Legal and Environmental Context of HRM

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Legal and Environmental Context of HRM
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What is discrimination?

• Giving an unfair advantage to the members of a
  particular group in comparison to the members of
  other groups
• 2 forms
• Disparate Treatment
• Disparate Impact

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Unfair/Illegal Discrimination
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Type of Unfair Discrimination?

• A Mexican-American denied employment based upon
  score on a selection test
• A female was denied a promotion into a senior
  management position because she was not
  aggressive or tough enough to handle the role

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Disparate Treatment vs. Disparate Impact

• Key Difference?
• Disparate Treatment employers treat people
  unfairly because of their membership in a
  protected group
• What are the protected categories?
• race, color, religion, sex, national origin, age,
  physical or mental disability, and/or reprisal
  (retaliation)

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Disparate TreatmentPlaintiffs Prima Facie Burden

• Simply means the complainant has been able to
  establish the merits of his/her case sufficiently
  and court agree to look into
• 3 most common
• Restricted Company Policy
• Discriminatory Remarks
• McDonnell-Douglas Test

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Plaintiffs Prima Facie Burden

• Restricted Company Policy
• Proves company has formal policy that restricts
  selection of an entire protected group
• Example Unsubstantiated age requirements

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Plaintiffs Prima Facie BurdenDiscriminatory
Remarks

• Providing evidence that certain biased remarks
  made by employer (orally or in writing) regarding
  protected group
• Example Texaco
• ROBERT ULRICH I've heard this diversity thing.
  You know, how black jellybeans agree.
• RICHARD LUNDWALL That's funny. All the black
  jellybeans seem to be glued to the bottom of the
  bag.
• ROBERT ULRICH You can't just have we and them.
  You can't just have black jellybeans and other
  jellybeans. It doesn't work.
• ROBERT ULRICH I'm still having trouble with
  Hanukkah. Now we have Kwanza--F--ing niers,
  they have s-----d all over us with this.

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Plaintiffs Prima Facie BurdenMcDonnell-Douglas
Test

• The applicant is a member of the protected group
  in question
• The applicant applied for the vacancy and is
  qualified to perform the job.
• Applicant was rejected
• After rejection, the position remained open or
  was filled by someone who was not a member of a
  protected group.

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Employer Rebuttal of Prima Facie Case -
Intentional Discrimination

• Restricted Company Policy
• BFOQ (All or nearly all, Authenticity, Propriety,
  Safety)
• Discriminatory Remarks
• Not very derogatory
• McDonnell-Douglas Test
• Decision based on legitimate, nondiscriminatory
  reasons

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Disparate (Adverse) Impact

• Intent is not necessary
• Any practice without business justification that
  has unequal consequences for people of different
  protected groups
• Employment policies and actions has an unequal
  impact or consequence on a protected class

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Plaintiffs Prima Facie Case Unintentional
Discrimination

• Most common test
• 4/5 or 80 Rule
• Compare passing rate of disadvantaged group
  with rate of advantaged group
• If more than one advantaged group, group with
  highest pass rate used for comparison

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Computation of Disparate Impact

• 80 or 4/5 Rule of Thumb (not law)
• 100 male applicants, 60 Selected
• Selection Ratio (SR)(males) 60 .60
• 100
• 30 female applicants 10 selected
• SR(female) 10 .33
• 30
• .80 X .60 .48 .33 lt .48 Evidence of
  Disparate Impact

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Employer Rebuttal Unintentional Discrimination

• Demonstrate procedure is a business necessity
  reasonably necessary to the safe and efficient
  operation of the business
• Job Related Related to future performance on
  major job requirements
• If more than one procedure, only those causing
  disparate impact must be justified

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Equal Employment Opportunity (EEO)

• Unlawful to classify or segregate job applicants
  or employees in any way that deprives individual
  of equal employment opportunity
• Race, color, sex, religion, national origin, age,
  or disabled status
• Applies to apprenticeship training programs
• Protects those who filed complaints with EEOC

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EEO

• Prohibits notices, Ads from indicating preference
  unless BFOQ
• Applies to
• Private Sector Employers - 15 or more employees
• Federal State Governments
• Labor Unions
• Employment Agencies

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EEO Laws

• Civil Rights Act of 1964
• (Title VII)
• 15 or more workers
• Prohibits discrimination on basis of race,
  religion, sex, and national origin
• Civil Rights Act 1991
• Claimants can receive punitive damages
• Burden of proof
• Discriminatory use of test scores
• Mixed-motive cases

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EEO Laws

• Pregnancy Discrimination Act of 1978
• Prohibits discrimination based on pregnancy,
  childbirth, or related medical conditions
• Employees unable to perform jobs must be treated
  same as those who are temporarily disabled for
  other reasons
• Immigration Reform and Control Act (1986)
• Prohibits discrimination based on national origin
  and/or citizenship
• Unlawful to knowingly hire a person unauthorized
  to work in the U.S must require proof

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EEO Laws

• Age Discrimination Act of 1967
• Protects employees 40 and older at time of
  discriminatory act, unless age is BFOQ
• American with Disabilities Act (1990)
• Protects individuals with disabilities from
  discrimination in employment
• Employers must make reasonable accommodations or
  justify undue hardship
• Medical information on employees must be kept
  separate from other information

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Who Enforces EEO Laws?

• State Fair Employment Practices Commissions
• Equal Employment Opportunity Commission
• The Federal agency with overall responsibility
  for federal sector complaints.
• Issues policy and regulations on the
  discrimination complaint system
• holds hearings and makes findings and
  recommendations on discrimination complaints
• makes final decisions on discrimination
  complaints that have been appealed. Appointed by
  the President, confirmed by Senate
• 5 year terms

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Key Take-Aways

• EEO Laws
• Prima Facie Requirements and Rebuttals