

Some states and municipalities recognize additional protected groups

Major Components in Legal Environment for HRM at Federal Level

• U.S. Constitution• Acts of Congress (“Laws”)• Executive Orders• Case Law• Guidelines/Regulations*

*Note: Guidelines from regulatory agencies are NOT “laws,” but because of the way court rulings have treated them, the guidelines/regulations often have the “force of law.”

Societal Problems

Constitution, Laws, & Executive Orders

Regulatory Agencies -Regulations &

Enforcement Actions

Courts –Case Law(Adapted from Ledvinka, 1982)

Primary Regulatory Agencies for EEO

• Equal Employment Opportunity Commission(EEOC; an independent agency)

• Office of Federal Contract Compliance Programs(OFCCP; housed in U.S. Dept. of Labor)

• Department of Justice (DOJ)

Example: Genetic Information Nondiscrimination

Act of 2008

Current EEOC Litigation Statistics

Six Dimensions for EEO Laws

1. Protected classes (Who has rights?)

2. Covered entities (Who has duties?)

3. Covered practices (Which practices are prohibited?)

4. Administrative procedures (How do claims reach court?)

5. Remedies (What are the penalties for breaking the law?)

6. Judicial scenarios (How are claims decided at trial?)

(Gutman, Koppes, & Vodanovich, 2011, p. xxvi)

Example: Six Dimensions Applied to 1964 CRA – Title VII

Dimension Title VII Example

Protected classes Race, color, religion, sex, & national origin. All

members of each class are protected.

Covered entities Private, state, local, and federal entities that employ 15

or more employees in each of 20 weeks of current or

prior year.

Covered practices Nondiscrimination (terms/conditions,

segregation/classification, and retaliation) and religious

accommodation.

Administrative

procedures

EEOC procedures: statute of limitations = 300 days in

“deferral” states & 180 days in “nondeferral” states.

Remedies Equitable relief and capped legal relief.

Judicial scenarios McDonnell-Burdine and mixed-motive scenarios for

individuous disparate treatment, class-wide pattern or

practice; adverse impact; statutory defenses, including

BFOQ, BFSS, and undue hardship for sincerely held

religious beliefs.

(Gutman, Koppes, & Vodanovich, 2011, Table 1.1, p. 5)

Disparate Treatment & Disparate Impact

Disparate

Treatment

Differing treatment of individuals based on

the individuals’ race, color, religion, sex,

national origin, age, or disability status.

Often implies intent. (Noe et al., 2009)

Disparate or

Adverse

Impact

“…facially neutral selection criteria that

disproportionately exclude higher

percentages of one group relative to

another.” (Gutman et al, 2011, p. 9).

Plaintiffs do not have to show discrimination

was intentional.

Applying the

Four-Fifths

Rule to

Indicate

Disparate

Impact

(Noe, Hollenbeck, Gerhart, & Wright, 2009, p. 70)

Defense

Typical defenses in Title VII and other EEO cases include,

but are not limited to:

– Job relatedness of selection procedures

– “Business necessity”

– Bona Fide Occupational Qualifications (BFOQs)

– Bona Fide Seniority Systems (BFSS)

– National security

(Gutman, Koppes, & Vodanovich, 2011)

Example: “Shifting Burden of Proof” in a Federal “Title VII” Case

(Guion & Highhouse, 2006, p. 97)

“Adverse impact may appear at any or all stages of a multistage selection or promotion decision process. It should be examined at every point at which it may appear. If there is no adverse impact at a particular step, there is no requirement that a selection procedure represented in that step be job-related. MQs [Minimum Qualifications] represent a ‘stage’ in a selection process and should be considered as vulnerable to challenge as a traditional predictor would be.”

Example of Current Legal Principles in Employment

(Landy, Gutman, & Outtz, 2010, p. 630)

“Companies using Internet recruitment should understand the definition of “Applicant” and be prepared to defend qualifications listed in the job description as well as procedures used to screen applicants.”

(Landy, Gutman, & Outtz, 2010, p. 629)

Example of Current Legal Principles in Employment

Affirmative Action

“Equal employment opportunity” and “affirmative action” are NOT the same thing in the world of HR!

Legal origin for affirmative action programs is Executive Order #11246

Categories of Affirmative Action

(Seligman, 1973)

Passive NondiscriminationEliminate discriminatory procedures and irrelevant barriers.

Active RecruitingTake steps to actively seek out qualified members of protected groups

Minority preferenceExplicitly use protected status as a factor in decision making; special consideration due to societal debt

Proportional Hiring (“Quota Approach”)Set explicit numerical objectives; reserve openings for protected group members; issues of “absolute bar” and “past history of discrimination”; unless under a court order, this approach is barred in the U.S. for most circumstances

Supreme Court Tests on Voluntary Affirmative Action Programs – Title VII Cases

Affirmative Action Program…

• … purpose as “remedial in nature” – but company does not have to admit past history of discrimination

• … may not “unnecessarily trample interests” of fellow workers

• … may not constitute an “absolute bar” to majority group members

• … parts must be “reasonable.”

(Kleiman & Faley, 1988)

Example of Principles to Make Employment Decisions

Defensible

• Organizations must be prepared to defend job descriptions and

procedures used to screen applicants – even online applicants

• Adverse impact may appear at any stage of a multi-stage

screening process.

• “Minimum qualifications” are considered a stage in the selection

process and may be challenged.

• Consider alternative procedures that may have similar validity

and less adverse impact.

• Work analysis should proceed use of any selection procedure.

• Validation and criterion evidence can come in many forms.

• Cut scores should have a rational basis.

(Landy, Gutman, & Outtz, 2010, pp. 629- 638)

Sexual Harassment is:

Any sexually-based behavior that is knowingly unwanted and either:

• has an adverse effect on a person’s employment status,

• interferes with a person’s job performance, or

• creates a hostile or intimidating work environment

Prepared by the Society for Industrial and Organizational Psychology - SIOP

The Law on Sexual Harassment

• Illegal under the Civil Rights Act of 1964

• 1977 - First quid pro quo ruling

• 1986 - First Supreme Court hostile environment ruling

• 1991 - Clarence Thomas/Anita Hill hearings

Prepared by the Society for Industrial and Organizational Psychology - SIOP

Personal and Situational Characteristics Affecting Perceptions of Harassment

Harassment is more likely to be perceived when:

• the target is female and the perpetrator is male

• the target has less power than the perpetrator

• the behavior is repeated

• request by the target for behavior to stop

• negative consequences follow

• the target suffers emotional or stress-related symptoms

• the organization has been “soft” on perpetrators in the past

Prepared by the Society for Industrial and Organizational Psychology - SIOP

Things to Do

• Provide a clear description to all employees of prohibited conduct

• Assure that those who provide information or file complaints will be protected against retaliation

• Have a clear, well-known process to handle complaints

• The complaint process needs to handle investigations in a timely, thorough, and fair manner

• If complaint is supported, take immediate and appropriate corrective action.

(Landy, Gutman, & Outtz, 2010, p. 643)