Ch. 3

• The Legal Process


  • Resolving the complaint Internally
  • Filing a Discrimination Charge
  • Outcomes of an EEOC Investigation
• Resolving the complaint Internally

  1. Before a complaint can be fired with the EEOC, an employee must utilize whatever internal resolution process available within the organization

  2. Grievance System - employee take their complaints to an internal committee that makes a decision regarding the complaints

  3. If the employees did not like the decision, they can take the complaints to EEOC (DOLE or CSC)

  4. Mediation - employees and the organization meet with a neutral third party who tries to help the two sides reach mutually agreed upon solution

  5. Arbitration - two sides present their case to a neutral third party who then makes a decision to which side is right
• Binding Arbitration


  Neither side can appeal the decision
• Nonbinding Arbitration


  The parties can either accept the decision or take the case to the court
• Filing a Discrimination Charge

  1. A charge of discrimination is usually filed with a government agency

  2. A state agency is sued if the alleged violation involves a state law; and a federal agency handles alleged violations of federal law
• Outcomes of an EEOC Investigation

  1. If, after reviewing a complaint, the government agency does not find merit: if the decision is accepted, the process ends and if he did not accept, then he is issues a "right to sue" letter (entitling him to hire private lawyer and file the case himself)

  2. If the discrimination has merit, it will try to work out a settlement between the claimant and employer without taking the case to the court

  3. If a settlement cannot be reached, the case goes to a federal district court

  4. When the district court makes a decision, the decision becomes Case Law (judicial interpretation of a law and is important because it establishes a precedent for future cases)
• Employment Practices


  • Hiring
  • Training
  • Firing
  • Promoting
  • Assigning employees to shift
  • Determining pay
  • Disciplining
  • Scheduling vacations
• Protected class


  Any group of people for which protective legislation has been passed
• Protected classes


  • Race (Civil Rights Acts of 1866, 1964, and 1991, Fourth and Fifth Amendments to the U.S. Constitution)
  • Skin color (Civil Rights Act and Equal Pay Act of 1963)
  • Sex (Civil Rights Act and Equal Pay Act of 1963)
  • National Origin (Civil Rights Act)
  • Religion (unless the nature of the job is religious)
  • Age (Age Discrimination in Employment Act (ADEA))
  • Disability (Vocational Rehabilitation Act of 1973, Americans with Disabilities Act (ADA))
  • Pregnancy (Pregnancy Discrimination Act)
  • Vietnam-era veterans (Vietnam-Era Veterans Readjustment Act)
• Bona Fide Occupational Qualification (BFOQ)


  A job can only be performed by a person in a particular class
• An employment practice may not violate a federal law, but it may violate one of the many state and local laws that have been passed to protect additional groups of people
• The definition of protected classes can be expanded or narrowed by court decisions
• Adverse Impact


  A particular employment decision results in negative consequences more often for members of one race, sex, or national origin than for members of another
• Four-Fifths Rule


  The percentage of applicants hired from one group is compared to the percentage of applicants hired in most favored group
• Adverse impact refers to percentage rather than raw numbers
• If an employment practice does not refer directly to a member of a protected class but adversely affects the protected class, the courts will look closely at whether the practice was initiated to intentionally reduce the pool of qualified minority applicants
• An employment practice resulting in adverse impact may still be legal as long as the test is job related and as long as reasonable attempts have been made to find other tests that might be just as valid but have less adverse impact
• Seniority System


  To be considered as bona fide, the purpose of the system must be to reward seniority; not to discriminate
• In certain circumstances, it is legal for an employer to discriminate against a member of a particular national origin or other protected class when it is in the best interests of the nation's security to do so
• Most civil service jobs provide extra points on tests for veterans of the armed forces
• If an employer proves a test is job related, the final factor looked at by the courts is the extent to which the employer looked for other valid selection tests that would have less adverse impact
• Types of Harassment


  • Quid Pro Quo - granting of sexual favors is tied to such employment decisions such as promotions and salary increases
  • Hostile Environment - sexual harassment occurs when an unwanted pattern of conduct related to gender unreasonably interferes with an individual's work performance
• Hostile Environment


  • Conduct must be a pattern of behavior rather than an isolated incident
  • Conduct must be due to the sex of employee
  • Any pattern of behavior based on gender that causes an employee discomfort might constitute sexual harassment
• Organizations Liability for Sexual Harassment

  1. The courts look first at the organizations attempts to prevent the behavior

  2. The organization must have well-conceived policy regarding sexual harassment, must have communicated that policy to its employees, and must have enforced that policy

  3. If there is complaint, it is essential that the organization investigate the complaint quickly and then promptly take any necessary action to rectify the situation and punish the offender

  4. All complaints must be investigated

  5. The organization's policy must encourage victims to come forward and afford them multiple channels or sources through which to file their complaint

  6. Complaint must be confidential

  7. Action must be taken to protect the accuser during the time the complaint is being investigated

  8. Both the accused and accuser must be given due process

  9. The results of the investigation must be communicated in writing to both parties

  10. The severity of the punishment must match the severity of the violation

  11. It is the best of an organization to be proactive and precent harassment
• Family Medical Leave Act

  • Entitles that eligible employees a minimum of 12 weeks of unpaid leave each year to deal with family matter
  • Employers can decide if they want to define the eligibility period as calendar year or as rolling 12-month period as calendar year
  • Serious Health Condition - any period of incapacity of more than 3 consecutive days and at least 2 visits to a healthcare provider or one visit and issuance of medicine; or any period of incapacity due to chronic serious health condition requiring periodic treatment; or any period of absence to receive multiple treatments for a condition that would result in a 3 or more day period of incapacity if left untreated
• Affirmative Action Goals


  • Monitoring Hiring and Promotion Statistics
  • Intentional Recruitment of Minority Applicants
  • Identification and Removal of Employment Practices working against minority applicants and employees
  • Preferential Hiring and Promotion of Minorities
• Reasons for Affirmative Action Plans

  • Involuntary - Government regulation, Court Order
  • Voluntary - Consent Decree, Desire to be a good citizen
• Any form of preferential hiring or promotion must undergo a strict scrutiny analysis – the plan must narrowly tailored and meet a compelling government interest
• Criteria for Legality of Preferential Hiring and Promotion Plans

  • Whether there has been a history of discrimination by a particular organization
  • The extent to which the plan benefits people who were not actual victims of discrimination
  • Which of two types of population is used to statistically determine discrimination and to set affirmative action goals
  • Whether the remedy designed to help minorities is narrowly tailored
  • An affirmative action plan cannot continue indefinitely it must end when certain goals have been obtained
• Employees hired due to affirmative action plans were perceived by coworkers as less competent, devalues their performance, and behave negatively towards them
• Drug testing of current employees must be based on reasonable suspicion (there is a reason to suspect that employees are using drugs at work)
• The court should consider the extent to which special needs of the employer outweigh the employees right to privacy when it comes to drug testing
• Other factors to be considered for drug testing: accuracy of drug testing and the care and privacy taken during the testing
• Office and locker searches are allowed as long as it is reasonable and with cause
• Psychological tests may be illegal if its questions unnecessarily invade the privacy of an employee
• Organizations should tell their employees that they are being monitored and at the time of hire, get new employees to sign consent forms agreeing to be monitored