Employee Selection and Legal Issues

1. Employee Selection and Legal Issues

2. Judicial Pecking Order • U.S. Constitution • 5th Amendment (federal government) • 14th Amendment (state & local governments) • Federal Laws (CRA, ADA, ADEA, FMLA, EPA) • Executive orders (Executive Order 11246 – Federal Contractors) • Federal case law (interprets Constitution and federal laws) • U.S. Supreme Court • Circuit Courts of Appeal (12 circuits, Virginia is 4th) • U.S. District Courts • Federal administrative guidelines • EEOC • OFCCP

3. Problem Scope *in millions

4. Potential Legal Problems • Disparate treatment (intentional discrimination) • Disparate impact (adverse impact) • Invasion of privacy • Illegal search

5. Employee Complaint Process • Alleged discriminatory act • Internal investigation • Internal resolution process • Essential to have a formal policy • Options • Dictate a decision • Mediate a solution • Arbitrate a decision • Appeal procedure is important • External resolution process • State agencies in deferral states • EEOC • Law suit

6. Alternative Dispute Resolution • Mediation • Neutral third party • Disputants reach agreement • Arbitration • Neutral third party • Arbitrator makes decision • Binding • Nonbinding • Dictation • Third party makes decision

7. EEOC Complaint Process 1. Alleged discriminatory act Complaint filed a. 180 days for nondeferral states b. 300 days for deferral states 3. Employer notified within 10 days 4. Investigation (goal is to complete in 120 days) a. Reasonable cause found 1) attempt to reach agreement 2) if no agreement, EEOC can file suit b. Reasonable cause not found 1) right to sue letter issued to employee 2) employee has 90 days to file suit

8. Who is Covered Private employers with at least 15 employees Federal, state, and local governments Employment agencies Unions Americans working abroad for American companies Who is Exempt Bona fide tax exempt private clubs Indian tribes Individuals denied employment due to national security concerns Publicly elected officials and their personal staff Civil Rights Act - Title VII

9. Disparate Impact Cases Reinstatement Back pay Seniority Front Pay Affirmative Action Attorneys’ Fees Disparate Treatment Cases Same as disparate impact + Compensatory damages psychological damage actual expenses damage to reputation Punitive damages (private sector only) Damage Limits (no limit for race) Employees Limit 15-100 $ 50,000 101-200 $100,000 201-500 $200,000 >500 $300,000 Title VII Court Ordered Remedies

10. Employment Decisions • Hiring • Placement • Promotion • Assignment (shift, patrol zone) • Salary • Discipline • Training opportunities

11. Does requirement directly refer to member of federally protected class? yes BFOQ? no Probably Illegal no yes Has case law, state law, or local law expanded definition of protected class? yes no no Probably Legal Does requirement have adverse impact? yes yes Probably Illegal Is requirement subterfuge for discrimination? no no Probably Illegal Is requirement job related? yes no Probably Illegal Were alternatives with less adverse impact considered? yes Probably Legal

12. Sex (Civil Rights Act) Male Female Race (CRA) African American Asian American White Native American National origin (CRA) Color (CRA) Age (over 40; ADEA) Religion (CRA) Disability (ADA) Current Previous Regarded as such Qualified veteran Pregnant female Does Requirement Directly Refer to a Member of a Federally Protected Class?

13. Is the Requirement a Bona Fide Occupational Qualification (BFOQ)? • Only members of a particular class can perform the job • There can be no exceptions • According to the courts: • Race can never be a BFOQ • Religion has been (e.g., Nun, priest) • Gender seldom is • Customer preference doesn’t matter

14. Let's Talk Is gender a BFOQ for Hooters?

15. Has Local, State or Case Law Added Protected Classes? • State Law Examples • Virginia protects marital status • Wisconsin protects sexual orientation • Local Law Examples • Cincinnati protects people of Appalachian heritage • Santa Cruz, CA outlaws discrimination based on height and physical appearance • Case Law Examples • Transsexuals are not a sex • Former drug use is not a disability

16. Does the Requirement Have Adverse Impact on Members of a Protected Class?Occurs when the selection rate for one group is less than 80% of the rate for the highest scoring group Male Female Number of applicants 50 30 Number hired 20 10 Selection ratio .40 .33 .33/.40 = .83 > .80 (no adverse impact)

17. Education Level

18. Adverse Impact - Example 2 Male Female Number of applicants 40 20 Number hired 20 4 Selection ratio .50 .20 .20/.50 = .40 < .80 (adverse impact)

19. Was the Requirement a Subterfuge for Intentional Discrimination? • Old voting requirements • Residency requirements • Height requirements

20. Exemptions Bona fide seniority system Veteran’s preference rights National security Job Related Types BFOQ Valid testing procedure Methods Content validity Criterion validity Validity generalization Can the Employer Prove that the Requirement is Exempt or Job Related?

21. Content Validity • Based on a solid job analysis • A method of rationally matching tasks with the necessary knowledge, skills, abilities, and other characteristics (KSAOs) to perform the job

22. Criterion Validity • Correlate test scores with relevant criteria • Two types • Concurrent • Predictive • Requirements • Reasonable sample size • Good range of test and criterion scores • A good criterion

23. Validity Generalization • Based on meta-analysis • Borrows validity from other studies or organizations • Job analysis results must be similar

24. Did Employer Look for Reasonable Alternative with Less Adverse Impact? • A different test measuring the same construct • A different type of test • Changes to testing conditions • video rather than written • practice exams • conditioning programs • Job redesign

25. Harassment

26. Let's Talk What examples of harassment have you seen in the workplace?

27. EEOC Complaints - 2010 • 30,989 charges of harassment • 11,717 were for sexual harassment charges of sexual harassment • 16.4% of the charges were made by males • Harassment Charges • 27% racial • 38% sexual • 35% other protected classes

28. Potential Victims of Harassment • Gender • Race • Religion • Age • National Origin • Alien status • Citizenship status • Disability • Sexual Preference

29. Types of Harassment • Quid Pro Quo • Hostile Environment

30. Quid Pro QuoHarassment Claims • Granting of sexual favors is tied to employment decisions • Single incident is enough • Organization is always liable http://www.youtube.com/watch?v=vm_YewSqOy8&feature=youtu.be

31. Hostile EnvironmentHarassment Claims • Pattern of conduct • Related to gender • Is unwanted • Is negative to the “reasonable person” • Affects a term, condition, or privilege of employment

32. Behaviors That Could Be Sexual Harassment • Sexual comments • Undue attention • Verbal sexual abuse • Verbal sexual displays • Body language • Invitations • Physical advances • Explicit sexual invitations

33. Types of Harassing Behavior • Comments • Jokes • Posters • Cartoons • E-mail • Drawings http://youtu.be/LBRAnQ8vzmo http://www.youtube.com/watch?v=bojKifKPkPk&feature=related http://youtu.be/LBRAnQ8vzmo

34. Behaviors are offensive if they: • Perpetuate stereotypes • Degrade another group • Build-up own group • Make others feel uncomfortable

35. What Causes Offensive Behavior? • Hatred toward a group • To express an emotion • Anger • Frustration • Ignorance • Attempts to gain power • To “fit in” with another group

36. Why is Harassment a Problem? • Hurts workplace relationships • Causes emotional distress • Causes physical distress • Decreases productivity • Increases turnover and absenteeism • Increases legal liability

37. Discouraging Harassment • Don’t laugh at offensive behavior • Speak your mind • Let employees know when they are crossing the line

38. What to do if you think you are being harassed • Talk to the individual • yellow light • red light • Talk to your supervisor or to the HR Director • all complaints are taken seriously • an investigation will occur • think about what you want the outcome to be • don’t publicize your complaint

39. Responding to a Complaint

40. Liability of the Organization • Victims must be encouraged to come forward • Every complaint or suspicion must be investigated • Appropriate action must follow the investigation

41. Investigating Complaints • Investigation must be prompt • Complaints must be kept confidential to protect the accused • Actions must be taken to protect the accuser during the investigation • Due process • Appropriate action must be taken

42. Affirmative Action

43. Let's Talk What is affirmative action? Is it a good idea?

44. Affirmative Action Strategies • Intentional recruitment of minority applicants • Removal of supervisor and employee prejudices • Identification and removal of employment practices that work against minority employees • Preferential hiring andpromotion of minorities

45. Reasons for Affirmative Action Plans • Involuntary • Government regulation • Court order • Voluntary • Consent decree • Desire to be a good citizen • community relations • customer relations • hope that diversity will increase productivity

46. No Was there a history of discrimination? Plan is illegal Yes Yes Does the plan only benefit actual victims of discrimination? Plan is Legal No What population was used to establish goals? Area Plan is illegal Qualified Work Force Did plan trammel the rights of nonminorities? Yes Plan is illegal No Is there an ending point to the plan? No Plan is illegal Yes Plan is Legal

47. Legality of Preferential HiringWas there a history of discrimination? • A history of discrimination must be demonstrated • Numeric disparity • can establish history • numeric disparity by itself may not be enough • Affirmative action posture and efforts will also be considered • Other reasons, such as lack of interest in the position, must be considered along with the disparity

49. Legality of Preferential HiringDoes the plan benefit people who were not the actual victims of discrimination?

50. Legality of Preferential HiringWhat population was used to establish hiring or promotion goals? • Area population • Qualified work force • minimum standards • minority interest in occupation