TitleVII Violation Within The Last Five Years

HRMD 610

Introduction to Week 2 (Lecture)

 

Agenda

 

Orientation to the Week

Discrimination – Key Laws

Title VII – Disparate Treatment, Adverse Impact, and Harassment

Pregnancy Discrimination Act (PDA)

Preventive Measures

 

Orientation to the Week

This week, we will begin learning about the many legal issues that arise during the development and implementation of human resources practices and programs, and the corresponding laws that determine what employers and employees can and cannot do in the workplace. The topics are so diverse and encompass such a large body of literature that the area of legal compliance in HR will span this week and the next.

As we discussed in Week 1, the field of HR appears to include a hodgepodge of processes– recruitment and staffing, performance management, training and development, and change management, just to name a few. Each organization will have its own policies and rules as to how things will be done, but there are overarching laws that dictate basic HR ground rules. Such laws are evident at the federal, state, and local levels. Since this course is designed to present concepts that are fairly universal in the workplace, we will primarily concern ourselves with federal human resource laws and will only mention state and local laws in general terms.

Discrimination – Key Laws

The first legal issue we will tackle is that of discrimination in the workplace. According to the Cambridge Dictionary of the English Language, discrimination is defined as “the treatment of a person or particular group of people differently, in a way that is worse than the way people are usually treated” ( http://dictionary.cambridge.org/us/dictionary/english/discrimination ). Over the course of more than 50 years, the federal government has enacted many laws to promote and enforce anti-discrimination in the workplace. Such laws and amendments to those laws include, but are not limited to:

· Title VII of Civil Rights Act of 1964

· Civil Rights Act of 1991

· Pregnancy Discrimination Act

· Age Discrimination in Employment Act

· Americans with Disabilities Act

· Rehabilitation Act

· Equal Pay Act

· Family and Medical Leave Act

In general, federal anti-discrimination laws are based on an individual’s possession of certain characteristics that are commonly accepted to be static over time. For instance, Title VII of the Civil Rights Act of 1964 expanded an earlier civil rights act (1866) so that federal law would cover race, color, sex, religion, and national origin. Later, federal laws were introduced to also protect individuals over the age of 40, those with certain physical and mental challenges (or disabilities), and those caring for themselves or a family member with specific categories of health conditions. Most states also have their own anti-discrimination laws, many of which include other characteristics, such as marital status, that are not covered under federal statutes. It is important to keep in mind that state laws can supplement federal laws and provide additional guidelines, but they cannot conflict with or over-ride federal law; federal laws always supersede.

The assigned readings for this week provide in-depth coverage of the Civil Rights Acts of 1964 and 1991, and the Pregnancy Discrimination Act so this introduction does not contain a detailed legal discussion of them. Instead, the following paragraphs provide an overview and frame the laws in an HR context.

One could make a strong case that Title VII of the Civil Rights Act of 1964 is the most important law impacting HR processes in the workplace. The Act establishes classes or groups of employee characteristics that are protected from discrimination in most circumstances. Those characteristics are: race, color, national origin, religion, and sex, which are all referred to as “protected classes.” It is illegal for companies with 15 or more employees to treat individuals in those classes in a manner that denies them employment opportunities and benefits. Title VII covers job applicants, employees, and past employees and includes positions, promotions, and benefits (U.S. Department of Justice, 2015,  https://www.justice.gov/crt/laws-enforced-employment-litgation-section ). The law even applies to the work environment itself. The Civil Rights Act of 1991 increased protections under Title VII so that companies accused of adverse impact have the burden of proof to show that their practices did not intentionally result in discrimination once an employee establishes a prima facie case. “Prima facie” is Latin for “at first light” (https://www.law.cornell.edu/wex/prima_facie) and basically means “on the face of it.” As will be discussed in this week’s readings, a prima facie case of discrimination is where the employee or plaintiff shows “circumstances exist that support an inference of discrimination/retaliation” ( http://www.eeotraining.eeoc.gov/images/content/EXCELHandouts/1B%20Basic_Theories_of_Discrimination.pdf ). In other words, the employee has sufficient evidence to suggest strongly that discrimination did take place. The Civil Rights Act of 1991 also provides for plaintiffs to be awarded both actual and punitive damages and for juries (not just judges) to be used to rule on discrimination lawsuits, asking for either compensatory or punitive damages.

Religious institutions are exempt from Title VII and, while firms with fewer than 15 employees are also exempt, they must, if applicable, adhere to similar state laws. As outlined in this week’s reading, the Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with overseeing and enforcing Title VII. During the 2015 Fiscal Year, the agency handled almost 90,000 discrimination filings ( https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm ). That number was up from 2014 but down from the preceding six years. From the EEOC’s website, we can see that perceived race and sex discrimination along with retaliation remain top issues in the workplace (see https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm ).

 

Title VII – Disparate Treatment, Adverse Impact, and Harassment

 

In the workplace, there are many types of discrimination claims you might have to address. To start, there is disparate treatment (the intentional act of treating some categories of workers differently than other groups of workers) and adverse impact (the unintentional consequence that occurs from practices that are designed to be equitable, but have the result of treating some employees differently than other  groups  of employees). There is also workplace harassment, which is aggressive, persistent intimidation of an employee based on certain characteristics he/she possesses (United States Department of Labor, Civil Rights Center, https://www.dol.gov/oasam/programs/crc/2011-conduct.htm). In the workplace, harassment can come from coworkers, supervisors, vendors and suppliers – anyone in an employee’s work environment or anyone with whom the employee has contact during the conduct of work duties.

The most common type of harassment is sexual harassment, which the EEOC defines as “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment” (Cornell University Law School, Legal Information Institute, n.d.,  https://www.law.cornell.edu/cfr/text/29/1604.11 ). Sexual harassment comes in two forms:  (1) quid pro quo, when an employee is told or perceives that conditions of employment or advancement depend on engaging in sexual favors; and (2) hostile environment, when unwanted behavior or comments interfere with an employee’s ability to perform his/her work duties.

 

Pregnancy Discrimination Act (PDA)

As mentioned earlier, there are many federal laws that impact HR practices. Another one that we will read about this week is the Pregnancy Discrimination Act (PDA) that is an amendment to Title VII of the Civil Rights Act of 1964. The law deems it unlawful to treat a worker unfairly because of medical conditions or issues related to pregnancy or childbirth. Pregnant applicants and workers must be afforded the same opportunities as other workers, and pregnant employees are allowed to work as long as they are able to perform their jobs ( https://www.eeoc.gov/eeoc/publications/fs-preg.cfm ).  PDA was enacted almost thirty years ago but, according to the American Association of University Women:

Even though the PDA has been in force for more than thirty years, pregnant women continue to face negative stereotypes and unfair treatment. A study in the United Kingdom showed that 76 percent of employers surveyed would not hire a woman if they knew she would become pregnant in the next six months. Other recent studies, conducted by researchers from George Mason University and Rice University, found that women who appeared pregnant while applying for jobs faced the risk of patronization or even hostility (AAUW, n.d., http://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/pregnancy-discrimination-act/ ).

Preventive Measures

It may seem like common sense, but it is always better for organizations to take proactive steps to prevent legal claims rather than combat them after the issues have escalated. So, what can HR professionals due to help ward off employment law violations? It depends upon whom you ask. A quick internet search will result in thousands of websites, each with slightly different recommendations. One thing is clear – HR professionals must be knowledgeable of the law and proficient in explaining its application to employees, supervisors, and others in the workplace. There should also be clear and frequent communication with employees so they understand their rights and responsibilities. Likewise, supervisors and managers must be properly trained and held accountable when they violate the law. Staying abreast of relevant federal, state, and local HR laws isn’t easy, but it is vital to an organization’s survival.