Management 351 Class 2

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Management 351 Class 2

• Chapters 3 and 14
• Revisions to syllabus
• Change/confirm paper length 4-6 pages
• Rework schedule
• Matewan is now extra credit
• Room change requested
• Notes/website reminder

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Chapter 3 EEO and Legal

• Whats the point?
• Doing the right thing
• Managing risk
• Protecting employer rights
• Employee advocate
• Protecting employee rights

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Employment law shifting sands

• A dynamic legal landscape
• Courts constantly change foundations
• Legislative changes less frequent
• Proposed FLSA revisions
• Complexity is an issue
• ADA 1,000 disabilities affecting 43MM

4
Color blind vs color conscious

• Fair employment
• Decisions are made without regard to color
• Broadly speaking, protected classes are
  protected
• Affirmative Action
• Seeks to right past wrongs
• Decisions, themselves, NOT affected
• Processes ARE affected

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Equal Pay Act

• Essentially equal pay for equal work
• Applies broadly to men and women
• Exceptions
• Does not prohibit merit pay
• Quantity and quality of production
• Bona fide seniority plans
• Has it worked???

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Title VII of the 1964 Civil Rights Act

• Often referred to as the CRA
• Most important employment legislation on the
  books
• Passed one year after MLKs I have a dream
• Applies to employers with 15 employees
• Established protected class categories

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Protected classes

• Race
• Color
• National origin
• Age
• Religion
• Disability
• Gender/sex
• Pregnancy

• Sexual orientation
• Marital status
• Familial status
• Family leave
• Injured workers
• Whistle blowers
• Retaliation
• Association

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Discrimination defined

• Discrimination making distinctions
• Discrimination happens all the time!
• Discrimination based on protected class status is
  the key (remember this!)
• Disparate treatment intentional
• Adverse impact (disparate impact) unintentional
  (chart page 92)

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Griggs v Duke Power

• Companies may be guilty despite their best
  efforts to not discriminate
• Burden of proof placed on employers
• Must show that tests are not discriminatory in
  their impact

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Defending against discrimination charges

• Plaintiff establishes prima facie case
• On its face the actions appear discriminatory
• Disparate treatment uses McDonnell-Douglas test
• Applicant not hired
• Applicant was qualified
• Applicant is a member of a protected class
• Company hired someone in another class after
  rejecting the applicant

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Prima facie and four-fifths rule

• UGESP
• EEOC provision for establishing evidence of
  discrimination
• Compares hiring rates of protected classes to
  those of majority classes (example on page 93)
• Whites hired at 50 African Americans at 25
  four-fifths (80) of 80 of 50 is 40 which is
  more than 25 (!)

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After prima facie

• After prima facie case is established (i.e. the
  employer appears to have discriminated) the
  burden of proof shifts
• Employer defenses
• Job relatedness (most common)
• BFOQ
• Seniority
• Business necessity

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Title VII and pregnancy

• Protects women based either on
• Their ability to become pregnant
• Their actual pregnancy
• Or a related condition

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Harassment

• Based on any protected class
• Includes general harassment
• Includes sexual harassment
• Has this suddenly become an issue?

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EEOC statistics

• FY 2001
• 59,631 Charges filed with EEOC
• 146.8 million in monetary benefits
• FY 2002
• 14,396 Harassment Charges filed with EEOC
• Ten year increase of 249 (1989 to 1999)
• FY 2001
• 22,257 Retaliation Charges filed
• Ten year increase of 201

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How pervasive is harassment?

• Some statistics
• 31 of females and 7 of males
• 62 of those harassed took no action
• 100 of women report it was a man
• 59 of men report it was a woman
• 43 report it was a supervisor
• 27 report it was someone senior to them
• 19 report it was a peer-level employee
• 8 report it was a junior-level employee

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Two broad categories

• Quid pro quo literally this for that
• Hostile work environment
• Teresa Harris v Forklift Systems
• The behavior need only be such that a reasonable
  person would be offended
• EEOC definition of harassment (page 95)
• Supreme Court guidance (page 96)
• Same sex-sexual harassment

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Managing risk

• Employers may be held liable for actions of their
  managers even if they were unaware of the actions
• Employer defense
• Reasonable care to prevent
• Plaintiff failed to report
• Personal liability exists for managers and
  co-workers alike

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Civil Rights Act of 1991

• Amended 1964 CRA
• Burden of proof returned to Griggs standard
  (shifted BOP back to employers)
• Quotas specifically outlawed
• Damages and jury trials
• Enabled both
• Punitive damages
• Compensatory damages

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Executive order 11246

• Established affirmative action
• 50 and 50 rule 50 employees and 50k in
  federal contracts or subcontracts

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Other laws

• ADEA of 1967
• Protects those over 40 (originally 40-65)
• ADA of 1990
• Employment discrimination is prohibited against
  individuals with disabilities who are able to
  perform the essential functions of the job with
  or without reasonable accommodation

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Individuals with disabilities

• (sample list on page 100)
• Definition substantially limits a major life
  (NOT WORK) activity
• Toyota employee with carpal tunnel not successful
  in ADA case
• Extends to those perceived as disabled
• Excludes drug and alcohol unless under treatement

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Essential Functions

• The reason the job exists is to perform the
  essential functions
• Marginal functions
• Secondary job requirements
• Job functions done on an ad hoc basis
• Duties that are performed as a back up

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Reasonable accommodation

• No bright line test
• Varies depending on situation and employers
  resources

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Enforcement

• EEOC enforces civil rights laws
• EEOC roles
• Investigation
• Conciliation
• Litigation
• OFCCP enforces laws and executive orders
  (affirmative action)

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Affirmative Action Plans

• Essentially a comparative document with
  corrective action
• Compares
• Workforce availability to
• Workforce utilization
• Includes specific actions to address gaps in
  utilization

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Chapter 14 Your rights

• A right the ability to engage in conduct that is
  protected by law or social sanction free from
  interference by another party.
• Statutory rights protected by law
• Contractual rights protected by wait for it
  contracts

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Comparison of rights

• Statutory, contractual and other rights (table
  page 467)
• Wrongful discharge discharge based on protected
  class status
• Constructive discharge
• Limited right to privacy
• Limited right to free speech

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Management rights

• Essentially to run a business as seen fit and to
  retain profits
• Employment at will
• Either party can,
• Enter into or dissolve the employment
  relationship,
• At any time,
• For any reason,
• Without or without notice.

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Legal limitations to at-will

• Public policy exceptions
• Filing workers compensation claim
• Exercising legal duty (i.e. jury duty)
• Refusing to violate professional ethics
• Refusing to lobby for a political candidate
  favored by an employer
• Implied contracts what you say CAN hurt you!
• Pages 472 to end of chapter skim and be familiar
  light coverage

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