LEGAL FRAMEWORK OF HR / EEO AND OTHERS
Edwin N. Torres, Ph.D.
Legality, and Morality
Why do we have laws that regulate HR
Unsafe
work conditions Discrimination Low wages Overall negative working conditions
Legality vs. Morality / Ethics
Just
because something is legal, does not make it moral / ethical You should also use your own sense of morality and business ethics in dealing with employment issues
Federal Vs. State Laws
The federal government regulates many aspects of labor States also have their own laws States can secure additional benefits for their employees Example: Federal law may say that minimum wage is $7.25, but a state may require $8
Legal & Illegal Discrimination
Legal Discrimination
Work
Illegal Discrimination
Race Religion National
Experience Education Personality Knowledge Skills
Origin Veteran Status Marital Status
Equal Employment Opportunity (EEO)
One of the most important pieces of legislation is Title VII of the Civil Rights Act (1964, amended in1972) Equal Employment Opportunity Act It deems certain forms of employment discrimination illegal
Protected Class
Protected class - Individuals who are afforded protection under equal employment laws and regulation
EEO
Laws vs. Regulations The law establishes the purpose of the legislation (i.e. dont discriminate on race) Regulations establish the specific (i.e. how will this law be implemented)
EEO
Who is covered? Private employers with 15 persons or more All educational institutions State and local governments Labor unions with 15 employees or more
EEO
Prohibits discrimination in hiring, compensation, and terms, and conditions of employment based on:
Race
Religion
Color Sex
National
Origin
EEO
The Equal Employment Opportunity Commission (EEOC) is charged with administering EEO laws and regulations.
Important Terms
Business Necessity A practice that is necessary for the safe and efficient organizational operations (Mathis & Jackson, 2003). A criteria used to discriminate needs to be Job Related Example: A company ask a writing sample for a magazine writer position Job Related Example 2: The same company asks the applicant to take a test on auto mechanics Not Job Related
Bona Fide Occupational Qualification
BFOQ - A legitimate reason why an employer can discriminate against an employee An exception to the rule if you will May be used for sex, religion, national origin May not be used for race or color
Examples of BFOQ
Hooters case Female waitresses A male attendant on a male locker room A Modeling Job that requires a female A Catholic Priest required to be Catholic
Disparate Treatment & Impact
Disparate treatment is when members of a protected class are treated differently Disparate impact happens from employer decisions that work to the disadvantage of the employees Griggs Vs. Duke Power (1971)
It
is not enough to show lack of discriminatory intent Employer has the burden of proof that an employment requirement is a business necessity (Mathis & Jackson, 2003)
Retaliation
Takes place when an employer takes a negative action because of an employee filing a charge Not legal
Equal Employment Opportunity Act of 1991
Allows employees to sue for punitive damages for cases of intentional discrimination
Affirmative Action
Employers identify areas in which protected classes have been underrepresented Set goals, and take steps to enhance opportunities for protected class members The concern: this can lead to quotas, may result in reverse discrimination
Brief Discussion
Article # 1 in blackboard Disney sued for religious discrimination
Age Discrimination in Employment Act (ADEA) - 1967
May not discriminate against individuals 40 and over Eliminates practice of mandatory retirement age
Exceptions:
Pilots (age 60 by FAA regulation), police, firefighter
Pregnancy Discrimination Act (1978)
Cannot refuse to hire Cant terminate Cant deny insurance Must give a reasonable amount of time off (no set amount; though typically is 6 weeks)
Pregnancy Discrimination Act (1978)
Employers cannot discriminate in the offering of benefits (i.e. offer insurance to men and not women) If the employer offers insurance, it must cover pregnancy Employer may not mandate a given date of maternity May not demote employee
Equal Pay Act (1963)
Pay similar rates for similar work, regardless of gender What justifies a pay difference?
Seniority Performance Quality/
Quantity Skill, effort, work conditions, etc.
Americans with Disabilities Act (1990)
Protects most forms of disability Key controversy: who is disabled? "a physical or mental impairment that substantially limits one or more major life activities of such individual," "a record of such an impairment," and "being regarded as having such an impairment." "Major life activities" involves such things as selfcare, basic bodily functions, seeing, walking, and communicating. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning
ADA
Requires employees to make reasonable accommodation for qualified individuals Individual must perform essential job functions Unique hardship: accommodation imposes significant difficulty or expense in the company Most accommodations are inexpensive Employers may also receive certain tax credits
List of Disabilities (not exhaustive)
Asthma (or other breathing problems) Blindness (& partial blindness) Deafness (& partial deafness) Diabetes Dizziness/Balance problems Epilepsy General Hearing Difficulty Mobility Problems Neurological Problems Paralysis Physical Weakness Speech Problems Seizures
Age-Related Cognitive Decline
Any Psychiatric Condition (see exclusions below)
Autism Depression Dyslexia Bipolar Disorder Emotionally Overwhelmed Panic Attacks Post Traumatic Stress Disorder (PTSD) Separation Anxiety Social Phobia Stress Problems
Source: http://www.nsarco.com/listofdisabilities.
Sexual Harassment
Actions that are sexually directed, are unwanted, and subject the worker to adverse employment conditions or create a hostile work environment (Mathis & Jackson, 2003) Two types: Qui Pro Quo and Hostile environment
Qui
Pro Quo example: An employer offers a promotion to someone if they agree to have sex Hostile environment: People make comments/ jokes, have suggestive pictures, and others that create a hostile environment
Sexual Harassment
Employer liability: employers are liable for actions by its management team, employees, and customers (DeCenzo & Robins, 1999)
Reduction of legal liability
Create policies & inform employees Institute procedures to investigate charges Train management personnel on how to deal with charges Investigate charges immediately Take corrective action if necessary Follow-up and make sure retaliation does not occur Review turnover situations to make sure this is not one of the causes (DeCenzo & Robins, 1999)
The office and HR
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Other forms of harassment
Employers are to take steps to avoid that employees are harassed on the basis of:
Age Religion
Race
Others
covered by EEO Harassment on these can result in court cases for discrimination
Other forms of harassment
EEO requires that employees make reasonable accommodations regarding an employees religious believes Example: Muslim employees needing time to pray may be a reasonable accommodation Scheduling: If a job requires an employee to work on weekends regularly, this may not fall under religious accommodation
FAMILY MEDICAL LEAVE ACT (FMLA)
Provides unpaid leave up to 90 days May be for ones personal illness / injury or for the care of a close relative (i.e. children, parents) Upon return, the individual is to get the same or similar position More on this on the compensation class
Genetic Information Nondiscrimination act (2008)
Employers many not discriminate based on genetic information May not discriminate based on family medical history
Employment Verification
Currently, we use paper-based forms (I-9) and match to employees documentation This system has frequently been abused (i.e. false social security numbers, etc) The Dept. Homeland Security has established a pilot program for nationwide employment verification. You might hear more on this in the future.
Emerging not regulated by federal law
Class discussion: Discrimination based on weight (some states) Aesthetic discrimination (based on looks) Sexual orientation (some states) Breastfeeding (some states) Unemployment status Screening through social media Others?
Article Discussion # 2
Article # 2 Hooters and weight / aesthetic discrimination
How not to interview
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What not to ask?
Date of birth ADEA Date of HS graduation ADEA Birthplace of applicant EEO Ethnic association of name EEO Marital Status - EEO Applicants child care arrangements EEO Native language EEO
What not to ask?
Political affiliation Number and kinds of arrest EEO May not ask for a photograph beforehand EEO Height or weight unless BFOQ Illness, past operations, etc. - ADA Applicants debt or assets (Mathis & Jackson, 2003)
Why is EEO important?
From an ethical perspective, it does not seem right to discriminate on the basis of race, sex, age, etc. Lawsuits are expensive and can be avoided Operations managers are to observe EEO in their daily lives in hiring, training, compensation, performance appraisals, etc. HR is to serve as consultants in the process; offering advice, training and guidelines as needed
Advertising and Recruitment
See adds in Pg. 32 of book
Wrongful Discharge
Contract Theory the employee has a contract and it was terminated without just cause Public Policy Theory the employee was terminated because of the refusal to brake the law What is a just cause? Employer must have a clear policy
Employment at Will
Florida is an employment-at-will state Therefore an employer may terminate an employment relationship with or without just cause at any time (except for the case of discrimination / violation of federal statutes). If the contract has a specific term (i.e. 1yr), it ceases to be an at will relationship.
Class Discussion
Do you agree with the employment at will philosophy? Why or why not?
Mini-Cases
As needed Textbook Pg. 49-53
Later in class
Labor and unionization (Wagner Act and others) Compensation (FLSA, Presidents healthcare law, and others) Recruitment (fair credit reporting act, polygraph protection act, and others)
