Employment Law Report
Purpose of Assignment
The purpose of this assignment is to increase learners’ comprehension of human resources management, laws governing employment, and trends shaping human resource management.
In this assignment, you will discuss lessons learned about human capital and laws governing human capital. Please refer to the resources below to assist with the assignment.
Resources: Human Resource Management: Ch. 2; Supplemental Resources.
Choose your organization or one you know well to use for this assignment.
Develop a 1,050-word report including the following:
- Briefly describe the management of human capital in the organization.
- Describe three employment laws and the consequences of non-compliance.
- Assess how your organization might structure its policies, practices, and or culture to ensure compliance.
- Here is the reading
Equal Opportunity Laws Enacted from 1964 to 1991
Learning Objective 2-1
Explain the importance of and list the basic features of Title VII of the 1964 Civil Rights Act and at least five other equal employment laws.
HRCI Knowledge Base icon Hardly a day goes by without equal opportunity lawsuits at work.2 One survey of corporate counsels found that such lawsuits were their biggest litigation fears.3 Performing day-to-day supervisory tasks like hiring employees without understanding these laws is fraught with peril.
Actually, laws barring discrimination against minorities in the United States are nothing new. The Fifth Amendment to the U.S. Constitution (ratified in 1791) states that “no person shall be deprived of life, liberty, or property, without due process of the law.” The Thirteenth Amendment (1865) outlawed slavery, and courts have held that it bars racial discrimination. The Civil Rights Act of 1866 gives all persons the same right to make and enforce contracts and to benefit from U.S. laws.4 But as a practical matter, Congress and presidents avoided dramatic action on implementing equal employment until the early 1960s. At that point, civil unrest among minorities and women and changing traditions prompted them to act. Congress passed a multitude of new civil rights laws.
Title VII of the 1964 Civil Rights Act
Title VII of the 1964 Civil Rights Act was one of the first of these laws. As amended by the 1972 Equal Employment Opportunity Act, Title VII states that an employer cannot discriminate based on race, color, religion, sex, or national origin. Specifically, it states that it shall be an unlawful employment practice for an employer:
To fail or refuse to hire or to discharge an individual or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
To limit, segregate, or classify employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title VII bars discrimination on the part of most employers, including all public or private employers of 15 or more persons and most labor unions. It also covers all private and public educational institutions, the federal government, and state and local governments. It bars public and private employment agencies from failing or refusing to refer for employment any individual because of race, color, religion, sex, or national origin.
Title VII established the Equal Employment Opportunity Commission (EEOC) to administer and enforce the Civil Rights Act at work. It consists of five members appointed by the president with the advice and consent of the Senate. Each member serves a 5-year term. In popular usage, the EEOC also includes the thousands of staff the EEOC has around the United States. They receive and investigate job discrimination complaints from aggrieved individuals. When the EEOC finds reasonable cause that the charges are justified, it attempts (through conciliation) to reach an agreement.5 If this fails, it can go to court. The EEOC may file discrimination charges on behalf of aggrieved individuals, or the individuals may file on behalf of themselves.6 We’ll discuss the EEOC procedure later in this chapter.
Various U.S. presidents signed executive orders expanding equal employment in federal agencies. For example, the Johnson administration (1963–1969) issued Executive Orders 11246 and 11375. These required that government contractors with contracts of more than $50,000 and 50 or more employees take affirmative action to ensure employment opportunities for those who may have suffered past discrimination. They also established the Office of Federal Contract Compliance Programs (OFCCP). It implements the orders and ensures compliance.7
Equal Pay Act of 1963
Under the Equal Pay Act of 1963 (amended in 1972), it is unlawful to discriminate in pay on the basis of sex when jobs involve equal work; require equivalent skills, effort, and responsibility; and are performed under similar working conditions. Pay differences derived from seniority systems, merit systems, and systems that measure earnings by production quantity or quality or from any factor other than sex do not violate the act. Unfortunately, this act notwithstanding, women still earn only about 70% as much as men in similar jobs; we’ll address this inequity and how to deal with it in our chapter on establishing strategic pay plans.
Age Discrimination in Employment Act of 1967
The Age Discrimination in Employment Act of 1967 (ADEA) made it unlawful to discriminate against employees or applicants who are between 40 and 65 years of age. Subsequent amendments effectively ended most mandatory retirement at age 65. Most states and local agencies, when acting as employers, must also adhere to the ADEA.8
You can’t get around the ADEA by replacing employees who are, say, 60 with someone over 40. In one case the U.S. Supreme Court held that an employee who is over 40 years of age might sue for discrimination if a “significantly younger” employee replaces him or her, even if the replacement is also over 40. The Court didn’t specify what “significantly younger” meant. Here the plaintiff was replaced by someone 16 years younger.9
Younger managers especially may have to guard against ageist prejudices. For example, a 54-year-old former manager alleged that Google fired him because his supervisor said he wasn’t a “cultural fit.” Such comments prompted the California Court of Appeals to let the manager’s case proceed.10
Lawyers like the ADEA. It allows jury trials and double damages to those proving “willful” discrimination.11
Vocational Rehabilitation Act of 1973
The Vocational Rehabilitation Act of 1973 requires employers with federal contracts of more than $2,500 to take affirmative action in employing handicapped persons. It does not require hiring unqualified people. It does require an employer to take steps to accommodate a handicapped worker unless doing so imposes an undue hardship on the employer.
Pregnancy Discrimination Act of 1978
The Pregnancy Discrimination Act of 1978 prohibits using pregnancy, childbirth, or related medical conditions to discriminate in hiring, promotion, suspension, or discharge, or in any term or condition of employment. Furthermore, under the act, if an employer offers its employees disability coverage, then it must treat pregnancy and childbirth like any other disability, and include it in the plan as a covered condition.12
More women are suing under this act, and progressive human resources notwithstanding, it’s easy to see why.13 As one example, an auto dealership fired an employee after she said she was pregnant. The reason? Allegedly, “In case I ended up throwing up or cramping in one of their vehicles. They said pregnant women do that sometimes, and I could cause an accident. . . .”14 Managers therefore should base such decisions on “medical documentation, not on a manager’s interpretation.”15
Federal Agency Guidelines
The federal agencies charged with ensuring compliance with these laws and executive orders have their own implementing guidelines. These spell out recommended procedures for complying with the law.16
The EEOC, Civil Service Commission, Department of Labor, and Department of Justice together issued Uniform Guidelines.17 These set forth “highly recommended” procedures for things like employee selection and record keeping. As an example, they specify that employers must validate any employment selection devices (like tests) that screen out disproportionate numbers of women or minorities, and they explain how to do so. (We explain this procedure in Chapter 6.) The EEOC and other agencies also periodically issue updated guidelines clarifying and revising their positions on matters such as sexual harassment. The American Psychological Association has its own (non–legally binding) Standards for Educational and Psychological Testing.
Early Court Decisions Regarding Equal Employment Opportunity
Several court decisions between 1964 and 1991 helped clarify courts’ interpretations of equal employment opportunity (EEO) laws such as Title VII.
GRIGGS V. DUKE POWER COMPANY Griggs was a landmark case because the Supreme Court used it to define unfair discrimination. Lawyers sued the Duke Power Company on behalf of Willie Griggs, an applicant for a job as a coal handler. The company required its coal handlers to be high school graduates. Griggs claimed this requirement was illegally discriminatory. He said it wasn’t related to success on the job, and it resulted in more blacks than whites being rejected for these jobs. Griggs won the case. The Court’s decision was unanimous. In his written opinion, Chief Justice Burger laid out three crucial guidelines affecting equal employment legislation.
First, the Court ruled that the discrimination does not have to be overt to be illegal. The plaintiff does not have to show that the employer intentionally discriminated against the employee or applicant. Instead, the plaintiff just has to show that discrimination took place.
Second, the Court held that an employment practice (in this case, requiring the high school degree) must be job related if it has an unequal impact on members of a protected class. (For example, if arithmetic is not required to perform the job, don’t test for arithmetic.)
Third, Chief Justice Burger’s opinion placed the burden of proof on the employer to show that the hiring practice is job related. Thus, the employer must show that the employment practice (in this case, requiring a high school degree) is necessary for satisfactory job performance if the practice discriminates against members of a protected class. Said Justice Burger,
The act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.18
For employers, Griggs established these five principles:
A test or other selection practice must be job related, and the burden of proof is on the employer.
An employer’s intent not to discriminate is irrelevant.19
If a practice is “fair in form but discriminatory in operation,” the courts will not uphold it.
Business necessity is the defense for any existing program that has adverse impact. The court did not define business necessity.
Title VII does not forbid testing. However, the test must be job related (valid), in that performance on the test must relate to performance on the job.
ALBEMARLE PAPER COMPANY V. MOODY In the Albemarle case, the Court provided more details on how employers could prove that tests or other screening tools relate to job performance.20 For example, the Court said that if an employer wants to test candidates for a job, then the employer should first clearly document and understand the job’s duties and responsibilities. Furthermore, the job’s performance standards should be clear and unambiguous. That way, the employer can identify which employees are performing better than others. The Court’s ruling also established the EEOC (now Federal) Guidelines on validation as the procedures for validating employment practices.
The Laws Enacted from 1991 to the Present
Learning Objective 2-2
Describe post-1990 employment laws including the Americans with Disabilities Act and how to avoid accusations of sexual harassment at work.
The Civil Rights Act of 1991
Several subsequent Supreme Court rulings in the 1980s limited the protection of women and minority groups under equal employment laws. For example, they raised the plaintiff’s burden of proving that the employer’s acts were in fact discriminatory. This prompted Congress to pass a new Civil Rights Act. President George H. W. Bush signed the Civil Rights Act of 1991 (CRA 1991) into law in November 1991. The effect of CRA 1991 was to roll back equal employment law to where it stood before the 1980s decisions, and to place more responsibility on employers.
BURDEN OF PROOF First, CRA 1991 addressed the issue of burden of proof. Burden of proof—what the plaintiff must show to establish possible illegal discrimination, and what the employer must show to defend its actions—plays a central role in equal employment cases.21 Today, in brief, once an aggrieved applicant or employee demonstrates that an employment practice (such as “must lift 100 pounds”) has an adverse impact on a particular group, then the burden of proof shifts to the employer, who must show that the challenged practice is job related.22 For example, the employer has to show that lifting 100 pounds is required for performing the job in question, and that the business could not run efficiently without the requirement—that it is a business necessity.23
MONEY DAMAGES Before CRA 1991, victims of intentional discrimination (which lawyers call disparate treatment) who had not suffered financial loss and who sued under Title VII could not then sue for compensatory or punitive damages. All they could expect was to have their jobs reinstated (or to get a particular job). They were also eligible for back pay, attorneys’ fees, and court costs.
CRA 1991 makes it easier to sue for money damages in such cases. It provides that an employee who is claiming intentional discrimination can ask for (1) compensatory damages and (2) punitive damages, if he or she can show the employer engaged in discrimination “with malice or reckless indifference to the federally protected rights of an aggrieved individual.”24
MIXED MOTIVES Some employers in “mixed-motive” cases had taken the position that even though their actions were discriminatory, other factors like the employee’s dubious behavior made the job action acceptable. Under CRA 1991, an employer cannot avoid liability by proving it would have taken the same action—such as terminating someone—even without the discriminatory motive.25 If there is any such motive, the practice may be unlawful.26
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) of 1990 prohibits employment discrimination against qualified disabled individuals.27 It prohibits employers with 15 or more workers from discriminating against qualified individuals with disabilities, with regard to applications, hiring, discharge, compensation, advancement, training, or other terms, conditions, or privileges of employment.28 It also says employers must make “reasonable accommodations” for physical or mental limitations unless doing so imposes an “undue hardship” on the business.
The ADA does not list specific disabilities. Instead, EEOC guidelines say someone is disabled when he or she has a physical or mental impairment that “substantially limits” one or more major life activity. Initially, impairments included any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems, or any mental or psychological disorder, but the list is growing.29 The act specifies conditions that it does not regard as disabilities, including homosexuality, compulsive gambling, pyromania, and certain disorders resulting from the current illegal use of drugs.30
Mental disabilities account for the greatest number of ADA claims.31 Under EEOC ADA guidelines, “mental impairment” includes “any mental or psychological disorder, such as . . . emotional or mental illness.” Examples include major depression, anxiety disorders, and personality disorders. The ADA also protects employees with intellectual disabilities, including those with IQs below 70–75.32 The guidelines say employers should be alert to the possibility that traits normally regarded as undesirable (such as chronic lateness, hostility, or poor judgment) may reflect mental impairments. Reasonable accommodation might then include providing barriers between work spaces.
QUALIFIED INDIVIDUAL Just being disabled doesn’t qualify someone for a job, of course. Instead, the act prohibits discrimination against qualified individuals—those who, with (or without) a reasonable accommodation, can carry out the essential functions of the job. The individual must have the requisite skills, educational background, and experience. A job function is essential when, for instance, it is the reason the position exists, or it is so highly specialized that the employer hires the person for his or her expertise or ability to perform that particular function. For example, when an Iowa County highway worker had an on-the-job seizure, his driver’s license was suspended and the court ruled he had no ADA claim because he couldn’t perform the essential functions of the job.33
REASONABLE ACCOMMODATION If the individual can’t perform the job as currently structured, the employer must make a “reasonable accommodation” unless doing so would present an “undue hardship.”34 Reasonable accommodation might include redesigning the job, modifying work schedules, or modifying or acquiring equipment or other devices; widening door openings or permitting telecommuting are examples.35 For example, about 70% of working-age blind adults are unemployed or underemployed. Existing technologies such as screen-reading programs might enable most to work successfully.36
Attorneys, employers, and the courts continue to work through what “reasonable accommodation” means.37 In one classic case, a Walmart door greeter with a bad back asked if she could sit on a stool while on duty. The store said no. The federal district court agreed door greeters must act in an “aggressively hospitable manner,” which can’t be done from a stool.38 Standing was an essential job function. You can use technology and common sense to make reasonable accommodation (see Figure 2-1).
Examples of How to Provide Reasonable Accommodation
A list presents examples of how to provide reasonable accommodation
THE ADA AMENDMENTS ACT OF 2008 (ADAAA) Employers traditionally prevailed in almost all—96%—federal circuit court ADA decisions.39 One case typifies what plaintiffs faced. An assembly worker sued Toyota, arguing that carpal tunnel syndrome prevented her from doing her job.40 The U.S. Supreme Court ruled that the ADA covers carpal tunnel syndrome only if her impairments affect not just her job performance, but also her daily living activities. The employee admitted that she could perform personal chores such as washing her face and fixing breakfast. The Court said the disability must be central to the employee’s daily living (not just to his or her job).41