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