Introduction to Legal Issues in Human Resource Management

Basic HR Issues to Consider when

Creating New Ventures

Modified from Marie Mitchell (2006), UN Lincoln, Advanced HR Management

Terms: Equal Employment Opportunity (EEO) Provide Americans an equal opportunity to compete

for jobs for which they are qualified Regardless of race, age, gender, religion, national origin, or

disability, Implies

Evaluation of candidates for jobs based on characteristics that determine success and failure

Fair and equal treatment on the job

Terms: Discrimination Defined

Giving an unfair advantage (or disadvantage) to the members of a particular group in comparison with the members of other groups

Includes reverse discrimination

Discrimination implies excluding someone unfairly

Selection implies exclusion Key is to select non-discriminately

Forms of Discrimination

1. Disparate Treatment: treating applicants or employees differently (e.g., discriminating) because of their membership in a protected class

Proved by Direct method: defendant admitting disparate treatment, Comparative evidence: others not in protected group treated differently Mixed-motives: plaintiff only needs to prove that protected class membership

was a part of the reason for disparate treatment

2. Adverse Impact: discrimination has an “adverse impact” on the protected group as a whole

4/5th Rule: adverse impact is indicated when less than 4/5 ths of the percentage of total people within the population is not represented in the employees (see next slide)

Adverse Impact: Example

Federal Anti-Discrimination Laws Civil Rights Act of 1866

Gave all citizens right to enter into contracts No remedies for unjust treatment provided

Civil Rights Act 1871 Gave individuals rights to sue if they felt deprived of rights

guaranteed in Constitution or other laws

Equal Pay Act 1963 Prohibits wage discrimination based on gender Equal pay for equal worth (equal skill, effort and responsibility

under similar working conditions)

Civil Rights Act (CRA, 1964), Title VII Prohibits discrimination in employment based on race,

color, religion, sex and national origin Covers

Private employers with 15+ employees State and local governments Private and public educational institutions Private and public employment agencies Labor unions with 15+ employees Joint labor/management committees that govern apprenticeship

or training programs Foreign subsidiaries of U.S. organizations employing U.S.

citizens

Created the Equal Employment Opportunity Commission (EEOC)

CRA (1964), Title VII (Cont.)

1972 Amendments Prohibit denial, termination or suspension of government

contracts to employers sustaining an accepted AA program

Affirmative Action (AA) Actions appropriate to overcome effects of past or present

policies, practices or other barriers to EEO AA Plans

Development, implementation and maintenance of special efforts to ensure workforce is representative of society where business operates

Required for employers with 100+ employees and with $50,000+ in federal contracts

Civil Rights Act (1991) Extended Title VII coverage to federal employees Allows for suing for compensatory and punitive

damages Provided “extraterritorial enforcement,” protecting

U.S. employees on overseas assignments

Age Discrimination in Employment Act (ADEA, 1967)

Prohibits discrimination in pay, benefits or continued employment for those 40+, unless a BFOQ (bona fide occupational qualification)

Prohibits mandatory retirement ages, except in cases of public safety (e.g., airline pilots)

Amended by Older Workers Protection Act (1990) Prohibits discrimination of benefits and requires signing age

discrimination waivers at layoff

Pregnancy Discrimination Act (1978) Prohibits discrimination against pregnant employees

In hiring or employment decisions (promotion) Employer cannot determine dates of leave Employer cannot provide health plans that do not cover

pregnancy

Requires any pregnancy to be treated as any other medical disability

Does not require reinstatement to the same job Requires reinstatement to an equivalent job

Immigration Reform & Control Act (IRCA, 1986)

Covers All employers in U.S. All employees

Mandates1. Employer cannot hire or continue to employ “unauthorized—

illegal—aliens”

2. Employers must verify the identity and work authorization of every new employee

3. Employers may not discriminate based on citizenship or national origin provided workers are legal

4. Certain illegal aliens must have amnesty rights (e.g., been pardoned)

Regulatory body = U.S. Department of Labor

Americans with Disabilities Act (ADA, 1990) Prohibits employers with 15+ employees from

discriminating against a qualified individual with a disability Qualified individual – one who is able to perform essential

functions of the job with or without accommodation Employer required to make “reasonable accommodations” for

qualified, disabled, employees “Reasonable” means that it must not put an undue hardship on

the employer Disability – a physical or mental impairment that substantially

limits one or more major life activities If person has an impairment If person has record of impairment If employer thinks person has impairment

ADA (1990) (Cont.)

5 Implications for Employers1. Any company open to public will have to be made accessible to

those with physical disabilities Expenses and “undue hardship”

2. Reasonable accommodation for those qualified with disabilities Reasonable accommodation include but are not limited to:

Making facilities readily accessible to/usable to disabled Job restructuring, modifying work schedules, reassignment to other

position Acquiring or modifying equipment or devices, adjusting or modifying

examinations, training materials or policies, and providing qualified readers or interpreters

ADA (1990) (Cont.)

3. Pre-employment testing is permissible only if all employees are subjected to them and cannot be given until conditional offer of employment is made

4. Employee medical information must be kept separate

5. Drug-testing rules remain intact

Family Medical Leave Act (FMLA, 1993) Covers private employers with 50+ employees

Employee must have min. of 25 hrs/wk or 1,250 hrs/yr

Provides employees up to 12 weeks’ unpaid leave/yr for: Birth, adoption or foster care of child w/in 1 year of child’s

arrival Care for spouse, parent or child with serious health condition Employees own health condition prevents working

Requires Continuation of group health coverage during leave Employee allow to return to same or equivalent job

Other Federal Laws to Keep in MindLaw Brief Description

Executive Order 11246 (1965) Prohibits discrimination of race, color, religion or national origin as condition of employment by federal agency, contractor or subcontractor with contracts of $10,000+; employers must maintain AA Program in each facility with 50+ employees

Executive Order 11375 (1967) Amends E.O. 11246, prohibiting discrimination of sex

Executive Order 11478 (1967) Amends E.O. 11246 and 11375, prohibiting discrimination based on political affiliation, marital status or physical disability

Rehabilitation Act (1973) Federal contractors, who receive $2,500+ in federal contracts/annually and subcontractors must actively recruit qualified disabled individuals

Vietnam Era Veterans Readjustment Act (1974)

Federal contractors and subcontractors required AA Plan to ensure EEO for Vietnam-era veterans.

Uniformed Services Employment and Re-employment Rights Act (1994)

Regardless of size of organization, cannot discriminate on basis of person’s membership or potential membership in armed forces; must reemploy returning uniformed service members

Regulating Agencies EEOC Regulates Many EEO Laws

CRA (1964, 1991) and Title VII Equal Pay Act (1963) ADEA (1967) Pregnancy Discrimination Act (1978) ADA (1990)

Office of Federal Contract Compliance Programs Regulates Contract Compliance

Executive Orders 11246, 11375 and 11478 Rehabilitation Act (1973) Vietnam Era Veterans Readjustment Act (1974)

Guidelines to Employment Inquiries

Guidelines to Employment Inquiries (Cont.)

Guidelines to Employment Inquiries (Cont.)

Guidelines to Employment Inquiries (Cont.)

Responding to Claim of Unlawful Discrimination EEOC may

Make determination w/o request for additional information Request additional information Hold a fact-finding conference

Things to keep in mind with on-site investigation Negotiate mutually agreeable date and time for inspection Ask for description of investigation goals and try to prepare Review list of employees EEOC wants to talk to, observe or

job/work areas they wish to see Designate company rep to attend all EEOC interviews of

managerial employees