2 Sources of Laws and Regulations Common lawEmployment at willState and Federal Constitutional LawsExample: California - Article One (Right to Privacy)Executive Orders11246, as amended by (nondiscrimination under federal contracts)AgenciesEqual 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 ActAmericans with Disabilities Act (as amended)Rehabilitation ActImmigration Reform and Control ActPregnancy Discrimination ActEmployment Polygraph Protection ActEqual Pay ActCalifornia 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 differencesDifferences among people should be ignored and everyone should be treated equally.
5 Major EEO Laws - Federal Civil Rights Act of 1964, Title VIIEstablished the Equal Opportunity Commission to enforce the act’s provisions.CoverageAll private employers with 15 or more employeesAll educational institutions, public and privateState and local governmentsPublic and private employment agenciesLabor unions with 15 or more employeesJoint labor/management apprenticeship committee
6 Major EEO Laws - State California’s Fair Employment and Housing Act Established the Department of Fair Employment and HousingCoverageAll private employers with 5 or more employeesAny person acting as the agent of the employer, directly or indirectlyState and local governmentsEmployment agencies
7 DiscriminationDiscrimination - 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 DiscriminationIt is illegal to for organizations to discriminate against employees in all employment practices, includingAdvertisementsApplications, screening, and interviewsHiring, transferring, promoting, terminating, or separating employeesWorking conditionsParticipation 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 • ReligionMarital 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 ConditionColor • PregnancyReligion • Marital StatusVeteran’s Status • Sex (Inc. gender identity)National Origin • Sexual OrientationAncestry • 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 businessBona Fide Seniority SystemsLaw 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 LeaveRequest for Leave for Employee’s Own Serious Health ConditionRequest for Pregnancy Disability LeaveRetaliation 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 1/1/09Someone 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.
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’ jobsThe 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.
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 unionCould be required by court order or the Equal Employment Opportunity Commission (EEOC) to remedy past wrongs by a companyCould 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 EmployersAffirmative action is prohibited in some situations due to the passage of Proposition 209 in 1996Also known as California Civil Rights InitiativeThis 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 contractingProhibited 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 MetricsAvailability analysisUtilization analysisGoals and timetablesAffirmative Action
26 The Debate about Affirmative Action Arguments: Why Affirmation Action is NeededArguments: Why Affirmation Action is Not NeededFIGURE 3–3The 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 futureAssumes that diverse groups will create new ways of working together effectivelyAims to promote inclusivenessBenefits - increases marketing opportunities, recruitment, creativity, and positive business imageIf 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) PurposePrevent most private employers from using a polygraph on job applicants or employeesProhibited practicesRequiring applicants or employees to take a polygraphUsing results of a polygraph for employment decisionsDischarging or disciplining individuals for refusal to take a polygraphEnforcementEnforced by Department of LaborNoncompliance may result in fines up to $10,000
29 Other Staffing Laws: Fair Credit Reporting Act (1970) PurposeRegulates organization’s acquisition and use of consumer reports on job applicantsRequired complianceBefore obtaining a report, organization mustGive applicant notice in writing a report may be obtainedObtain written authorization from applicantIf an “adverse action” is taken, organization mustNotify (written, oral, electronic) applicant of adverse actionProvide information of consumer reporting agency to applicantProvide notice of applicant’s rights to applicantEnforcementEnforced by Federal Trade CommissionNoncompliance may result in fines up to $1,000