Employment Law Dale J. Dwyer, Ph.D. 2008

2. �SHRM 2007 2 Discrimination in Employment:Understanding the Legalities In this session we will: Look at how discrimination spurred the legislation in the 1960�s and 1970�s that created the notion of Equal Opportunity. Examine several landmark cases and the resulting laws that employers must abide by.

3. �SHRM 2007 3 History of EEO Legislation Before 1964, there was a history of discrimination in the U.S., primarily against people of color and women. Dr. Martin Luther King, Jr., Rosa Parks, and the cities of Selma and Birmingham (AL), and Memphis (TN) played pivotal roles in bringing racial discrimination to the attention of U.S. lawmakers and President John F. Kennedy. Spend some time setting the stage for the history and cause of civil rights legislation. Most traditional students were born 25 years after the enactment of the Civil Rights Act of 1964. Although they may be familiar with the era, it is important to remind them that the Birmingham, AL, civil rights protests were broadcast live on the television news, and it was only after seeing the beatings of black demonstrators who did not fight back that President John F. Kennedy and his brother, Attorney General Robert Kennedy, started to take civil rights legislation seriously. There are some good videos highlighting some of this, from which you may choose to show clips. Spend some time setting the stage for the history and cause of civil rights legislation. Most traditional students were born 25 years after the enactment of the Civil Rights Act of 1964. Although they may be familiar with the era, it is important to remind them that the Birmingham, AL, civil rights protests were broadcast live on the television news, and it was only after seeing the beatings of black demonstrators who did not fight back that President John F. Kennedy and his brother, Attorney General Robert Kennedy, started to take civil rights legislation seriously. There are some good videos highlighting some of this, from which you may choose to show clips.

4. �SHRM 2007 4 What is the General Intent Of EEO Law? After President Kennedy�s assassination, President Johnson signed the Civil Rights Act of 1964 into law. This law was intended to address societal beliefs that people are different (or not equal) because of physical characteristics. As employers, we want to hire, develop, and retain excellent employees. However, we cannot assess a person�s performance by looking at their physical appearance. We can get an idea of potential job performance only by using valid tests that assess the abilities needed for the task. The primary intent of the Civil Rights Act of 1964 as it pertains to employment was to address and overcome invalid perceptions that physical characteristics can predict job performance. The key to prevent employment discrimination is to develop valid �tests� of one�s knowledge, skills and abilities. Question: What makes a test in one of our classes valid? Answer: It assesses what we have learned in the class. The people who do well on the test, do well in the class. The primary intent of the Civil Rights Act of 1964 as it pertains to employment was to address and overcome invalid perceptions that physical characteristics can predict job performance. The key to prevent employment discrimination is to develop valid �tests� of one�s knowledge, skills and abilities. Question: What makes a test in one of our classes valid? Answer: It assesses what we have learned in the class. The people who do well on the test, do well in the class.

5. �SHRM 2007 5 Common Mistakes in Hiring Asking interview questions about: A candidate�s national origin. Marital status. Perceived or obvious disabilities. Making assumptions about: Job abilities based on gender, race or age. The commitment of a parent (particularly mother) to a job. There are many ways managers can get into trouble in their interactions with subordinates or job candidates, but none as prevalent as employment discrimination. The mistakes listed here are merely examples: Asking a candidate about their national origin. Asking a candidate about their marital status. Asking a candidate about a perceived or obvious disability. Making assumptions about a candidate�s ability to perform a job based on their gender, race or age. Asking a candidate about their commitment to the job because of their parental status. Avoiding these mistakes is crucial to avoid potential discrimination charges or even lawsuits. Even once a candidate is hired and becomes an employee, managers should avoid any ethnic or gender-based jokes/stories and inequitable treatment. There are many ways managers can get into trouble in their interactions with subordinates or job candidates, but none as prevalent as employment discrimination. The mistakes listed here are merely examples: Asking a candidate about their national origin. Asking a candidate about their marital status. Asking a candidate about a perceived or obvious disability. Making assumptions about a candidate�s ability to perform a job based on their gender, race or age. Asking a candidate about their commitment to the job because of their parental status. Avoiding these mistakes is crucial to avoid potential discrimination charges or even lawsuits. Even once a candidate is hired and becomes an employee, managers should avoid any ethnic or gender-based jokes/stories and inequitable treatment.

6. �SHRM 2007 6 Questions that Illicit Information that Could Be Used in a Discriminatory or Illegal Manner �This job requires a lot of overtime. Will that conflict with your childcare arrangements?� �Have you ever had attendance or performance problems in your previous position because of your [sight, hearing, physical] impairment?� �We have mostly men in that position. Do you foresee having trouble with establishing your authority with them because you�re a woman?� �Have you ever filed a workers� compensation claim?�

7. �SHRM 2007 7 What Is A �Test�? A �test� is anything that is used to make a decision about an employee or a potential employee For this class, a �test� is anything an employer may use to make a decision about hiring, promotion, discipline, termination, salary or wages, training participants, etc. All employment decisions (�tests�) are subject to EEO laws and enforced by the EEOC. The Uniform Guidelines on Employee Selection Procedures (1978) mandates that selection �tests� be validated and that relevant job knowledge, skills and abilities (KSAs) be used as the basis for selection. Set the stage for the anti-discrimination law discussion by asking students about their experiences in taking tests that they thought were invalid (didn�t really measure what they were supposed to be measuring). What happens when tests aren�t valid? Example answers: We get poor grades, even though we know the material. We hire people who can�t do the job. We don�t hire people who can do the job. The Uniform Guidelines on Employee Selection Procedures (1978) mandates that selection �tests� be validated and that relevant job knowledge, skills and abilities (KSAs) be used as the basis for selection. Set the stage for the anti-discrimination law discussion by asking students about their experiences in taking tests that they thought were invalid (didn�t really measure what they were supposed to be measuring). What happens when tests aren�t valid? Example answers: We get poor grades, even though we know the material. We hire people who can�t do the job. We don�t hire people who can do the job.

8. �SHRM 2007 8 Relevant Anti-Discrimination Laws Equal Pay Act of 1963 Title VII of Civil Rights Act of 1964 Age Discrimination in Employment Act of 1967 Vietnam Era Vets Readjustment Act of 1974 Pregnancy Discrimination Act of 1978 Americans with Disabilities Act of 1990 Revision of the Civil Rights Act (1991) (including references to unlawful harassment) Review with the students the employment-related laws addressing discrimination. Note: The Civil Rights Act of 1991 revised the 1964 law because Congress: Wanted additional remedies under federal law to deter unlawful harassment and intentional discrimination in the workplace. To address the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), which they felt weakened the scope and effectiveness of federal civil rights protections. To provide additional protections against unlawful discrimination in employment. The Supreme Court�s ruling on Wards Cove said that the mere demonstration of statistical imbalance was no longer enough to show discrimination and that the employee or applicant had the burden of proof to show which employment practice caused the discrimination. The revised Civil Rights Act of 1991 reversed that ruling, placing the burden on the employer to show why its practices were justified by a bona fide occupational qualification or business necessity. Review with the students the employment-related laws addressing discrimination. Note: The Civil Rights Act of 1991 revised the 1964 law because Congress: Wanted additional remedies under federal law to deter unlawful harassment and intentional discrimination in the workplace. To address the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), which they felt weakened the scope and effectiveness of federal civil rights protections. To provide additional protections against unlawful discrimination in employment. The Supreme Court�s ruling on Wards Cove said that the mere demonstration of statistical imbalance was no longer enough to show discrimination and that the employee or applicant had the burden of proof to show which employment practice caused the discrimination. The revised Civil Rights Act of 1991 reversed that ruling, placing the burden on the employer to show why its practices were justified by a bona fide occupational qualification or business necessity.

9. �SHRM 2007 9 Who the Laws Apply To 1-14 Employees: All wage orders State anti-discrimination laws 15-25 Employees: Federal anti-discrimination laws ADA Drug Free Workplace Act COBRA 50+ Employees: Filing EEO Executive Order 11246 (Affirmative Action) Rehab Act of 1973 FMLA 100+ Employees: Affirmative action plan (government contractor) Feel free to add to or delete any of these. Readings and sources from SHRM�s web site are included so you can ask students to acquaint themselves with the basics. (Many more resources appear on SHRM�s web site; only a few are included here.) Federal Discrimination laws (Civil Rights Act of 1964 (Title VII) and 1991): Federal and state laws define which groups of persons are protected by the law, including race, color, national origin, religion, sex, age, pregnancy and childbirth, disability, and veteran status. Source: http://www.shrm.org/hrresources/whitepapers_published/CMS_000382.asp ADA, FMLA, Workers� Compensation: suggested reading. SHRM Legal Report. http://www.shrm.org/hrresources/lrpt_published/CMS_000923.asp COBRA: suggested reading. SHRM Legal Report. http://www.shrm.org/hrresources/lrpt_published/CMS_008977.asp Drug Free Workplace Act: suggested reading. SHRM White Paper. http://www.shrm.org/hrresources/whitepapers_published/CMS_000400.asp Executive Order 11246: Definition: http://www.shrm.org/hrresources/basic_published/CMS_002797.asp Affirmative Action Plans: suggested reading. SHRM Legal Report. http://www.shrm.org/hrresources/basic_published/CMS_002797.asp Feel free to add to or delete any of these. Readings and sources from SHRM�s web site are included so you can ask students to acquaint themselves with the basics. (Many more resources appear on SHRM�s web site; only a few are included here.) Federal Discrimination laws (Civil Rights Act of 1964 (Title VII) and 1991): Federal and state laws define which groups of persons are protected by the law, including race, color, national origin, religion, sex, age, pregnancy and childbirth, disability, and veteran status. Source: http://www.shrm.org/hrresources/whitepapers_published/CMS_000382.asp ADA, FMLA, Workers� Compensation: suggested reading. SHRM Legal Report. http://www.shrm.org/hrresources/lrpt_published/CMS_000923.asp COBRA: suggested reading. SHRM Legal Report. http://www.shrm.org/hrresources/lrpt_published/CMS_008977.asp Drug Free Workplace Act: suggested reading. SHRM White Paper. http://www.shrm.org/hrresources/whitepapers_published/CMS_000400.asp Executive Order 11246: Definition: http://www.shrm.org/hrresources/basic_published/CMS_002797.asp Affirmative Action Plans: suggested reading. SHRM Legal Report. http://www.shrm.org/hrresources/basic_published/CMS_002797.asp

10. �SHRM 2007 10 What Does the Law Say About This? Karen Logan comes into her supervisor�s office, complaining that she�s been excluded from the rotation schedule for driving the supply truck. Ed, her supervisor, is surprised and says that he figured she wouldn�t want to be included. �Why not?� Karen asks. �Well, it�s a big truck and I thought it might be too much for you to handle. I mean, driving a big truck isn�t exactly a job for a woman, is it?� asks Ed. Review what protected classes are covered by Title VII. Source: http://www.shrm.org/hrresources/whitepapers_published/CMS_000382.asp Generally, an employer with 15 or more employees, an employment agency, or a labor organization is prohibited from discriminating against a job applicant, current employee, or former employee with respect to hiring, firing, compensation, terms, conditions or privileges of employment. Federal and state laws define which groups of persons are protected by the law, including race, color, national origin, religion, sex, age, pregnancy and childbirth, disability, and veteran status. Ask the class what the basis for a discrimination lawsuit might be and, further, who has to prove discrimination in this case? Does the company have any liability for Ed�s actions? The test here is gender or sex-based decision-making. Ed assumes, without actually asking Karen or evaluating whether she possesses the requisite skills, that she is either incapable of or uninterested in driving the supply truck. This would be a violation of Title VII and it�s provision that employment decisions cannot be made solely on the basis of one�s sex. Review what protected classes are covered by Title VII. Source: http://www.shrm.org/hrresources/whitepapers_published/CMS_000382.asp Generally, an employer with 15 or more employees, an employment agency, or a labor organization is prohibited from discriminating against a job applicant, current employee, or former employee with respect to hiring, firing, compensation, terms, conditions or privileges of employment. Federal and state laws define which groups of persons are protected by the law, including race, color, national origin, religion, sex, age, pregnancy and childbirth, disability, and veteran status. Ask the class what the basis for a discrimination lawsuit might be and, further, who has to prove discrimination in this case? Does the company have any liability for Ed�s actions? The test here is gender or sex-based decision-making. Ed assumes, without actually asking Karen or evaluating whether she possesses the requisite skills, that she is either incapable of or uninterested in driving the supply truck. This would be a violation of Title VII and it�s provision that employment decisions cannot be made solely on the basis of one�s sex.

11. �SHRM 2007 11 What Does the Law Say About This? Helen Thomas is meticulous about enforcing her department�s attendance policy, and has fired more than one employee for repeated violations of the rules. She recently fired Jeff Lewis, an African-American employee, for excessive absences, and Lewis sued the company for racial discrimination. Ask the class what the basis for a discrimination lawsuit might be and, further, who has to prove the case. The test here is whether Helen fired Jeff because he was a minority or because of excessive absences. Helen will have to prove that the rule violations for the department�s attendance policy was the underlying reason, not race (burden of proof is on Helen, not on Jeff, as a result of the 1991 revision of the Civil Rights Act). Ask the class what the basis for a discrimination lawsuit might be and, further, who has to prove the case. The test here is whether Helen fired Jeff because he was a minority or because of excessive absences. Helen will have to prove that the rule violations for the department�s attendance policy was the underlying reason, not race (burden of proof is on Helen, not on Jeff, as a result of the 1991 revision of the Civil Rights Act).

12. �SHRM 2007 12 Discrimination Terms Adverse impact (Also �disparate impact�): Unintentional effect on protected group. Adverse treatment (Also �disparate treatment�): Intentional effect on a member of a protected group. Bona fide occupational qualification: A characteristic that is necessary to successfully perform the job. Business necessity: An overriding business purpose for the discriminatory practice. Prima facie case: Presenting enough evidence to suggest a discriminatory practice occurred. Burden of proof: The party who has to prove that the practice is discriminatory or non-discriminatory. These terms will be necessary for students to know in the Moot Court exercise. To elaborate on these concepts, Adverse (or �disparate�) impact occurs when a decision based on identical standards for all applicants affects a member of a protected group differently. It is an unintentional form of discrimination. Adverse (or �disparate�) treatment occurs when a decision is based on group membership. That is, an applicant is treated differently because she is a woman, or Asian, or disabled. It is an intentional form of discrimination. A Bona Fide Occupational Qualification (BFOQ) is a legal exception to an otherwise discriminatory hiring practice that is "reasonably necessary to the normal operation of a particular business." The burden is on the employer to prove that a BFOQ is necessary. Race can never be a BFOQ. Business necessity is also a legal defense against discriminatory decisions. And it means just that�necessity, not convenience. A decision that is made because of safety reasons, for example, may rise to the level of business necessity; a decision that is made because of customer preferences usually does not. A prima facie case is made by the plaintiff, who presents evidence that (unless rebutted) would be sufficient to prove a particular proposition or fact. Burden of proof is an obligation on the part of either the plaintiff or the defendant to prove the allegations made by the other party. In discrimination suits, this usually falls on the employer (the defendant). These terms will be necessary for students to know in the Moot Court exercise. To elaborate on these concepts, Adverse (or �disparate�) impact occurs when a decision based on identical standards for all applicants affects a member of a protected group differently. It is an unintentional form of discrimination. Adverse (or �disparate�) treatment occurs when a decision is based on group membership. That is, an applicant is treated differently because she is a woman, or Asian, or disabled. It is an intentional form of discrimination. A Bona Fide Occupational Qualification (BFOQ) is a legal exception to an otherwise discriminatory hiring practice that is "reasonably necessary to the normal operation of a particular business." The burden is on the employer to prove that a BFOQ is necessary. Race can never be a BFOQ. Business necessity is also a legal defense against discriminatory decisions. And it means just that�necessity, not convenience. A decision that is made because of safety reasons, for example, may rise to the level of business necessity; a decision that is made because of customer preferences usually does not. A prima facie case is made by the plaintiff, who presents evidence that (unless rebutted) would be sufficient to prove a particular proposition or fact. Burden of proof is an obligation on the part of either the plaintiff or the defendant to prove the allegations made by the other party. In discrimination suits, this usually falls on the employer (the defendant).

13. �SHRM 2007 13 How to Develop a Disparate Impact Case Prima facie case is made by the plaintiff, who: Points to a specific test; AND Shows that there is under-representation of relevant labor market (�stock statistics�); AND/OR Shows violation of the �4/5 rule� (�flow statistics�). Burden of proof is on the defendant, who: Rebuts with data showing compliance with either adequate representation of relevant labor market or �4/5 rule�; AND/OR Rebuts with BFOQ or Business necessity defenses; AND/OR Rebuts with test validity data. The plaintiff�s case (prima facie evidence) can be made by an overall claim of underrepresentation in that organization as compared with the total relevant labor market or by showing that the hiring for that position has been underrepresented. This latter concept is referred to as the �4/5 Rule� and is calculated to prove or disprove adverse impact. See calculation. There is often some confusion with explaining the 4/5 Rule. The students usually want to calculate an overall 80% rate. Spend some time on making sure they understand the calculation is between the �selection rates� for the applicants. Here is an example: 100 overall applicants for 10 positions: 60 are men and 40 are women 10 candidates are offered the positions: 9 are men and 1 is a woman What is the selection rate overall? (10%) What is the selection rate for men? (9/60 = 15%) What is the selection rate for women? (1/40 = 2.5%) How is the �4/5 Rule� calculated? (80% of 15% = 12%) Answer: The actual selection rate for women is 2.5%; it doesn�t even approach 80% of the selection rate for men (12%). Disparate impact is occurring. The number of women that should have been hired to avoid a charge of disparate impact would be 5, not 1. Example: Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971). Required reading. Have students read the case and decide how they would prepare a prima facie case (identify the primary �test� and the approach to demonstrate underrepresentation ). Ask several questions that test their understanding of who has the burden of proof, what rebuttal defense they would use, etc.The plaintiff�s case (prima facie evidence) can be made by an overall claim of underrepresentation in that organization as compared with the total relevant labor market or by showing that the hiring for that position has been underrepresented. This latter concept is referred to as the �4/5 Rule� and is calculated to prove or disprove adverse impact. See calculation. There is often some confusion with explaining the 4/5 Rule. The students usually want to calculate an overall 80% rate. Spend some time on making sure they understand the calculation is between the �selection rates� for the applicants. Here is an example: 100 overall applicants for 10 positions: 60 are men and 40 are women 10 candidates are offered the positions: 9 are men and 1 is a woman What is the selection rate overall? (10%) What is the selection rate for men? (9/60 = 15%) What is the selection rate for women? (1/40 = 2.5%) How is the �4/5 Rule� calculated? (80% of 15% = 12%) Answer: The actual selection rate for women is 2.5%; it doesn�t even approach 80% of the selection rate for men (12%). Disparate impact is occurring. The number of women that should have been hired to avoid a charge of disparate impact would be 5, not 1. Example: Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971). Required reading. Have students read the case and decide how they would prepare a prima facie case (identify the primary �test� and the approach to demonstrate underrepresentation ). Ask several questions that test their understanding of who has the burden of proof, what rebuttal defense they would use, etc.

14. �SHRM 2007 14 How to Develop a Disparate Treatment Case Prima facie case is made by the plaintiff, who demonstrates the following: Membership in a protected group; AND Applied and was qualified for job; AND Was rejected despite qualifications; AND Employer continued with applicant search. Burden of proof is on the defendant, who: Rebuts with a legitimate, non-discriminatory reason for the rejection (had better provide objective data!) or establishes a BFOQ; AND/OR Rebuts with test validity data. NOTE: Because disparate treatment is an intentional claim of discrimination, organizations cannot claim that they hired someone who had protected group status (e.g., �But we hired a minority for that job!�). Likewise, job applicants cannot claim that they were rejected because of their protected group status if the organization decides not to hire anyone. To make a prima facie case for disparate treatment, the plaintiff needs to show that the following four aspects occurred. If any of these are missing, the case falls apart: Membership in a protected group; AND Applied and was qualified for job; AND Was rejected despite qualifications; AND Employer continued with applicant search. Example: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This case is required reading. Have students read the case and decide how they would prepare a prima facie case, making sure that all four aspects are present. Ask them what they would do if #4 was not present (which, by the way, is what happened to the Speer v. Presbyterian Home case they will be dealing with in their Mock Court exercise). {{NANCY � this was referred to as �Moot Court� earlier � which one preferred?}} Ask several questions that test their understanding of who has the burden of proof, what rebuttal defense they would use and why, etc.NOTE: Because disparate treatment is an intentional claim of discrimination, organizations cannot claim that they hired someone who had protected group status (e.g., �But we hired a minority for that job!�). Likewise, job applicants cannot claim that they were rejected because of their protected group status if the organization decides not to hire anyone. To make a prima facie case for disparate treatment, the plaintiff needs to show that the following four aspects occurred. If any of these are missing, the case falls apart: Membership in a protected group; AND Applied and was qualified for job; AND Was rejected despite qualifications; AND Employer continued with applicant search. Example: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This case is required reading. Have students read the case and decide how they would prepare a prima facie case, making sure that all four aspects are present. Ask them what they would do if #4 was not present (which, by the way, is what happened to the Speer v. Presbyterian Home case they will be dealing with in their Mock Court exercise). {{NANCY � this was referred to as �Moot Court� earlier � which one preferred?}} Ask several questions that test their understanding of who has the burden of proof, what rebuttal defense they would use and why, etc.

15. �SHRM 2007 15 Let�s Practice For the next class, you will be given a summary of a real discrimination case to read. You will be assigned as either the plaintiff or the defendant in that case. Prepare the prima facie case (if you are the plaintiff) or the rebuttal (if you are the defendant) for the type of case you believe it is (either disparate impact or disparate treatment). You will be given three minutes for your case-in-chief and one minute to rebut the other side�s claims. Students love this exercise, although many will have stage fright. Tell them it is more about their logic and understanding of the concepts than being a trial attorney. Have them write, as well as present, their arguments. You may or may not decide to conduct this as a graded assignment. The benefit of having them actually write it out also helps them be better prepared for the other side�s case. You can act as the judge or you can have three other students be the jury. It is most fun when you have the students act as a jury�they really take it more seriously. You will need to be prepared to explain the actual verdict, because students always want to know what really happened. If you have a class with more than 30 students, you may decide to pair students up as plaintiffs and defendants. If you do this, make sure that each student participates; one can present a summary of the case and the other can do the rebuttal. The cases used here can always be updated with more recent ones or, at least, ones with interesting arguments. There certainly are plenty of them out there. Students love this exercise, although many will have stage fright. Tell them it is more about their logic and understanding of the concepts than being a trial attorney. Have them write, as well as present, their arguments. You may or may not decide to conduct this as a graded assignment. The benefit of having them actually write it out also helps them be better prepared for the other side�s case. You can act as the judge or you can have three other students be the jury. It is most fun when you have the students act as a jury�they really take it more seriously. You will need to be prepared to explain the actual verdict, because students always want to know what really happened. If you have a class with more than 30 students, you may decide to pair students up as plaintiffs and defendants. If you do this, make sure that each student participates; one can present a summary of the case and the other can do the rebuttal. The cases used here can always be updated with more recent ones or, at least, ones with interesting arguments. There certainly are plenty of them out there.