1. Chapters 2, 3, 4 Legal Compliance/EEO

2. Sources of Laws and Regulations
Common law
Employment at will
State and Federal Constitutional Laws
Example: California - Article One (Right to Privacy)
Executive Orders
11246, as amended by (nondiscrimination under federal contracts)
Agencies
Equal Employment Opportunity Commission (EEOC), Dept. of Labor (DOL), Office of Federal Contract Compliance Programs) OFCCP

3. Sources of Laws and Regulations
Statutory Laws (State and Federal laws and acts)
Civil Rights Act, Title VII (as amended)
Age Discrimination in Employment Act
Americans with Disabilities Act (as amended)
Rehabilitation Act
Immigration Reform and Control Act
Pregnancy Discrimination Act
Employment Polygraph Protection Act
Equal Pay Act
California Fair Employment and Housing Act (FEHA)

4. EEO Concepts Equal Employment Opportunity (EEO) Blind to differences
Employment that is not affected by illegal discrimination.
Blind to differences
Differences among people should be ignored and everyone should be treated equally.

5. Major EEO Laws - Federal
Civil Rights Act of 1964, Title VII
Established the Equal Opportunity Commission to enforce the act’s provisions.
Coverage
All private employers with 15 or more employees
All educational institutions, public and private
State and local governments
Public and private employment agencies
Labor unions with 15 or more employees
Joint labor/management apprenticeship committee

6. Major EEO Laws - State California’s Fair Employment and Housing Act
Established the Department of Fair Employment and Housing
Coverage
All private employers with 5 or more employees
Any person acting as the agent of the employer, directly or indirectly
State and local governments
Employment agencies

7. Discrimination
Discrimination - one person (or group) is treated differently from another person (or group).
Unlawful discrimination – when the reason for the difference in treatment is related to membership of a protected category.

8. Discrimination
It is illegal to for organizations to discriminate against employees in all employment practices, including
Advertisements
Applications, screening, and interviews
Hiring, transferring, promoting, terminating, or separating employees
Working conditions
Participation in a training or apprenticeship program, employee organization, or union

9. Protected Classes Federal
Individuals within a group identified for protection under equal employment laws and regulation.
Race, ethnic origin, color • Age (40 or over)
Disability • Military experience • Religion
Marital status • Sexual orientation • Gender

10. Protected Classes California
Individuals within a group identified for protection under California’s Fair Employment and Housing Act.
Race • Medical Condition
Color • Pregnancy
Religion • Marital Status
Veteran’s Status • Sex (Inc. gender identity)
National Origin • Sexual Orientation
Ancestry • Age (40 and over)
Physical Disability (including HIV and AIDS)
Mental Disability

11. Legal Issues Bona Fide Occupational Qualification (BFOQ)
Reasonably necessary to the normal operation of the particular business
Bona Fide Seniority Systems
Law permits use of seniority systems if they are not the result of an intention to discriminate

12. Protected Classes California – additional protected classes
Individuals within a group identified for protection under California’s Fair Employment and Housing Act.
Request for Family Care Leave
Request for Leave for Employee’s Own Serious Health Condition
Request for Pregnancy Disability Leave
Retaliation for Reporting Patient Abuse in Tax-Supported Institutions

13. Disability Protections
Disabled Person – Federal Americans with Disabilities Act (ADA), including Amendments Act of 2008 (ADAAA) effective 1/1/09
Someone who has a physical or mental impairment that substantially limits major life activities, who has a record of such impairment, or who is regarded as having such an impairment.
Final interpretive guidance on Amendment Act of 2008 issued by EEOC in March 2011.

14. Disability Protections
Disabled Person – California Fair Employment and Housing Act (FEHA)
Someone who has a physical or mental impairment that limits life activities, who has a record of such impairment, or who is regarded as having such an impairment.
Broader in scope than Federal regulation.

15. Disability Protections
Disabled Person – California Fair Employment and Housing Act (FEHA)
Duty for employer to reasonably accommodate a disability.
Duty to engage in a good faith interactive process with an employee regarding any reasonable accommodations that might be available to permit the employee to perform the essential functions of a position.
Duty to engage in a good faith interactive process even with an employee who is not disabled but the whom the employer regards as disabled.

16. Discrimination Anti-discrimination laws also prohibit:
Retaliating against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.

17. Discrimination

18. Discrimination Disparate Treatment
Occurs in employment-related situations when either:
Different standards are used to judge different individuals, or the same standard is used, but it is not related to the individuals’ jobs
The outcome of the employer’s actions, not the intent, is considered by the regulatory agencies or courts when deciding whether or not illegal discrimination has occurred.

19. Disparate Treatment – Burden of Proof
A plaintiff alleging employment discrimination must:
Be a member of a protected group.
Show disparate treatment existed.
Once a court rules that a prima facie case (evidence that, unless rebutted, would be sufficient to prove a fact) has been made, the burden of proof shifts to the employer.

20. Discrimination Adverse (Disparate) Impact
Occurs when substantial underrepresentation of protected-class members results from employment decisions that work to their disadvantage.
Griggs vs. Duke Power (1971) decision:
Lack of discriminatory intent is no employer defense if discrimination occurs.
The employer has the burden of proof in proving that an employment requirement is a job-related “business necessity.” No prima facie case is needed by employee first.

21. Adverse (Disparate) Impact Example

22. Affirmative Action Affirmative Action
Program undertaken by an organization to improve job opportunities for and increase the utilization of protected classes in its workforce.
Applies to qualified individuals within protected classes.
Not a mandate to employ unqualified candidates or to give preferential treatment to one in a protected class at the expense of over another individual in a protected class.
Not legal to have hiring quotas.

23. Affirmative Action Affirmative Action
Could be voluntary by company or company and its union
Could be required by court order or the Equal Employment Opportunity Commission (EEOC) to remedy past wrongs by a company
Could be required by Office of Federal Contract Compliance Programs (OFCCP) – Federal government contractors with 50 or more employees and government contracts of $50,000 or more)

24. Affirmative Action - California
Public Employers
Affirmative action is prohibited in some situations due to the passage of Proposition 209 in 1996
Also known as California Civil Rights Initiative
This Proposition amended the State Constitution to prohibit discrimination against or granting preferential treatment to any individual or group in the operation of public employment, public education, or public contracting
Prohibited based on race, sex, color, ethnicity, and national origin

25. Affirmative Action Plan (AAP)
A document reporting on the composition of an employer’s workforce, required for federal contractors.
AAP Metrics
Availability analysis
Utilization analysis
Goals and timetables
Affirmative Action

26. The Debate about Affirmative Action
Arguments: Why Affirmation Action is Needed
Arguments: Why Affirmation Action is Not Needed
FIGURE 3–3
The Debate about Affirmative Action

27. Managing Diversity Accepting and valuing differences between people
Strategically driven (not legally driven)
Based on a more diverse workforce now and in the future
Assumes that diverse groups will create new ways of working together effectively
Aims to promote inclusiveness
Benefits - increases marketing opportunities, recruitment, creativity, and positive business image
If flexibility and creativity are valued as keys to competitiveness, diversity is critical for an organization's success

28. Other Staffing Laws: Employee Polygraph Protection Act (1988)
Purpose
Prevent most private employers from using a polygraph on job applicants or employees
Prohibited practices
Requiring applicants or employees to take a polygraph
Using results of a polygraph for employment decisions
Discharging or disciplining individuals for refusal to take a polygraph
Enforcement
Enforced by Department of Labor
Noncompliance may result in fines up to $10,000

29. Other Staffing Laws: Fair Credit Reporting Act (1970)
Purpose
Regulates organization’s acquisition and use of consumer reports on job applicants
Required compliance
Before obtaining a report, organization must
Give applicant notice in writing a report may be obtained
Obtain written authorization from applicant
If an “adverse action” is taken, organization must
Notify (written, oral, electronic) applicant of adverse action
Provide information of consumer reporting agency to applicant
Provide notice of applicant’s rights to applicant
Enforcement
Enforced by Federal Trade Commission
Noncompliance may result in fines up to $1,000