The Legal Environment and Diversity Management Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon Chapter 3

Video The Case for Sexual Harassment Training http://www.youtube.com/watch?v=cF7I1wNS2KY&feature=related Sexual Harassment Tutorial http://www.youtube.com/watch?v=s0bqrvnMdDo Gender Pay Discrimination iFactory: Inside Apple http://www.youtube.com/watch?v=zqL2nS6GljY&feature=youtube_gdata _player Hooters Discrimination Lawsuit http://www.youtube.com/watch?v=JadddlCc0B0 Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The Legal Environment for HRM – Protecting Your Organization A primary responsibility of an HR manager is to assist in avoiding any discriminatory situations that can create legal, ethical or social problems with employees, former employees, the community or other stakeholders. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Discrimination vs. Illegal Discrimination Discrimination is the act of making distinctions, or choosing one thing over another; in HR, it is making distinctions among people. Illegal discrimination is making distinctions that harm people by inappropriately using a person’s membership in a protected class as a basis for an employment decision. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The OUCH Test Use it to maintain fairness and equity, whenever contemplating any employment action. Objective – fact-based and quantifiable. Uniform in application – apply the same “tests” in the same ways. Consistent in effect – ensure the result is not significantly different for different groups. Has job relatedness – action MUST relate to the essential job functions. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The 4/5ths Rule Is used by Federal courts, the Department of Labor and the EEOC to determine whether disparate impact exists in an employment test. If the test results disproportionately rule out a protected population, then it is not consistent in effect. The 6/5ths rule can be used to determine the possibility of reverse discrimination. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

4/5 and 6/5 White Male African American Male 20/100 16/100 20/100 16/100 Ratio = .20 Ratio = .16 4/5 = .80 20 x .80 = 16 16 is OK 6/5 = 1.20 20 x 1.20 = 24 24 is OK; between 16 and 24 Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Major Federal Employment Laws (Note: State and Local Laws May Be Different) Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Equal Pay Act of 1963 Requires that women who do the same job as men (“equal skill, effort, and responsibility, and performed under similar working conditions”), in the same organization, receive the same pay. Pay differences that result from differences in seniority, merit, quantity or quality of production, or any factor other than sex (e.g., shift differentials, training programs), are legally allowable. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Title VII of the Civil Rights Act (CRA) of 1964 It is illegal for an employer to fail or refuse to hire or to discharge or otherwise discriminate against any individuals with respect to compensation, terms, conditions, or privileges of employment, due to race, color, religion, sex, or national origin; Or to limit, segregate, or classify employees or applicants in any way that deprives them of employment opportunities, or otherwise adversely affects their employment status due to race, color, religion, sex, or national origin. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Title VII of the Civil Rights Act (CRA) of 1964 Applies to organizations involved in interstate commerce, with 15 or more employees who work 20+ weeks a year. Introduced important concepts: Disparate Treatment. Disparate (a.k.a. Adverse) Impact. Pattern or Practice. Bona Fide Occupational Qualification (BFOQ). Business necessity. Job relatedness. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Types of Discrimination Addressed by Title VII Disparate (Adverse) Treatment - when an employee is intentionally treated differently based on his/her membership in a protected class. Disparate (Adverse) Impact – when an officially neutral employment practice disproportionately and unintentionally excludes members of a protected group. Pattern or Practice - when an employer engages in actions over time that intentionally deny the rights provided by Title VII to a member of a protected class. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The Age Discrimination in Employment Act of 1967 (ADEA) Prohibits discrimination against employees age 40 or older in organizations that have 20 or more workers. Enacted to protect older workers, who tend to have higher salaries, from being fired so employers can replace them with younger workers who make significantly less money. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) of 1974 Employers with Federal contracts/subcontracts of $100,000 or more must provide equal opportunity and affirmative action for Vietnam era veterans, special disabled veterans, and veterans who served on active duty during a war, campaign or expedition. Enacted to protect Vietnam War soldiers who were discriminated against because U.S. public opinion was strongly opposed to the war. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Pregnancy Discrimination Act of 1978 (PDA) Under Title VII, it requires employers to treat pregnant women the same as they treat any employee with a medical condition with respect to employment-related purposes. Enacted because in the 1970s, companies started lowering their health insurance costs by excluding pregnancy from their policies. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Americans with Disabilities Act (ADA) of 1990 as Amended in 2008 Prohibits discrimination based on disability and applies to virtually all employers with 15 or more employees. Requires employers to make "reasonable accommodation" to individuals with disability, if they are otherwise qualified to perform the “essential functions” of the job, unless it imposes an “undue hardship” on the organization. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Civil Rights Act of 1991 Corrects major omissions of the 1964 CRA and overturns several U.S. Court decisions. Allows compensatory and punitive damages when intentional or reckless discrimination is proven. Prohibits “discriminatory use”, also called race- norming, of test scores. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Insures civilian reemployment rights of military members who were called away from their non-military jobs by U.S. government orders. The Veteran’s Benefits Improvement Act of 2004 (VBIA) Extends employers’ requirement to maintain health care coverage for up to 2 years for employees serving on active duty, and requires employers to post a notice of benefits, duties, and rights under USERRA/VBIA. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Title II of the Genetic Information Nondiscrimination Act of 2008 Prohibits the use of genetic information in employment and the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. Enacted to prevent employers from using results of genetic tests to discriminate against applicants and employees when their test results indicate they may contract a certain disease or disorder in the future. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Lilly Ledbetter Fair Pay Act of 2009 (LLFPA) Adds a provision to amend Title VII that extends the period of time in which an employee is allowed to file a compensation discrimination lawsuit to within 180 days after “any application” of a discriminatory compensation decision. This includes every time an individual gets paid, as long as the discrimination is continuing. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The Immigration and Nationality Act of 1952 (INA) Allows employment of immigrant workers in certain specialty occupations such as engineers, teachers, computer programmers, medical doctors, and physical therapists. Also specifies requirements to apply for such employment and annual limits to the number of workers who can apply for work visas in these specialty occupations. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The Immigration Reform and Control Act of 1986 (IRCA) Requires that employers only hire individuals who are authorized to work legally in the U.S. Prohibits employers from knowingly hiring undocumented workers and requires employers to verify each employee's eligibility for employment. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The Equal Employment Opportunity Commission (EEOC) The federal agency that enforces Federal Equal Employment Opportunity (EEO) laws. Investigates and resolves discrimination complaints through either conciliation or litigation. Gathers and compiles statistical information on such complaints. Provides education and outreach programs on what constitutes illegal discrimination. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Employee Rights under EEOC To bring discrimination complaints against an employer by filing a complaint with the EEOC. To participate in an EEOC investigation, hearing or other proceeding without threat of retaliation. To the arbitration and settlement of the complaint. To sue the employer directly. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Employee Rights under EEOC All employees who work in the U.S. or its territories are protected by EEOC laws whether they work for a U.S. or foreign employer. U.S. citizens employed outside the U.S. by a U.S. employer, or a foreign company controlled by an U.S. employer, are protected by Title VII, the ADEA, and the ADA unless adherence violates a law of the country where the workplace is located. When U.S. citizens are employed by a foreign company in a country other than the U.S., the laws of that country apply. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Employer Prohibitions under EEOC To retaliate against employees who participate in an EEOC action. To creating a hostile work environment that results in the employee quitting or resigning from the company because continued employment becomes intolerable (constructive discharge). Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management The Office of Federal Contract Compliance Programs (OFCCP) Monitors and enforces Executive Order (EO) 11246, Section 503 of the 1973 Rehabilitation Act and the 1974 VEVRAA. EO 11246 and Rehab Act require Federal contractors who receive more than a certain dollar value in contracts from the federal government per year to provide equal opportunity and take affirmative action toward protected class individuals. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Diversity in the Workforce Diversity is the existence of differences. It is significant in the workplace because: It fosters creativity and innovation through divergent thinking, so to exclude qualified people because they are “different” is counterproductive to business success. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Sexual Harassment “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.” – EEOC Two types: Quid Pro Quo; Hostile Work Environment Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management con’t Quid Pro Quo “If you do something for me, I will do something for you, or conversely if you refuse to do something for me, I will harm you.” Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management con’t Hostile Work Environment Hostile work environment means harassment that occurs when someone’s behavior at work creates an environment that makes it difficult for someone to work in that environment. Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.

The Legal Environment and Diversity Management Religious Discrimination Employers generally need to make reasonable accommodation of employees’ religion-based requests to wear certain types of dress or observe religious holidays or days of worship that are not in keeping with the normal workday practices of the organization, unless the requests prevent the employee from carrying out the essential functions of his/her job, or create an undue hardship Human Resource Management: Functions, Applications, Skill Development by Robert N. Lussier and John R. Hendon © 2012 SAGE Publications, Inc.