人力资源管理01LegalAspects.docx

1、人力资源管理01LegalAspectsHUMAN RESOURCE MANAGEMENTLEGAL ASPECTS OF HUMAN RESOURCE MANAGEMENT Dr. Dan TrotterRev 06/30/08I. IntroductionA. what we will focus on1. general legal principles concerning the laws against employment discrimination2. Specific United States laws against employment discriminationa

2、. different categoriesi. raceii. sexiii. ageiv. disabilitiesv. homosexuality3. Affirmative Actiona. special rights given to specially favored groupsII. General Legal Principles Concerning Employment DiscriminationA. Objectives of the laws1. Equal OPPORTUNITY, not equal OUTCOMES a. the law does not g

3、uarantee that everyone will make the same amount of money B. Two types of illegal discrimination1. Unequal treatmenta. also called “disparate treatment”b. this type of discrimination is intentional c. examples i. open expression of hatred, disrespect, inequality ii. one group treated differently tha

4、n another group (1) standards(a) examplei) Beijing students must make a 90 to pass, all others need a 70 to pass(2) procedures(a) Beijing students only have one hour to take exams, all others have two hours(3) facilities (a) Beijing students cant use the football field, all others can (4) miscellane

5、ous examples (a) must be under 40 (b) womens basketball coach - women only (c) no girls football at college (d) race-norming tests i) scores of black applicants inflatedA/ so that more could be hired or accepted in school 2. Adverse Impact a. neutral standardsi. company has not intent to discriminat

6、eii. however, one group affected differently b. examples (1) Must be 58 for accounting jobs (a) discriminates vs. Asians & women c. continuation of the past effects of discrimination (i) any standard, procedure, or facility that perpetuates disadvantages arising from past discrimination (a) example

7、i) word of mouth recruitment in a company where all white employees due to past discrimination d. adverse impact may possibly be legal(1) if standards are job-related (a) example (1) must be able to climb telephone poles in 15 seconds A/ if 90% of hirees are men, this is nevertheless legal (2) probl

8、em examples (1) push up standards in military academic discriminate versus women? (2) whites in NBA discriminated against C. Employment Case Law: Some General Principles 1. In General a. necessary to show a prima facie case (1) if showing discrimination is unequal treatment (intentional) (a) 4-part

9、McDonnell-Douglas v. Green test i) plaintiff in a protected class ii) applied for and qualified for job iii) rejected iv) job stayed open, employer kept seeking applications(2) if showing adverse impact (unintentional) discrimination (a) selection group less than 20% of majority group 2. Seniority a

10、. problem i. senority systems are allowed to discriminateA/ how this might happen1/ older workers tend to be white malea/ so, if promotions, layoffs, etc., done on basis of seniorityi/ white males will be “favoredii/ “Last-in-first-out” system will mean ethnic minorities and women will be first-fire

11、dB/ seniority system may discriminate only if discrimination not done intentionally 3. Testing a. OK, but must be related to job (1) cant give an IQ test4. requiring a high-school diplomaa. cant requirei. unless related to job 5. Interviewing a. cant ask questions that are fair in form but discrimin

12、atory in operation (1) whats your maiden name? (2) ever been arrested? (3) do your church activities keep you from working weekends? b. employer bears burden of proof that requirement is job-related c. intent to discriminate is irrelevant (1) result is only thing that mattersIII. Specific United Sta

13、tes laws against employment discriminationA. different categories1. race discriminationa. United States lawi. legal statutuesA/ Title VII of Civil Rights Act of 1964 a. most impt law (1) broadest coverage (2) broadest remedies b. six exceptions to Title VII (1) Bona fide occupational qualifications

14、(BFOQs) (a) when necessary for operation of business (b) courts construe very narrowly i) examples a) sperm donor b) wet nursec) clothes store, helper to help ladies undress (2) seniority systems (a) OK if they discriminate in favor of white males i) as long as no intent (3) preemployment inquiries

15、(a) OK to ask race, sex questions i) if job-related a) if not job-related 1/ OK to fulfull reporting requirements a/ if voluntary (4) testing (a) OK if doesnt discriminate (5) veterans preference (a) OK to discriminate if no intent to discriminate against anybody else (6) national security (a) OK to

16、 discriminate vs. Communist partyB/ Civil Rights Act of 1991a. race-norming illegalb. US Senate and President (finally!) subject to nondiscrimination lawsii. case law A/ Griggs case (1971, U.S. Supreme Court) 1/ test must be job-related a/ even tho there was equality of opportunity to take the test

17、b/ even if administered equally to all applicants 2/ examples of tests that are NOT job-related a/ high-school diplomas are NOT automatically job-relatedb/ IQ test NOT job related i/ at least hard to prove so 3/ practical problem for company a/ often costs a small fortune to validate tests i/ to sho

18、w that they are job-related B/ Bakke case (1978) 1/ Facts a/ University of California at Davis med school set aside 16 of 100 places for minoritiesi/ so whites cd compete only for 84 places, minorities for all 100 2/ courts decision a/ quota system was violation of equal protection for whites b/ aff

19、irmative action OK, if a/ no rigid quota system i/ race can be a issue consideredA) but it cant be the only issue2. sex discriminationa. sex discrimination in general i. refers to discrimination in hiring or promotion practicesii. United States lawA/ legal statutues 1/ Equal Pay Act of 1963 a. men a

20、nd women to be paid equally i/ conditions A) working for same establishmentB) work substantially equalB/ case law 1/ * name of the case?a/ factsi/ womens and mens basketball coaches at Stanford UniversityA/ mens coach (a male) made $110,000 1/ average results 2/ ability to raise great amounts of mon

21、ey for the universityB/ womans coach (a female) made $94,0001/ three national championships2/ not much ability to raise funds b/ held i/ Stanford discriminated on the basis of gender c/ discuss: was Stanfords discrimination reasonable b. pregnancy discriminationi. United States lawA/ legal statutes

22、1/ Pregnancy Discrimination Act of 1978 a/ protects pregnant women from employment discrimination i/ examples of things pregnant women cant get less of A/ vacation time B/ sick leave C/ health insurance b/ pregnant women must be allowed to work during their pregnancy i/ all the way up to the point w

23、here the pregnancy interferes w/ job performance 2/ Family Medical Leave Act of 1993a. workers have up to 12 weeks leave to take care ofi. childA) birth, adopted, foster care1) wi/ a year after childs arrivalii. seriously ill parent, spouse, child, or selfb. leave is UNPAIDc. top 10% SALARIED worker

24、s are exemptd. health insurance maintainede. job held open for leave takersf. doesnt apply to companies w/ employees 50i. 95% of all businessesB/ case law 1/ International Union, UAW v. Johnson Controls, Inc.(1991, U.S. Supreme Court) a/ fetal protection policy is discriminatory i/ women cant be kep

25、t out of jobs dangerous to baby A) company argued discrimination against women a BFOQ1) note: if baby deformed, corp going to get sued again!b. sexual harassmenti. United States law a. legal statute i. 1964 Civil Rights law A) prohibited discrimination based on sex as well as race b. case law i. gen

26、eral principles A/ who may take advantage of the laws against sexual harassment 1/ women 2/ men 3/ homosexuals B/ two main types (a) quid pro quo (you give me this, Ill give you that) i) harassment is a condition of employment ii) employer is liable even if employer knew nothing about harassment b)

27、ex - supervisor harasses, boss doesnt know (b) hostile work environment i) graphic commentaries on victims body ii) dirty pictures on wall iii) sexually degrading words iv) propositionsC/ at which level does the activity become actionable?1/ offensive to a reasonable person?a/ some states: “a reason

28、able woman”b/ problem i/ it hurts the expression of non-sexual affection between the sexes A/ examples 1/ “Your hair looks nice today” 2/ light pat on the shoulder ii. specific casesA/ Faragher v. City of Boca Raton (1998, U.S. Supreme Court) and Burlington Industries v. Ellerth (1998, U.S. Supreme

29、Court) 1/ established the requirements for a companys defense a/ no tangible injury to the plaintiff i/ but note: emotional distress is an injury to the plaintiff b/ employer exercised reasonable care to prevent and correct harassment i/ what companies do now to show “reasonable care” A/ post and prohibit specific definitions of sexual harrassment B/ prohibit retaliation against women who complain of sexual harassment C/ mu