Chapters 2, 3, 4Legal Compliance/EEO

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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 11365 (nondiscrimination

under federal contracts)Agencies Equal Employment Opportunity Commission

(EEOC), Dept. of Labor (DOL), Office of Federal Contract Compliance Programs) OFCCP

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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)

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EEO Concepts

Equal Employment Opportunity (EEO) Employment that is not affected by illegal

discrimination.

Blind to differences Differences among people should be ignored and

everyone should be treated equally.

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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

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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

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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.

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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

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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

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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

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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

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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

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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.

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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.

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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.

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Discrimination

Anti-discrimination laws also prohibit: Retaliating against an individual for filing a charge

of discrimination, participating in an investigation, or opposing discriminatory practices.

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Discrimination

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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.

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.

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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:

1. Lack of discriminatory intent is no employer defense if discrimination occurs.

2. 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.

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Adverse (Disparate) Impact Example

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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.

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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)

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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

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

FIGURE 3–3 The Debate about Affirmative ActionArguments: Why Affirmation Action is Needed

Arguments: Why Affirmation Action is Not Needed

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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

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Other Staffing Laws: EmployeePolygraph 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

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Other Staffing Laws: FairCredit 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