PSY 6430 Unit 2

1. PSY 6430 Unit 2 Legal Issues Continued Schedule Tonight and Monday: Lecture Wednesday, 1/30: Exam

2. Supreme Court 92 District Courts SO1: Court structure, Title VII casesTitle VII cases are tried in the federal court system 9 justices 3 judges 1 judge Eleven Courts of Appeals Corresponding to Eleven Circuits (MI is in the 6th; in most cases, trials heard by judges, not juries: click; CRA1991 permits trials intentional disc when compensatory Or punitive damages. Different laws in different parts of the country until a case reaches the Supreme Court- most liberal, 9th, CA notorious)

3. SO2: EEOC administrative process • Before an individual can pursue redress in court under Title VII(usually followed by OFCCP as well) • File a complaint with the EEOC • Exhaust all internal administrative remedies • At WMU an employee must contact Office of Institutional Equity • EEOC may pursue four negotiation steps • Stakes increase at each step - penalties for the company become more and more severe • EEOC can proceed through all four in order, or skip some and start with the most severe one, depending upon the strength of the individual’s complaint (in 1990, OFCCP decided, based on statistics from WMU, to skip the first two and go directly to third step - conciliation agreement. It was lifted in 1995 - I’ll talk more about that in a few minutes)

4. SO2: First negotiation step • No Fault Settlement • Complaint is filed with EEOC • Before EEOC collects any data, a settlement is attempted • Within 10 days of receipt of the complaint, EEOC sends a copy to the company and immediately gives the company an opportunity to settle it • If unsuccessful, moves to informal fact finding • Informal fact finding, settlement attempted again • If successful, it results in a no fault settlement • Company does not admit any wrong doing, but engages in some sort of compromise • If unsuccessful, moves to the next negotiation step

5. SO2: Second negotiation step: Pre-Determination Settlement • EEOC can and usually does subpoena the company’s records • That is how EEOC gets access to the company’s records • EEOC can subpoena ALL of the company’s records, not just the records related to the specific complaint • If it finds something else it doesn’t like, it can “go for it” as well • EEO data are strongly protected by organizations - national security secrets! • Company is invited to respond, if it does the response can be used by EEOC then or in the future • Most lawyers say organizations should never respond; whatever information/data they give EEOC can be used against them • EEOC, based on data, determines probable cause or no probable cause • If no probable cause, EEOC usually withdraws, but individual can pursue remedy in court - constitutional right (with little chance of success) • If probable cause and company settles, no wrong doing is admitted by the company (NY State Court system, job analysis and needed access to those data so I could develop a representative sample, the AA officer refused to give them to me. I eventually got it, but had to go to Personnel Director and have him fight the battle with the AA office; AA office usually is separate from personnel)

6. SO2: Third negotiation step: Conciliation Agreement • Initiated by finding of probable cause and no settlement • Because the EEOC has found probable cause, at this point things get pretty serious and any settlement is likely to result in some major concessions by the company (WMU’s conciliation agreement) • EEOC, not the Court, oversees this agreement thus it is a private agreement between parties, not a legal agreement • The EEOC administers compliance; if the organization does not comply, EEOC will typically file a law suit or OK a law suit by the plaintiff • No wrong doing is admitted by the company if it settles at this step • If no settlement can be reached, things get REAL serious and move to the Consent Decree step

7. SO2: Fourth negotiation step: Consent Decree • Initiated by a law suit filed by EEOC or the plaintiff • BEFORE litigation, EEOC attempts a settlement again • If settled, costly for the organization • Usually involves lump sum payouts including back payments (for wages lost) • Typically not done in prior negotiation steps (including Conciliation Agt) • Also may involve an AA program • Again, typically not done in prior negotiation steps • Court must approve the settlement because a law suit was filed • Court oversees compliance because the law suit was filed • This is NOT a private agreement between EEOC and the company • If settled at this step, the company still does not admit to any wrong doing • The company has not had its day in court, and thus has not been found to have engaged in unfair discrimination (company has not been proven guilty in court; read some of WMU’s conciliation agreement; Abercombie and Fitch Consent Decree, Home Depot)

8. SO22: Two reasons why a company may opt to settle even if charge is weak (I am going to jump ahead here - because of the relevancy of SO24; here are some figures - why on earth would companies settle for these amounts?)

9. SO22: Two reasons why a company may opt to settle even if charge is weak • Costs and uncertainties of the outcome of litigation (could be worse than the settlement) • Public relations • Who wants to buy clothes from a store that has unfairly discriminated against blacks, Hispanics, Asians and females? • Who wants to buy gas from Texaco where “the black jelly beans are stuck to the bottom of the bag?” • In fact, there was a very large, well organized boycott of Texaco before the case was resolved (A&F - equal opportunity discriminator - all but white males)

10. NFE: Difficult issues • David Glenn, VP of Institutional Equity • Hired in 1988, retired December 2012 • In 1989, WMU faced normal periodic investigations from both EEOC and Dept. of Education (WMU probably knew they were coming, Mr. Glenn did not) • Conciliation agreement arose from those investigations • Never once since David has been here has the University lost a court case (not as appreciated as he should be - nonevents are not recognized) (How I met David; student came to me describing a situation that clearly suggested harassment, hostile environment, seeking my advice. Next time, I handled it differently - but at what point and what do you say to a student?)

11. SO3: Some statistics from EEOC • In 2011, over 99,000 charges of discrimination filed with the EEOC • Race 35% • Sex 30% • Disability 26% • Age 24% • National origin 12% • Religion 4% (up 25% in the past 10 years)

12. SO4: EEO vs. AA • Equal Employment Opportunity Every individual is treated the same and every individual who is equally qualified has an equal opportunity for employment, promotions, etc. • No preferential treatment • Professional selection issue (this is exactly what selection systems are designed to do - hire the best applicants) • Not controversial except for racists, sexists, etc.

13. SO4: EEO vs. AA • Affirmative Action Redresses historical imbalances and increases number of minorities hired in the work place at a faster rate than what would occur simply through EEO • Can result in preference being given to individuals in certain demographic groups • If two candidates are equally qualified, preference will be given to the minority candidate • A less qualified minority may be hired instead of a more qualified majority • Social policy, not a “professional” selection issue • Extremely controversial (pros and cons, I have been on both sides. Denied a job with a very excellent, major company after I had interned there for 2 years in favor of a minority female who had not worked for the company. Boss stupidly told me I was a 1 pointer, she was a 2 pointer. PA - hired into a position that could only Be given to a female or minority. Didn’t tell me, when I found out - I was angry, hurt. Did not want to be hired because. Started in a hole with colleagues Later vindicated - white male I was in competition with - he turned out not to be very good.

14. NFE: Affirmative Action: Different and more controversial than EEO • Advocates of AA • EEO often does not exist • Historical imbalances exist from past discrimination • Diversity is important and benefits society/culture • Opponents of AA • Violation of basic principles of justice (fairness) • Brands minorities as inferior • Undermines meritocracy and hurts productivity • Often helps wrong groups: e.g., individuals in middle class protected classes vs. whites from poor socio-economic backgrounds (debate in the course pack – at end controversy AA and admission to universities/colleges)

15. SO7: Why are the Uniform Guidelines on Employee Selection Procedures important? 1. These guidelines were “hammered” out and approved by all of the federal agencies involved in EEO and AA compliance (1978) • EEOC, Civil Service Commission, Dept. of Justice, and Dept. of Labor Prior to this, both EEOC and Dept. of Labor (OFCCP) had issued separate guidelines that conflicted. Selection specialists could not conform to both with respect to some procedures. Imagine the confusion. (Sos on text: learn full name; I was actually in this situation at PA - we were a semi-private, semi-public organization, subject to both EEOC and OFCCP guidelines, yet we couldn’t satisfy both. And, remember what the stakes are for violating the law….)

16. SO7: Why are the Uniform Guidelines on Employee Selection Procedures important? 2. While not legally binding, the courts give “great deference” to the guidelines. The courts have ruled that these guidelines will be used as a “checklist” for the appropriateness of selection procedures. (when we get to the professional development/requirements for selection procedures, particularly the job analysis, they are based on these Uniform Guidelines).

17. SO8: Selection instruments covered • The EEO laws cover any selection procedure/instruments used, not just selection tests: • Application blanks • Academic degree requirements • Job interviews • Performance appraisals used for promotion decisions (next few Sos, just some details from the guidelines that are particularly important)

18. SO9: Restrictions on use of skills and abilities in selection 1. If they can be learned during a relatively brief training period - within 6 months – cannot test for them • Makes perfect sense from a selection standpoint • Has implications for job analysis so we will be coming back to this, but your job analysis must identify not only which KSAs are required for effective job performance, but also which can be learned on the job (so they can be excluded from your selection procedures)

19. SO9: Restrictions on the use of skills and abilities in selection 2. KSAs from higher level jobs are only acceptable if • The majority of job incumbents actually assume higher level positions • If they so do within a reasonable period of time - Uniform Guidelines, within five years • If you are hiring assembly line workers, 40 incumbents, but only 2 supervisory positions, and only a few ever become supervisors - NO! • If it takes an assembly line worker more than 5 years to become a supervisor - NO! • If supervisory position requires a BA, but the assembly line worker position does not - you cannot require your assembly line workers to have BAs (Many companies want to test for higher level skills, particularly if there is a strong hire from within policy. However…political hot potato in orgs)

20. SO10: Three types of cut-off score procedures • Least restrictive: Minimum cut-off score • Minimum score above which you consider all applicants equally qualified • Pass/fail system • Type of validity procedure: Empirical or content • Next restrictive: Banding • Establish ranges of scores and group applicants in those ranges: Every applicant is equally qualified within each band • Type of validity procedure: Empirical only (type of cut-off score, major implications for the type of validity procedure you use and hence the type of job analysis; cover this now and again later)

21. SO10: Three types of cut-off score procedures, cont. • Most restrictive: Rank order applicants based on scores • Select top person first, then the next one, etc. • Type of validity procedure: Empirical only (managers have trouble with this one, by the way – even if the systems allows input/interview with respect to who is going to be working for them)

22. SO10: Three types of cut-off score procedures, cont. • Must use empirical validity to determine job relatedness of the selection procedure if • Banding • Rank ordering • (and of course, if there is adverse impact)* • Why? Two requirements: Uniform Guidelines state If you use these approaches not only do you have to (a) show that your selection procedures are job related, but also (b) that those who score higher on the exam/procedure will also perform better on the job There is only ONE way to do that - statistics, empirical validation *Remember, the laws are only relevant if adverse impact exists (often ignored by organizations)

23. SO12: Three situations in which acompany would adopt an AA program • Organization is a government contractor and thus is required to do so under the laws administered by the OFCCP • Organization has entered into an agreement with EEOC or OFCCP to do so, or has been ordered by the courts to do so (Consent decree or lawsuit) • Organization adopts a voluntary AA program • Language in the CRA of 1991 makes the legality of voluntary AA programs questionable* • Lawyers recommend that organizations NOT do this *I’ll talk about this more next two study objectives

24. SO14: Voluntary AA programs • 14A: Explain why the courts have historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII • 14B: What are white males permitted to challenge in court re voluntary AA programs?

25. SO14: Voluntary AA programs - the controversy • Conflict between wording of Title VII and preference that can be given members of protected classes: It is unlawful to fail or refuse to hire any individual with respect to race, color, religion, sex, or national origin. Further, “nothing in this title shall be interpreted to require any employer to grant preferential treatment to any individual.” • So, what about white males? • Color - white • Sex - male (what about white males who are not hired because a member of a protected class is given preference? It happens)

26. SO14: Reverse Discrimination • Several reverse discrimination cases have been brought under Title VII • “Reverse discrimination:” Members of a majority group claim they have unfairly discriminated against • All of the cases that I am familiar with to date have involved groups of white males • In an employment situation, under Title VII (as opposed to admission to universities/colleges), white males have never been successful in winning a direct challenge under Title VII (they have at times, won disparate treatment cases, and “admission” law suits, but those are different laws: next slide)

27. SO14: Reverse Discrimination • SO14A: Why have the courts historically excluded white males from filing a (reverse) discrimination lawsuit under Title VII? The Supreme Court has ruled that the intention of the framers of Title VII was to protect individuals who have been subjected to unfair discrimination in the past. Because white males do not fall into that category, the Supreme Court ruled that they were not entitled to file a lawsuit under Title VII. • SO14B: What can white males challenge in court? White males can challenge the legality of voluntary AA programs. (CRA of 1991 makes it virtually impossible for white males to challenge court-ordered AA programs, negating an earlier decision of the Supreme Court) (Back to SO14A&B’ last point, imagine the company – the court ordered and approved an AA program – white males challenged it, and the Supreme Court said it was OK for the males to challenge the legality of the AA program – that was corrected in the CRA 1991.

28. Birmingham Dept. of Safety orIt’s difficult to do the right thing • 1972 • Courts ruled selection tests were not job related and unfairly discriminated against blacks • In the 37-year history of the department, a black trooper had never been hired even though 25% of the workforce in the area was black • The department revised its selection procedures Talked about this case before – in the introductory ppt

29. Birmingham Dept. of Safety orIt’s difficult to do the right thing • 1977 • Black troopers challenged the promotional exams to captain • Of the 230 officers at or above the rank of corporal, not one was black • EEOC entered the case on the side of the troopers pressuring the department to change its selection procedures • After several years, the department had failed to do so

30. Birmingham Dept. of Safety orIt’s difficult to do the right thing • Justice Department then entered the case on the side of the black troopers • The department agreed to revise testing procedures • New tests were developed but found to be inadequate • Justice Department asks courts to impose a hiring quota, which the courts did (50% hiring quota)* • Justice Department then switches sides after Reagan is President • Justice Department helps the white troopers appeal the quota system to the Supreme Court on the grounds of “reverse discrimination” *hiring quotas are now illegal; goals are not, but quotas are

31. Birmingham Dept. of Safety orIt’s difficult to do the right thing • Supreme Court rules that the white employees can challenge the court-ordered AA program because they were not “parties” to the original contract • Supreme Court remanded the case back to the Eleventh Circuit Court of Appeals to decide whether the AA program is legal or illegal (cont. on next slide)

32. Birmingham Dept. of Safety orIt’s difficult to do the right thing • Eleventh Circuit Court struck down the AA program, ruling that it was illegal as formulated • Court ruled that the organization was NOT given more protection “just because the program had been approved by the courts as part of a consent decree.” • Court refused to treat the consent decree ordered by the court any differently than a “voluntary” AA program. • Civil Rights Act of 1991 • Makes it virtually impossible for white males to challenge the legality of a court-ordered AA program (all’s well that ends well – this started in 1977)

33. SO15: Legality of voluntary AA, and the CRA of 1991 • CRA of 1991 It is unlawful to use a protected status characteristicas a motivating factor* in selection. You cannot have an AA program without using protected status as a motivating factor, hence the CRA 1991 calls into question the legality of voluntary AA programs. • No court cases have addressed this issue, that I know of, so we just don’t know what the courts would decide. • Nonetheless, legal experts have strongly advised organizations not to adopt a voluntary AA and to abandon their current ones until this is resolved. * “Motivating factor” is an extremely important term here (language of the CRA that poses the problem for AA programs; remember Gatewood, Field & Barrick: we know what is not legal; but not what is legal)

34. NFE: History of that language • CRA language was written to protect members of protected classes • It was in response to the Supreme Court decision involving a mixed motive case • Price Waterhouse v. Hopkins, 1989

35. NFE: Price Waterhouse • Disparate treatment (not adverse impact) case • Hopkins, a female, was denied promotion to partner • The company considered both legal and illegal factors when it denied promotion • Illegal: make-up, hair style, and dress • Legal: poor interpersonal skills • Thus, both legal and illegal factors were motivating factors in the decision: hence, the term, mixed motive case

36. NFE: Price Waterhouse • Supreme Court ruled in favor of Price Waterhouse • Why? Price Waterhouse maintained it would have made the same decision if they had not used gender-related factors as motivating factors • To negate that decision, the CRA language states that “it is unlawful to use a demographic characteristic as a motivating factor in selection.” • That language also calls into question the legality of voluntary AA programs (can’t use it at all; good luck on that one! They meant well; one more slide on this)

37. NFE: Mixed motive cases, an aside • Even under CRA of 1991, the legal remedies for a mixed motive case are severely restricted even if a plaintiff wins • Restricts monetary reimbursement (which does include payment of attorney fees and costs) to costs/expenses directly related to the pursuit of the mixed motive case • The court cannot award damages (monetary compensation) or back pay • The court cannot order the company to admit that it did anything wrong (that it unfairly discriminated against the plaintiff) • The court cannot reinstate an employee or force an employer to hire or promote the employee • Basically an “empty” victory for the plaintiff and not a very lucrative type of case for a law firm to take on

38. SO16: Characteristics that an AA program must have to be legal • Text states that there are three characteristics that voluntary AA programs must have to be considered legal • However, all apply to any AA program, not just voluntary ones • Also, in the SO, I changed the three characteristics for the exam – not quite the same as in the text

39. SO16: Characteristics that an AA program must have to be legal • They must be initiated/designed to correct a manifest imbalance – in other words minorities must be underrepresented and you must be able to prove that In addition, the goals, if there are any, must be connected in some way to the degree of imbalance. • They must not “trammel the interests of the white employees” or as I have said in the SO: They cannot completely bar advancement or hire of the majority group; quota systems are not legal (goals are OK but quotas are not) • This is one reason the Supreme Court struck down UM’s undergraduate AA program that added an arbitrary 20 points to the scores of underrepresented minorities (love the language - trammel!!; 50-50 hiring quota, a white can be completely denied the opportunity for advancement)

40. SO16: Characteristics that an AA program must have to be legal • They must be temporary and have no permanent adverse impact on whites This is because they are designed to eliminate an historical balance, not maintain a balance

41. SO16: NFE: Thought Question Is the fact that AA programs must be temporary inconsistent with the fact that the OFCCP laws require government contractors to have an AA plan? That is, how can a program be both required and temporary? If there is no adverse impact (no manifest imbalance), then there is no AA program, because an AA program must only be used to correct manifest imbalances. Essentially, if there is not a historical imbalance, then an AA program is not required

42. SO20: Ricci v. DeStefano • New Haven Civil Service Board administered a promotional exam for lieutenant and captain fire fighter jobs • After the exams had been administered and scored, the Civil Service Board • Discarded the exams because their use would have resulted in adverse impact for black applicants and • Blacks threatened to file a law suit (sos ask you to learn a few details about/rulings from a coupe of court cases. Griggs vs. Duke Power, First major case – 1971 – far reaching effects. )

43. SO20: Ricci v. DeStefano Here are the actual numbers: No blacks were eligible for promotion to captain or lieutenant.

44. SO20: Ricci v. DeStefano • Whites and Hispanics subsequently filed a law suit • Claimed the decision to discard the exam violated Title VII because it was based on race and color

45. SO21: Ricci v. Destefano • 2006: District Court upheld the right of CSB to refuse to certify the results of the test on the grounds it would result in adverse impact • 2008: Three judge panel of the 2nd Circuit upheld the District Court ruling, stating that the CSB was “in an unfortunate position of having no good alternatives.” • 2009: Supreme Court ruled 5-4 in favor of the white and Hispanic plaintiffs, not the CSB

46. SO2O: Ricci v. Destefano • Main reason (and one for the exam) If there is adverse impact, the threat of a law suit is not sufficient reason to discard the exam • Court also stated If the test was job-related, then adverse impact would be OK (fair discrimination), and it appeared the tests were job related

47. SO2O: Ricci v. Destefano • What happened next New Haven reinstated the examination results and promoted 14 of the 20 firefighters within months of the decision. The city settled the lawsuit by paying $2 million to the firefighters who brought the lawsuit; enhancing their pension benefits by millions of dollars; and paying their attorney, $3 million in fees and costs.

48. Wal-Mart: some details about the issues • Managerial jobs were not posted; men were often invited to apply, females were not • Some female managers made $20,000-$25,000 less than male counterparts • Females in every job category have been paid less than men since 1997, even though they have higher average performance appraisals and less turnover • “God made Adam first, so women would always be second to men” (Sos 24-33, NFE, description of studies; articles in course pack. Hard to understand the cases without details. Wal-mart cont. on next slide)

49. Wal-Mart continued • One female manager was told she was paid less than a less qualified male because she “didn’t have the right equipment.” • Females were repeatedly told “men need to be paid more because they have families to support” and “men are here to make a career while women are not.” • Others were called “worthless broads” and asked to wear lower cut shirts. • And on and on….

50. Texaco – settled in 1996, race • $176.1 million settlement • Class action suit • EEO was investigating the complaints • At an executive level meeting which was secretly taped by one of the individuals, one executive referred to blacks as “black jelly beans that all seem to be glued to the bottom of the bag.” • At the same meeting, executives conspired to alter, withhold, or destroy corporate documents requested by EEOC and plaintiffs