Legal Issues in Employee Selection

1
Legal Issues inEmployee Selection

• Not a question of if,
• but when
• and how often

2
EEOC Complaint Process

• Alleged Discriminatory Act
• Complaint filed with EEOC within 6 mos. (180
  days)
• Employer notified of complaint within 10 days
• Investigation completed within 120 days ok,
  really more like 300 days
• Reasonable cause found
• Attempt to reach agreement with employer
• No agreement, EEOC can sue
• Reasonable cause not found
• Right to sue letter
• 90 days to file suit

3
The Investigation (see Fig. 2.02)

• Does the Requirement Directly Refer to a Member
  of a Federally Protected Class?
• Age gt 40yrs
• Age Discrimination in Employment Act
• Disability
• Americans with Disabilities Act (ADA)
• Vocational Rehabilitation Act (Federal Agencies)
• National Origin (Civil Rights Act)
• Race (Civil Rights Act)
• Color (CRA)
• Religion (CRA)
• Gender (CRA)
• Pregnancy (CRA)
• Vietnam Veterans (Vietnam Veterans Rehabilitation
  Act)

4
Is the Requirement a BFOQ?

• Bona Fide Occupational Qualification
• Only members of a particular class can perform
  the job no exceptions
• According to courts
• Race can NEVER be a BFOQ
• Religion can be (when??)
• Gender seldom is (examples?)
• Customer preference DOES NOT matter!!!

5
Has Local, State, or Case Law Expanded the
Definition of any Protected Class?

• State Law Examples
• OR outlaws discrimination based on marital status
  and smoking status
• WA martial status
• MD obese people
• WI (and 12 others) sexual orientation
• Local Law Examples
• Cincinnati outlaws discrimination against people
  of Appalachian heritage
• Santa Cruz height and physical appearance
• Vancouver actual or perceived sexual orientation
• Portland family status and sexual orientation
• Case Law Examples
• Obesity is a disability
• Former drug use is NOT a disability (current use
  is)
• Transsexuals are not protected under sex

6
Does the Requirement Have Adverse Impact on
Members of a Protected Class?

• Adverse impact
• Occurs when selection rate for a protected class
  is less than 80 of the selection rate for the
  non-protected class.
• Example
• Male Female
• applicants 50 30
• hired 20 10
• Selection Ratio .40 .33
• .33/.40 .83 which is gt .80, so no adverse
  impact

7
Was the Requirement Designed to Intentionally
Discriminate Against Protected Class?

• Old voting requirements designed to make it more
  difficult for minority voters to register
• Florida 2000 Election (2 forms of ID)
• Residency requirements designed to keep
  African-Americans from obtaining local government
  jobs in upper class, white suburbs
• Height requirements for police officers designed
  to reduce women and Hispanic applicants
• Housing occupancy limits to get around
  discrimination against families and/or certain
  racial groups

8
Can the Employer Prove that the Requirement is
Job Related?

• Content Validity
• Method of matching job tasks with KSAs
• Based on solid job analysis
• Criterion Validity
• Correlates test scores with relevant criteria
• Two types
• Concurrent and Predictive
• Requires
• Reasonable sample size (gt50)
• Good range of test and criteria scores
• Good criterion
• Validity Generalization
• Borrows validity from other studies/agencies
• Must be based on similar job analysis results

9
Did Employer Look for Reasonable Alternatives?

• Different test measuring same construct
• Alternative criteria
• Strength rather than gender
• Fitness rather than age

10
Pop Quiz!

• Brooke Waters is the Principal at an
  exclusive private high school that
  only admits female students. She has an
  opening for a history teacher and has stated that
  she will only females because all of her students
  are females. Is this legal??

11
Pop Quiz (cont.)

• Doug Crevice is the CEO for Shovels R Us
  retail chain. Prior to hiring a store manager,
  Mr. Crevice takes job applicants to lunch. If
  they salt their food before taking it, he wont
  hire them because he thinks they are impulsive.
  Is this requirement legal?

12
Pop Quiz (cont.)

• Violet Brown requires all of the companys
  secretaries to have a bachelors degree. In the
  past year, 10 of 50 African American applicants
  had degrees compared to 40 of 100 Caucasian
  applicants. Is this legal?

13
Last One

• Stone Mason will not allow any restaurant
  employee to have long hair (it cannot cover the
  earlobe) or to wear a beard? Is this legal?

14
Affirmative Action

• Many misunderstandings associated with this
  concept
• Always legal
• Active recruitment of minority candidates
• Removal of barriers to success in the
  organization
• Sometimes legal
• Preferential hiring

15
Methods of Preferential Hiring

• WARNING Check legality first!!!
• Set lower cutoff scores for everyone
• Within-group top down hiring
• Banding
• Separate cutoffs
• Bonus points

16
Sexual Harassment (SH)

• The unnamed shall not be taken for the
  nonexistent (MacKinnon, 1979)
• Until recently, sexual harassment had no name nor
  legal existence
• Yet, approximately 1 out of every 2 women will
  experience SH on their job

17
Prevalence

• Most SH is not physically violent, but reflects
  unwanted, intrusive, coercive sexual attention
• SH rates are highest among women in
  male-dominated workplaces
• Worksites with approx. equal numbers of men and
  women have fewer incidents of SH

18
Definition of SH (EEOC, 1980)

• Quid Pro Quo Harassment
• attempts to exhort sexual cooperation by means of
  subtle or explicit threats of job-related
  consequences
• Hostile Environment
• sex-related verbal or physical conduct
• ranges from offensive verbal behavior to unwanted
  sexual attention to sexual assault

19
Reasonable Woman Standard (Harris v. Forklift
Systems)

• SH should be judged from the perspective of the
  victim
• Victim is usually a woman
• Thus, behaviors should be judged as a reasonable
  woman would judge the actions

20
Antecedents of SH

• Organizational Tolerance for SH
• Male-dominated Workgroup
• Organizations are in turn embedded in external
• social,
• political, and
• economic systems

21
Organizational Tolerance for SH

• Assessed by measuring shared perceptions of
  organizational contingencies between behaviors
  and organizational outcomes
• Ifthenstatements
• Assesses perceptions of organizational sanctions
• degree of risk to female reporting the incident
• likelihood she would be taken seriously
• degree to which harasser would be punished

22
Scenarios
(1) One of the employees in your department
makes many comments about women doing jobs they
are not able to do and calls them affirmative
action hires and bitches with attitudes in
front of them. (2) An employee in your
department keeps asking the women in the
department to go out with him after they have
said they do not want to.
23
Responses

• 1) How risky would it be for a woman in your
  department to make a formal complaint about this
  man?
• A. Extremely risky she would almost
  certainly create serious problems for herself
• B. Very risky
• C. Somewhat risky
• D. Slightly risky
• E. No risk she would not create any problems
  for herself.

24
Responses

• 2) How likely is it that a woman in your
  department would be taken seriously if she filed
  a complaint about this man?
• A. Almost no chance she would be taken seriously
• B. Little chance
• C. Some chance
• D. Good chance
• E. Very good chance she would be taken seriously

25
Responses

• 3) What do you think would be done if a woman
  made a formal complaint about this man?
• A. Probably nothing would be done
• B. Very little maybe someone would talk to him
• C. He would be told to stop
• D. He would be given a formal warning
• E. There would be a very serious punishment.

26
Consequences of SH

• Job-related Outcomes
• Job Withdrawal
• turnover and retirement intentions
• Work Withdrawal
• absenteeism, tardiness, avoiding work tasks
• Psychological Outcomes
• Job Attitudes
• Health Outcomes
• Physical Health
• Psychological Health

27
Family Medical Leave Act (1993)

• Eligible employees (male and female) entitled to
  12 weeks of unpaid leave for
• Birth
• Adoption
• Serious illness of child, parent, or employee
• Law covers all private and public organizations
  with 50 employees within 70-mile radius
• Employee Eligibility
• Work for covered employer
• Worked for employer for at least one year
• Have worked at least 1250 hours over past year
• Exception Top 10 paid employees (Key
  employees)