Week 2 (Legal Issues), Katalyst

7/28/2019 Week 2 (Legal Issues), Katalyst

http://slidepdf.com/reader/full/week-2-legal-issues-katalyst 1/20

Legal Issues in HRM



Legal Quiz

1. Discrimination in employment processes isillegal.

2. It is necessary to show intent to win a claim of illegal employment discrimination.

3. Courts have generally upheld management’sright to dismiss employees even when there is no

cause. 4. Because of the Age Discrimination in Employment

Act (ADEA), it is illegal to refuse to hire a 20 yearold for a position based on the belief that he/she is

“too young.” 5. Because of the ADEA, mandatory retirement

programs are illegal. 6. According to the Americans with Disabilities Act

(ADA), having AIDS or being HIV-positive isconsidered a protected disability.



Legal Quiz, continued

7. Federal ADA law protects obesity as adisability.

8. Rehabilitated drug users are protected by

ADA. 9. Alcoholics are protected by ADA.

10. Providing the necessary accommodations

for persons with disabilities is generally quiteexpensive for employers.

11. Affirmative Action is synonymous with

preferential treatment.



Outline Overview

I. Laws and Case Law

Equal Pay Act (1963) men & women must be paid same $ Night shifts, training, experience, knowledge.

Title VII of the CRA of 1964 Two types of illegal discrimination (treatment and

impact)

Case: Griggs v. Duke Power (1971, U.S.)

“Employment at Will”

Age Discrimination in Employment Act (ADEA)

(1967) over 40 years old Americans with Disabilities Act (ADA) (1990)

Family and Medical Leave Act (1993)

II. Affirmative Action vs. DiversityManagement



Equal Pay Act (1963)

Equal pay for equal work, regardless of sex Unless the difference can be justified by factor

other than sex E.g., ??????

Plaintiff must prove 2 Ees opp. sex Same establishment

Receive unequal pay

On the basis of sex For work that is equal

How big of a difference?

But beware of “aggregation fallacy”…



General EEO Law

7 protected classes in federal EEO law

???Sex, Age, Disability, Origin, Race, Religion,Color.

Title VII of CRA of 1964 covers…

?? Same seven protected class listed above.

Applies to any and all screening and selectiondevices, as well as to all HR functions (e.g.,training, compensation)



Illegal Discrimination

#1

Disparate (Adverse) Treatment

Using race, color, religion, etc as a basis for treating

people unequally “Intentional” discrimination

Adverse Impact

A practice – possibly neutral on its face but withoutbusiness justification-- that has unequal consequencesfor people of different race, color, religion, etc.

4/5ths (or 80%) rule-of-thumb (EEOC)



Griggs v. Duke Power (1971)

#2

Three major outcomes: Originated concept of Adverse Impact

Tests must demonstrate validity (jobrelevance) IF disproportionate number of minorities selected.

Intent of employer is irrelevant



Defenses for Illegal Discrimination

BFOQ

“Bona-fide occupational qualification”

Courts have interpreted these very narrowly

Business Necessity Job relevance/validity



“Employment at Will” Employment relationship is a voluntary one

We have no "right" to a job (unless under contract)

Employers have no right to keep us working against ourwill (unless under contract)

#3

“For good cause, for no cause, or even for causemorally wrong”

Some exceptions:

Contract and Tort Theory Non-retaliation (whistle-blowing and discrimination claims)

But best advice is to treat employees as if causewere required



Age Discrimination in Employment Act

Protected class = people over 40 years old?? #4

Case: Hodgson v. First Federal (1972)

Because of ADEA, no mandatory retirement,generally

Exceptions:

Execs 65+ in high policy-making positions withpensions

Tenured faculty (originally)

Public Safety Officers

#5



Americans with Disabilities Act Protected class: Qualified AND…

Physical/mental impairment Record of impairment, or

Regarded as being impaired

Physical impairment: any physiological disorder,disfigurement, or anatomical loss affecting oneof the body systems.

#6

Mental impairment: Any mental or physicaldisorder, such as mental retardation, organicbrain syndrome, emotional or mental illness, andspecific learning disabilities.



Americans with Disabilities Act

NOT considered impairments: Left-handedness; Pregnancy; Quick temper;

Inability to read; Broken bones; Obesity.

#7

Moral, illegal, and other non-impairments(“Jesse Helms exceptions”)

Sexual orientation; transvestism/transexualism; pedophilia; illegal drug use;voyeurism; compulsive gambling;kleptomania, pyromania.

#8 & 9



Americans with Disabilities Act

Reasonable Accommodations

Advice: ASK the employee with disability

Organization’s Defense: “Undue Hardship”

However, #10

69% cost NOTHING

Only 3% cost more than $1000





Family & Medical Leave Act (FMLA)

After leave, employer must either Restore employee to the position held when

the leave commenced; or

Restore employee to equivalent position withequivalent benefits, pay, and other conditionsof employment.

Leave is unpaid, but employer mustcontinue group health benefits asnormal employment



Paid Family Leave Law

(Fairly) recent California law (7/2004) Workers must receive 55 percent of pay for

up to six weeks to care for newborn or look

after a seriously ill child, parent, spouse ordomestic partner

30-some other states have followedCalifornia’s lead to institute paid familyleave



Affirmative Action

Components Recruitment of underrepresented groups

Changing management's attitudes

Removing discriminatory obstacles Preferential treatment

#11

“Reverse Discrimination”? Case: Regents of the University of

California v. Bakke (1978)



Consent Agreements

Martin v. Wilks (1989, U.S.)

City consented to hiring and promotion goals(Level 1 “Consent Agreement”)

Statement that selection procedure must be valid

Agreement that the selection procedure cannot haveany adverse impact

An agreement that there will be hiring by quota suchthat a certain percentage of minorities will be hired orpromoted

SC ruled that a consent agreement b/w plaintiff and employer CAN be challenged

However, Congress overruled with CRA of 1991



Managing Diversity

“Business case” for diversity Lower costs

Improved employee attitudes

More effective recruitment and retention Increased sales, market share, and corporate

profits

Increased creativity, innovation, and group

problem-solving effectiveness and productivity

Keys to successful diversity programs:

Accountability, development, recruitment

Week 2 (Legal Issues), Katalyst

Documents