SHRM N ch07

CHAPTER 7:

EMPLOYMENT LAW

Copyright © 2005 South-Western. All rights reserved.

Copyright © 2005 South-Western. All rights reserved. 1–2

Legal Issues: Critical and StrategicLegal Issues: Critical and StrategicLegal Issues: Critical and StrategicLegal Issues: Critical and Strategic

• Significant impact on cost structureSignificant impact on cost structure– Establishment and maintenance of internal Establishment and maintenance of internal

mechanismsmechanisms– Violations can result in significant penaltiesViolations can result in significant penalties

• http://http://www.eeoc.gov/stats/litigation.htmlwww.eeoc.gov/stats/litigation.html

• Makes sense to be an equal opportunity Makes sense to be an equal opportunity employeremployer– Avoid penalties for violationsAvoid penalties for violations– Hire most qualified applicant for job, or to promote Hire most qualified applicant for job, or to promote

most qualified individualmost qualified individual

• Significant impact on cost structureSignificant impact on cost structure– Establishment and maintenance of internal Establishment and maintenance of internal

mechanismsmechanisms– Violations can result in significant penaltiesViolations can result in significant penalties

• http://http://www.eeoc.gov/stats/litigation.htmlwww.eeoc.gov/stats/litigation.html

• Makes sense to be an equal opportunity Makes sense to be an equal opportunity employeremployer– Avoid penalties for violationsAvoid penalties for violations– Hire most qualified applicant for job, or to promote Hire most qualified applicant for job, or to promote

most qualified individualmost qualified individual

http://www.eeoc.gov/stats/litigation.html





Federal Anti-Discrimination LawsFederal Anti-Discrimination LawsFederal Anti-Discrimination LawsFederal Anti-Discrimination Laws

• Civil Rights Act of 1866Civil Rights Act of 1866– Gave all citizens right to enter into contractsGave all citizens right to enter into contracts– No remedies for unjust treatment were No remedies for unjust treatment were

providedprovided

• Civil Rights Act of 1871Civil Rights Act of 1871– Gave individuals right to sue if they felt they Gave individuals right to sue if they felt they

had been deprived of rights under 1866 Acthad been deprived of rights under 1866 Act

• Civil Rights Act of 1866Civil Rights Act of 1866– Gave all citizens right to enter into contractsGave all citizens right to enter into contracts– No remedies for unjust treatment were No remedies for unjust treatment were

providedprovided

• Civil Rights Act of 1871Civil Rights Act of 1871– Gave individuals right to sue if they felt they Gave individuals right to sue if they felt they

had been deprived of rights under 1866 Acthad been deprived of rights under 1866 Act



• Equal Pay Act (1963)Equal Pay Act (1963)– Prohibits wage discrimination based on gender for jobs that Prohibits wage discrimination based on gender for jobs that

require equal skill, effort, and responsibility, and that are require equal skill, effort, and responsibility, and that are performed under similar working conditionsperformed under similar working conditions

– Exceptions to equal payExceptions to equal pay• Bona fide seniority systemsBona fide seniority systems

• Quality of job performance (i.e., merit-based pay systems)Quality of job performance (i.e., merit-based pay systems)

• Quantity of output (i.e., piece-rate pay systems)Quantity of output (i.e., piece-rate pay systems)

• Factors (contingencies) other than sex (gender)Factors (contingencies) other than sex (gender)

• Equal Pay Act (1963)Equal Pay Act (1963)– Prohibits wage discrimination based on gender for jobs that Prohibits wage discrimination based on gender for jobs that

require equal skill, effort, and responsibility, and that are require equal skill, effort, and responsibility, and that are performed under similar working conditionsperformed under similar working conditions

– Exceptions to equal payExceptions to equal pay• Bona fide seniority systemsBona fide seniority systems

• Quality of job performance (i.e., merit-based pay systems)Quality of job performance (i.e., merit-based pay systems)

• Quantity of output (i.e., piece-rate pay systems)Quantity of output (i.e., piece-rate pay systems)

• Factors (contingencies) other than sex (gender)Factors (contingencies) other than sex (gender)



• Civil Rights Act (1964) - Title VII (as amended)Civil Rights Act (1964) - Title VII (as amended)– Title VII prohibits discrimination in employment based on Title VII prohibits discrimination in employment based on

race, color, religion, sex, and national originrace, color, religion, sex, and national origin– Covers conditions of employment: hiring, firing, promotion, Covers conditions of employment: hiring, firing, promotion,

transfer, compensation, and admission to trainingtransfer, compensation, and admission to training– Applies to all private employers with 15 or more employees, Applies to all private employers with 15 or more employees,

state and local governments, educational institutions, state and local governments, educational institutions, employment agencies, and unionsemployment agencies, and unions

– Established the Established the Equal Employment Opportunity CommissionEqual Employment Opportunity Commission (EEOC) to oversee and enforce Title VII and most other (EEOC) to oversee and enforce Title VII and most other federal labor lawsfederal labor laws

• Civil Rights Act (1964) - Title VII (as amended)Civil Rights Act (1964) - Title VII (as amended)– Title VII prohibits discrimination in employment based on Title VII prohibits discrimination in employment based on

race, color, religion, sex, and national originrace, color, religion, sex, and national origin– Covers conditions of employment: hiring, firing, promotion, Covers conditions of employment: hiring, firing, promotion,

transfer, compensation, and admission to trainingtransfer, compensation, and admission to training– Applies to all private employers with 15 or more employees, Applies to all private employers with 15 or more employees,

state and local governments, educational institutions, state and local governments, educational institutions, employment agencies, and unionsemployment agencies, and unions

– Established the Established the Equal Employment Opportunity CommissionEqual Employment Opportunity Commission (EEOC) to oversee and enforce Title VII and most other (EEOC) to oversee and enforce Title VII and most other federal labor lawsfederal labor laws



• Age Discrimination in Employment Act, ADEA Age Discrimination in Employment Act, ADEA (1967, as amended)(1967, as amended)

– Prohibits employment discrimination against employees age Prohibits employment discrimination against employees age 40 or older40 or older

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

– Amended in 1990 by Older Workers Protection Act, which Amended in 1990 by Older Workers Protection Act, which prohibits discrimination in provision of benefits, and required prohibits discrimination in provision of benefits, and required signing of age discrimination waivers at layoffsigning of age discrimination waivers at layoff

– Covers all employers, including federal governmentCovers all employers, including federal government

• Age Discrimination in Employment Act, ADEA Age Discrimination in Employment Act, ADEA (1967, as amended)(1967, as amended)

– Prohibits employment discrimination against employees age Prohibits employment discrimination against employees age 40 or older40 or older

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

– Amended in 1990 by Older Workers Protection Act, which Amended in 1990 by Older Workers Protection Act, which prohibits discrimination in provision of benefits, and required prohibits discrimination in provision of benefits, and required signing of age discrimination waivers at layoffsigning of age discrimination waivers at layoff

– Covers all employers, including federal governmentCovers all employers, including federal government



• Rehabilitation Act (1973)Rehabilitation Act (1973)– Prohibited discrimination by federal (but not private) Prohibited discrimination by federal (but not private)

contractors against handicapped applicants or employeescontractors against handicapped applicants or employees– Definition of handicapped individualsDefinition of handicapped individuals

• Persons with physical or mental impairment that Persons with physical or mental impairment that substantially limits one or more major life activitiessubstantially limits one or more major life activities

• Persons with history or record of such impairmentPersons with history or record of such impairment

• Persons regarded as having such an impairmentPersons regarded as having such an impairment

– Handicapped individuals must be “otherwise qualified” to Handicapped individuals must be “otherwise qualified” to perform (with reasonable accommodation) essential functions perform (with reasonable accommodation) essential functions of job (e.g., no blind bus drivers)of job (e.g., no blind bus drivers)

• Rehabilitation Act (1973)Rehabilitation Act (1973)– Prohibited discrimination by federal (but not private) Prohibited discrimination by federal (but not private)

contractors against handicapped applicants or employeescontractors against handicapped applicants or employees– Definition of handicapped individualsDefinition of handicapped individuals

• Persons with physical or mental impairment that Persons with physical or mental impairment that substantially limits one or more major life activitiessubstantially limits one or more major life activities

• Persons with history or record of such impairmentPersons with history or record of such impairment• Persons regarded as having such an impairmentPersons regarded as having such an impairment

– Handicapped individuals must be “otherwise qualified” to Handicapped individuals must be “otherwise qualified” to perform (with reasonable accommodation) essential functions perform (with reasonable accommodation) essential functions of job (e.g., no blind bus drivers)of job (e.g., no blind bus drivers)



• Pregnancy Discrimination Act (1978)Pregnancy Discrimination Act (1978)– Prohibits employers from discriminating against pregnant Prohibits employers from discriminating against pregnant

employees by requiring that pregnancy be treated as any other employees by requiring that pregnancy be treated as any other medical disability or conditionmedical disability or condition

– Does not require reinstatement of returning employee to same Does not require reinstatement of returning employee to same jobjob

– Does not allow employer to determine dates of leaveDoes not allow employer to determine dates of leave– Employer cannot refuse to hire or promote on basis of Employer cannot refuse to hire or promote on basis of

pregnancypregnancy– Employer cannot provide health plans that do not cover Employer cannot provide health plans that do not cover

pregnancypregnancy

• Pregnancy Discrimination Act (1978)Pregnancy Discrimination Act (1978)– Prohibits employers from discriminating against pregnant Prohibits employers from discriminating against pregnant

employees by requiring that pregnancy be treated as any other employees by requiring that pregnancy be treated as any other medical disability or conditionmedical disability or condition

– Does not require reinstatement of returning employee to same Does not require reinstatement of returning employee to same jobjob

– Does not allow employer to determine dates of leaveDoes not allow employer to determine dates of leave– Employer cannot refuse to hire or promote on basis of Employer cannot refuse to hire or promote on basis of

pregnancypregnancy– Employer cannot provide health plans that do not cover Employer cannot provide health plans that do not cover

pregnancypregnancy



• American With Disabilities Act, ADA (1990)American With Disabilities Act, ADA (1990)– Prohibits all employers with 15 or more employees from Prohibits all employers with 15 or more employees from

discriminating against disabled personsdiscriminating against disabled persons

– Courts have issued ambiguous and sometimes conflicting Courts have issued ambiguous and sometimes conflicting rulings on “medical conditions,” “major life activities,” and what rulings on “medical conditions,” “major life activities,” and what constitutes “disability.” Decisions made on a case-by-case constitutes “disability.” Decisions made on a case-by-case basisbasis

– Determination of “reasonable accommodation”Determination of “reasonable accommodation”• Cost of accommodation and resources of employerCost of accommodation and resources of employer

• Nature of job and workplace safety issuesNature of job and workplace safety issues

• Any relevant collective bargaining provisionsAny relevant collective bargaining provisions

• American With Disabilities Act, ADA (1990)American With Disabilities Act, ADA (1990)– Prohibits all employers with 15 or more employees from Prohibits all employers with 15 or more employees from

discriminating against disabled personsdiscriminating against disabled persons

– Courts have issued ambiguous and sometimes conflicting Courts have issued ambiguous and sometimes conflicting rulings on “medical conditions,” “major life activities,” and what rulings on “medical conditions,” “major life activities,” and what constitutes “disability.” Decisions made on a case-by-case constitutes “disability.” Decisions made on a case-by-case basisbasis

– Determination of “reasonable accommodation”Determination of “reasonable accommodation”• Cost of accommodation and resources of employerCost of accommodation and resources of employer

• Nature of job and workplace safety issuesNature of job and workplace safety issues

• Any relevant collective bargaining provisionsAny relevant collective bargaining provisions


A State Anti-Discrimination LawA State Anti-Discrimination LawA State Anti-Discrimination LawA State Anti-Discrimination Law

• California’s A.B. 2222California’s A.B. 2222– Significantly less restrictive requirements for Significantly less restrictive requirements for

employees to show disabilityemployees to show disability– No limits to damagesNo limits to damages– Burden of proof shifted from employee to employerBurden of proof shifted from employee to employer– Relevance: California law is often harbinger of laws Relevance: California law is often harbinger of laws

adopted elsewhereadopted elsewhere

• California’s A.B. 2222California’s A.B. 2222– Significantly less restrictive requirements for Significantly less restrictive requirements for

employees to show disabilityemployees to show disability– No limits to damagesNo limits to damages– Burden of proof shifted from employee to employerBurden of proof shifted from employee to employer– Relevance: California law is often harbinger of laws Relevance: California law is often harbinger of laws

adopted elsewhereadopted elsewhere



• Civil Rights Act (1991)Civil Rights Act (1991)– Extended Title VII coverage to federal employeesExtended Title VII coverage to federal employees– Allows litigants to sue for compensatory and punitive Allows litigants to sue for compensatory and punitive

damagesdamages– Requires heavier “burden of proof” on part of Requires heavier “burden of proof” on part of

employers in rebutting claims of discriminationemployers in rebutting claims of discrimination– Provided “extraterritorial enforcement” of federal Provided “extraterritorial enforcement” of federal

labor laws in protecting U.S. employees on overseas labor laws in protecting U.S. employees on overseas assignments with U.S. organizationsassignments with U.S. organizations

• Civil Rights Act (1991)Civil Rights Act (1991)– Extended Title VII coverage to federal employeesExtended Title VII coverage to federal employees– Allows litigants to sue for compensatory and punitive Allows litigants to sue for compensatory and punitive

damagesdamages– Requires heavier “burden of proof” on part of Requires heavier “burden of proof” on part of

employers in rebutting claims of discriminationemployers in rebutting claims of discrimination– Provided “extraterritorial enforcement” of federal Provided “extraterritorial enforcement” of federal

labor laws in protecting U.S. employees on overseas labor laws in protecting U.S. employees on overseas assignments with U.S. organizationsassignments with U.S. organizations



• Family and Medical Leave Act, FMLA (1992)Family and Medical Leave Act, FMLA (1992)– Requires employers to provide up to 12 weeks of unpaid Requires employers to provide up to 12 weeks of unpaid

leave for birth, adoption, or serious illness of a child, family leave for birth, adoption, or serious illness of a child, family member, or employee during a 12 month periodmember, or employee during a 12 month period

– Act only covers organizations with fifty or more employeesAct only covers organizations with fifty or more employees– Employee must have been employed minimum of 25 hours Employee must have been employed minimum of 25 hours

per week or 1,250 hours yearlyper week or 1,250 hours yearly– Employees in top 10% of employer’s salary ranges not Employees in top 10% of employer’s salary ranges not

coveredcovered– Employer required to continue employee’s group health Employer required to continue employee’s group health

coverage during leavecoverage during leave– Employee must be allowed to return to same/equivalent jobEmployee must be allowed to return to same/equivalent job

• Family and Medical Leave Act, FMLA (1992)Family and Medical Leave Act, FMLA (1992)– Requires employers to provide up to 12 weeks of unpaid Requires employers to provide up to 12 weeks of unpaid

leave for birth, adoption, or serious illness of a child, family leave for birth, adoption, or serious illness of a child, family member, or employee during a 12 month periodmember, or employee during a 12 month period

– Act only covers organizations with fifty or more employeesAct only covers organizations with fifty or more employees– Employee must have been employed minimum of 25 hours Employee must have been employed minimum of 25 hours

per week or 1,250 hours yearlyper week or 1,250 hours yearly– Employees in top 10% of employer’s salary ranges not Employees in top 10% of employer’s salary ranges not

coveredcovered– Employer required to continue employee’s group health Employer required to continue employee’s group health

coverage during leavecoverage during leave– Employee must be allowed to return to same/equivalent jobEmployee must be allowed to return to same/equivalent job


Exhibit 7-1Exhibit 7-1

EEOC EEOC Complaint Complaint ProcessProcess

Exhibit 7-1Exhibit 7-1

EEOC EEOC Complaint Complaint ProcessProcess


EEOC Enforcement of Federal LawEEOC Enforcement of Federal LawEEOC Enforcement of Federal LawEEOC Enforcement of Federal Law

• Burden of proof initially falls on complainant Burden of proof initially falls on complainant (employee) to demonstrate:(employee) to demonstrate:

– Disparate treatmentDisparate treatment in deliberate discrimination of “protected in deliberate discrimination of “protected class” individual, class” individual, oror

– Disparate (adverse) impactDisparate (adverse) impact as result of application of standard as result of application of standard or treatment applied to all individuals that results in differential or treatment applied to all individuals that results in differential outcomes or consequences for protected groups; usually outcomes or consequences for protected groups; usually demonstrated statistically using “four-fifth’s rule” or “2 demonstrated statistically using “four-fifth’s rule” or “2 standard deviation rule”standard deviation rule”

• Four-fifth’s ruleFour-fifth’s rule states that if selection rate for protected class states that if selection rate for protected class is not 80% of selection rate for majority class, then a is not 80% of selection rate for majority class, then a prima prima faciefacie case of adverse impact is established. case of adverse impact is established.

• Burden of proof initially falls on complainant Burden of proof initially falls on complainant (employee) to demonstrate:(employee) to demonstrate:

– Disparate treatmentDisparate treatment in deliberate discrimination of “protected in deliberate discrimination of “protected class” individual, class” individual, oror

– Disparate (adverse) impactDisparate (adverse) impact as result of application of standard as result of application of standard or treatment applied to all individuals that results in differential or treatment applied to all individuals that results in differential outcomes or consequences for protected groups; usually outcomes or consequences for protected groups; usually demonstrated statistically using “four-fifth’s rule” or “2 demonstrated statistically using “four-fifth’s rule” or “2 standard deviation rule”standard deviation rule”

• Four-fifth’s ruleFour-fifth’s rule states that if selection rate for protected class states that if selection rate for protected class is not 80% of selection rate for majority class, then a is not 80% of selection rate for majority class, then a prima prima faciefacie case of adverse impact is established. case of adverse impact is established.



• Employers rebutting discrimination case:Employers rebutting discrimination case:– Must demonstrate Must demonstrate job-relatednessjob-relatedness of any criteria utilized in of any criteria utilized in

selection processselection process

– Can claim bona fide occupational qualification (BFOQ) that Can claim bona fide occupational qualification (BFOQ) that requires employee to possess particular personal requires employee to possess particular personal characteristic or be member of particular groupcharacteristic or be member of particular group

– Can use of bona fide seniority system not set up to Can use of bona fide seniority system not set up to intentionally discriminate against protected classintentionally discriminate against protected class

– Can claim “business necessity”; i.e., that selection criteria are Can claim “business necessity”; i.e., that selection criteria are essential for safe and efficient operations of the organizationessential for safe and efficient operations of the organization

• Employers rebutting discrimination case:Employers rebutting discrimination case:– Must demonstrate Must demonstrate job-relatednessjob-relatedness of any criteria utilized in of any criteria utilized in

selection processselection process

– Can claim bona fide occupational qualification (BFOQ) that Can claim bona fide occupational qualification (BFOQ) that requires employee to possess particular personal requires employee to possess particular personal characteristic or be member of particular groupcharacteristic or be member of particular group

– Can use of bona fide seniority system not set up to Can use of bona fide seniority system not set up to intentionally discriminate against protected classintentionally discriminate against protected class

– Can claim “business necessity”; i.e., that selection criteria are Can claim “business necessity”; i.e., that selection criteria are essential for safe and efficient operations of the organizationessential for safe and efficient operations of the organization



• Voluntary mediation programVoluntary mediation program– Designed to be fair, impartial, and unbiasedDesigned to be fair, impartial, and unbiased

– By refusing mediation, employers may force By refusing mediation, employers may force employee to go to courtemployee to go to court

– Litigation: Litigation: • Is time-consuming and expensive for employer and Is time-consuming and expensive for employer and

employeeemployee

• Is disruptive to employer’s workplaceIs disruptive to employer’s workplace

• May result in hard feelings toward employerMay result in hard feelings toward employer

• Voluntary mediation programVoluntary mediation program– Designed to be fair, impartial, and unbiasedDesigned to be fair, impartial, and unbiased

– By refusing mediation, employers may force By refusing mediation, employers may force employee to go to courtemployee to go to court

– Litigation: Litigation: • Is time-consuming and expensive for employer and Is time-consuming and expensive for employer and

employeeemployee

• Is disruptive to employer’s workplaceIs disruptive to employer’s workplace

• May result in hard feelings toward employerMay result in hard feelings toward employer


Affirmative ActionAffirmative ActionAffirmative ActionAffirmative Action

• Affirmative Action PlansAffirmative Action Plans– Require organizations to develop, implement, and maintain a Require organizations to develop, implement, and maintain a

program to make special efforts to insure workforce is program to make special efforts to insure workforce is representative of the society where business operatesrepresentative of the society where business operates

– RequiredRequired for organizations with 100 or employees for organizations with 100 or employees andand with with $50,000 or more in federal contracts$50,000 or more in federal contracts

– Filed with Department of Labor & monitored by Filed with Department of Labor & monitored by Office of Office of Federal Contract Compliance Programs (OFCCP)Federal Contract Compliance Programs (OFCCP)

– Considered temporary measures to correct “underutilization” Considered temporary measures to correct “underutilization” of certain protected classesof certain protected classes

• Affirmative Action PlansAffirmative Action Plans– Require organizations to develop, implement, and maintain a Require organizations to develop, implement, and maintain a

program to make special efforts to insure workforce is program to make special efforts to insure workforce is representative of the society where business operatesrepresentative of the society where business operates

– RequiredRequired for organizations with 100 or employees for organizations with 100 or employees andand with with $50,000 or more in federal contracts$50,000 or more in federal contracts

– Filed with Department of Labor & monitored by Filed with Department of Labor & monitored by Office of Office of Federal Contract Compliance Programs (OFCCP)Federal Contract Compliance Programs (OFCCP)

– Considered temporary measures to correct “underutilization” Considered temporary measures to correct “underutilization” of certain protected classesof certain protected classes


Affirmative Action PlansAffirmative Action PlansAffirmative Action PlansAffirmative Action Plans

• Four separate sectionsFour separate sections– Utilization analysis Utilization analysis

• Employer identifies employees by gender, race, ethnicity, Employer identifies employees by gender, race, ethnicity, religion, physical ability, and any other protected classreligion, physical ability, and any other protected class

– Availability analysis Availability analysis • Examines availability for employment of all protected classes Examines availability for employment of all protected classes

in immediate recruiting vicinityin immediate recruiting vicinity

– Identification of problem areas Identification of problem areas • Employer notes over- and under-utilization of certain groupsEmployer notes over- and under-utilization of certain groups

– Narrative statement of corrective action Narrative statement of corrective action • Detailed plans with goals and timetablesDetailed plans with goals and timetables

• Four separate sectionsFour separate sections– Utilization analysis Utilization analysis

• Employer identifies employees by gender, race, ethnicity, Employer identifies employees by gender, race, ethnicity, religion, physical ability, and any other protected classreligion, physical ability, and any other protected class

– Availability analysis Availability analysis • Examines availability for employment of all protected classes Examines availability for employment of all protected classes

in immediate recruiting vicinityin immediate recruiting vicinity

– Identification of problem areas Identification of problem areas • Employer notes over- and under-utilization of certain groupsEmployer notes over- and under-utilization of certain groups

– Narrative statement of corrective action Narrative statement of corrective action • Detailed plans with goals and timetablesDetailed plans with goals and timetables


Sexual HarassmentSexual HarassmentSexual HarassmentSexual Harassment

• Supreme Court rulingsSupreme Court rulings– Meritor Savings BankMeritor Savings Bank

• Sexual harassment is a form of sexual discrimination under Sexual harassment is a form of sexual discrimination under Title VIITitle VII

– Oncale v. Sundowner Offshore ServicesOncale v. Sundowner Offshore Services• Same-sex harassment is actionable under Title VIISame-sex harassment is actionable under Title VII

• Sexual harassment is “an individual’s clear Sexual harassment is “an individual’s clear

rejection of offensive and inappropriate rejection of offensive and inappropriate

(‘unwelcome’) advance”(‘unwelcome’) advance”

• Supreme Court rulingsSupreme Court rulings– Meritor Savings BankMeritor Savings Bank

• Sexual harassment is a form of sexual discrimination under Sexual harassment is a form of sexual discrimination under Title VIITitle VII

– Oncale v. Sundowner Offshore ServicesOncale v. Sundowner Offshore Services• Same-sex harassment is actionable under Title VIISame-sex harassment is actionable under Title VII

• Sexual harassment is “an individual’s clear Sexual harassment is “an individual’s clear

rejection of offensive and inappropriate rejection of offensive and inappropriate

(‘unwelcome’) advance”(‘unwelcome’) advance”


Forms of Sexual HarassmentForms of Sexual HarassmentForms of Sexual HarassmentForms of Sexual Harassment

• Quid pro quoQuid pro quo– Promise or use of work-related benefits or threats to bargain Promise or use of work-related benefits or threats to bargain

with or coerce individual for sexual favorswith or coerce individual for sexual favors

• Hostile working environmentHostile working environment– Presence (perceived or actual) of offensive or threatening Presence (perceived or actual) of offensive or threatening

environmentenvironment

• Harassment standards used by court:Harassment standards used by court:– ““Reasonable woman” test (also “reasonable man”)Reasonable woman” test (also “reasonable man”)– Pattern of behavior (frequency and pervasiveness), or Pattern of behavior (frequency and pervasiveness), or

isolated event/act of individualisolated event/act of individual– Response of organization to complaintResponse of organization to complaint

• Quid pro quoQuid pro quo– Promise or use of work-related benefits or threats to bargain Promise or use of work-related benefits or threats to bargain

with or coerce individual for sexual favorswith or coerce individual for sexual favors

• Hostile working environmentHostile working environment– Presence (perceived or actual) of offensive or threatening Presence (perceived or actual) of offensive or threatening

environmentenvironment

• Harassment standards used by court:Harassment standards used by court:– ““Reasonable woman” test (also “reasonable man”)Reasonable woman” test (also “reasonable man”)– Pattern of behavior (frequency and pervasiveness), or Pattern of behavior (frequency and pervasiveness), or

isolated event/act of individualisolated event/act of individual– Response of organization to complaintResponse of organization to complaint


Exhibit 7-3Exhibit 7-3Problems & Challenges in Managing Sexual Problems & Challenges in Managing Sexual

HarassmentHarassment

Exhibit 7-3Exhibit 7-3Problems & Challenges in Managing Sexual Problems & Challenges in Managing Sexual

HarassmentHarassment


Guidelines for Managing Sexual Guidelines for Managing Sexual HarassmentHarassment

Guidelines for Managing Sexual Guidelines for Managing Sexual HarassmentHarassment

• Investigate all allegations; ignorance not a defenseInvestigate all allegations; ignorance not a defense• Conduct thorough and prompt investigationConduct thorough and prompt investigation

• Ensure investigator is unbiased and objectiveEnsure investigator is unbiased and objective

• Ensure no retaliation takes placeEnsure no retaliation takes place• Treat accused employee fairlyTreat accused employee fairly• Have both parties sign written statements to prevent “fact” Have both parties sign written statements to prevent “fact”

from changingfrom changing• Take prompt action and equate consequences with Take prompt action and equate consequences with

behaviorbehavior• Have clear, defined process for investigation, apply Have clear, defined process for investigation, apply

consistently, and document consistently, and document everythingeverything

• Investigate all allegations; ignorance not a defenseInvestigate all allegations; ignorance not a defense• Conduct thorough and prompt investigationConduct thorough and prompt investigation

• Ensure investigator is unbiased and objectiveEnsure investigator is unbiased and objective• Ensure no retaliation takes placeEnsure no retaliation takes place• Treat accused employee fairlyTreat accused employee fairly• Have both parties sign written statements to prevent “fact” Have both parties sign written statements to prevent “fact”

from changingfrom changing• Take prompt action and equate consequences with Take prompt action and equate consequences with

behaviorbehavior

• Have clear, defined process for investigation, apply Have clear, defined process for investigation, apply consistently, and document consistently, and document everythingeverything


Sexual HarassmentSexual HarassmentSexual HarassmentSexual Harassment

• Complications abroadComplications abroad– Many cultures do not acknowledge sexual Many cultures do not acknowledge sexual

harassment as workplace or societal problem, harassment as workplace or societal problem, creating ethical dilemmascreating ethical dilemmas

– Courts place responsibility on complainants to Courts place responsibility on complainants to inform harassers that advances or behaviors are inform harassers that advances or behaviors are “unwelcome”“unwelcome”

– Burden rests with employer of establishing, Burden rests with employer of establishing, communicating, and implementing clear policycommunicating, and implementing clear policy

• Complications abroadComplications abroad– Many cultures do not acknowledge sexual Many cultures do not acknowledge sexual

harassment as workplace or societal problem, harassment as workplace or societal problem, creating ethical dilemmascreating ethical dilemmas

– Courts place responsibility on complainants to Courts place responsibility on complainants to inform harassers that advances or behaviors are inform harassers that advances or behaviors are “unwelcome”“unwelcome”

– Burden rests with employer of establishing, Burden rests with employer of establishing, communicating, and implementing clear policycommunicating, and implementing clear policy


Reading 7.1 (Zugelder & Champagne)Reading 7.1 (Zugelder & Champagne)

Responding to the Supreme Court (ADA)Responding to the Supreme Court (ADA)Reading 7.1 (Zugelder & Champagne)Reading 7.1 (Zugelder & Champagne)

Responding to the Supreme Court (ADA)Responding to the Supreme Court (ADA)

• Sutton v. United Airlines, Inc.Sutton v. United Airlines, Inc.– Addressed for first time whether court should Addressed for first time whether court should

consider effect of measures that mitigated an consider effect of measures that mitigated an individual’s impairmentindividual’s impairment

– Corrected impairment does not substantially limit a Corrected impairment does not substantially limit a major life activitymajor life activity

– Statute requires “individualized” inquiry into effects Statute requires “individualized” inquiry into effects of impairment on person’s lifeof impairment on person’s life

• Sutton v. United Airlines, Inc.Sutton v. United Airlines, Inc.– Addressed for first time whether court should Addressed for first time whether court should

consider effect of measures that mitigated an consider effect of measures that mitigated an individual’s impairmentindividual’s impairment

– Corrected impairment does not substantially limit a Corrected impairment does not substantially limit a major life activitymajor life activity

– Statute requires “individualized” inquiry into effects Statute requires “individualized” inquiry into effects of impairment on person’s lifeof impairment on person’s life


Reading 7.1Reading 7.1

Responding to the Supreme CourtResponding to the Supreme CourtReading 7.1Reading 7.1

Responding to the Supreme CourtResponding to the Supreme Court

• Murphy v. United Parcel Service, Inc.Murphy v. United Parcel Service, Inc.– Hypertension did not substantially limit major life Hypertension did not substantially limit major life

activity because it was controlled with medicationactivity because it was controlled with medication– His impairment did not exclude him from wide range His impairment did not exclude him from wide range

of other mechanic jobs, so he was not disabled in of other mechanic jobs, so he was not disabled in major life activity of “working”major life activity of “working”

– UPS did not consider him unable to perform a class UPS did not consider him unable to perform a class of jobs, just one specific jobof jobs, just one specific job

• Murphy v. United Parcel Service, Inc.Murphy v. United Parcel Service, Inc.– Hypertension did not substantially limit major life Hypertension did not substantially limit major life

activity because it was controlled with medicationactivity because it was controlled with medication– His impairment did not exclude him from wide range His impairment did not exclude him from wide range

of other mechanic jobs, so he was not disabled in of other mechanic jobs, so he was not disabled in major life activity of “working”major life activity of “working”

– UPS did not consider him unable to perform a class UPS did not consider him unable to perform a class of jobs, just one specific jobof jobs, just one specific job





• Albertson’s, Inc. v. KirkingburgAlbertson’s, Inc. v. Kirkingburg– Mitigation measures can include those Mitigation measures can include those

undertaken by body’s own system in undertaken by body’s own system in response to impairmentresponse to impairment

– Employer was entitled to rely on minimum Employer was entitled to rely on minimum safety standardssafety standards

• Albertson’s, Inc. v. KirkingburgAlbertson’s, Inc. v. Kirkingburg– Mitigation measures can include those Mitigation measures can include those

undertaken by body’s own system in undertaken by body’s own system in response to impairmentresponse to impairment

– Employer was entitled to rely on minimum Employer was entitled to rely on minimum safety standardssafety standards





• Toyota v. Williams (2002)Toyota v. Williams (2002)– Phrase “major life activity” means only those basic Phrase “major life activity” means only those basic

activities “of central importance to most people’s activities “of central importance to most people’s daily lives,” rather than any work-related tasksdaily lives,” rather than any work-related tasks

– However, other cases have sided with employeeHowever, other cases have sided with employee– EEOC’s recently amended guidelines now take EEOC’s recently amended guidelines now take

mitigative measures into accountmitigative measures into account

• Toyota v. Williams (2002)Toyota v. Williams (2002)– Phrase “major life activity” means only those basic Phrase “major life activity” means only those basic

activities “of central importance to most people’s activities “of central importance to most people’s daily lives,” rather than any work-related tasksdaily lives,” rather than any work-related tasks

– However, other cases have sided with employeeHowever, other cases have sided with employee– EEOC’s recently amended guidelines now take EEOC’s recently amended guidelines now take

mitigative measures into accountmitigative measures into account





• Discriminating against fully mitigated Discriminating against fully mitigated individualsindividuals– Cases suggest that company is now allowed to Cases suggest that company is now allowed to

reject applicant or terminate current employee reject applicant or terminate current employee whenever it is uncomfortable with corrected whenever it is uncomfortable with corrected disabilitydisability

– Recent Supreme Court decisions make disability Recent Supreme Court decisions make disability questions in employment more complex, rather than questions in employment more complex, rather than less soless so

• Discriminating against fully mitigated Discriminating against fully mitigated individualsindividuals– Cases suggest that company is now allowed to Cases suggest that company is now allowed to

reject applicant or terminate current employee reject applicant or terminate current employee whenever it is uncomfortable with corrected whenever it is uncomfortable with corrected disabilitydisability

– Recent Supreme Court decisions make disability Recent Supreme Court decisions make disability questions in employment more complex, rather than questions in employment more complex, rather than less soless so


Reading 7.2 (Mello)Reading 7.2 (Mello)

Dual Loyalty Dilemma for HR ManagersDual Loyalty Dilemma for HR ManagersReading 7.2 (Mello)Reading 7.2 (Mello)

Dual Loyalty Dilemma for HR ManagersDual Loyalty Dilemma for HR Managers

• Role of HR managerRole of HR manager– Whether HR manager is principally representative of Whether HR manager is principally representative of

management to handle employee problems, or management to handle employee problems, or advocate of employee concerns to management not advocate of employee concerns to management not always clearalways clear

– HR is usually where employees initially file HR is usually where employees initially file complaints of behaviors that violate Title VII rightscomplaints of behaviors that violate Title VII rights

– Manager’s role in developing and managing internal Manager’s role in developing and managing internal grievance policy requires a delicate balancing actgrievance policy requires a delicate balancing act

• Role of HR managerRole of HR manager– Whether HR manager is principally representative of Whether HR manager is principally representative of

management to handle employee problems, or management to handle employee problems, or advocate of employee concerns to management not advocate of employee concerns to management not always clearalways clear

– HR is usually where employees initially file HR is usually where employees initially file complaints of behaviors that violate Title VII rightscomplaints of behaviors that violate Title VII rights

– Manager’s role in developing and managing internal Manager’s role in developing and managing internal grievance policy requires a delicate balancing actgrievance policy requires a delicate balancing act



Dual Loyalty Dilemma for HR ManagersDual Loyalty Dilemma for HR ManagersReading 7.2Reading 7.2


• Anti-retaliation provision prohibits manager Anti-retaliation provision prohibits manager from any employee advocacy whatsoeverfrom any employee advocacy whatsoever

• Burden falls on individual employees to Burden falls on individual employees to challenge management and file own claimschallenge management and file own claims

• EEOC is forced to assume advocacy role, EEOC is forced to assume advocacy role, opening floodgates of litigationopening floodgates of litigation

• Anti-retaliation provision prohibits manager Anti-retaliation provision prohibits manager from any employee advocacy whatsoeverfrom any employee advocacy whatsoever

• Burden falls on individual employees to Burden falls on individual employees to challenge management and file own claimschallenge management and file own claims

• EEOC is forced to assume advocacy role, EEOC is forced to assume advocacy role, opening floodgates of litigationopening floodgates of litigation


Reading 7.2 Reading 7.2

Dual Loyalty Dilemma for HR ManagersDual Loyalty Dilemma for HR ManagersReading 7.2 Reading 7.2


• It is unlawful under Title VII to retaliate against It is unlawful under Title VII to retaliate against employees who allege discrimination.employees who allege discrimination.

– Almost 30% of EEOC complaints allege retaliation.Almost 30% of EEOC complaints allege retaliation.• http://http://www.eeoc.gov/stats/charges.htmlwww.eeoc.gov/stats/charges.html

• Issue: To what extent are HR professionals Issue: To what extent are HR professionals protected from retaliation if they “go to bat” for protected from retaliation if they “go to bat” for employees alleging discrimination?employees alleging discrimination?

– Recent lower court rulings would suggest that HR Recent lower court rulings would suggest that HR professionals have very little legal protection in such professionals have very little legal protection in such circumstances.circumstances.

– Q: Can an HR professional be an “employee champion,” and Q: Can an HR professional be an “employee champion,” and still be viewed as loyal to the organization?still be viewed as loyal to the organization?

• It is unlawful under Title VII to retaliate against It is unlawful under Title VII to retaliate against employees who allege discrimination.employees who allege discrimination.

– Almost 30% of EEOC complaints allege retaliation.Almost 30% of EEOC complaints allege retaliation.• http://http://www.eeoc.gov/stats/charges.htmlwww.eeoc.gov/stats/charges.html

• Issue: To what extent are HR professionals Issue: To what extent are HR professionals protected from retaliation if they “go to bat” for protected from retaliation if they “go to bat” for employees alleging discrimination?employees alleging discrimination?

– Recent lower court rulings would suggest that HR Recent lower court rulings would suggest that HR professionals have very little legal protection in such professionals have very little legal protection in such circumstances.circumstances.

– Q: Can an HR professional be an “employee champion,” and Q: Can an HR professional be an “employee champion,” and still be viewed as loyal to the organization?still be viewed as loyal to the organization?

http://www.eeoc.gov/stats/charges.html





Reading 7.3 (Glazer)Reading 7.3 (Glazer)

In Defense of PreferenceIn Defense of PreferenceReading 7.3 (Glazer)Reading 7.3 (Glazer)

In Defense of PreferenceIn Defense of Preference

• Gap between educational performance of blacks Gap between educational performance of blacks and whites has persisted, even deepenedand whites has persisted, even deepened

• Gulf exists between educational and occupational Gulf exists between educational and occupational status of blacks and whites, encompassing status of blacks and whites, encompassing

– WealthWealth– Residential segregationResidential segregation– Social relationshipsSocial relationships

• Banning preference would be bad for countryBanning preference would be bad for country– Preference is no final answerPreference is no final answer– Elimination of preference is no final answerElimination of preference is no final answer

• Gap between educational performance of blacks Gap between educational performance of blacks and whites has persisted, even deepenedand whites has persisted, even deepened

• Gulf exists between educational and occupational Gulf exists between educational and occupational status of blacks and whites, encompassing status of blacks and whites, encompassing

– WealthWealth– Residential segregationResidential segregation– Social relationshipsSocial relationships

• Banning preference would be bad for countryBanning preference would be bad for country– Preference is no final answerPreference is no final answer– Elimination of preference is no final answerElimination of preference is no final answer



In Defense of PreferenceIn Defense of PreferenceReading 7.3Reading 7.3


• We are “two nations”We are “two nations”– One nation cannot be excluded from institutions that confer One nation cannot be excluded from institutions that confer

access to positions of greatest prestige and poweraccess to positions of greatest prestige and power– Both nations must participate in society to some degreeBoth nations must participate in society to some degree

• Many difficult issues remain:Many difficult issues remain:– What kind?What kind?– To what extent?To what extent?– How long?How long?– Imposed by whom?Imposed by whom?– By what decision-making process?By what decision-making process?

• We are “two nations”We are “two nations”– One nation cannot be excluded from institutions that confer One nation cannot be excluded from institutions that confer

access to positions of greatest prestige and poweraccess to positions of greatest prestige and power– Both nations must participate in society to some degreeBoth nations must participate in society to some degree

• Many difficult issues remain:Many difficult issues remain:– What kind?What kind?– To what extent?To what extent?– How long?How long?– Imposed by whom?Imposed by whom?– By what decision-making process?By what decision-making process?



In Defense of PreferenceIn Defense of PreferenceReading 7.3Reading 7.3


• To what extent will the U.S. follow To what extent will the U.S. follow equal employment equal employment opportunityopportunity versus versus affirmative actionaffirmative action in deciding major in deciding major public policy issues (such as admissions into “elite” public policy issues (such as admissions into “elite” universities)?universities)?

– Current “battleground” states: California, Texas, Florida, Georgia, and Current “battleground” states: California, Texas, Florida, Georgia, and Michigan.Michigan.

– e.g., University of California System proposed that entrance exams (such e.g., University of California System proposed that entrance exams (such as the SAT or ACT) no longer be used as a part of the admissions as the SAT or ACT) no longer be used as a part of the admissions process for UC universities.process for UC universities.

– 2003 Supreme Court decisions concerning the University of Michigan 2003 Supreme Court decisions concerning the University of Michigan (Grutter - law school, and Gratz - undergraduate admissions). (Grutter - law school, and Gratz - undergraduate admissions).

• Issue: How do we promote merit and diversity at the same Issue: How do we promote merit and diversity at the same time?time?

• To what extent will the U.S. follow To what extent will the U.S. follow equal employment equal employment opportunityopportunity versus versus affirmative actionaffirmative action in deciding major in deciding major public policy issues (such as admissions into “elite” public policy issues (such as admissions into “elite” universities)?universities)?

– Current “battleground” states: California, Texas, Florida, Georgia, and Current “battleground” states: California, Texas, Florida, Georgia, and Michigan.Michigan.

– e.g., University of California System proposed that entrance exams (such e.g., University of California System proposed that entrance exams (such as the SAT or ACT) no longer be used as a part of the admissions as the SAT or ACT) no longer be used as a part of the admissions process for UC universities.process for UC universities.

– 2003 Supreme Court decisions concerning the University of Michigan 2003 Supreme Court decisions concerning the University of Michigan (Grutter - law school, and Gratz - undergraduate admissions). (Grutter - law school, and Gratz - undergraduate admissions).

• Issue: How do we promote merit and diversity at the same Issue: How do we promote merit and diversity at the same time?time?

SHRM N ch07

Leadership & Management

Transcript of SHRM N ch07