Regulatory System

1
Regulatory System

• Legislative Branch
• Executive Branch
• Court System

2
Legislative Branch

• Congress has the power to make laws that provide
  for general welfare of the U.S.

3
Executive Branch

• President shall take care that the laws be
  faithfully executed
• Enforces law by delegating enforcement to
  regulatory agencies
• manages the enforcement system - executive orders
  and the government contracting business

4
Court System

• Adjudicates all controversies arising under
  federal law, they interpret the law - Griggs vs.
  Duke Power
• Court decisions are bound by
• Legislative intent
• Precedent

5
Equal Pay Act

• Prohibits discrimination on the basis of sex by
  paying wages to employees of the opposite sex in
  such establishment for equal work on jobs the
  performance of which requires equal skill,
  effort, and responsibility, and which are
  performed under similar working conditions

6
Equal Work Standard

• Jobs be substantially equal but not identical.
  Small differences will not make jobs unequal
• The burden is on the employer to show that the
  differences is for some reason other than sex

7
Exceptions to Equal Pay

• except that such payment is made pursuant to
• a seniority system
• merit pay system,
• a system which measures earnings by quantity or
  quality of production, or
• a differential based on any other factor other
  than sex

8
Title VII- Civil Rights Act

• It unlawful practice for an employer-
• to fail or refuse to hire or to discharge any
  individual, or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions, or privileges of employment,
  because of such individuals race, color,
  religion, sex or national origin or
• to limit, segregate, or classify his employees or
  applicants for employment in any way which would
  deprive or tend to deprive any individual of
  employment opportunities or otherwise adversely
  affect his status as an employee, because of such
  individuals race, color, religion, sex or
  national origin

9
Types of Illegal Discrimination

• Disparate Treatment
• Disparate (Adverse) Impact

10
Disparate Treatment

• Using race, color, religion, sex or national
  origin as a basis of treating individuals
  unequally
• Individual employee has been treated less
  favorably than others by policy or employment
  action due to his/her race, color, national
  origin, religion, sex.
• Employer had an unlawful motive or intended to
  discriminate.

11
Disparate TreatmentPlaintiffs Prima Facie
Burden -McDonnell-Douglas Test

• The applicant is a member of the class protected
  by the statue alleged to be violated.
• The applicant applied for the vacancy and is
  qualified to perform the job.
• Although qualified the applicant was rejected
• After rejection, the job vacancy remained open.
  The employer continued to seek application from
  persons of equal qualifications.

12
Defenses Against Disparate Treatment

• Legitimate Non-Discriminatory Reason
• BFOQ- Bona Fide Occupation Qualification
• Factual basis for believing that all or
  substantially all of a group are unable to
  perform the work in safe and efficient manner.
• Authenticity
• Propriety
• Safety

13
Plaintiffs Response

• Show that the stated reason is pretext by
• Reason not applied to all
• Plaintiff has been treated unfairly before
• Employer engages in other unfair practices
• Statistical Imbalance

14
Adverse (Unequal) Impact

• Refers to the total employment process that
  results in substantially different rate of
  hiring, promotions, or other employment decisions
  which works to the disadvantage of members of a
  minority or other protected group

15
Adverse Impact

• Employment decision are based on some
  unjustifiable classification that is correlated
  with a prohibited classification (e.g. height,
  education)
• Employment policies and actions has an unequal
  impact or consequence on a protected class
• Employers intent to discriminate or not to
  discriminate is not a factor

16
Disparate Impact Plaintiffs Prima Facie Burden

• Disparate Rejection Rates
• (80 Rule)
• Population Comparisons

17
Defenses to Disparate Impact

• Job Related Related to future performance on
  major job requirements
• Business Necessity reasonably necessary to the
  safe and efficient operation of the business

18
Business Necessity

• No acceptable alternative to practice in
  question, when the costs of training are high and
  there is a tremendous human and economic risk
  involved in hiring a unqualified candidate

19
Religious Discrimination

• Religion- moral or ethical beliefs as to what is
  right or wrong which are sincerely held with the
  strength of traditional views
• Title VII does not require complete religious
  freedom in an employment situation. Employers
  are required to make reasonable accommodation.
• Allows BFOQ for non-profit religious
  organizations.

20
National Origin Discrimination

• English as a job requirement
• May refuse to hire non-citizens if refusal is
  tied to non-citizens of all national origins
• Dress and grooming codes

21
Civil Rights Act of 1991

• Burden of Proof - with employer
• Quotas Explicitly Forbidden
• Punitive Damages for race, sex, religion, or
  handicap discrimination

22
Handicap Discrimination (ADA)

• Handicap - person has a physical or mental
  impairment with substantially limits one or more
  major life activities, has a record of such an
  impairment or is regarded as having such a
  impairment.
• Life Activities - communication, socialization,
  education, vocational training, employment,
  transportation... with primary attention to
  activities that affect employment.

23
Supreme Court 2002

• Handicap status not measured solely on ability to
  do perform certain work tasks
• Depends upon which person can perform activities
  that are of central importance to most peoples
  daily lives

24
Handicap Discrimination

• Substantially limits - degree that the impairment
  affect employability difficulty in securing,
  retaining, or advancing in employment
• Alcohol and Drug Abuse
• Contagious Disease and Infections - AIDS
• Other - diabetes, high blood pressure, heart
  conditions, epilepsy, dyslexia, post-traumatic
  stress disorder

25
Reasonable AccommodationRequirement

• Make reasonable accommodation if otherwise
  qualified to perform essential job functions
  unless doing so causes undue hardship
• Marginal vs.Essential Job Functions
• Undue Hardship - significant difficulty or
  expense examines size of business, type of
  operation, nature and cost of accommodation

26
Age Discrimination In Employment Act

• Cannot make employment decisions based on a
  person age when that person is above 40
• Reverse discrimination allowed
• Prohibits compulsory retirement unless
• Unable to perform job
• Executive in a policy-making position
• Pension above 44,000 without Social Security
• Allows trial by jury

27
Defenses for Age Discrimination

• Age is a BFOQ
• Necessary for essence of the business, all or
  substantially all individuals over that age are
  unable to perform the job or some individuals
  posses a disqualifying traits that cannot be
  ascertained except by age (public safety defense)

28
Defenses for Age Discrimination

• Different treatment is based on reasonable
  factors other than age
• RIF
• Early Retirement
• Decision is result of bona fide seniority system
• Discharge for just cause

29
Exercises

• Is This Unlawful Discrimination
• Understanding the Americans with Disabilities Act
  
• What is the legal issue?
• Did the employer discriminate unlawfully? Why or
  Why Not?
• Unfair Promotions at Food Chair
• Describe promotion process and criteria
• Use 80 rule to determine if adverse impact by
• Location Year
• Overall

30
Types of Sex Discrimination

• Sex as a job qualification
• Sex is a BFOQ when
• purposes of authenticity
• protect privacy of customers
• when all or substantially all members of one sex
  lack ability to perform job and the ability is
  essential to business.

31
Types of Sex Discrimination

• Sex-Plus
• Excluding subset of one sex. Sex plus some
  other attribute disqualifies a person - e.g
  marital status, children
• Generalizations Based on Sex
• Sexual Harassment
• Quid Pro Quo
• Hostile Environment

32
Quid Pro Quo

• Submission to the conduct is either explicitly or
  implicitly a term or condition of an individual
  employment
• Submission to or rejection of such conduct by an
  individual is used as the basis for employment
  decision affecting that individual

33
Hostile Environment

• Unwanted conduct of a sexual nature has the
  purpose or effect of unreasonably interfering
  with an individuals work or creating an
  intimating, hostile, or offensive working
  environment.
• Must prove that the harassment was sever,
  pervasive or outrageous enough that it altered
  the conditions of employment.

34
Factors Effecting Hostile Environment

• Nature of words and acts
• Is the conduct physically humiliating or
  threatening?
• Frequency of encounters
• Number of days over which all encounters occurred
• Context in which sexual harassing conduct took
  place
• Does the conduct interfere with the employees
  work performance?

35
Reasonable Person Standard

• Offensiveness is measured on the basis of an
  objective standard keyed to reasonable person,
  employee or victim rather than the plaintiffs
  reaction.

36
REASONABLE PERSON STANDARD

• Sexual harassment must be, under the objective
  standard, be so significant a factor that the
  average employee would find that her/his work
  performance is substantially and adversely
  affected by the conduct.
• Worker claiming harassment must have taken
  reasonable efforts to take advantage of any
  preventive or corrective opportunities provided
  by the employer.

37
Employer Responsibilities

• Employers have an affirmative duty to provide a
  workplace free of sexual harassment and
  intimidation. They are responsible for
• Actions of Agents and Supervisors
• Actions of other employees if knew or should have
  known about harassment

38
Employer Liability Depends On

• Is there a specific company policy against sexual
  harassment?
• Is there a company grievance procedure
  specifically designed to resolve sexual
  harassment claims that the victim failed to use?
• Does the grievance procedure require that the
  victim complain first to his or her supervisor?

39
Implications

• Specific Sexual Harassment Policy
• Grievance procedure that can be used without fear
• Training and Control Procedures

40
Affirmative Action Executive Order 11246

• Types of AA
• Recruitment of underrepresented groups
• Changing managerial attitudes
• Removing discriminatory obstacles
• Preferential treatment for underrepresented groups

41
Equal Opportunity Versus Affirmative Action

• Affirmative action goes beyond equal employment
  opportunity by requiring the employer to make an
  extra effort to hire and promote those in the
  protected group.
• Affirmative action thus includes specifications
  (in recruitment, hiring, promotions, and
  compensation that are designed to eliminate the
  present effects of past discrimination.

42
Legal Status of Preferential Treatment

• Imbalance in work force - NO
• Title VII Violation - Yes
• Court ordered preferences as part of consent
  decree
• cannot override a legitimate seniority system
• cannot be used in a layoff
• Permissible Voluntary Plan - Yes

43
Permissible Voluntary AA Plans

• Remedial in purpose
• Limited duration
• Restrictive in reverse discrimination
• Flexible

44
Affirmative Action Two Basic Strategies

• Good Faith Effort Strategy
• Elimination of obstacles and past practices that
  have contributed to the exclusion or
  underutilization of females and minorites
• Quota Strategy
• Mandates results through hiring and promotion
  restrictions
• Possible Reverse Discrimination
• Illegal under Civil Rights Act of 1991

13
45
Affirmative Action A Practical Approach
Six main areas for action
1. Increasing the minority of female applicant
flow. 2. Demonstrating top-management support
for the equal employment policy for
instance by appointing a high- ranking EEO
administrator. 3. Demonstrating equal employment
commitment to the local community, for
instance by providing in-house remedial
training. 4. Keeping employees informed about
the specifics of the affirmative action
program. 5. Broadening the work skills of
incumbent employees. 6. Institutionalizing the
equal employment policy to encourage
supervisors support of it for instance by making
it part of their performance appraisals.
14
46
Avoiding Exposure to EEO Litigation

• Do not in any way indicate or even suggest an
  intent to discriminate.
• Be knowledgeable on the provisions of Title VII
  and amendments.
• Maintain accurate and current job descriptions
  and specifications. This will document your
  business necessity.

47
Avoiding Exposure Cont.

• Always investigate an alternative practice that
  is just as good but has less discriminatory
  implications or impact.
• Make sure that practices and procedures as well
  as business-necessity beliefs are not based on
  stereotyped thinking.
• Document everything that is questionable, and
  maintain objective records.

48
Avoiding Exposure Cont.

• Provide Training
• EEO Law
• Communication of Commitment to Non-Discrimination
• Be Honest
• Ask Only Pertinent Information

49
Equal Work Standard

• Where some but not all members of one sex perform
  extra duties on their jobs, these extra duties do
  not justify giving all members of that sex extra
  pay
• That men can perform extra duties does not
  justify extra pay unless women are also offered
  the opportunity to perform those duties
• Job titles and job descriptions are not material
  in showing that work is unequal unless they
  accurately reflect actual job content