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Module 2: Workforce Planning and Employment

26% PHR (59 questions)17% SPHR (38 questions)

Any student use of these slides is subject to the same License Agreement that governs the student’s use of the SHRM Learning System materials.

Title VII of the Civil Rights Act (1964)

• Prohibits discrimination against protected classes.

• Makes it unlawful to deny employment opportunities, training, or career advancement to protected classes.

• As amended, prohibits discrimination because of pregnancy, childbirth, or related conditions.

• Prohibits sexual harassment.

• Prohibits compensation discrimination.

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Which of the following organizations would be subject to the EEOC rules and regulations specified in Title VII and its amendments?

A. A five-person, family-owned computer repair business

B. An independent college with 80 employeesC. A franchise operation with two full-time managers

and ten part-time employeesD. A new labor union with 14 members

Answer: B 2-3© SHRM

Title VII Exceptions

Several exceptions to the definition of discrimination exist, including:

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Civil Rights Act (1991)

• Allows jury trials when a plaintiff seeks compensatory or punitive damages.

• Compensatory damages are awarded to make an injured person “whole.”

• Under federal law, punitive damages are not possible against a governmental unit or agency.

• Amount of compensatory and punitive damages is based on the size of the employer’s workforce.

Related case: Kolstad v. American Dental Association

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Compensatory and Punitive Damages

Maximum Recoveryper Individual Number of Employees

$50,000 15–100

$100,000 101–200

$200,000 201–500

$300,000 501 or more

The maximum recovery amount is for a total of compensatory and punitive damages.

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Age Discrimination in Employment Act (1967)

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ADEA Exceptions

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• Age can be a BFOQ if necessary for the normal operation of the business.

• Exceptions can occur when:

Pregnancy Discrimination Act (1978)

A company:

• May not refuse to hire or fire a woman simply because she is pregnant.

• May not force a pregnant employee to leave if she is ready, willing, and able to work.

• Must treat pregnancy the same as any other temporary disability.

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Americans with Disabilities Act (1990)

• Prohibits discrimination against qualified individuals with disabilities.

• Applies to employers with 15 or more employees.

• Requires reasonable accommodation unless the employer can show undue hardship.

• Prohibits preemployment medical examinations except after a job offer.

• Requires accessibility to new public transportation facilities and buildings.

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ADA Terms

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According to case law, a person may not be protected by the ADA if the condition is

A. temporary.

B. already covered by the FMLA.

C. controlled by mitigating measures.

D. not correctable through reasonable accommodation.

Answer: C2-12© SHRM

Uniform Guidelines on Employee Selection Procedures (1978)

• Cover all aspects of the selection process.

• Prohibit selection procedures that have adverse impact on protected groups.

• Adverse impact occurs when the rate for a protected group is less than 80% of the rate for the group with the highest selection rate (also known as the 80% rule or four-fifths rule).

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A company interviews 60 males and 40 females. They hire 30 males and 10 females. What is the selection rate of females?

A. 25%B. 30%C. 40%D. 50%

Answer: A

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Is there adverse impact?

Answer:Yes.

Here is the calculation:50% of the males were hired. To determine adverse impact, multiply 4/5 or 80% 50% = 40%.

Adverse impact occurred because 25% of the females were hired, not the required threshold of 40%.

Group

Number Interviewed

Number Hired

Percentage Hired

Males 60 30 50% Females 40 10 25%

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Affirmative Action Obligations

• Federal laws that apply to federal government contractors and impose AA obligations include:– Executive Order 11246 (women and minorities).

– Vietnam Era Veterans Readjustment Assistance Act and Jobs for Veterans Act.

– Section 503 of the Rehabilitation Act.

• Legal obligations on employers depend on:– Value of the federal contracts/subcontracts

– Number of employees.

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Rehabilitation Act (1973)

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Reasonable Accommodation

Reasonable Accommodation

Job accessibility

Nondiscriminatory treatment

Jobdesign

Qualifications

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Immigration Reform and Control Act (1986)

• Prohibits discrimination on the basis of national origin or citizenship.

• Establishes penalties for hiring illegal aliens.

• Places burden on employers to verify an employee’s identity and right to work.

• Employers and employees fill out Form I-9 within three days of hiring.

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Which document would prove identity and right to work in the U.S.?

A. A U.S. military ID card

B. A Social Security card

C. A driver’s license with photo

D. Permanent Resident Card

Answer: D

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Visa Categories

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WARN Act (1988)

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Worker Adjustment and Retraining Notification (WARN) Act

Employee Polygraph Protection Act (1988)

• Regulates the use of lie detectors.

• Allows the use of lie detector tests when:– The employer is the federal, state, or local

government.

– Prospective employees will work in security-sensitive, drug manufacturing, or intelligence situations.

– Current employees are under reasonable suspicion of theft or embezzlement.

• Employer may not discharge an employee based solely on test results or refusal to test.

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Consumer Credit Protection Act (1968)• Limits the amount of wages that can be garnished or withheld in any one week to satisfy creditors (generally 25% of disposable pay).

• Prohibits employers from terminating an employee for one single indebtedness.

• Garnishment restrictions do not apply to certain bankruptcy court orders or debts due for federal or state taxes.

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Consumer CreditProtection Act (1968)

Fair Credit Reporting Act (1970)

• Applicant/employee must provide written authorization before a consumer report is ordered.

• Employer must provide:

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Fair and Accurate Credit Transactions Act

• Provides relief to employers using third parties for workplace investigations.

• Amends the FCRA by eliminating the consent and disclosure requirements when a third party conducts an investigation involving:– Suspected misconduct.

– A violation of law or regulations.

– A violation of any preexisting written policies of the employer.

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Equal Employment Opportunity

– Race.– Gender.– Ethnicity.– Religion.

– Age.– Color. – Military/veteran status.– Disability.

• The term “protected classes” refers to people who are covered under a federal or state discrimination law.

• Laws require employment decisions to be job- and business-related and not made on the basis of:

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Types of Discrimination

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Griggs v. Duke Power

• Landmark case that recognized adverse impact discrimination.

• Found that employment practices can be illegal even when applied to all employees.

• Established that employment discrimination need not be overt or intentional.

• Places burden on the employer to prove that requirements are job-related.

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McDonnell Douglas Corp. v. Green

• Landmark case that established criteria for disparate treatment.

• Ruled that a prima facie case can be shown if an employee:– Belongs to a protected class.

– Applied for a job when the employer sought applicants.

– Was qualified and yet rejected.

– Was rejected but the employer kept looking.

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Other Key Cases

• Albemarle Paper v. Moody– Any test used for

promotion/selection must be a valid predictor for job success.

• Washington v. Davis– A test is legal if it is job-

related even though it has adverse impact.

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• St. Mary’s Honor Center v. Hicks

– An employee must prove that an employer’s reason for an adverse action is based on a lie and that the lie was to cover up discrimination.

• McKennon v. Nashville Banner Publishing Co.

– After-acquired evidence cannot free an employer from discrimination liability.

EEO Reporting

• Annual reporting is required for:– Employers with 100 or more employees.

– Federal contractors with at least 50 employees and contracts of $50,000.

• Reports are due by September 30.

• Posters and officially approved notices must be put in prominent locations where they can be seen by employees.

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Internet Job Applicants: EEOC

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• The EEOC will not issue final guidelines clarifying when Internet job seekers become applicants.

• OFCCP final regulations should be used by federal government contractors and subcontractors.

• For purposes of Title VII, the EEOC recommends that employers who are not federal contractors or subcontractors look to the OFCCP definition of applicant.

Internet Job Applicants: OFCCP

Final regulations require that:

• The individual express interest in employment over the Internet or related electronic data technology.

• The employer consider the individual for employment in a particular position.

• The individual’s expression of interest indicates that the individual possesses the basic qualifications for the position.

• The individual does not remove himself or herself from consideration at any point in the employment process.

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Applicant Flow Data

• Federal government contractors must be able to identify, when possible, the race, gender, and ethnicity of applicants.

• Used to evaluate differences in selection rates among different groups to determine if there is adverse impact.

• Is obtained by:– The use of a self-identification form (preferable).

– A visual survey of applicants.

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Affirmative Action

Employers:

• Identify conspicuous workforce imbalances.

• Focus on hiring, training, compensating, and promoting underrepresented groups.

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Major Elements of an AAP

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Availability Analysis

• Requires that organizations consider internal and external availability to determine the theoretical availability of women and minorities.– Organization compares the percentages of women and

minorities in each group with the theoretical availability.

– OFCCP allows a variety of statistical methods for calculating the comparison, but the “two standard deviations analysis” is recommended.

– Placement goals are set when the percentage of minorities or women is less than reasonably expected given their availability percentage.

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Which of the following is frequently a trigger for an AA audit by the OFCCP?

A. A surge of workers’ compensation claims

B. Membership in a technology-based industry

C. A mass layoff of management employees

D. A federal contract of over $1 million

Answer: D

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Types of Audits

Glass ceiling review

Focused review

Compliance check

Off-sitereview

Compliance review

AuditsAudits

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Fairness Issues

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Employment Practices Liability Insurance

• EPLI covers businesses against claims by workers that their employee rights have been violated.

• Policies cover legal costs whether the company wins or loses.

• Policies usually do not cover:– Punitive damages or civil and criminal penalties.

– Liabilities covered by other insurance such as workers’ compensation.

• Employer may have a duty to notify the carrier upon receipt of a letter from a lawyer, even if no claim has been filed. If not done, coverage could be waived.

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Sexual Harassment

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Sexual Harassment Cases

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Vicarious Liability

• Employers are liable for discriminatory actions by their employees.

• Employers must end harassment through intervention or discipline.

• Employees should utilize preventive and corrective action opportunities.

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Harassment Policy/Prevention

• Have a written policy with a clear definition of harassment and a statement that it will not be tolerated.

• Establish a complaint procedure.

• Provide training and education.

• Investigate every complaint.

• Discipline if necessary.

• Communicate via multiple methods to management and employees.

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Internal Workforce Planning

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Staffing Needs Analysis Process

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