Legal Issues in Employment

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Legal Issues in Employment
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Civil Rights Act of 1964 (Title VII)

• prohibits employment discrimination on basis of
  race, color, national origin, gender religion
• Unlawful to
• Fail to hire
• Limit, classify, or segregate employees or
  applicants for employment in ways that would
  deprive them of opportunities
• Amended in 1978 to include pregnancy

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Age Discrimination in Employment Act (1967)

• prohibits employment discrimination against
  persons 40 years of age or older.
• Why might companies discriminate against this
  demographic group?

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Americans with Disabilities Act (1990)

• Unlawful to discriminate against person with a
  disability in selection, promotion, or
  placement
• Disability physical or mental impairment that
  substantially limits one or more major life
  activities, a record of such an impairment, or
  being regarded as having such an impairment
• Cant discriminate if a reasonable
  accommodation can be made without creating an
  undue burden on employer

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Federally Protected Classes

• Age over 40 (ADEA)
• Disability (ADA)
• National Origin (CRA)
• Race (CRA)
• Color (CRA)
• Religion (CRA)
• Gender (CRA)
• Pregnancy (Pregnancy Discrimination Act of CRA)
• Vietnam Veterans (Vietnam Era Veterans
  Rehabilitation Act)

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Bona Fide Occupational Qualification (BFOQ )

• using gender, etc. as a selection criteria is
  permissible when such qualification is reasonably
  necessary for the operation of that particular
  business or enterprise
• Race can never be a BFOQ
• Religion has been (e.g., nun, priest)
• Gender seldom is
• Customer preference does not matter

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Equal Employment Opportunity Commission (EEOC)

• Federal agency charged with enforcing CRA other
  relevant laws in the employment context
• Employee has 180 days to file complaint re
  alleged discriminatory act
• Investigation determines whether reasonable cause
  existed EEOC or employee can file suit
• Employer must provide justification for use of
  procedure if it results in adverse impact

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Types of Discrimination

• Disparate Treatment - individuals in similar
  situations are treated differently based upon
  race, color, religion, sex, national origin, age,
  or disability status. Intentional
• Disparate Impact - facially neutral employment
  practice disproportionately excludes a protected
  group from employment opportunities Unintentional

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Proving Adverse Impact

• Four-fifths or 80 Rule - if a selection test,
  device, or procedure results in a selection ratio
  of less than 4/5ths of that of the majority
  group, adverse impact exists
• Data needed
• number of applicants in minority group
• number of applicants in majority group
• number of individuals hired in minority group
• number of individuals hired in majority group

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Adverse Impact Example

• 200 male applicants 100 female applicants
• 20 males are hired (i.e, SR .10)
• AI exists if fewer than 8 females are hired
• .10 x 4/5 x 100 8

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Griggs v. Duke Power (1971)

• Landmark Adverse Impact case
• 1955-1965 Duke Power had relegated
  African-Americans to lowest paying, least
  desirable jobs by requiring a HS diploma for the
  better jobs
• starting in 1965, you needed either HS diploma or
  pass 2 IQ tests
• Duke Power had no validity evidence for the IQ
  tests

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Griggs v. Duke Power (cont.)

• Supreme Court ruled CRA referred not only to
  overt discrimination (disparate treatment), but
  also to covert discrimination (disparate impact)
• discriminatory consequences, not just intentions,
  were prohibited
• Touchstone is business necessity
• discriminatory practices must be shown to be
  related to job performance
• Employer has burden of proof showing that test is
  valid

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Albemarle Paper v. Moody (1975)

• Albemarle required passing 2 IQ tests for
  employment
• Griggs decision said validity evidence needed
• Albemarle did quick and dirty concurrent
  validity study
• But, still lost case, because court ruled the
  study was poorly done

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Key Points

• Even if an employer validates a test, plaintiffs
  can question its technical competence
• No job analysis conducted
• Job performance measured by vague supervisor
  ratings
• Tests validated for high-level jobs, but
  selection was used for entry-level positions

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Key Points (cont.)

• A procedure for litigating Title VII cases was
  established
• Plaintiff has to show prima facie evidence of
  Title VII violation
• e.g. Adverse Impact / wrong numbers
• Then, burden of proof shifts to employer to show
  job relatedness of selection device
• made EEOC guidelines the rule of law in
  establishing what constitutes good evidence for
  job relatedness

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Wards Cove Packing v. Atonio (1989)

• Reversed much hard-won ground by plaintiffs
• wrong numbers is not enough to show disparate
  impact
• had to outline specific employment practices
• plaintiff also had to show there are other more
  fair selection procedures available
• employer required only to prove business
  justification (not necessity)

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Key Points

• Very business-friendly ruling
• shifts burden on plaintiffs and off businesses
• made it difficult to prove disparate impact

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1991 Civil Rights Act

• Reverses Wards Cove and returns to Griggs
  interpretations
• Allows plaintiff to have jury trial and claim
  punitive damages
• Employers may have to pay for legal costs of
  plaintiffs
• Selection devices must have substantial and
  demonstrable relation to effective job
  performance
• Bans use of quotas and other forms of score
  adjustments on basis of classes

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Affirmative Action (AA) Plans

• Intentional minority recruitment
• Overhaul of employment practices
• Preferential hiring promotion of minorities
• Can be done voluntarily or as a result of court
  order

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Rationales for AA Programs

• Mandated by government
• Mandated by court order
• Consent Decree
• Voluntary

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Sexual Harassment

• Two types
• Quid pro quo promotion or salary increases tied
  to sexual favors
• Hostile environment pattern of unwanted sexual
  advances or related behavior
• Behavior causes discomfort and is based on gender
• Reasonable Person standard