Chapter 4 What’s Legal and What’s Not Title VII Uniform Guidelines Affirmative Action Negligent Hiring Chapter 4 Legal and What's Not1

Civil Rights Act 1964 Unlawful Practices 1. race, color, religion, gender, Nat’l origin 2. can’t segregate for employment opportunities 3. can’t refuse to refer (labor unions also) 4. applies to all employers, unions, training programs 5. can’t recruit to indicate preferences (can say “equal oppor employer, or “encourage minorities” 6. can’t retaliate against anyone who opposes unlawful practices Chapter 4 Legal and What's Not2

EEOC empowered to: Investigate charges Dismiss unfounded charges Persuade Work with authorities (state.e.g.) File suit in federal courts for “reasonable cause” Chapter 4 Legal and What's Not3

Uniform Guidelines: the legal context Adverse Impact and Disparate Treatment Action affects different groups differential Disparate Treatment Individual is treated differently Business Necessity: Practice must be related to job performance 80% rule (4/5) to determine adverse impact If 25% (25 of 100)of whites are hired, must hire 20 blacks (4/5 of 25) What is meant by a “trigger” ? Give an example of why one employer may have 80% What is meant by a “chilling effect”- give example Chapter 4 Legal and What's Not4

Uniform Guidelines (con’t) Options under Adverse Impact With validation, an Adverse impact procedure may be Modified – Eliminated - Justified – What’s the most sound option? How about random selection? Guidelines three options: Cut scores (to screen only unqualified) What’s a problem with this? Hint: promotion after hire Banding Ranking top down What will this typically do? Or perhaps use an alternative Chapter 4 Legal and What's Not5

Requirements for Validation Criterion related - What’s this? Content Validation Job analysis required! Construct Validation Job analysis required! Why is this “ruled out”? See p. 89 Guidelines provision Chapter 4 Legal and What's Not6

Use of Valid Procedures “Transportability” of Validity Information VG – what kind of criterion relatedness is this? Requirements Same job Criterion relevance Demographic similarities Give a sports example Is broad similarity necessary? E.g. for GMA? Why is this still part of the legal context? Chapter 4 Legal and What's Not7

Use of Valid Procedures (con’t) Testing for higher level jobs Why is hiring for higher level jobs a pretext for discrimination? “…if a majority of those still employed after a ‘reasonable period of time’ (5 yrs) progress to the higher level job.” What are the implications of this? use sports example: baseball farm clubs. Use of scores (four methods)- note diff in gov’t and private sector Ranking – evidence for variation needed (negates content val) Banding – cannot have separate bands for protected groups Pass/fail – low ones preferred by Guidelines (why?) Combinations of tests (compensatory) Chapter 4 Legal and What's Not8

Issues: Should the cutoff be lowest score obtained (in validity study)? As “some enforcement agencies advocate” (Guion, p92) What are the implications for doing so or not doing so? How does the civil service sector differ from private sector in viewing cut scores? Chapter 4 Legal and What's Not9

Reporting and Record keeping Extensive, but essential Consult DCI Consulting GroupDCI Consulting Group Eric Dunleavy Chapter 4 Legal and What's Not10

Case Law – EEO Some Court Decisions Griggs v. Duke Power ‘71 Intent v. effect <- Business necessity (job relatedness) Give examples Job-relatedness Deference to Guidelines Use of tests for job qualifications Must be job related Dothard v. Rawlinson (‘77) Alabama Height for correctional officers (5’2”) Disparate Impact v. treatment What’s the difference? Burden of production (prime facie) Burden of persuasion Chapter 4 Legal and What's Not11

More cases… Regents, U. Ca v. Bakke (Title VI Education) Has implications for Title VII Blacks admitted at Davis Med School with lower scores Supreme Court Ruled: Admissions system was unacceptable – admit Bakke But race can be considered, just not a two track system How can consideration of race avoid discriminating against whites. Connecticut v. Teal (‘72) “individual” not “equality for a group” Any component (promotion test) that had adverse impact must be shown to be job related Each hurdle in “multiple hurdles” must be considered Chapter 4 Legal and What's Not12

Even more Legal cases… Watson v. Fort Worth Bank & Trust (‘88) Subjective assessments are covered What are some examples of subjective assessments? How could this possibly lead to adoption of surreptitious quotas? Why would not requiring it jeopardize the mandate not to discriminate? Decision: Plaintiff must identify the specific practice & provide statistical evidence that it caused “loss” burden not shifted to defendant- who can refute the data or causal inference Expensive validation was not necessary when job relatedness was clear Chapter 4 Legal and What's Not13

Even more… Wards Cove Packing Co. v. Atonio (‘89) Need to specify practice challenged Burden of persuasion proof on plaintiff Adverse impact must take into account the relevant labor market What are some implications for this for employer? Business necessity -> “justification” – (not necessarily essential) Provide an example Chapter 4 Legal and What's Not14

1991 Amendment to Civil Rights Act (Title VII affected) Concerns about the use of quotas led to: Prohibition of “race norming” (e.g. GATB for USTES used H/M/L) What’s the difference between quotas and goals? What’s race norming? Allowed for punitive as well as compensatory damages for intentional discrimination What’s the difference between the two? What are the implications for an employer for adding punitive damages? Chapter 4 Legal and What's Not15

Affirmative Action (to reduce effects of prior discrimination) Some voluntary, some court ordered or consent decree Executive orders (11246)required federal contractors to have AA plans Philadelphia Plan EO Why was this a problem for federal contractors in Philadelphia? What was the remedy applied? Again, what’s the difference between goals and quotas? How was AA changed when the appellate and Supreme Court upheld the plan? Reverse Discrimination- AA plan is ok (EEOC) if actual or potential adverse impact was caused from practices in past or planned practices Shown by discrepancy between relevant labor market and available pool (protected groups) Chapter 4 Legal and What's Not16

Affirmative Action (con’t) Developing Affirmative Action Plans Not restricted to hiring Include special training, recruiting, and other plans for advancing those with underutilized abilities Must be limited in scope Now just for “do good” purposes of from fear of litigation Diversity as a Business Necessity Gratz v. Bollinger (2003) U. of MI use of bonus points for minority apps U MI awarded 20 (of 100) points for every minority applicant (to get proportionate representation comparable to population). What was the argument here that goes beyond discrimination? How had the reason for AA changed? What are some implications for not being transparent about how diversity is achieved? Chapter 4 Legal and What's Not17

Other Discriminations Age (‘67) 40 and over Mostly for firing, RIFs, forced early retirement (not for hiring) Sometimes age related BFOQs could be justified Persons with Disabilities (‘90) Focus should be on what they can do, not cannot do No preferential treatment is encouraged Reasonable accommodations (usually minimal costs) General employment practices Chapter 4 Legal and What's Not18

Negligent Hiring, Defamation, Wrongful Discharge Injury to worker when employee should have been seen unfit Can you think of a situation? Grounds for Action under Negligent Hiring Usually physical unfitness, but also personality, mental disorders Appropriate Methods of Assessment Reference checks are relatively useless now (defamation) Employer must be able to prove the negative statement be true What are the up and downsides of this? Background investigations –similar risks Should the employer be able to use social media to investigate an applicant? Chapter 4 Legal and What's Not19