legal compliance i mana 4328 dennis c. veit [email protected]
TRANSCRIPT
Staffing Laws
Classifying Employees FLSA and Internal Revenue Code
Equal Opportunity Civil Rights Acts (1964 and 1991) ADA and ADEA
Affirmative Action Executive Order 11246
Immigration Immigration Reform and Control Act
Wages and Benefits Equal Pay Act
Equal Opportunity vs. Affirmative Action
Equal Opportunity Employment practices must guarantee equal opportunity to
employees and applicants based on protected class differences. Composition of workforce depends on applicants as long as all groups
have equal opportunity.
Affirmative Action Employment practices should encourage a workforce that reflects the
gender and racial composition of the local population. Companies should seek applicants and provide opportunities for
underutilized minorities to guarantee representation in the workforce. No business is ever required to hire someone not qualified for a job.
Equal Opportunity vs. Affirmative Action
Equal Opportunity Applies to private employers with more than 15 employees. Defined by a number of laws and court cases Enforced by the EEOC EEOC responds to complaints
Affirmative Action Applies to government contractors and court-ordered
employers. NO affirmative action requirements for others. Defined by Executive Order 11246 Written document with targets for minority hiring. Enforced by the OFCCP OFCCP responds to complaints and conducts audits
Primary EEO Laws
Title VII of the Civil Rights Act 1964 Civil Rights Act of 1991
Age Discrimination in Employment Act of 1967 Americans with Disabilities Act of 1990 (ADA)
Civil Rights Act of 1964 Title VII
(a) It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
Civil Rights Act of 1964 Title VII
(a) It shall be an unlawful employment practice for an employer –
DISPARATE TREATMENT(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
ADVERSE IMPACT(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
Court Cases
Griggs v. Duke Power (1971) Adverse impacts must be job related Discriminatory intent not sufficient defense
McDonnell Douglas vs. Green (1972) To establish prima facie in disparate treatment cases
Presentation of Evidence
Must prove that rejection was discriminatory.Plaintiff
Provides a clear and specific job‑based explanation for actions.
Defendant
He or She demonstrates: a) Protected class b) Was qualified c) Was rejected d) The job remained open
“McDonnell-Douglas Test”
Plaintiff
Disparate TreatmentDisparate Treatment
Demonstrates Job Demonstrates Job relatedness (validity) and relatedness (validity) and business necessitybusiness necessity
Proves that an alternative Proves that an alternative practice is available that practice is available that has less adverse impacthas less adverse impact
Statistical Tests:Statistical Tests:
4/5’ths Rule4/5’ths Rule
Adverse ImpactAdverse Impact
4/5ths RULE4/5ths RULE The selection rate for any protected group should be The selection rate for any protected group should be no less than 4/5ths or 80% of the selection rate for the group with no less than 4/5ths or 80% of the selection rate for the group with the highest rate of selection. If SR1 *.8 > SR2, then Adverse the highest rate of selection. If SR1 *.8 > SR2, then Adverse Impact.Impact.
Number Hired Number Hired Selection Rate (SR) =Selection Rate (SR) =
Number of ApplicantsNumber of Applicants
Selection Rate Tests
4/5ths Rule
Assume 200 employees were selected from a pool of 500 applicants (200 black and 300 white). Of the employees selected 60 were black and 140 were white.
Selection Rates:
White = 140 / 300 = 46.7%
Black = 60 / 200 = 30%
4/5ths Rule: .467 X .8 = .374 = 37.4%
Since 30% (actual selection rate) is less than 37.4% (4/5ths
comparison selection rate) evidence of discrimination exists.
Defense of Discrimination
Merit Judged on an individual basis
Bona Fide Occupational Qualification Must be present for all who hold that job If is required for the job then it does not matter that it
has adverse impact Business necessity Seniority
Civil Rights Act of 1991
Followed Wards Cove Packing vs. Antonio (1989) Prohibits “race norming” of tests. Plaintiffs can sue for punitive damages in cases of
intentional discrimination. Adverse impact prohibited for each piece of a
selection system. Burden of proof on the employer. Prohibits quotas in selection.
Equal Opportunity Defined
Protected Classes Race, color, religion, sex and national origin Age and disability (added through ADA and ADEA)
Reverse discrimination
Disparate treatment vs. Adverse Impact
Private employers with more than 15 employees.EEO does NOT require preferential treatmentQuotas are illegal
http://www.eeoc.gov/abouteeo/overview_practices.html
EEO Applied
Organizations with more than 15 employees. Uniform Guidelines on Employee Selection Procedures EEO does NOT require preferential treatment - Quotas are illegal Must keep records of applicants for 6 months Employer must show practices are “job-related for the position in question
and consistent with business necessity”
Company Defenses Merit Bona Fide Occupational Qualification Business Necessity
An “alternative employment practice” must be accepted if shown to meet the business necessity and have less adverse impact.
EEO vs. Affirmative Action
Equal Employment Opportunity Collection of laws that apply to all organizations Aimed at ending discrimination
Affirmative Action Executive Order 11246 Applies only to (1) government and contractors (2) court
orders and (3) voluntary programs. NO affirmative action requirements for others. Written document with targets for minority hiring.
Equal Employment Opportunity Commission (EEOC) All private employers with more than 15 employees EEO – 1 for more than 100 employees
Office Of Federal Contract Compliance Programs (OFCCP)
Government contractors or sub-contractors.
Covers approximately 26 million or nearly 22% of the total civilian workforce.
OFCCP requires a contractor to engage in a self-analysis for the purpose of discovering any barriers to equal employment opportunity.
Investigates complaints of discrimination.
Enforcement Agencies
Affirmative Action Program (AAP)
Develop a written program for each establishment
Identify potential problems in the participation and utilization of women and minorities.
Gives the specific procedures and the good faith efforts to provide equal employment opportunity.
If there is underutilization, provides gives targets (not hard quotas) and timetables.
Expanded efforts in outreach, recruitment and training.
AAP Statistics
Flow Statistics Examines selection rates by group 4/5 th’s rule / Std. Deviation Rule
Availability and utilization analyses Employee distribution compared with local population “Stock Statistics”
Concentration Statistics Examining placement of women and minorities by job
category
Availability Analysis
U.T. System determines minority availability by: The minority population in the surrounding labor market. The minority unemployment rate in the surrounding labor market. The percentage of the minority workforce as compared with the
total workforce in the surrounding labor market and Texas. The availability of promotable and transferable minorities within U.
T. System Administration.
http://www.eeoc.gov/stats/jobpat/2000/pmsa/2800.html
http://www.census.gov/hhes/www/eeoindex.html
Utilization Analysis
Compares the % percentage of minorities and women in each Job Group with the calculated % availability of minorities and women.
"Underutilized" is defined as having fewer than would reasonably be expected by their availability.
Job Category:
Management Trainee
Current Trainees Availability
Non Minority
Minority Non Minority
Minority
90% 10% 70% 30%
Concentration Statistics
0%10%20%30%40%50%60%70%80%90%
100%
Men Women
Executives
Managers
Supervisors
Technicians
Staff
Admin Asst.
How to Proceed?
What can companies do to navigate the differences between targets and preferences (which are legal) vs. quotas and reverse discrimination (which are illegal)?
ADEA (1967) and Age Discrimination
Age Discrimination in Employment Act of 1967 Protects employees 70 million workers over 40 Nearly 50% of workers
Cases most often arise from layoff or dismissal It is legitimate to consider salary in layoffs No standard of “reverse discrimination” for age suits
Disparate impact rules apply Adams vs. Florida Power Corp
Dismissed by the Supreme Court 2002 Smith vs. City of Jackson
Affirmed by the Supreme Court 2005
Discrimination is prohibited against individuals with disabilities who can perform essential job functions with reasonable accommodation unless it would cause undue hardship.
Employers not required to change work rules if they are business necessity.
OFCCP vs. Ozark Airlines (1986) – employers must prove applicant could not perform the job safely.
Americans with Disabilities Act (ADA)
Disability is a physical or mental impairment that affects a major life activity.
Essential vs. marginal job functions
Categories of "reasonable accommodations": changes to a job application process changes to the work environment changes to the way a job is usually done employee training
Americans with Disabilities Act (ADA)
“Undue hardship” means significant difficulty or expense. Not only financial difficulty Those that would fundamentally alter the nature or operation of
the business.
Every request for reasonable accommodation should be evaluated separately taking into account: Nature and cost of the accommodation needed Overall financial resources of the business Number of persons employed by the business Impact of the accommodation on the business
Undue Hardship
Record Keeping
EEOC requires that employers keep all personnel records for one year after termination.
Written descriptions of benefits plans (such as pensions) and any seniority or merit system.
Fair Labor Standards Act (FLSA) and the Equal Pay Act, require employers to keep payroll records for at least three years.
All records relevant to wages including wage rates, job evaluations, and seniority and merit systems.
Employment Information Report (EEO-1)
EEO-1 survey is authorized by Title VII and the Equal Employment Opportunity Act of 1972.
All employers with 15 or more employees are required to keep employment records as.
Employers are required to file an EEO-1 report on an annual basis if they: Employ 100 or more employees Employ 50 or more employees and have Federal
contracts totaling $50,000 or more.
This all means….
Make sure that selection criteria are fair. Use validated selection tests. Use the same procedure for all applicants. Collect data and keep records. Only ask job-related questions. No medical exams before making job offers. No business is ever required to hire someone not
qualified for a job.