Introduction to Staffing and Legal Issues

1
Introduction to Staffing and Legal Issues

• Ch. 1 2

2
Overview of Tonights Session

• Definitions and importance of staffing
• Staffing models strategies
• Legal issues in staffing
• Important laws and regulations

3
Think about your current job or your previous job
if not currently employed

• Briefly describe the job
• Recount the process you experienced in the
  employment process
• In your opinion, what were the positive and
  negative aspects about the process of employment?

4
What is staffing?

• Process of acquiring, deploying, and retaining a
  workforce of sufficient quantity and quality to
  create positive impacts on the organizations
  effectiveness
• Includes three core processes
• Recruitment (identification and attraction)
• Selection (assessment and evaluation)
• Employment Decisions (decision making and final
  match)
• Legal, economic, educational, political, and
  scientific variables constrain this process

5
Staffing and Organizational Effectiveness

• People and knowledge intensive industries
• Recruitment and retention are critical issues
• Leadership and talent acquisition for competitive
  advantage
• Financial returns from excellent staffing
  practices
• Reputational advantages

6
Organization
Applicant
Current Job Requirements Job and Organizational
Rewards Possible New Job Duties Future Job
Requirements Multiple Job Requirements Organizatio
nal Values
KSAOs Motivation
MATCH
Attraction Performance Attendance
Satisfaction Retention
Staffing Process Goals
7
Staffing and Firm Strategy

• Strategic planning focuses on future goals of the
  firms and how to reach these goals
• Overall HR strategy and staffing strategy both
  support and drive firm strategy
• Appropriate staffing and other HR strategy can
  provide competitive advantage to the firm

8
Firm Mission and Goals
HR Goals Strategy
Firm Business Strategy
Staffing Goals Strategy
Staffing Policies and Programs Core activities
Recruitment, selection, and employment decisions
Support activities Legal compliance, planning,
and job analysis
Staffing System and Retention Management
9
Legal Issues in Staffing

• Importance of knowing the legal issues pertaining
  to the employment process
• Focus is on federal laws, although state laws are
  critical also
• Types of evidence needed to legally defend a
  firms staffing process are based on technical
  standards as well as legal standards

10
Regulatory Model
Laws and Executive Orders
Social Problems
Regulatory Agencies
Regulatory Actions
Management Responses
Judicial System
11
Important Employment Laws and Executive Orders

• Title VII of Civil Rights Act of 1964
• Civil Rights Act of 1991
• Executive Order 11246 11141
• Age Discrimination in Employment Act of 1967
  (ADEA)

• Rehabilitation Act of 1973
• American with Disabilities Act (1990)
• Immigration and Reform Act of 1986
• Constitutional Amendments (5th and 14th)

12
Title VII of Civil Rights Act of 1964

• Prohibits discrimination on the basis of race,
  sex, religion, color, or national origin
• Covers employers with 15 or more employees at
  least 20 weeks of the year
• Includes private employers, labor organizations,
  employment agencies, state governments and
  government agencies, and organizations running
  training and apprenticeship programs
• Exceptions religious organizations, private
  clubs, and employment on Indian reservations

13
Civil Rights Act of 1991

• Impetus was based on Supreme Court decision in
  Wards Cove v. Atonio (1989)
• Codified principles of burden of proof to those
  before Wards Cove decision
• Plaintiff must identify specific selection
  practice that has adverse impact
• Allows victims of intentional discrimination to
  sue for compensatory and punitive damages
• Prohibits norming of tests based on protected
  categories

14
Executive Order 11246 (1965)

• Covers contractors with federal government
• Prohibits discriminatory acts as directed in
  Title VII
• Requires contractor to establish an affirmative
  action program (10,000 contract or greater)
• Enforced by Office of Federal Contract Compliance
  Programs which can issue statement of
  noncompliance

15
Age Discrimination in Employment Act of 1967
(ADEA)

• Prohibits discrimination against individuals who
  are 40 years old or older
• Applies to private employers, federal, state, and
  local governments, employment agencies, and labor
  organizations
• In Kimel v. Florida Board of Regents (2000),
  Supreme Court struck down coverage of state
  entities in ADEA (must use state laws)

16
American with Disabilities Act (1990)

• Applies to employers with 15 or more employees
• Disabled individuals are those
• has physical or mental impairment that limits one
  or more major life activities
• has a record of such impairment, OR
• is regarded as having such an impairment
• Prohibits use of employment standards, tests, and
  selection criteria that tend to screen out
  disabled individuals UNLESS the standard is
  job-related and consistent with business
  necessity
• Reasonable accommodation must be made to
  qualified individual with a disability

17
Immigration and Reform Act of 1986

• Unlawful to hire or continue to employ an alien
  knowing that the alien is unauthorized
• Company is required to verify authorization
  through examination of passports, certificate of
  U.S. citizenship, certificate of naturalization,
  unexpired foreign passport, resident alien card,
  and combination of other documentation (birth
  certificate, social security card, drivers
  license, etc.)
• Employers can give preference to U.S. citizens
  over non-citizen if equally qualified

18
Constitutional Amendments (5th and 14th)

• Fifth applies to federal government, while the
  14th applies to state and local governments
  (Equal Protection Clause)
• Cover all citizens
• Plaintiff must show discriminatory intent not
  just unequal effects

19
Types of Discrimination

• Disparate Treatment
• Different standards are applied to different
  people based on protected classifications
• May or may not be intentional
• Mixed motive
• Plaintiff will have to prove intent to win case

• Disparate (Adverse) Impact
• Employment practices operate to exclude people of
  protected classifications
• Examine results of the selection processes
• Examples use of educational degree, work
  experience, arrest records

20
Evidence and Proof in Disparate Treatment Cases

• One belongs to a protected class
• He/she applied for the job and was qualified for
  it
• He/she was rejected
• The position remained open and applicants of
  equal or lesser qualifications continued to be
  considered
• Job was subsequently filled by someone equally or
  less qualified

21
Evidence and Proof in Disparate Treatment Cases

• After plaintiff establishes prima facie case,
  defendant (company) must show a legitimate,
  nondiscriminatory reason for rejection
  (Job-relatedness or BFOQ)
• Burden of proof shifts back to plaintiff who must
  show that the defendants reason is really a
  pretext for discrimination (e.g., is reason
  applied to all? Are general practices
  nondiscriminatory)

22
Evidence and Proof in Disparate (Adverse) Impact
Cases

• Plaintiff must show that the employment practice
  operates to exclude people of a protected class
  and that he/she is a member of that class
• Use of statistical analyses to prove case
• stock statistics underutilization of protected
  group members relative to their availability in
  the relevant labor market
• flow statistics significant differences in
  selection rates between groups (use four-fifths
  rule)
• concentration statistics concentration of group
  members in certain job categories

23
Determining Adverse ImpactExample

• 100 applicants (30 blacks and 70 whites) apply
  for 50 computer programmer positions
• 10 blacks and 40 whites were selected based on
  test scores
• Selection ratio for blacks 10/30 33
• Selection ratio for whites 40/70 57
• 33 / 57 58 which is lt 80 (four-fifths)

24
Evidence and Proof in Disparate Impact Cases

• If statistical analysis shows adverse impact,
  burden shifts to defendant to show one of the
  following
• that the selection device is job-related
  (validated)
• business necessity
• BFOQ
• If defendant is successful, then plaintiff must
  show that there is another selection device that
  is valid and has less adverse impact (difficult
  burden)

25
Uniform Guidelines on Employee Selection
Procedures (1978)

• Joint statement of EEOC, Civil Service Commission
  (currently, U.S. Office of Personnel Management),
  Department of Justice, and the Department of
  Labor)
• Guidelines for reference, but not legally binding
• However, courts have given them great deference
  in discrimination cases

26
What do the Uniform Guidelines say?

• Covers hiring, promotion, training, and transfer
  decisions
• Covers all selection methods, not just tests
• Defines what discrimination is and illustrates
  the four-fifths rule
• Describes general standards for validity studies
  (types, documentation, use of tests, and
  determining cutoff scores)
• Documentation and record-keeping requirements

27
Affirmative Action

• Set of specific actions taken to actively seek
  out, hire, and promote underrepresented groups
• Written document with utilization analyses, goals
  and timetables, action steps
• Types
• Required of federal contractors
• Court-ordered or consent decreed
• Voluntary

28
Making AA Programs Acceptable

• Conspicuous imbalance of minority members in
  organization
• Do not trammel the rights of (completely block)
  major group members
• Do not require the discharge of majority group
  members
• Voluntary
• Quotas are temporary and will end when balance is
  achieved

29
Current Issues in AA Programs

• Civil Rights Act of 1991 has made race (sex)
  norming illegal, which has direct impact on AA
  programs
• States passing laws making AA in state government
  illegal (CA)
• Must show that increasing diversity is valid and
  desirable goal of organization
• Must not use narrow definition of diversity
  (example University of Michigan case)

30
Is this Unlawful Discrimination?

• Read the case(s) assigned to your group.
• Answer these questions
• What legal statute(s) apply in this case?
• What issue(s) must the court decide in this case?
• If you were the judge, how would you rule? Did
  the employer unlawfully discriminate? Why or why
  not?