Opportunity and Safety Human Resource Management

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Chapter 3
The Legal Environment:
Equal Employment
Opportunity and Safety
Human Resource Management
Gaining A Competitive Advantage
TWELFTH EDITION
Raymond Noe, John Hollenbeck, Barry Gerhart,
Patrick Wright
© 2021 McGraw Hill. All rights reserved. Authorized only for instructor use in the classroom.
No reproduction or further distribution permitted without the prior written consent of McGraw Hill.
© McGraw Hill 2
Learning Objectives1
LO 3-1 Identify the three branches of government and the
role each plays influencing the legal environment of
human resource management.
LO 3-2 List the major federal laws that require equal
employment opportunity and the protections
provided by each of these laws.
LO 3-3 Discuss the roles, responsibilities, and requirements
of the federal agencies responsible for enforcing
equal employment opportunity laws.
LO 3-4 Identify the three theories of discrimination under
Title VII of the Civil Rights Act and apply these
theories to different discrimination situations.
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Learning Objectives2
LO 3-5 Identify behavior that constitutes sexual harassment,
and list things that an organization can do to
eliminate or minimize it.
LO 3-6 Discuss the legal issues involved with preferential
treatment programs.
LO 3-7 Identify the major provisions of the Occupational
Safety and Health Act (1970) and the rights of
employees that are guaranteed by this act.
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The Legal System in the United States
LO 3-1
Three Branches
• Legislative Branch
• House of Representatives
• Senate
• Executive Branch
• President
• Regulatory agencies
• Judicial Branch
• U.S. District Courts
• U.S. Courts of Appeals
• Supreme Court
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Equal Employment Opportunity1
LO 3-2
Equal Employment Opportunity (EEO)
• Ensures that all individuals have an equal chance for
employment, regardless of race, color, religion, sex, age,
disability, or national origin
• Enforced through constitutional amendments, legislation,
executive orders, and court decisions
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Equal Employment Opportunity2
Constitutional Amendments
• Thirteenth Amendment
• Abolished slavery
• Fourteenth Amendment
• Provides equal protection for all citizens and requires due process
in state action
• Only applicable to state actions
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Equal Employment Opportunity3
Congressional Legislation
• Reconstruction Civil Rights Acts (1866 and 1871)
• Grants all citizens right to make, perform, modify, and terminate
contracts and enjoy all benefits, terms, and conditions of
contractual relationship
• Equal Pay Act of 1963
• Requires men and women performing equal jobs to receive equal
pay
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Equal Employment Opportunity4
Congressional Legislation continued
• Title VII of the Civil Rights Act of 1964
• Forbids discrimination based on race, color, religion, sex, or
national origin
• Age Discrimination in Employment Act of 1967
• Prohibits discrimination in employment against individuals 40 years
of age and older
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Figure 3.1 Age Discrimination Complaints, 1991 to 2017
Access the text alternative for slide images.
SOURCE: Equal Employment Opportunity Commission, “Age Discrimination in Employment Act (Charges Filed with EEOC),”
https://www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.
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Equal Employment Opportunity5
Congressional Legislation continued
• Rehabilitation Act of 1973
• Requires affirmative action in employment of individuals with
disabilities
• Vietnam Era Veteran’s Readjustment Assistance Act of
1974
• Requires federal contractors and subcontractors to take affirmative
action toward employing Vietnam veterans
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Equal Employment Opportunity6
Congressional Legislation continued
• Pregnancy Discrimination Act
• Prohibits discrimination on basis of pregnancy, childbirth, or related
medical conditions
• Civil Rights Act of 1991
• Prohibits discrimination (same as Title VII)
• Americans with Disabilities Act (ADA) of 1990
• Prohibits discrimination against individuals with disabilities
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Table 3.2 Maximum Punitive Damages Allowed under the
Civil Rights Act of 1991
EMPLOYER SIZE DAMAGE LIMIT
14 to 100 employees $ 50,000
101 to 200 employees $ 50,000
201 to 500 employees $ 200,000
More than 500 employees $ 300,000
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Equal Employment Opportunity7
Executive Orders
• Executive Order 11246
• Prohibits government contractors and subcontractors from
discrimination based on race, color, religion, sex, and national
origin.
• Executive Order 11478
• Requires the federal government to base all its employment
policies on merit and fitness, and specifies that race, color, sex,
religion, and national origin should not be considered.
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Enforcement of Equal Employment Opportunity1
LO 3-3
Equal Employment Opportunity Commission (EEOC)
• Investigation and resolution
• Lilly Ledbetter Fair Pay Act
• Information gathering
• Issuance of guidelines
• Uniform Guidelines on Employee Selection Procedures
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Enforcement of Equal Employment Opportunity2
Office of Federal Contract Compliance Programs (OFCCP)
• Agency responsible for enforcing executive orders that
cover companies doing business with federal government.
• Must have written affirmative action plan consisting of:
• Utilization analysis
• Goals and timetables
• Action steps
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Types of Discrimination1
LO 3-4
Theories of Discrimination
• Disparate treatment
• Disparate impact
• Reasonable accommodation
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Table 3.3 Comparison of Discrimination Theories1
DISPARATE
TREATMENT
DISPARATE
IMPACT
REASONABLE
ACCOMMODATION
Show Intent? Yes No Yes
Show Intent? Individual is a member
of a protected group,
was qualified for the job,
and was turned down
for the job, and the job
remained open
Statistical
disparity in the
effects of a
facially neutral
employment
practice
Individual has a belief
or disability, provided
the employer with
notice (request to
accommodate), and
was adversely
affected by a failure to
be accommodated
Employer’s
defense
Produce a legitimate,
nondiscriminatory
reason for the
employment decision or
show bona fide
occupational
qualification (BFOQ)
Prove that the
employment
practice bears a
manifest
relationship with
job performance
Job-relatedness and
business necessity,
undue hardship, or
direct threat to health
or safety
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Table 3.3 Comparison of Discrimination Theories2
DISPARATE
TREATMENT
DISPARATE
IMPACT
REASONABLE
ACCOMMODATION
Plaintiff’s
rebuttal
Reason offered was
merely a “pretext” for
discrimination
Alternative
procedures exist
that meet the
employer’s goal
without having
disparate impact
Monetary
damages
Compensatory and
punitive damages
Equitable relief
(for example:
back pay)
Compensatory and
punitive damages (if
discrimination was
intentional or
employer failed to
show good-faith
efforts to
accommodate)
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Types of Discrimination2
Disparate Treatment
• When individuals are treated differently because of race,
sex, or the like
• The plaintiff’s burden
• Prima facie
• The defendant’s rebuttal
• Bona fide occupational qualification (BFOQ)
• The plaintiff’s rebuttal
• Mixed motive cases
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Types of Discrimination3
Disparate Impact
• Occurs when a neutral employment practice
disproportionately excludes a protected group from
employment opportunities
• The plaintiff’s burden
• Four-fifths rule
• Standard deviation rule
• Wards Cove Packing Co. v. Atonio
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Types of Discrimination4
Disparate Impact continued
• Defendant’s rebuttal
• Must show that the employment practice is a “business necessity”
• Plaintiff’s rebuttal
• Argue that other employment practices could sufficiently meet the
employer’s goal without adverse impact
• Griggs v. Duke Power
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Types of Discrimination5
Pattern and Practice
• Plaintiffs attempt to show three things in class action
pattern and practice lawsuits
• Statistical disparities between composition of some group within
the company compared to some other relevant group
• Individual acts of intentional discrimination that suggest statistical
disparity is a function of the larger culture
• Promotion and/or pay procedures leave too much discretion to
managers, leading to unconscious biases
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Types of Discrimination6
Reasonable Accommodation
• Religion and accommodation
• Employees must demonstrate they have a legitimate religious
belief and provided employer with notice of need to accommodate,
and that adverse consequences occurred due to employer’s failure
to accommodate
• Disability and accommodation
• Plaintiff must show that she is a qualified applicant with a disability
and that adverse action was taken by a covered entity
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Figure 3.2 Religious Discrimination Complaints, 2000 to
2017
Access the text alternative for slide images.
SOURCE: Equal Employment Opportunity Commission, “Religion-Based Charges (Charges Filed with EEOC),” https://www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm.
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Retaliation for Participation and Opposition
Facing Retaliation
• Title VII states that employers cannot retaliate against
employees for opposing a perceived illegal employment
practice or participating in a proceeding related to alleged
illegal employment practice.
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Current Issues Regarding Diversity and Equal
Employment Opportunity1
LO 3-5
Sexual Harassment
• Refers to unwelcome sexual advances
• Charges have been decreasing since 2010
• Takes place in two ways:
• Quid pro quo
• Hostile working environment
• Filings by men have increased
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Figure 3.3 Sexual Harassment Charges, 2010 to 2018
Access the text alternative for slide images.
SOURCE: Charges Alleging Sex-Based Harassment (Charges filed with Equal Employment Opportunity Commission) FY 2010 – FY 2018,
https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm.
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Table 3.6 EEOC Definition of Sexual Harassment
Unwelcome sexual advances, requests for sexual
favors, and other verbal or physical contact of a sexual
nature constitute sexual harassment when
1. Submission to such conduct is made either explicitly or implicitly
a term or condition of an individual’s employment,
2. Submission to or rejection of such conduct by an individual is
used as the basis for employment decisions affecting such
individual, or
3. Such conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.
SOURCE: EEOC guideline based on the Civil Rights Act of 1964, Title VII.
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Current Issues Regarding Diversity and Equal
Employment Opportunity2
LO 3-6
Affirmative Action and Reverse Discrimination
• Affirmative action programs increase minority
representation
• Imposed quota programs
• Leads to question of reverse discrimination
• Ricci v. DeStefano
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Current Issues Regarding Diversity and Equal
Employment Opportunity3
Outcomes of the Americans with Disabilities Act
• Increased litigation
• Many cases being filed are not based on the rights that
Congress intended to protect
• Only 17.5% of people with disabilities are employed,
compared to 65% of the general population
© McGraw Hill 31
Current Issues Regarding Diversity and Equal
Employment Opportunity4
Gender Equity
• Equity in pay
• Equity in representation
• Not at the highest levels
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Current Issues Regarding Diversity and Equal
Employment Opportunity5
LGBT Issues
• Most businesses are more inclusive.
• Employment law has not caught up.
• Proposed Equality Act of 2017 amends Title VII to include
sexual orientation
• Unlikely to pass
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Employee Safety 1
LO 3-7
The Occupational Safety and Health Act (OSHA)
• Authorizes federal government to establish and enforce
occupational safety and health standards for all places of
employment engaging in interstate commerce.
• Employee rights under OSHA
• General duty clause
• NIOSH’s occupational safety and health standards
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Table 3.8 Rights Granted to Workers Under OSHA
Employees have the right to:
1. Work in safe and healthful workplaces;
2. Know about hazardous chemicals in their workplaces;
3. Receive information about injuries and illnesses in their workplaces;
4. Complain or request hazard correction from their employers;
5. Receive training about workplace hazards;
6. Examine hazard exposure and medical records;
7. File a complaint with OSHA;
8. Participate in an OSHA inspection; and
9. Be free from retaliation for exercising rights.
SOURCE: “Employee’s Role & Rights Under the OSH Act,” Lion Technology, 2013, https://www.lion.com/lion-news/june-2013/employees-role-rights-under-the-osh-act
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Employee Safety 2
The Occupational Safety and Health Act (OSHA) continued
• OSHA inspections
1. Compliance officer reviews employer’s records of deaths, injuries,
and illnesses.
2. Compliance officer, typically accompanied by a representative of
employer, conducts a “walkaround” tour of employer’s premises.
3. Employee interviews may take place during the tour.
4. In a closing conference, compliance officer discusses findings with
employer, noting any violations.
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Employee Safety 3
The Occupational Safety and Health Act (OSHA) continued
• Citations and penalties
• Compliance officer can issue a citation to employer that specifies
the exact practice or situation that violates the act.
• Employer must post the citation.
• Fines may be assessed against employer.
• Criminal penalties may also be assessed.
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Employee Safety 4
The Occupational Safety and Health Act (OSHA) continued
• The Effect of OSHA
• Raised level of awareness of occupational safety
• Does not directly regulate employee behavior
© McGraw Hill 38
Employee Safety 5
Safety Awareness Programs
• Instill symbolic and substantive changes in organization’s
emphasis on safety
• Identifying and communicating job hazards
• Identify through:
• Job hazard analysis technique
• Technic of operations review (TOR)
• Communicate employee’s risk through multitude of media
• Recognize two audiences: new/inexperienced workers and
older/experienced workers
© McGraw Hill 39
Employee Safety 6
Safety Awareness Programs continued
• Reinforcing safe practices
• Safety incentive programs
• Focus on specific injuries or disabilities
• Promoting safety internationally
• Difficult due to cultural differences
© McGraw Hill 40
Table 3.10 A 10-Step Program for Reducing Eye-Related
Injuries
1. Conduct an eye hazard job analysis.
2. Test all employees’ vision to establish a baseline.
3. Select protective eyewear designed for specific operations.
4. Establish a 100% behavioral compliance program for eyewear.
5. Ensure that eyewear is properly fitted.
6. Train employees in emergency procedures.
7. Conduct ongoing education programs regarding eye care.
8. Continually review accident prevention strategies.
9. Provide management support.
10. Establish written policies detailing sanctions and rewards for
specific results.
SOURCE: From T. W. Turrif, “NSPB Suggests 10-Step Program to Prevent Eye Injury,” Occupational Health and Safety 60 (1991), pp. 62–66. Copyright © Media Inc.
Reprinted with permission.
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