Transcript Document

Chapters 2, 3, 4
Legal Compliance/EEO
Sources of Laws and Regulations
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Common law
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State and Federal Constitutional Laws
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Example: California - Article One (Right to Privacy)
Executive Orders
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Employment at will
11246, as amended by 11365 (nondiscrimination
under federal contracts)
Agencies
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Equal Employment Opportunity Commission
(EEOC), Dept. of Labor (DOL), Office of Federal
Contract Compliance Programs) OFCCP
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Sources of Laws and Regulations
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Statutory Laws (State and Federal laws and
acts)
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Civil Rights Act, Title VII (as amended)
Age Discrimination in Employment Act
Americans with Disabilities Act (as amended)
Rehabilitation Act
Immigration Reform and Control Act
Pregnancy Discrimination Act
Employment Polygraph Protection Act
Equal Pay Act
California Fair Employment and Housing Act
(FEHA)
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EEO Concepts
 Equal

Employment that is not affected by illegal
discrimination.
 Blind
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Employment Opportunity (EEO)
to differences
Differences among people should be ignored and
everyone should be treated equally.
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Major EEO Laws - Federal
 Civil
Rights Act of 1964, Title VII
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Established the Equal Opportunity Commission to
enforce the act’s provisions.
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Coverage
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All private employers with 15 or more employees
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All educational institutions, public and private
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State and local governments
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Public and private employment agencies
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Labor unions with 15 or more employees
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Joint labor/management apprenticeship committee
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Major EEO Laws - State
 California’s
Fair Employment and Housing Act
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Established the Department of Fair Employment and
Housing
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Coverage
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All private employers with 5 or more employees
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Any person acting as the agent of the employer,
directly or indirectly
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State and local governments
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Employment agencies
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Discrimination
 Discrimination
- one person (or group) is
treated differently from another person (or
group).
 Unlawful discrimination – when the reason for
the difference in treatment is related to
membership of a protected category.
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Discrimination

It is illegal to for organizations to discriminate
against employees in all employment
practices, including
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Advertisements
Applications, screening, and interviews
Hiring, transferring, promoting, terminating, or
separating employees
Working conditions
Participation in a training or apprenticeship
program, employee organization, or union
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Protected Classes
 Federal
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Individuals within a group identified for protection
under equal employment laws and regulation.
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Race, ethnic origin, color
• Age (40 or over)
Disability
• Military experience • Religion
Marital status • Sexual orientation • Gender
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Protected Classes
 California
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Individuals within a group identified for protection
under California’s Fair Employment and Housing
Act.
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Race
• Medical Condition
Color
• Pregnancy
Religion
• Marital Status
Veteran’s Status
• Sex (Inc. gender identity)
National Origin
• Sexual Orientation
Ancestry
• Age (40 and over)
Physical Disability (including HIV and AIDS)
Mental Disability
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Legal Issues
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Bona Fide Occupational Qualification (BFOQ)
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Reasonably necessary to the normal operation of
the particular business
Bona Fide Seniority Systems
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Law permits use of seniority systems if they are not
the result of an intention to discriminate
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Protected Classes
 California
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– additional protected classes
Individuals within a group identified for protection
under California’s Fair Employment and Housing
Act.
 Request for Family Care Leave
 Request for Leave for Employee’s Own Serious
Health Condition
 Request for Pregnancy Disability Leave
 Retaliation for Reporting Patient Abuse in TaxSupported Institutions
2-12
Disability Protections
Person – Federal Americans with
Disabilities Act (ADA), including Amendments
Act of 2008 (ADAAA) effective 1/1/09
 Disabled
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Someone who has a physical or mental impairment
that substantially limits major life activities, who
has a record of such impairment, or who is
regarded as having such an impairment.
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Final interpretive guidance on Amendment Act of
2008 issued by EEOC in March 2011.
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Disability Protections
Person – California Fair Employment
and Housing Act (FEHA)
 Disabled
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Someone who has a physical or mental impairment
that limits life activities, who has a record of such
impairment, or who is regarded as having such an
impairment.
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Broader in scope than Federal regulation.
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Disability Protections
Person – California Fair Employment
and Housing Act (FEHA)
 Disabled
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Duty for employer to reasonably accommodate a
disability.
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Duty to engage in a good faith interactive process with
an employee regarding any reasonable
accommodations that might be available to permit the
employee to perform the essential functions of a
position.
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Duty to engage in a good faith interactive process even
with an employee who is not disabled but the whom the
employer regards as disabled.
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Discrimination?
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Discrimination
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Anti-discrimination laws also prohibit:
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Retaliating against an individual for filing a charge
of discrimination, participating in an investigation, or
opposing discriminatory practices.
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Discrimination
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Discrimination
 Disparate
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Occurs in employment-related situations when
either:
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Treatment
Different standards are used to judge different
individuals, or the same standard is used, but it is not
related to the individuals’ jobs
The outcome of the employer’s actions, not the
intent, is considered by the regulatory agencies or
courts when deciding whether or not illegal
discrimination has occurred.
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Disparate Treatment –
Burden of Proof
A
plaintiff alleging employment discrimination
must:
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Be a member of a protected group.
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Show disparate treatment existed.
 Once
a court rules that a prima facie case
(evidence that, unless rebutted, would be
sufficient to prove a fact) has been made, the
burden of proof shifts to the employer.
Discrimination
 Adverse
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(Disparate) Impact
Occurs when substantial underrepresentation of
protected-class members results from employment
decisions that work to their disadvantage.
Griggs vs. Duke Power (1971) decision:
1. Lack of discriminatory intent is no employer
defense if discrimination occurs.
2. The employer has the burden of proof in
proving that an employment requirement is a
job-related “business necessity.” No prima
facie case is needed by employee first.
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Adverse (Disparate) Impact
Example
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Affirmative Action
 Affirmative
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Action
Program undertaken by an organization to improve
job opportunities for and increase the utilization of
protected classes in its workforce.
Applies to qualified individuals within protected
classes.
Not a mandate to employ unqualified candidates or
to give preferential treatment to one in a protected
class at the expense of over another individual in a
protected class.
Not legal to have hiring quotas.
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Affirmative Action
 Affirmative
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Action
Could be voluntary by company or company and its
union
Could be required by court order or the Equal
Employment Opportunity Commission (EEOC) to
remedy past wrongs by a company
Could be required by Office of Federal Contract
Compliance Programs (OFCCP) – Federal
government contractors with 50 or more employees
and government contracts of $50,000 or more)
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Affirmative Action - California
 Public Employers
 Affirmative action is prohibited in some situations due to
the passage of Proposition 209 in 1996
 Also known as California Civil Rights Initiative
 This Proposition amended the State Constitution to
prohibit discrimination against or granting preferential
treatment to any individual or group in the operation of
public employment, public education, or public
contracting
 Prohibited based on race, sex, color, ethnicity, and
national origin
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Affirmative Action
Affirmative Action Plan (AAP)
A document reporting on the
composition of an employer’s
workforce, required for
federal contractors.
AAP Metrics
• Availability analysis
• Utilization analysis
• Goals and timetables
FIGURE
3–3 Why
The
Debate about
Affirmative
Arguments:
Affirmation
Action
is Needed Action
Arguments: Why Affirmation Action is Not Needed
Other Staffing Laws: Employee
Polygraph Protection Act (1988)
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Purpose
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Prohibited practices
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Prevent most private employers from using
a polygraph on job applicants or employees
Requiring applicants or employees to take a polygraph
Using results of a polygraph for employment decisions
Discharging or disciplining individuals for refusal to take
a polygraph
Enforcement
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Enforced by Department of Labor
Noncompliance may result in fines up to $10,000
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Other Staffing Laws:
European Union
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Council Regulation 1612/68 – Freedom of Movement
for Workers Within the Community (1968)
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Ensures mobility of workers within the EU. Eliminates
direct/indirect discrimination based on nationality with
regard to employment, remuneration, and other working
conditions.
Directive on Equal Treatment of Men and Women
(1976 and 2006)
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Equal treatment for access to employment, vocational
training, promotion, and working conditions. applicants
or employees to take a polygraph
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Other Staffing Laws:
European Union
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Directive on Equal Treatment Disregarding Race or
Ethnic Origin (2000)
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Sets principle of equal treatment between persons
irrespective of racial or ethnic origin.
Directive on Acquired Rights (1977 and 1998)
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Upon a transfer of employment, the employee’s terms
and conditions, including benefits and collective
bargaining agreements, have some protection from
change, their employment transfers to the new
employer, there is an obligation to inform and consult
worker representatives, and there is a protection from
dismissal arising from the transfer.
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Other Staffing Laws:
European Union
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EU Directive 91/533
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Employees have the right to a written description of
employment terms within two months of hiring.
If no written contract is provided, a contract is implied.
Includes temporary workers on assignments longer than
one month or part-time schedules exceeding eight hours
per day.
An employer must amend the contract the change
employment terms (pay, hours, duties, etc.)
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Extraterritorial Application of Title
VII, ADA, EEO Regulations
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Exemption – if compliance with U.S. law would cause
a company to violate the law of the country in which
the workplace is located.
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Applies to U.S. citizens employed outside the U.S. by
U.S. firms.
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Extraterritorial Application of Title
VII, ADA, EEO Regulations
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Applies to U.S. citizens employed outside the U.S. by
non-U.S firms only if the non-U.S employer is shown
to be under the control of a U.S. firm.
Place of incorporation will control whether considered
U.S. employer.
Four factors to determine whether sufficient control –
presence of all four is not required; courts evaluate all
of the circumstances.
Four criteria:
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Interrelation of operations
Common management
Centralized control of labor relations
Common ownership or financial control of the employer
and the non-U.S. corporation
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Managing Diversity
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Accepting and valuing differences between people
Strategically driven (not legally driven)
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Based on a more diverse workforce now and in the
future
Assumes that diverse groups will create new ways of
working together effectively
Aims to promote inclusiveness
Benefits - increases marketing opportunities,
recruitment, creativity, and positive business image
If flexibility and creativity are valued as keys to
competitiveness, diversity is critical for an
organization's success
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